The concept of “network neutrality” was meant to have been woven into Internet regulations by now. Here’s the idea: the networks that deliver the Internet to consumers must be equally open to all data packets, no matter whether these are part of an e-mail from your mother or a video from Hulu. It means that Internet service providers can’t favor traffic to and from certain companies while undermining competitors’ traffic. President Obama supports the principle, and it had momentum even before he took office: in 2008, the Federal Communications Commission sanctioned Comcast for interfering with Internet subscribers’ use of BitTorrent, a file-sharing application.

Yet net neutrality is faltering. This year, Comcast persuaded a U.S. appeals court that the FCC overstepped its authority when it enforced net neutrality as if it were law. Meanwhile, one of neutrality’s strongest backers, Google, has stopped insisting that the principle apply on wireless networks, which might need to manipulate traffic to deal with capacity constraints (see Briefing).

This disturbs Lawrence Lessig, a net-neutrality advocate who directs Harvard’s Edmond J. Safra Center for Ethics. Technology Review’s deputy editor, Brian Bergstein, asked ­Lessig why he thinks innovation on the Internet is at risk.

TR: What’s the benefit of net neutrality for everyday Web users?

Lawrence Lessig: It’s really important to recognize the accident of the Internet. A bunch of geeks, for a purpose that had nothing to do with Google or Microsoft, decided to make it so that different platforms could communicate. They wanted to find a neutral platform. They couldn’t control it; it would develop as the users wanted it to. Little did they know, but they had created the perfect environment for innovation. Because innovators know that if they develop the next great widget, then they can deliver it and they don’t have to get permission.

TR: How should the government enforce this?

LL: Have regulations aimed at blocking certain kinds of business models. The right kind of [Internet] infrastructure owner is interested in sending as many bits as fast and as cheaply as possible. He’s not interested in “What special deals can I strike with Hollywood so that I can leverage my power to great profit on top of whatever I am selling my bits for?” He is like the electric company: just interested in the cheapest way to deliver the commodity to customers. The problem is, when you give network owners quasi-monopoly power, they think, “I don’t want to be in the commodity business. I want to be in the business where I can create an artificial control or scarcity and make lots more money.”

TR: But if ISPs were just commodity businesses, would they have enough incentive to develop their networks?

LL: What we’ve seen internationally is an explosion of companies competing to provide a commodity, just as we saw in the United States when “open access” rules [which once forced network operators to lease their wires to competitors] encouraged a world of 6,000 ISPs. If private incentives to provide public infrastructure are not sufficient, however, then we need to think about more incentives. They could be the sort of subsidies that have supported infrastructure since time immemorial. Interstate highways and Internet networks are essentially the same thing.

TR: Should my ISP be allowed to charge me more if I use a lot of bandwidth?

LL: Yes.

TR: That fits with the electric-company analogy.

LL: Exactly. I do have a problem if the carrier is saying, “Okay, YouTube or Blip.tv, you’re going to have to pay a certain amount to have access to [the customers on] our network.” We’ve seen this again and again in history. A new technology shakes up a marketplace. Then there’s a period of amazing, generative competition. And then it gets consolidated and taken over, often through a conspiracy with the government that produces concentrated monopoly industries. Radio is the best analogy.

TR: Would it be that sinister if AT&T occasionally delayed videos to iPhones in a busy area to ensure that subscribers there could make voice calls?

LL: Content-neutral or company-neutral interventions are not a problem. They’re not ideal, but if you say, “We’re at a peak capacity mode, and we’re going to throttle all high-[bandwidth] things for this period of time,” that’s not troubling from the perspective that I’m concerned with. Because you’re not striking any special deals with anybody. But the fact that you’ve got [capacity] problems shouldn’t mean that you just say, “Therefore, we’re just not going to worry about anything that goes on in this space.” The reality is, the future is wireless.

TR: U.S. regulators are reconsidering their approach to net neutrality rules. Are you optimistic that the principle will survive?

LL: I’m not. I think they’ve lost their window. By delaying, they’ve just allowed [network operators] to secure the political support they need to block this type of rule. Democrats and Republicans have been reminded of the campaign cash that they get from these entities.