Susan Crawford has a nice post discussing the difficulties of inserting “net neutrality” provisions into the Telecommunications Act. We certainly can no longer rely on the notion that network owners (or even better, as some people put it, “the market”) will choose neutrality when it is “best” to do so; there is too much at stake that those providers will not take into account, as I explained in the last Part of my infrastructure article. The real difficulty is choosing how to regulate, how to sustain end-to-end design and nondiscrimination. As Susan puts it, “True net neutrality would simply say: don’t discriminate against any application; allow any device to attach to your network; disclose upload/download speeds and the scope of the “internet” to which you’re providing access; don’t evade any of the foregoing principles through your EULA. No caveats, no hedging, no surprises.”
Another point that Susan makes caught my eye (because it echoes some of the arguments I made in my infrastructure article). She says at the end of her post: “Can’t we be bolder? Can’t we change the facts on the ground? Why are we stuck with only these variables? Why can’t we treat internet access like a subsidized utility? If that’s a bad idea, could discussing it lead to better ideas?” I think she is right about thinking more boldly and broadly; I made a related point: “The network neutrality debate is not really about neutrality per se [because there is no such thing as a truly neutral network – the real underlying, unaddressed issue is what type of bias you choose]; … The debate must broaden its focus … to the merits of sustaining an infrastructure commons; that is, of sustaining open, public access to [Internet] infrastructure. … This type of optimization problem raises the familiar issues and choices seen in other debates over open access or restricted access [to infrastructure]. What type of infrastructure do we as a society desire?”
By the way, for those who want more on the basics of the network neutrality debate, check out Tim Wu’s papers:
The Broadband Debate, A User’s Guide, 3 J. Telecom. & High Tech 69 (2004).
Network Neutrality, Broadband Discrimination, 2 J. Telecom. & High Tech 141 (2003)
Network Neutrality,FCC CS Docket 02-52(with Lawrence Lessig) (PDF)