This idea of net neutrality—this cherished idea, even, among Internet entrepreneurs and activists—has a long history, roughly as long as the commercial world wide web. It is, Harvard law professor Lawrence Lessig has argued, what makes the Internet special. He used to call the principle e2e, for end to end: “e2e. Not b2b, or b2c, or c2b, or b2g, or g2b, but e2e. End to end. The core of the Internet, the core value that defined its power, the core truth that made innovation around it possible, is this e2e,” Lessig said in a 1999 talk. “The fact – a fact – that the network could not discriminate in the way that AT&T could.”
Comcast couldn’t privilege its own content over Netflix’s or PBS’ or Disney’s or your blog’s. He explained: “The network was stupid; it processed packets blindly,” he said. “It could no more decide what packets were ‘competitors’ than the post office can determine which letters criticize it.”
This was not just a nice thing, it was the very nature of the Internet. Without it, the Internet will become, as Tim Wu put it, “just like everything else in American society: unequal in a way that deeply threatens our long-term prosperity.”
But Jimmy Wales, the founder of Wikipedia, tells Jemima Khan that he’s not that worried about it:
I differ from many of my colleagues, in that I don’t think net neutrality is super-important. The fear is that companies which control the “last mile” to the consumer will leverage that choke point to stifle innovation (unless they get paid extra for it happening). And that’s not an entirely crazy thing to fear, particularly because much last-mile infrastructure remains under inappropriate, government-granted monopoly privileges—or derived from those privileges in the first place years ago.
But if we are worried about a handful of companies getting control of a choke point and using it to squeeze out competitors and make massive profits, we don’t need to look at the layer of network infrastructure and network neutrality. We just need to look at the Apple App Store (and similar), where everything that runs on your iPhone or iPad has to be approved by Apple, with them taking a huge cut of the revenue at every step, with no real competition in sight. Consumers should be very worried about that.
Can you imagine the outcry if 20 years ago Microsoft had decreed that no third-party software could run on Windows without being approved by them, and bought through their proprietary stores? Yet today we accept this model on mobile devices (and soon, I fear, on our computers) without blinking.
Barbara van Schewick discusses some of the dangers she sees in imposing access fees for Internet content:
Why should we care if start-ups or other innovators without significant outside funding cannot pay these fees and therefore lose the ability to innovate? Throughout the history of the Internet, innovators with little or no outside funding have developed many important innovations (including E-Bay, Facebook, Yahoo, Google, Apache Web Server, the World Wide Web, Flickr and Blogger), and there is no reason to believe this would change in the future. Thus, removing (or at least impeding) the ability of this important subgroup of innovators to develop new applications will significantly reduce the overall amount and quality of application innovation.
Finally, access fees may impose serious collateral damage on values like free speech or a more participatory culture by making it more difficult for individuals or non-profits to be heard or to find an audience for their creative works.
And Timothy B. Lee blames Congress for tying the FCC’s hands on net neutrality, noting that the relevant law predates the concept:
The 1996 Telecommunications Act prohibits the FCC from imposing common carrier regulations on “information services,” which (according to the FCC) includes broadband internet access. The law says that information services can’t be subject to common carrier regulations. In its January ruling, the court said that the FCC’s 2010 net neutrality rules constituted common carrier regulation and was therefore illegal. But the court signaled that it would accept a revised set of rules that only prohibited discrimination if it was “commercially unreasonable.”
Is that the result Congress intended? No one really knows. The term “network neutrality” hadn’t been coined yet in 1996. Cable modems and fiber optic services like FiOS were still in the future. Unsurprisingly, Congress wasn’t clear about how to handle concepts and technologies that didn’t exist yet, so the courts have had to make up the rules as they went along.