Hijacking Neutrality

Perhaps he’s too demure to say “I told you so” himself, but events are bearing out the concerns about net neutrality and regulatory capture that  Tim Lee expressed in his excellent Cato paper “The Durable Internet.” The content industry is lobbying not just to ensure that neutrality rules permit filtering of Internet traffic by ISPs to block copyrighted material, but wants the FCC to positively encourage it.  As a brief from the Motion Picture Association of America suggests:

In fact, if the Commission wants to see a meaningful and long-term reduction in the amount of bandwidth consumed by illegal content, it should foster an environment in which innovation itself is able to flourish and new tools are not only permitted, but encouraged, to develop. The government should create incentives for this investment by clarifying that industry efforts will be rewarded with open and flexible regulations.

The Electronic Frontier Foundation has been out of step with some of their usual allies on this front, arguing that however desirable the open Internet might be, the broad assertion by the FCC of authority to control network architecture sets a dangerous precedent. The implicit threat to ISPs here is: “Go along with our wish list for intrusive filtering or we’ll find a way to use the rules to make trouble for you.”

The telecoms, meanwhile, are pressing for the applicability of neutrality rules to all sorts of other application-level service providers, such as Google. An AT&T filing argued that “the commission cannot rationally impose rules on one set of providers based on hypothetical concerns while exempting other providers that act as Internet gatekeepers and have engaged in actual misconduct.” They specifically called out Google, which they assert “shapes how consumers actually experience the Internet more than any given broadband provider possibly could.”

It would, to be sure, be perverse if industry players managed to use regulations designed to promote openness and innovation as a cudgel with which to whack innovative competitors. But in the world of regulation, no less than in the domains studied by Alfred Kinsey, it turns out that the perverse is perfectly normal.