May, 2006

The recent vote for net neutrality in the House Judiciary Committee was driven more by jurisdictional jealousy and turf protection than policy substance. In a frantic rush to catch up with the Commerce Committee bill, Judiciary did not conduct a substantive review of the facts or the policy repercussions of potentially reversing Congress decade-long pro-competition telecommunications policy. Net neutrality proponents played on the Committee's nostalgia of the glory days when Judiciary was in the telecom policy drivers seat in overseeing Judge Greene and the breakup of the former AT&T. When the only tool you have under your jurisdiction is a hammer -- all you see is nails. A recent letter I wrote to the Senate Commerce Committee on net neutrality is very relevant to the Judiciary vote.

ItsOurNet.org continues the well-established net neutrality pattern of crying “wolf" in hopes of scaring people into running to their rescue on net neutrality. They obviously think people are stupid and won’t remember what they say. Just like the proverbial boy who cried wolf learned the hard way, if people can’t trust that your cries for help are true, they won’t believe you when you do tell the truth. People aren’t stupid and they do remember. The e-commerce giants’ latest crying-wolf, with absolutely no evidence to support it, is shameless: implying that Moms won’t be able to protect their families; e-mail users won’t be able to keep in touch with family and friends, small businesses won’t be able to survive online, and churches won’t be able to get their messages out to congregants.

How could the government actually enforce net neutrality’s mandate requiring equal treatment of Internet traffic without mass government monitoring and surveillance of average Americans’ Internet behavior? Hypocritically, those most indignant about the Bush Administration’s NSA phone call database monitoring are often the most vocal supporters of government mandated and enforced net neutrality. If government monitoring and surveillance of communications is not warranted to fight terrorism, how do they justify it to enforce a lesser priority of ensuring commercial net neutrality for e-commerce websites?

Net neutrality fear-mongering aside, the Internet doesn’t need new net neutrality regulation to survive or thrive. The Internet is healthy and flourishing on its own. The Internet is no baby anymore that needs a government nanny for its protection and sustenance. The Internet is all grown up and fully capable of taking care of itself.

It’s important to remember the many natural and powerful defenses the Internet has developed to protect itself -- that do not depend on net neutrality.

First and foremost, the Internet is the only universally-accepted and ubiquitously-deployed communications technology on the planet; this affords the Internet extraordinary importance, influence and independence.

To begin the formal net neutrality vs. net competition debate, let me start by challenging the foundational premises of net neutrality thinking.

• My first challenge is that the use of the term “neutralityâ€? in this context is very misleading. There is nothing “neutralâ€? about how net neutrality proposals would affect the future of the Internet.
• My second challenge is to the notion that net neutrality proponents have fostered, that all data traffic has been and should continue to be treated equally. That impression is also very misleading because everyone knows of many legitimate, real-world reasons why data traffic is not treated the same.
• My third challenge is to another notion that net neutrality proponents have fostered, that a net neutrality policy would just be preserving the long-standing status quo and not be a big change in policy. That impression is very misleading too, because it suggests that people don’t have to consider the broader implications or potential unintended consequences of net neutrality legislation/regulation.
  

Two things of note on the Net Neutrality front from Tuesday:

• The New York Times endorsed Net Neutrality
  
  
  
• Congressman Ed Markey of Massachusetts Introduced the Net Neutrality Act of 2006
  

Doesn’t the Internet already have tiers?

• Yes. Consumers have long been able to choose from a variety of Internet access tiers: dial-up, the “slow lane;" different speeds and prices of broadband, the “fast lanes;" or WiFi access, the often “free" lane.
• Internet backbone businesses have long “peered" differently with tiers based on size and bandwidth.

Are all bits treated equally on the Internet today?

• No. For a variety of legitimate reasons internet traffic is treated differently.

Why should websites get special government treatment better than everyone else?

• Everyone else, consumers, businesses, broadband providers, and the government have to pay the competitive price for the bandwidth they use and for additional features like mobility. All Internet backbone companies “peer" at different commercially-negotiated rates based on bandwidth and quality.
• Website interests, ecommerce-sellers and bloggers, want special government treatment -- just for them -- one government-set broadband price, with special terms and conditions that consumers don’t get.
  

Surprise. Surprise. Silicon Valley's hometown newspaper, the San Jose Mercury News, has self-servingly endorsed net neutrality in its editorial today, "Saving Internet Equality." The problem is that the underlying premise of their editorial simply isn't true. Net neutrality isn't about Internet equality; it is classic special interest legislation seeking special government favors for the tech industry over the communications industry. Why should e-commerce giants and website interests get the special treatment of regulated prices, terms and conditions for bandwidth, just for them, when everyone else -- consumers, businesses, government, and broadband providers -- all have to pay a competitive price for bandwidth?

If net neutrality is truly an Internet principle, would Microsoft, Google, Yahoo, eBay and Amazon all agree to abide by the same principle of treating everyone the same in conducting their Internet businesses? This is a relevant question because the Internet browser and Internet search markets are actually much more concentrated and less competitive than the wireless market to which they want to apply net neutrality.

No Internet Search Discrimination? Will Google, Yahoo and Microsoft pledge to treat all search results equally and not discriminate against content by ranking websites based on how much advertising they pay to be a sponsored listing? Will they agree to not have a two-tiers of Internet search, one with sponsored listings at the top for those who pay the most and another at the bottom for those that can’t pay?