Net Neutrality: Do You Really Want Red Tape?

Here’s our story so far: Comcast gets dragged through the bloggy mud and sued by two subscribers for not allowing users of peer-to-peer software to eat as much bandwidth as inhumanly possible. 

This noise catches the attention of the self-appointed Net Neutrality crew, who complain to cable-hatin’ Kevin Martin to stop it.

So — trying to prove the free market can rectify any perceived problems far better than new federal laws could — Comcast pledges to work with P2P software providers BitTorrent and Pando Networks to get this stuff to work better. 

And the Net-Neuters deride it as a cynical and/or meaningless ploy. 

"Slick press releases by a dishonest would-be gatekeeper do nothing to protect consumers," Marvin Ammori, general counsel of media-advocacy group Free Press, said in a statement. "The need for Net Neutrality remains urgent. The FCC should do its job to uphold the existing bill of rights for consumers and should do so quickly."

Let’s put aside the question of which "consumers" need "protection" from Comcast’s bandwidth-management policies. (Ammori’s comments included a weird fox-guarding-the-henhouse metaphor — as if Comcast were feasting on the flesh of its customers.)

Even if you agree that Comcast acted improperly in impeding P2P traffic, Net Neutrality laws remain a bad idea.

At best, such additional regulation would have zero effect. At worst, it would make the Internet less efficient, allow spam to proliferate and hamper ISPs from responding to security threats.

Earlier this month Damian Kulash Jr., lead singer for the band OK Go, opined in The New York Times that Congress needs to enact laws to preserve open and free access on the Internet, in the same way phone companies are required to complete calls to any other provider.

"The telephone company doesn’t get to decide what we discuss over our phone lines," Kulash wrote. "It would be absurd to let the handful of companies who connect us to the Internet determine what we can do online."

In theory, this sounds absolutely reasonable. Why not establish a law guaranteeing that access to any application or Web site isn’t blocked or restricted?

Here’s why not: It would probably result in some unintended consequences. Use of software that ISPs consider network-hacking tools may suddenly become protected under federal law.

And consider just this one recent case: A judge dismissed a lawsuit filed against Comcast by "Internet marketing firm" e360Insight, which — among other things — complained the MSO violated its First Amendment rights because it was blocking e-mails based on keyword.

Spammers, make no mistake, are Net Neutrality bedfellows. A broadly worded law could give them an opening to start flooding ISPs with impunity.

Going back to the analogy to regulations governing phone-call completion, a Net Neutrality proponent might point out that there are exceptions to bar telemarketers from placing unsolicited calls and other protections against those who seek to abuse the phone network.

But in the binary, relatively closed world of traditional voice services (either the call goes through, or it doesn’t) such laws are easier to apply and enforce. 

The Internet is exponentially more dynamic than the old telephone networks. New applications and Web sites crop up every day. 

Who’s going to decide which applications are legitimate to use on the open Internet? A bureaucrat at the FCC? The UN? The Internet Corporation for Assigned Names and Numbers (ICANN)? And what happens when a new threat emerges, and an ISP is prevented — by law — from responding to it?

Meanwhile, to put this debate into perspective, it’s important to consider the alleged "consumer harm" from Comcast’s blocking certain P2P traffic.

I bet anyone a $50 iTunes gift card that at least 80% of stuff getting traded via BitTorrent protocols, to pick the most popular P2P app, are copyright-protected songs, TV shows or movies. Or porn, which may or may not be copyrighted. Tin Pan Alley tunes? Probably less than 0.00001% of total P2P volume worldwide — just a guess.

Now, is it fair that Comcast is blocking, even temporarily, legitimate uses of P2P applications? No. And Comcast has now been educated on this. Basically, the operator has conceded that not all P2P users are media-stealing bandwidth hogs (although surely most, if not all, the pigs are P2P users).

Market dynamics have worked to address the complaints of the few. Comcast, facing legal action and pretty bad P.R. on this issue, has agreed to modify the way it manages its network bandwidth — so that the small number of people using BitTorrent for perfectly appropriate file transfers can do so expeditiously. 

Let’s not "fix" something that isn’t broken.