yellow bits

Lately, I’ve been having a number of conversations about net neutrality with libertarians and conservatives, who align themselves with total anti-regulation philosophy.  Not to get to get into too much caricature, but most of the arguments seem to be that net neutrality is either the new “fairness doctrine” or just another attempt at more government intervention in our lives.  They fear an Internet, where you’ll have to reveal your party registration in order to post a comment on a blog.  Sadly, this is just a case of grossly misunderstanding what the debate about network neutrality is about.

Partly, this misunderstanding is because net neutrality itself isn’t well defined.  Most of us pro-net neutrality supporters agree that ISPs should have “reasonable network management practices.” More on that later.  In the meantime, FCC Chairman Julius Genachowski has outlined a number of principles, which I for one agree with preliminarily.  For the next few months, the FCC will be taking public comments before they turn these principles into actual rules.

But back to the debate, this controversy for or against net neutrality is fundamentally about the role of government in our lives.  Does the government have a role in regulating communications over pipes that ISPs built and manage themselves?  Yes and no.  I do not subscribe to a black and white view of the role of government.  I believe there is plenty bad as well as plenty good that the government has, can and will do in our lives.  Balance, the middle path and pragmatism is what I subscribe to.

Let’s be honest about this debate.  Absolutely nobody is asking that the government censor and monitor all communications on the Internet.  (I’m pretty sure they already do monitor the Internet to some extent, but again that’s something else.)  Net neutrality is not about having a conservative counterpoint for every point a liberal makes.  At the same time, the libertarian view that the free market should dictate all the rules that govern the Internet grossly simplifies a complex debate and ignores the realities of externalities, which will arise from a purely free market solution.

First, government doesn’t entirely screw things up.  (It does screw up a lot of things but let’s give it some credit.)  Let’s remember that the Internet is an off-shoot of DARPA, a government program that was initially started so that the defense network could still communicate in case a large portion of the network were destroyed in a nuclear war.  TCP/IP were developed for the government for use on ARPANET.  When the government declared that TCP/IP was the standard for military networking, it became the de facto standard for sending information over the Internet.  In essence, it was the birth of the Internet’s plumbling and entirely government decreed.  Today, ISPs enjoy plenty of unnatural, un-market-driven government intervention.  I’ll get to that in a second.

Next, let’s remember that we’re talking about two entirely different aspects of the Internet: the content and the transmission.  Net neutrality is not about content.  Post whatever you want.  It’s about the transmission.  Most supporters of net neutrality would agree that we just want to be able to transmit whatever unharmful data we’d like.  How much of that data is another but related debate.

The transmission of data is fundamentally and physically limited to the wires that run from your computer and through the walls.  Most consumers only have only one or two options to access high-speed broadband Internet.  The broadband market naturally doesn’t really exist for consumers.  For example, I only have a SINGLE broadband provider in my apartment building.  I cannot choose among a litany of ISPs, nor can I choose to leave my service.  I’m stuck in this market failure.

So what to do?

I propose a compromise: ISPs who want to police and regulate their networks should lose DMCA safe harbor protection.  Who-na-what-na?

The crux of the libertarian argument against network neutrality is that ISPs, which have built their own networks, poured money into their operations and manage their operations day-to-day, should have the final say on what crosses their transmission lines.  ISPs after all are responsible for how their networks behave.  That’s fine as long as they are responsible for how their networks misbehave.  Currently, ISPs in the United States are indemnified against actions of their users.  AT&T can’t be held responsible if one of its customers launches a DDoS attack against a Verizon customer.  Comcast can’t be held responsible if one of its customers hosts child pornography on its network.  Time Warner is not responsible if a terrorist uses its network to contact another terrorist.  ISPs love their safe harbor protection.  They want to police their networks and not have any responsibility.

Well, I propose that they can’t have their cake and eat it too.  On the flip side, if ISPs agree to network neutrality (i.e. open access to all applications, reasonable network management practices, promise not to filter content on their networks or degrade web applications), then they get all the indemnification they want.

As far as reasonable network management is concerned, I’m not sure how to formulate that into enforceable law or regulation, but in general, I want a ISP to throttle BitTorrent traffic so that it doesn’t kill my connection to Hulu.  Lord, have I cursed the residents in my building for pirating the latest Wolverine movie while I watched the latest episode of Family Guy.  I want a ISP to filter out a DDoS attack against my favorite website.  I do not want them to degrade access to Facebook because they struck a deal with MySpace or block access to Skype because they want me to buy their VoIP phone service.