The Future Is Being Mapped Without a Reliable Compass: Net Neutrality

Professor David Post’s 2009 book , In Search of Jefferson’s Moose, is one of my favorites. Professor Post juxtaposes ideas about creativity and risk-taking as embodied both in the thinking of Thomas Jefferson and in the development of the Internet. It sounds like an odd pairing but it works. Post tells the reader at the beginning that the book represents ideas he has juggled throughout his career, so he writes freely. Reading it brought home to me important truths about the Internet. Post’s thesis is that the band of engineers who created the end-to-end freeway that is the Internet, erected it to be a neutral medium. They made the governing rules and decision-making structure intentionally opaque. Rather like a game where each level grows more difficult until the player gives up in frustration. 

This was done to protect the Internet from the inept and ham-handed meddling of governmental bodies and the grasp of corporate interests guided only by the light of the bottom line. Maybe information could not be free, but its transmission should be. Post’s book recounts how at one time a single person, Jon Postel, then a graduate student at UCLA, stood at the center of the labyrinth. Better to trust an engineer solely concerned with making the system work smoothly than allow anyone with a substantive agenda to get a hand on the wheel.

As the Internet burrowed its roots into the life of most humans on the planet, this elaborate diversion became imperiled. From the outside governments could filter it, advertisers could manipulate it and the forces of Large Data could arise from the academy and allow governments and businesses to use the Internet to aggregate each of us into a profile. But the information highway remained open to all. Presidential documents, news, shopping, pornography and cat videos all traveled the same superhighway. Now a greater danger lurked, could the highway itself be controlled? Should the freeway be protected from the free market? Whose Internet is it anyway?

A recent decision of the D.C. Circuit Court of Appeals will be important to this debate. In FCC v. Verizon, Judge David Tatel wrote that the FCC’s rules on net neutrality for telecommunications companies do not cover internet service providers (ISP).

The opinion is a fine example of the problem we face when trying to divine where the Internet is headed. The D.C. Circuit Court of Appeals, though the equal on paper of the other U.S. Courts of Appeal, is known for being in a class all its own. Sitting in the District of Columbia it is the forum for many high profile federal issues. With gimlet eyes the Senate watches who the President tries to appoint to that Court because it has been a conduit for Supreme Court nominees. On this exalted Court, Judge Tatel is known as one of the keenest thinkers. Ergo there is a trifecta: big issue, important Court and respected judge authoring the opinion. So who won? Verizon won. And what does that mean? It’s hard to say.

Is it the beginning of the end of a world where my daughter-in-law’s blog travels just as fast as traffic to Amazon? Or is Judge Tatel performing a classic judicial trick? In enunciating what good policy ought to be (net neutrality) but which the rule does not allow him to follow, is the Judge maneuvering to force the FCC to change the designation of ISPs to that of common carriers? Or is Judge Tatel genuinely working to keep government away from the issue? After all, if the FCC can protect net neutrality it is implied that the FCC can do as it pleases with net neutrality. A good summary of the arguments can be found at the Motley Fool.

Though the decision came down only one month ago, a million people have signed a petition coordinated by FreePress directed to the FCC to pull the Internet back under the covers of net neutrality. At the same time the Electronic Freedom Foundation, the dare-to-die defenders of free access to information, would rather let things lie outside the clutches of governmental regulation. As Ray Davies of the Kinks sang,” It’s a mixed-up, muddled up, shook up world….”

When things are muddled up, it is best to pay close attention. The next few years might well define the future parameters of the Internet. The outcome will affect the lives of most of us. Yet the policy making is done as if through a glass darkly. If only some wise, objective body could guide us. Maybe we should give it back to the engineers.


  1. David Collier-Brown

    The engineers, meanwhile, are debating what public policy should be (;-))

    In one case*, the Internet Society, the nominal parent of the Internet Engineering Task Force looked at the differing business models of Google and Netflix, plus the Content Delivery companies, in worlds where we did or did not have net neutrality.

    The discussion, IMHO, reduces to the equivalent of debating whether a business can chose to not deal with all comers, or offer different rates to selected customers they might wish to succeed over other customers. If I’m correct, the similarity to a question of law and justice is then obvious, and the engineers can argue “that’s a solved problem, over in the universe of law”. If so, they’ve greatly strength-reduced their problem.

    As to who should decide, I suspect it’s more a question of the seriousness of the people debating the question and the degree to which they’re prepared to educate themselves about legal principles or engineering ones. It doesn’t really matter which community they start from, if they can come to understand the other and they try really hard.

    [* declaration of interest: I got to raise this one, so I’m biased.]

  2. David Collier-Brown

    A colleague just reminded me of a counter- argument to my comment on community not mattering…

    The arguments of lawyers and engineers pass through one another like angry ghosts.
    — Nick Bohm, Brian Gladman and Ian Brown, as quoted in Ross Anderson’s Security Engineering

  3. I wish I had had that line available when I wrote my Slaw column on the topic