For instance, network neutrality, as defined by its proponents, may be viewed as “content neutral,” insofar as it is supposedly meant to guarantee all Internet content and application providers nondiscriminatory access to broadband Internet customers.  But, in fact, the purpose of the proposed restrictions is hardly neutral with respect to content and speakers.

A flat nondiscrimination rule actually goes well beyond a traditional common carriage requirement, and would force Internet service providers to make their transmission services available to persons wishing to use them on nondiscriminatory rates, terms and conditions.  Under such a formulation, Internet service providers would not be allowed to charge content and application providers at all – not for transport, not for enhancements or services in addition to transport, and not for guaranteed quality of service.  Nondiscrimination under this rule would mean one-size-fits-all for all application providers, at a fixed, nondiscriminatory price of zero.  All regardless of whether consumers actually might prefer different choices and models of access and delivery.

At least some proponents have been clear about the purpose of such a restriction.  Among their stated fears:  If Internet Service Providers (ISPs) are allowed to provide enhancements and quality of service guarantees to some content and application providers, other content and application providers that were unable or unwilling to pay for such enhancements would be less likely to be viewed on the Internet.  It is as if cable program networks without the resources to acquire or produce high-definition programming sought to prevent cable operators from providing other networks with the additional channel capacity required for HD transmissions so that the standard-definition programming would not lose viewership.

Other proponents of the nondiscrimination model are less transparent about their purpose.  While “net neutrality” rules are ostensibly aimed at preventing ISPs from interfering with the equal ability of all content and application providers to reach consumers, some proponents seek to use such rules to preserve their ability to achieve – or help others to achieve – enhanced and expedited access to consumers.

Google, for example, historically has been a vigorous proponent of net neutrality, and it’s easy to see why.  Google has its own ubiquitous facilities for storing its content at sites near cable facilities across the nation.  Therefore, it can already reach broadband customers faster than other content and application providers.  Prohibiting cable operators and telephone companies from offering enhanced or guaranteed delivery to other content and application providers would not preserve equality.  To the contrary, it would preserve the inequality and head start that Google already enjoys – promoting this very large speaker over others.  Don’t get me wrong:  it sounds like a good business plan; I just don’t think it is the business of government.

Forcing equal treatment in order to protect certain content providers is not the same thing as “content neutral.”  The First Amendment ensures that the media can maximize the value of their services to customers without government restrictions designed to protect and promote particular speakers.  The overriding purpose of the First Amendment is not to make the liberty interests of the media superior to anyone else’s right to speak.  It is to ensure that the speech that is disseminated by the media – as well as the speech of individuals and other entities – is not shaped, forced or suppressed by the force of law as wielded by legislators and regulators.

Does this mean the government is powerless to protect the public from harms posed by particular actors on the Internet?  No.  We’ll discuss that in the next and final segment of our series.

…the real question for today’s broadband networks is not whether they need to be managed, but rather how.

We couldn’t agree more, since I’ve expressed that same sentiment once or twice or thrice. Network managers know that networks need to be managed. Cerf even explained why:

Network capacity (bits per second or data rate) is a limiting factor in all communications networks. Users cannot send traffic faster than the amount of network capacity available to them. But when users’ aggregate demand exceeds the available capacity of the network, network operators naturally seek to manage the traffic loads… The end result is the potential for traffic congestion, leading to service delays and even outages for consumers.

Cerf then goes on to discuss various methods, such as transmission rate caps, low latency prioritization and bandwidth constraints, but they’re all based on that phrase: “…not whether [networks] need to be managed, but rather how.” [Emphasis added.] I take great interest in these remarks, because I’ve been following his arguments over the last couple years.

For example, back on June 13 of 2006, he appeared on Public Radio’s The Kojo Nnamdi Show. You can find that episode online; if you skip ahead to about 23 minutes in, you can hear Cerf speak of net neutrality for a few minutes. At that time, he argued that innovation will be stifled and users will not be able to freely access content unless the Internet is kept “open and neutral.” He said that the government may need to provide protection. Two years later, it’s unclear what innovation was stifled.

By October of 2007, Cerf was speaking of other concerns, such as at his address at the WebbyConnect conference, which I attended. He said in his speech that “net neutrality” as a phrase has been distorted and that he would clarify what Google was asking for.

• It’s okay to charge for higher capacity.
• It’s okay to address denial of service attacks, viruses and so on.
• It’s okay to provide low latency services.
• As long as all of these practices are done in a non-discriminatory fashion.

Even at this point, Cerf was arguing that network management was necessary, but he had his opinion about what methods ought to be used.  That approach is much better than comments (like this one) that argue that the “management” argument is a scare tactic. There are those who would claim we should just build a bigger pipe. But then you read this quote from a Singapore ISP executive: “Even buying more bandwidth will not work since stuff like BitTorrent is designed to gobble whatever extra bandwidth we buy.”

Cerf specifically mentions that conversations with Comcast engineers have led him to a better understanding of the underlying motivation and rationale for that company’s network management decisions. As we often see, when people examine the capacity constraints we face and the unique challenges of running cable systems, it can contribute to the conversation.

Now that Cerf has confirmed that network management is a fact and a necessity, we can begin to have the broader dialogue about the network management that needs to take place. Cerf argues the “how” of network management is the important piece of the puzzle, but I would suggest the “who” is even more critical – as in, “Who decides what network management practices are reasonable?”

Cerf argues that government should. I think that is the wrong approach. I think it makes more sense for engineers and companies to make those decisions, not government bureaucrats. Those decisions should be based on what methods of network management might be most efficient and which ones would provide the best experience for the largest number of their customers. They should not be based on the dreams and schemes of politicians.

I recently heard one of these people describe network congestion as akin to a mail truck being full. This kind of talk makes my head hurt.

I shudder to think of the regulations that would be dreamed up by the US Department of Network Management.

He points out that both Google’s position on net neutrality and copyright infringement pose serious First Amendment problems.

… as with net neutrality, Google’s posture regarding copyright infringement seems to be driven more by its own interests than by any sense of a community of interests.

By the standards of those of us at The Media Institute, which is primarily a First Amendment organization, Google’s lack of any meaningful concern or action regarding freedom of speech and of the press is the most troubling aspect of the company.

We would not have this concern if Google were just a small affair, or if the legacy media were fat and sassy. But neither is the case. Google is a giant while newspapers, for instance, are in a fight for their very survival.

The Media Institute is a nonprofit organization that is one of the preeminent defenders of the First Amendment, so these remarks bear some close attention.

Today he has an interesting look at two complementary articles on Google and its advertising future – the Wall Street Journal‘s Kevin Delaney offers the first and Richard Bennett, in the San Francisco Chronicle, provides the second.

Malik wonders if the WSJ article is intended to draw sympathy for Google as it tries to grab at the brass ring with the Yahoo deal.

If anything, the [Delaney] article paints a rather sympathetic view of Google and its money machine. I am surprised by the timing of this story. After all, these problems are quite well known and have been subject of many tomes.

I wonder if this story and Google’s challenges are meant to portray the search-and-online advertising giant as an underdog and win it some sympathy from regulators as it goes in to get its advertising deal with Yahoo approved.

Malik links to Bennett’s column which suggests that Google’s renewed interest in net neutrality (a concept it had begun to walk away from, until Cerf’s recent comments implying a preference for nationalization) may be an effort at drawing attention away from the Google-Yahoo deal.

Nearing an agreement with Yahoo to grab the ailing company’s search business, Google scripted a series of dramatic public events apparently designed to distract from the pending deal. These events emphasize network neutrality, an ever-changing regulatory ideal that Google thrust into the political spotlight two years ago. As entertaining as this spectacle is, regulators should not be fooled.

In his exploration of Google’s Net neutrality efforts and the timing, Bennett charges that there is a certain amount of doublespeak going on. While highlighting Google’s argument that net neutrality is necessary because there are only a few competitors in broadband provision, Bennett points out that the Google-Yahoo deal would give the Big-G 85% of the market for search ads, and the ability to set prices with no competitive controls.

I think both articles are interesting reads, and thank Om for pointing them out. Malik also has a poll up on his site asking readers to weigh in on whether the Google-Yahoo deal should go through.