Whatever the outcome, the debate on "net neutrality" is doomed to leave us worse off than before.

Whether we win the fight against corporate deals creating Internet "fast lanes" or not, the fact that there's even a debate on the issue has doomed it to failure. This one snippet from a recent TechCrunch article on the topic explains why:

Net neutrality, which requires ISPs to allow all legal content to move through networks uninhibited, has made waves on the Hill since the FCC proposed a rule that would create “fast lanes” for companies that can pay more.

The issue at hand has evolved. We're no longer debating whether or not ISPs have the right to restrict access to content, we're arguing whether or not ISPs have the right to restrict access to legal content.

This is not a trivial distinction.

What Once Was Legal

Let me be clear, I don't use the Internet to do anything illegal. Well, not at the moment. Our legal landscape is changing daily, and what is legal today might be illegal tomorrow.

Creating a legal statute protecting net neutrality that contains any language resembling "legal content" turns our ISPs into corporations wielding judiciary discretion.  At that point, they cease to be merely the means with which we access the Internet and become arbiters of what content is and is not allowed.

Since HTTP content is passed in the clear, ISPs will be able to monitor that exchange and rule on its legality (while purporting to protect their own legal interests) and either allow it or disallow it. The only requirement, according to the law, is that they don't discriminate against sources of that "legal" content.

Since HTTPS content is encrypted, ISPs will have no way to make a judgement regarding content legality since they can't see it. This is a good thing since it means our exchange will be private. It's a bad thing because ISPs will begin restricting content based on whether or not a particular source is suspected of dealing in illegal content.

Once upon a time, a handful of students at my university hacked into my laptop and set up an anti-administration chat room on my machine. This means, for a time, that my machine was dealing in content over which I had zero control. They were only exchanging text files; what if they were streaming pirated movies? If they were ever caught, my IP would be labelled "dealer of illegal content" and I'd be subject to ISPs locking out any encrypted transmissions from or to my network.

Possible Outcomes

Right now, there are two possible outcomes to the current net neutrality debate in Congress:

  • Nothing happens. ISPs are free to throttle connections to networks/resources they consider "high demand" and place a higher premium on faster connections to those resources.
  • Actual government regulation. ISPs are restricted from limiting access to "legal" content, giving the ISPs the ability to declare online activity illegal - or to just limit connections because of the suspicion of illegal activity.

The first outcome is horrendous. The second, though, is worse.

When I was a Resident Assistant in college, I held a high standard for my hall and prided myself on only having 2 behavioral incidents during the year. One was a trespasser who broke in and vandalized a bathroom. The other was a student who was kicked out of the building for allegedly pirating movies. The school's IT department noticed his room consuming a high amount of bandwidth almost continually. Though it was encrypted, they surmised the only thing a freshman could be doing online was pirating movies. Without evidence, but with firm statements from the IT professionals that "this was all it could be," he was kicked out of the building and faced other punishments from the administration.

The irony - he ran VPN coordinating virtual LAN parties for Starcraft gamers. There was no restriction against this kind of use of the school network, so he took advantage of the high-speed campus Internet and held some incredible tournaments. The administration, however, yielded to the word of the IT department over his and upheld his removal from the dorms and temporary suspension from college.

But no, Comcast and Time Warner and the like won't behave the same way when given the power to police "legal" use of their networks. I'm sure I'm overreacting.