To have our net neutrality and eat it too

You can have free markets or government regulation, but you can’t have both.

by Sam Blake

A recent court ruling and the resulting actions of the Federal Communications Commission have brought the sporadically-debated issue of net neutrality back into the limelight. First, some background: Comcast, currently the nationâÄôs largest provider of high-speed Internet access, got in trouble with the FCC in 2008 for intentionally throttling certain user connections. Specifically, Comcast throttled peer-to-peer services (BitTorrent being the predominant one) on the grounds that they take up massive amounts of bandwidth and are more often than not used for illegal sharing of copyrighted materials. ComcastâÄôs customers complained to the FCC (why they didnâÄôt complain to Comcast instead is beyond me), which slapped Comcast with an order to desist in discriminating against particular kinds of network traffic. Since then, however, the U.S. Court of Appeals has unanimously ruled that this action goes beyond the authority of the FCC. Specifically, the FCC only has the authority to regulate telecommunications services, whereas broadband Internet is currently classified as an information service. Since the ruling, the FCC has made it clear that it has no intention of losing its ability to regulate broadband. Strictly speaking, the FCC has the power to reclassify broadband Internet if it wants to (it was the FCC itself that originally classified broadband as an information service); however, it will have to find a solid legal basis to do so lest it embroils itself in another stodgy legal battle. Some U.S. senators (mostly Democrats) have stated their support for this reclassification, though theyâÄôve made it clear that Congress is unwilling to get heavily involved in the net neutrality debate at this time. The Open Internet Coalition, an organization of heavily-invested Internet companies such as Google, Amazon and Facebook, is lobbying strongly for the FCC to enact this classification change. On the other side of the equation, Comcast and other large telecommunications companies have hinted that they will once again bring suit if the FCC tries to reclassify their industry once again. Given that, in 2005, the Supreme Court ruled 8-1 in favor of the FCCâÄôs classification of broadband as an information service, the legal battle that comes out of a reclassification is bound to be fierce and protracted. This classic match-up of over-powered corporation versus self-righteous government is an oft-repeated one; railroads, airlines, radio, telephones, etc., have all gone through similar legal turmoil in their respective eras. But net neutrality is something of an enigma. To the casual observer, it appears that every sane person is on the same side; after all, who would want a non-neutral Internet? And most people do agree that net neutrality is something that they want. The problem, as with most difficult debates, is in the terminology; people donâÄôt agree on what net neutrality actually is. First, there is market-regulated net neutrality. Under this system, some corporation that provides Internet access (an Internet service provider, or ISP) has the ability to selectively direct your Internet usage âÄî they can block particular sites, they can affect your search results, what have you. As part of the contract you sign, they agree to provide some service as they define it, not necessarily as you envision it should be. To demand net neutrality in such a case is to say to the ISP, âÄúLook, you have to give me unhindered access, and you need to be able to convince me that you will provide unhindered access, or else I will not pay you.âÄù This is similar to refusing to buy a lemon from a used car dealer or a rotten lemon from a grocery store; if itâÄôs not the product you want, you donâÄôt buy it. Second, there is government-regulated net neutrality. Under this system, the government ensures that all ISPs behave by the official standard of what constitutes unhindered Internet access. Under current proposals, this includes stipulations about things like customer rights as well as requiring telecommunications companies to share their bandwidth. And, of course, with government regulation generally comes censorship, as it has with television and radio. This case, then, is comparable to the government requiring used car dealers to only sell cars of a certain standard quality, or only allowing grocery stores to keep produce on the shelf for some maximum length of time. Which of these two options, then, is the better one? The first option is riskier, since you lack a guarantee (or a scapegoat, depending on how you look at it) that the product youâÄôre purchasing is in fact what you expect it to be; however, the market has the ability to freely provide the services customers want. The second option eliminates the risk but at the cost of more government regulation and, inevitably, higher taxes. (Corruption and graft are also a threat, but letâÄôs give the government the benefit of the doubt here.) So weâÄôre essentially choosing between efficiency and security; the nature of government interaction in an otherwise free market necessarily creates that trade-off. Finding a balance between the efficiency of freedom and the security of regulation is pretty much impossible. Both angles have merit, and both corporations and government have their motives, good or bad, to prefer their option. The problem as usual is that people want to have their cake and eat it too. They want all the great service and cheap costs that a competitive market provides, but they also want the ability to complain to the government when they donâÄôt get the services they want. As with any industry, it eventually comes down to that choice of freedom or security. Which will you favor? Sam Blake welcomes comments at [email protected].