Adam Thierer has just written another thought-provoking post on TLF/PFF about the well-trod net neutrality debate. He is riffing on a ZDNet article by long-time net neutrality critic Larry Downes. The heart of his (and Larry's) argument is that the Internet should remain free from meddlesome regulation. I must say that I wholeheartedly agree. Where I take issue is whether most net neutrality proposals are necessarily meddlesome. This is a critical distinction too fine for Thierer or Downes.
I agree with Thierer on a great number of issues. He is spot-on when it comes to the perils of presumptive content regulation in the name of child protection. The risks of caving to DOPA-style regulation or other ill-conceived technological "solutions" to the issues that youth face online cannot be underestimated. Closing off vast swaths of the internet to the next generation of online artists, innovators, and entrepreneurs is self-evidently foolish. What Thierer fails to recognize is that the risks he envisions under the banner of "child protection" are paralleled in the world of net neutrality -- just not in the way that he assumes.
A libertarian of his flavor fears government at the expense of overlooking risks from industry. Thierer makes much of Bruce Owen's article from earlier this year, examining the legacy of railroad common carriage. I analyzed Owen's selective memory in an earlier blog post, and have yet to read a persuasive argument to the contrary. Weak rhetoric about "the value of keeping the government out of Internet content" is no more than FUD. Take the following statement, written by Downes and repeated by Thierer, for example -- "So why do the same civil-liberties groups that recognize the value of keeping the government out of Internet content want to open a loophole large enough to drive several Mack trucks through?"
Sounds like a bad idea to me.
But, let's take a look at this suspiciously hyperbolic language. In addition to the highly questionable railroad analogy, Downes rallies airline deregulation and Sarbanes-Oxley in favor of his argument. The role of the Civil Aviation Board (CAB) seems bewilderingly distant from the shape of any net neutrality legislation. No neutrality proposals include anything resembling routing requirements (very different from source-based prioritization), subsidization, or rate regulation (other than the eminently simple "you can't charge certain sources more than others"). Indeed, it's disingenuous to the extent that all net neutrality advocates embrace client-side speed price tiering. Sarbanes-Oxley might as well be a stab in the dark. Please explain, Downes, in what way the corporate costs of net neutrality compliance (adding no additional discriminatory technology) resemble SOX obligations?
Are we to fear government intervention in all of its instantiations? The Thierer rhetoric would certainly indicate so. If Downes believes that "the Internet has thrived in large part because it has managed to sidestep a barrage of efforts to regulate it..." he may wish to brush up on which title of the Communications Act governed last-mile internet access until 2005. The trouble is that the black-or-white government/liberty position undermines Thierer's position. To be sure, the PFF would like to see enhanced antitrust regulation of our communications infrastructure. Antitrust and ex ante rulemakings are both forms of government management. If Thierer/PFF is right, there must be an argument or normative reason why antitrust is a more promising check on the power of infrastructure owners than something like neutrality legislation.
If so, let's do away with the regulation-vs-liberty rhetoric and engage the alternatives on the merits. Why is open-ended ex post antitrust review more straightforward than clearly defined up-front rules? Why do the last two years of broadband consolidation argue against the prior ten years of common carriage that fostered the internet explosion? Why should the proven technological structure of the IP "hourglass" be upset in favor of uninhibited carrier discretion?