Net Neutrality vs. Net Neutering

An earlier version of this article was presented in Doc's March 2, 2006, SuitWatch newsletter. Click here [1] to subscriber to SuitWatch.

It's time to define the Internet. We haven't done that yet--certainly not in a way that allows lawmakers and regulators to operate from the same set of assumptions that we do--"we" being the Net-savvy techies of the world.

As I pointed out last November in "Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes" [2], carriers subordinate the Net to the pipes that carry it, which they own. To them the Net is a container cargo system for the stuff we call "content", and it's subject to whatever traffic control regime they wish to impose on it. That includes tiered service akin to airline service, divided into first class, business and coach. This brings up doomsday scenarios that are easy for many of us to imagine, if the carriers succeed in lobbying this definition and service regime into law.

Meanwhile, copyright extremists of the Hollywood school see the Net as a big "content" business and carriers as ideally positioned to offer "piracy" protections at the backbone level. So they find the carriers' Net definition agreeable as well, because they are lobbing in roughly the same direction.

As I also pointed out in the same piece, our best hope for saving the Net from the carriers and copyright extremists lies in defining it, and understanding it, as a place--as something everybody goes to and builds on, not merely as something stuff goes through. Here's how I put the case last Monday in Our Space [3]:

...the Net is not a form of carriage, even though it might appear that way to the carriers and the copyright extremists. The Net has an existence that encompasses carriage and content but is not reducible to either--just as human beings have an existence that encompasses the circulatory system and its constituents but is not reducible to either.
There are higher principles involved. Life is larger than the systems that sustain it. The principle we call net neutrality is as essential to Internet life as consciousness is to human life. When we subordinate Net neutrality to the systems that sustain it, we reduce it to those systems. The Net becomes a cable system, a phone system, a content delivery system. And nothing more. In human terms, this is called brain death.
By framing the Net as a neutral place, we assure that it will continue to serve as what it has already been for more than ten years: a public marketplace where private enterprise of all forms can not only grow and thrive, but can do both better than it ever has anywhere, ever, before.

The principle we call Net Neutrality has its own natural laws, akin to those of gravity, motion and thermodynamics. The judicial laws we make, as we move toward new telecom regulation, need to respect the natural laws that define the Net and make it such an ideal habitat for business and culture.

In his testimony to the Senate Commerce Committee's Net Neutrality hearings [4] on February 7 of this year, Prof. Lawrence Lessig said this [5], among many other things:

...this Committee must keep in view a fundamental fact about the Internet: as scholars and network theorists have extensively documented, the innovation and explosive growth of the Internet is directly linked to its particular architectural design. It was in large part because the network respected what Saltzer, Clark and Reed called "the 'end-to-end' principle" that the explosive growth of the Internet happened. If this Committee wants to preserve that growth and innovation, it should take steps to protect this fundamental design.

Meanwhile, Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, said this in his testimony [6]:

I would like to focus this morning on three main points.
First, Congress's policy of leaving the Internet unregulated has been a resounding success. The resulting network flexibility has encouraged billions of dollars in investment. Companies that include high speed Internet services among their offerings have the freedom to experiment with multiple business models, producing more choices and competition in content and providers for consumers, and more innovation than ever before.
Second, any change to this policy could have serious repercussions to continued network innovation and investment. Government, by its nature, is ill-equipped to make judgments about the best business models for an industry. This is especially true for a business as dynamic as the provision of high speed Internet services. It is clear that how those business models develop will directly affect the level of investment and innovation we can expect over the next few decades, but no one today can predict which business models will most effectively promote those goals.
Finally, in the absence of any problem calling for a legislative solution--and since the broadband services marketplace is characterized by robust competition--Congress should refrain from premature legislative action and allow the marketplace to continue to grow and change so network and applications providers can offer consumers the fullest range of innovative service options.
Congress's Decision to Leave the Internet Unregulated is an Unquestioned Success
Keeping the Internet free of regulation has helped to spur tremendous investment and competition in broadband networks and services. Left free to create new business opportunities and services, broadband providers (including cable operators, DSL, satellite and wireless operators) have invested billions of dollars to bring high-speed Internet access services to consumers across the nation. With bandwidth usage growing at a rapid pace, continued investment will be needed to keep broadband services robust.
If broadband providers are to continue to make these investments, and if consumers are going to be given the levels of services and innovative new products and features they desire, all at prices they can afford, broadband providers need to have continuing flexibility to innovate in the business models and pricing plans they employ. Likewise, websites and content providers also need the flexibility to experiment with business models, and to partner with broadband providers in doing so.

McSlarrow makes sounds that resonate with my libertarian sympathies. I do worry about the unintended consequences of any legislation that restricts opportunities for doing business. But...exactly what kind of business do the carriers wish to pursue freely? The answer shows up in McSlarrow's last sentence, above. The carriers still think the Net is about "delivering content to consumers". In other words, Cable TV. They would like to use the "free market" where they enjoy government-protected monopolies, to shake down Google, Yahoo, Microsoft and other large "content providers" for the same favored treatments their cable systems give ABC, CBS, NBC, Fox and CNN.

The carriers' plan from the beginning has been to convert the Net into a paid content delivery system--of some kind. That's all they were ever able to imagine. That's why they've screwed Net Neutrality from the beginning, offering crippled asymmetrical service to customers whom they expected only would consume, never producing much more than clicks that brought down more to consume. Most of us have never known anything but an asymmetrical relationship with the Net, which is why so many of us barely can imagine what it means to be a producer as well as a consumer in the Net's end-to-end world. A couple of days ago, a woman I know--middle class, white collar--told me she doesn't like the Net because "I don't like mass media in general".

In fact, the asymmetrical build-outs of service to homes has done enormous harm to market growth by preventing countless small and home Net-based businesses from starting and growing.

Specifically, by provisioning big bandwidth downstream and narrow bandwidth upstream, while blocking ports 25 and 80--in crass violation of the Net's UNIX-derived network model, in addition to the end-to-end principle--the carriers prevent customers from running their own mail and Web servers and whatever server-based businesses might be possible. Again, all the carriers can imagine is Cable TV. That's been their fantasy from the beginning.

So, while pro-Net advocates wish to liberate the Net by burning neutrality into law, anti-Net advocates wish to neuter the Net by preserving the current regulatory regime--or by otherwise re-regulating it to favor the Cable TV model they've built their infrastructure for since the beginning.

Yet the colossal success the Net has enjoyed, including all the good it has done for business and culture around the world, owes everything to the neutral nature of its end-to-end architecture and nothing to paid content delivery.

A few days ago, I asked Eric S. Raymond to give his best Libertarian take on the situation. He wrote: [7]

Telecoms regulation, to the extent it was ever justified, was justified on the basis of preventing or remedying market failures--such as, in particular, lack of market incentives to provide universal coverage.
The market failures in telecoms all derive from the high fixed-capital costs of conventional wirelines. These have two major effects: (1) incentives to provide service in rural areas are weak, because the amount of time required to amortize large fixed costs makes for poor discounted ROI; and (2) in higher-density areas, the last mile of wire is a natural monopoly/oligopoly.
New technologies are directly attacking this problem. Wi-Fi, wireless mesh networks, IP over powerlines, and cheap fenceline cable dramatically lower the fixed capital costs of last-mile service. The main things holding these technologies back are regulatory barriers (including, notably, not enough spectrum allocated to WiFi and UWB).
The right answer: deregulate everything, free the new technologies to go head-to-head against the wired last mile, and let the market sort it all out.

Let's think seriously about this. What would happen if we de-regulated carriage at the federal level and encouraged it at other levels? How about if we opened up more spectrum as well? (Including TV Channels 2-13, which are due to be liberated by 2009 in the US?) Wouldn't we like to see the carriers get some real competition? Why should your neighborhood be limited to a choice of one cable and one phone provider? Why not drop the definitions of both and let everybody carry whatever they want?

By a similar (though not the same) token, how about regulating Net Neutrality--insisting on it, essentially--while de-regulating everything else? Can we characterize Net Neutrality as a modern equivalent of a market incentive to universal coverage?

I lean toward insisting on Net Neutrality, because I know what the big carriers are up to, and it creeps the crap out of me. But I also lean toward de-regulating telecom to let carriers new and old come into the market and fight to build the best possible infrastructure for the fully neutral Net--one that includes symmetrical and unrestricted service to every end in the whole end-to-end system.

Symmetricality has to be on the table, or Net Neutrality is largely meaningless. Asymmetricality is the non-neutrality we already have. Getting rid of it will open the market to countless new businesses and business opportunities for everybody.

On another hand--because there are not just two, although thinking so always simplifies things--Bob Frankston has another take on Net Neutrality:

It's simple.
The Internet has won. Why negotiate terms of surrender?
We mustn't settle for negotiating "Net Neutrality". We must demand the basic right to connect and not just an enumerated list of what we are allowed to do. It's no different from having to negotiate free speech by listing what is allowed. Having to beg for permission to speak is offensive.
What we need is very simple: a recognition that Internet-style connectivity is our right as fundamental infrastructure just like the roads are. We can share them like the roads or power lines.

When I asked Jim Thompson to review what I wrote above, he added, "perhaps we should insist (and legislate) that no service provider can violate end-to-end".

Architecture is what matters most. Neutrality is a result of end-to-end. Make end-to-end the subject of law, and we cover both at once.

Or so it seems to me at deadline on a Thursday.