The Neutrality Delusion

Net neutrality hasn’t extended high-speed broadband networks to all corners of the nation and the globe, for example. In fact, it hasn’t even made the networks we have any faster or more reliable. Networks have indeed improved at an awesome rate since the 1990s, but net neutrality has had nothing to do with this progress.

Likewise, net neutrality has not made the Internet safer or more secure, nor can it. Progress toward greater security depends on technical and regulatory enhancements that we haven’t even had time to discuss because net neutrality has sucked all the oxygen out of the room.

And net neutrality has not made networks any less expensive—nor can it, because it requires costly investments in network infrastructure to deal with trivial engineering issues such as fleeting moments of network overload.

Worst of all, net neutrality is not actually enforceable. This question was studied by British computer scientist Neil Davies for Ofcom, the U.K.’s FCC, in 2015. Davies looked at the six best methods of “traffic management detection” described in the academic literature and found all of them wanting in some important way.

Net neutrality enforcers need the ability to detect unfair treatment of Internet sites; without this capability regulations banning such conduct are meaningless. But Davies declares “no tool or combination of tools currently available is suitable for practical use” in this endeavor.

So what gives with the snarky blog posts, the sloganeering, the clever formulations about innovation, and the shrieking of cable TV comedians about this wonky notion? While the Internet certainly appears to be developing nicely, we can neither prove nor disprove its alleged neutrality.

Lawmakers love increasing criminal penalties. It’s hard to catch the perpetrators of many crimes, but easy to crack down on those who are caught.

A similar dynamic has taken place in Internet regulation in the era of net neutrality. Former FCC chairman Michael Powell introduced the concept of net neutrality to the FCC in the form of a 2004 policy statement on the Four Freedoms of the Internet.

The statement recognized the freedoms to access content, run chosen applications, attach devices, and obtain service plan information. But it didn’t create specific regulations to enforce them because they had already come to exist in the absence of regulatory mandates.

Powell didn’t play bad cop with Internet Freedom because there was no need. Market forces alone were enough to encourage the Internet to keep doing what it had always done, only better.

Powell’s restraint hasn’t been mimicked by subsequent FCC chairmen: Kevin Martin, Julius Genachowski, and Tom Wheeler all tried to transform Internet freedom ideals into ever more aggressive legalisms. They did this in the context of an Internet that was continuing to improve and expand without notable issues.

This is not to say that the advocacy community hasn’t fabricated dubious crises at every opportunity. Free Press, the brainchild of socialist academic Robert McChesney, claims no fewer than a dozen offenses against net neutrality have taken place since Powell’s Four Freedoms speech.

Upon examination, it’s evident that all claimed debacles are grossly exaggerated incidents of brief duration that were resolved without regulatory intervention. And in every net neutrality case brought to the FCC, the agency has failed to properly determine the facts.

This was especially evident in the 2007 complaint by public interest advocates against a network management system used briefly by Comcast. The company stopped using the system—a crude way of limiting bandwidth appropriation by digital piracy programs—long before the Martin FCC’s investigation was complete.

Despite three failed attempts to undergird Powell’s aspirations with regulation, the freedoms have generally proved to be self-executing. The Internet is open and relatively neutral by design, and remains so in practice because the costs to Internet business of deviating from essential neutrality are too high.

Career telecom regulators don’t like the Internet. Its development in the absence of significant rulemaking is in fact an affront to the entire enterprise of telecom regulation. In other countries, we see endless attempts to censor content, restrict carrier business models, and to shut down Internet connections on the thinnest of pretexts.

We’re fortunate to have avoided this sort of thing in the U.S. But if regulators and political partisans continue to promote their value based on their abilities to tame an unruly Internet, they can’t be far away.

The greatest danger in the net neutrality debate is the propagation of the myth that regulators alone are responsible for the Internet’s success. This simply takes undeserved credit for the work of technologists, entrepreneurs, and investors.

There’s no overlooking the fact that the genuine problems the Internet faces today—the plodding pace of innovation, safety, security, privacy, and the consolidation of services—cannot be resolved by open Internet regulation. Internet engineers need the freedom to tinker with ways of making the Internet better by departing from tradition.

A rulebook of ever-increasing complexity does not take us where we need to go, and neither does an unenforceable “simple rule” that gives rise to nothing but endless litigation and ever more dubious regulations.

Imperfect, frustrating, and sometimes scary, the Internet is also marvelous, amazing, and even dazzling in a way that no product of the bureaucracy has ever been.

Let’s accept the fact that net neutrality will never be anything more than a vague aspiration that will always escape regulatory definition.

Richard Bennett has a 30-year background in network engineering. He contributed to the original Ethernet hub and Wi-Fi standards as well as the recent 802.11n and UWB standards.