Julian Sanchez at the Cato Institute takes on civil liberty groups’ arguments for net neutrality by pointing out that the alleged “violations” regarding neutral access to the internet seem to be misrepresented by these groups:
I harp on this because I think it indicates how muddled a lot of the debate over “neutrality” has gotten. People have a whole welter of heterogeneous concerns about the future of the Internet that increasingly seem to be lumped under the rubric of “non-neutrality” or “network discrimination,” which both obscures the plurality of potential problems and begs the question of whether, assuming a policy remedy is necessary, “neutrality” regulation is actually the ideal silver bullet response to all these diverse concerns. If there were no downside to mandated neutrality—if there were no risk of opening the door to regulatory gamesmanship, and if every imaginable deviation from neutrality were plainly harmful—then this might not be such a big deal. If there are potential downsides, though, it behooves us to get a little more granular and look specifically at what we’re concerned about, and whether there are less sweeping mechanisms that would work to address the problem.
The ACLU puts the threat of content-based restriction of expression at the forefront of their argument, but this also seems like the concern with the weakest empirical basis, even in a relatively oligopolistic broadband market. First, to the extent that content-based filtering would be executed by means of Deep Packet Inspection, it would almost certainly run afoul of the Electronic Communications Privacy Act, which permits carriers to “intercept” the contents of a communication only when this is a “necessary incident” to the provision of their service. As my colleague Tim Lee lays out at greater length in his excellent paper “The Durable Internet,” there is ample evidence that consumers will react with enormous hostility to efforts to literally cut off their access to the sites they want to visit.
If we’re worried about wholesale blocking of domains, then, I think transparency-based regulation should be sufficient. That is, an ISP claiming to offer “Internet access” shouldn’t be able to restrict access to a site while making it look as though it’s the result of some kind of technical problem—perhaps even the blocked site’s fault. On the other hand, if Comcast wants to openly and transparently offer the option of a whitelisted “family plan” to conservative parents who don’t feel up to fussing with client-based blocking software, that strikes me as the sort of limitation on “expression” that is neither a serious threat to the larger Internet architecture—the effect is only to substitute for filtering the parents would do client-side were they more tech savvy—nor a proper civil liberties concern. Again, I expect a transparency requirement would be sufficient to preclude misbehavior on this front precisely because most consumers don’t want their carrier deciding what sites they’re allowed to access, and this, more than the fear of pressure from advocacy groups or even the FCC, will tend to make ISPs hesitant to do so if they can’t do it covertly. At the very least, again, if there are potential downsides to neutrality regulation, I can’t fathom why you wouldn’t try this more modest step first and watch to see if some more radical remedy is necessary.