Out of Control

Notice Nichols does not talk about anyone blocking Wal-Mart Watch. His issue is not with Web site access, it’s with Web site functionality. In Nichols’ opinion, not only is it violation of Wal-Mart Watch’s rights if its site is blocked, it is a violation of the watchdog group’s rights if Wal-Mart, or any other competing interest, can create a faster, (and by extension easier or better) Web site experience by virtue of its financial resources.

This is where net neutrality goes off the rails. Equal access has always been an inherent assumption of the Web. No one disputes the notion that any user should be able to type in any URL and get to a site. Beyond that, however, how fast a site loads, how easy it is to navigate, or what underlying characteristics it possesses to make it function better were never subject to any written or unwritten neutrality rules. Functionality and quality always have been the responsibility of the Web site owner, who was free to use any tools available for the purpose. In terms of functionality, there is no net neutrality to “maintain.” This is why Congress, and those of us who care about preserving Internet freedom, need to be wary of laws that would regulate the underlying methods Web site owners use to deliver and present their information.

Much of the network neutrality argument focuses on the perceived power of carriers such as AT&T, Verizon and Comcast, those “telecom conglomerates” to which Nichols refers. Network neutrality legislation would prohibit these carriers from creating quality tiers that would allow large Web site owners, like Wal-Mart, to pay more to provide users with a better Internet experience, such as faster downloads. Nichols and just about everyone else calling for network neutrality find this prohibition a grand idea. That’s because they think they are creating a regime that will regulate telecom companies. In reality, they are inviting Comgress to regulate, and likely limit, the options all Web site owners will have over the quality and functionality of their Web-based content and services.

So much of the rule is vague and open to interpretation, there’s no reason to believe enforcement will stop with restraints on carriers. This is not an extremist reading of the issue. By Nichols own opinion (and he’s not alone), a neutrality violation occurs when users merely have a “hard time” downloading content from certain sites.

Moreover, his measure of “hard time” is relative to how well other sites function. It’s one thing to define neutrality as open access and no blocking. Violation can then be determined with a concrete yes or no. It’s another to measure neutrality by how well one site works comparable to another. By Nichols’ argument, if Wal-Mart had a poor Web site, or no web site at all, Wal-Mart Watch’s neutrality rights would not be violated. However, if Wal-Mart uses its own assets to improve its own Web site for its own purposes, say to facilitate faster downloads or quicker transaction processing, by this reasoning Wal-Mart Watch’s Internet rights are being trampled.

If network neutrality is adopted, there’s no reason to assume the rules would be applied solely AT&T, Verizon and Comcast. Bandwidth management, after all, is just one tool Web site owners can use to improve the speed and performance of their site. If the goal of network neutrality is to prevent Web sites operated by commercial giants from operating faster, better or easier than those of the proverbial little guy, banning the sale of high-level bandwidth and traffic prioritization is just the beginning. If it's illegal for a carrier to offer a Web-based video content provider to offer a higher degree traffic prioritization at a higher price, it's illegal for a start-up software company to offer that same video service provider a higher level of network-based data compression at higher price. The net effect of both is the same--a faster and more reliable download relative to other sites.

Similarly, a network neutrality law could be used to prohibit the common practice of local site caching, where deep-pocketed Web site owners like Google, CNN and MSNBC place the same content on hundreds of servers throughout the country. Nichols’ “average user” sees less congestion and a faster content download from these sites because their owners can afford all those nearby hosts. That’s just one service enhancement that wealthy companies can afford that the “little guy” can’t. Paying ISPs for local Web caching is as much against the net neutrality principle as much as paying carriers for priority transmission.

Let’s not stop there. Because whether lawmakers intend it or not, at heart, the network neutrality principle aims to prohibit a Web site owner from gaining any functional advantage through the strength of its economic resources. That’s how some courts are likely to enforce it. Suddenly, any company that spends extra on better programmers, more intuitive navigation tools, easier payment mechanisms and stronger encryption can be found guilty of violating network neutrality. On the supply side, any business plan that looks to profit from improving Web performance, through innovative equipment or a new service, would risk an injunction. In fact, there’s nothing to prevent some judge, somewhere, from creating a benchmark budget to which all Web site owners must adhere—limited to spending X dollars on servers, Y dollars on bandwidth, Z dollars on software and so on. Open the door to economic regulation to ensure “neutrality” of the Internet, this is what you’re going to get—bureaucrats and jurists dictating what we can and cannot with our own Web site investments.

The industry, especially network neutrality cheerleaders such as Google, eBay and Amazon.com should really think long and hard about whether they truly want to bring this down upon their heads. There is nothing in current legislation that limits economic regulation of quality tiering to one segment or service set. They could end up as tightly regulated as the carriers in how they can use the Web as a commercial vehicle. There is every chance that Congress’ inexperience with the technology and lack of knowledge about Internet and Internet business models will lead to scores of unintended consequences. Network neutrality is a recipe for disaster. Don’t do it.