Net Neutrality vs. Net Neutering

by Doc Searls

An earlier version of this article was presented in Doc's
March 2, 2006, SuitWatch newsletter. Click
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"
, 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

...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

on February 7 of this year,
Lawrence Lessig said this
, 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

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

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.

Doc Searls is Senior Editor of Linux
, for which he writes the Linux for Suits column.
He also presides over
Doc Searls' IT
which is published by SSC Media Corp., the publisher of Linux

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