Welcome to Net Law’s inaugural post. This blog will cover Internet law, with a focus on how the law treats the creation, distribution, and use of Internet content. It is only fitting that Net Neutrality is our first topic. First popularized by Columbia law professor Tim Wu, the term confusingly incorporates many meanings. To some, it means that the Internet should be as nonspecialized as possible in transmitting data through the network. Data flow should not be prioritized according to how the customer ultimately uses the data, but should instead be delivered without regard to what type of data the underlying packets contain. The network does not need to know whether the packets contain video, audio, or email data. It just passes the data from the point of origin to the final destination. To others, Net Neutrality has a more specific meaning: Internet access providers like ATT and Verizon should not be allowed to push preferred content through the Internet at the expense of non-preferred content. Despite the differences in interpretation, Net Neutrality advocates are all motivated by a concern that the interoperable Internet as we know it is in danger of being splintered into competing sub-networks. SBC (now ATT) CEO Edward Whiteacre almost singlehandedly aroused Net Neutrality advocates into action with this statement regarding Google, MSN, Vonage, and other Internet-based businesses that offer real-time communications services over the Internet:

Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?

Full text here. Whiteacre’s implication is that these companies do not currently pay for the bandwidth they use. The more ominous implication to some observers is that when Internet companies offer services such as VoIP (Voice Over Internet Protocol) that compete with ATT’s voice services, ATT and other carriers will put up tollbooths. Traffic to and from Internet companies that pay up will be given first priority, while those unable or unwilling to pay the fee will not be dropped in priority, resulting in poor service. But is the mere possibility of anticompetitive behavior by the telecoms enough of a justification for new legislation? While the telecommunications industry obviously wants to maximize its return on infrastructure investment, so far there have been no substantial violations of Net Neutrality by the backbone providers. Supporters of Net Neutrality see a balkanized Internet in which alliances between content providers and backbone carriers lead to the ATT/Yahoo!/Microsoft Net, the Verizon/Google Net, and so on. As you might expect, eBay, Google, Yahoo!, and other content providers support Net Neutrality. They are joined by a sometimes startlingly broad coalition of advocacy groups that includes the ACLU, the Christian Coalition of America, Common Cause, Gun Owners of America, and MoveOn.org. The telecommunications industry is adamantly opposed to Net Neutrality, and is joined by fiscal conservatives, libertarians, and pro-business groups. They argue that Net Neutrality is wrong for several reasons:

  1. The Internet already prioritizes traffic through peering arrangements between backbone providers, and the Internet has not suffered for it. Most of the founding Internet engineers, with the notable exception of Vint Cerf, seem to agree with this rationale.
  2. Preferential treatment of content already exists on the Internet as a result of search engine advertising, and this is a good thing. This argument ignores the fact that paid search results do not diminish a consumer’s ability to just as easily select non-paid results.
  3. Vigorous broadband competition means that consumers have more access choices than ever before. The corollary to this argument is that in a competitive environment, consumers will select the broadband provider that gives them the most interconnectivity. Thus, market forces will compel telecoms to keep their networks open. However, the vigorousness of competition in the US broadband market is subject to debate, particularly given the rapid rate of consolidation in the larger telcom market.
  4. Net Neutrality is not neutral, in that it imposes restrictions on how backbone providers can build and operate their networks. The underlying concern for telecos is that upstart companies using disruptive new technologies such as WiMax and satellite technology will not be forced to abide by the same restrictions, and obtain a windfall from government regulations. This does raise the specter of the FCC, rather than market forces, determining which technologies will prevail as the Internet evolves.
  5. There is much discussion in the anti-Net Neutrality community about innovation at the edge of the network, that is where the Internet comes into contact with consumers. Telecoms worry that Net Neutrality regulations could constrain their ability to provide next-generation services that go beyond existing Internet capabilities. Their argument is that if a “dumb” network policy is enforced, they will not be able to supply these services. Unfortunately this may be one of those situations where the party explaining its constraints is also the only party that knows its true technical capabilities.

The follow-on post examines current Net Neutrality legislation in Congress, and discussion of FTC involvement in policing anticompetitive practices by backbone providers.

Supporters of Net Neutrality

Vint Cerf on Net Neutrality (PDF) – one of the fathers of the Internet. Tim Berners-Lee’s Note on Network Neutrality – the creator of the World Wide Web. Tim Wu’s Network Neutrality FAQ – the professor who popularized the term Net Neutrality.

Opponents of Net Neutrality

Bram Cohen Equivocal About Net Neutrality – creator of BitTorrent P2P technology. Robert Kahn Speaks Against Net Neutrality – one of the fathers of the Internet. Tech Liberation Front’s Broadband and Neutrality Regulation Archive – a group of prolific libertarians.