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Network Neutrality In A Non-Neutral World

Harold Furchtgott-Roth

Based on the ancient concept of common carriage applied to the contemporary Internet, the D.C. Circuit Court of Appeals recently upheld the FCC’s network neutrality rules for Internet service providers such as AT&T, Verizon and Comcast. The court did not opine that the new rules were good policy, merely that, under court precedent, the FCC as an expert agency was allowed to craft and implement the network neutrality rules.

Under the network neutrality rules, ISPs are prohibited from three activities: (1) blocking access to lawful content and websites; (2) throttling traffic on the basis of content; and (3) accepting payments to prioritize traffic.

Neutrality may be the law for American Internet providers. But it is not the law for Internet providers in much of the rest of the world. In many countries, Internet providers are required to work in concert with brutal national governments. In these countries, rather than a technology of personal freedom, the Internet has become a means of government spying on people. Websites and content are routinely blocked. Information from government-friendly sites has priority. Those who frequent anti-government sites are concerned about far worse consequences than throttling.

There is no international consensus on “lawful content.” In the United States, other than child pornography, almost any content is lawful. International terrorist groups can lawfully and with impunity through the Internet spread the gospel of hate and instruct followers how to engage in criminal enterprises. Pornography, intellectual property piracy and other vices and crime abound. Internet providers are not allowed to monitor the content of sites. Even if they were, because some content might be legitimate, ISPs are generally prohibited from blocking these sites and their content.

The concept of lawful content varies even in advanced countries. In Europe, individuals have the “right to be forgotten” by registering to have accurate and lawful information about themselves blocked. Thus, some otherwise lawful information that can be found in a book in a library must be blocked by ISPs in Europe. The same information that in the United States cannot be lawfully blocked cannot in Europe be lawfully disseminated.

Common carriage as a concept to legitimize network neutrality is even more puzzling. Americans are familiar with a wide range of businesses subject to various forms of common carriage requirements. ISPs will be the only ones subject to network neutrality rules.

Consider an ordinary American taking a cross-country trip. She takes a taxi to the airport where only one taxi company is allowed to pick up passengers, a practice not allowed under network neutrality rules.

On the way to the airport, the taxi drives in an HOV lane with faster speeds than other lanes. Again, not allowed under network neutrality rules. At the airport, the taxi drops our passenger off in one location but is not allowed to drop the passenger in a zone limited to disabled passengers. A good idea not allowed under network neutrality rules.

At the airport, our passenger has paid for a government-issued “Global Entry” card that enables her to move more quickly through the security check system. She has also paid for a better seat that enables her to move to the front of the line to enter the plain. None of these priority payments to jump to the head of queues would be permitted under network neutrality.

Once on board the plane, she waits for half an hour while the airline adjusts the sequence of flights for its planes leaving the airport, a form of throttling. Once again, network neutrality is violated. On her journey, our passenger employs several different common carriers and many more businesses subject to common carriage principles. The only company that our passenger will encounter subject to rules that remotely resemble network neutrality rules is her ISP.

The Internet, both today and in the future, operates under a set of rules that has nothing to do with network neutrality. The Internet business model is largely based on non-neutrality. Many Internet sites control lawful content which, for business reasons, they block unless the user pays a fee or watches advertising. By use of localized storage of information and employment of fast private networks to take that information to a point of presence, some Internet sites have quicker service times than others. This is a form of lawful paid prioritization, but to the consumer, there is no perceptible difference between lawful and unlawful prioritization.

Controlled remotely over the Internet, fleets of autonomous vehicles are projected in the coming decades to rule our highways. ISPs may be subject to network neutrality rules, but don’t expect AVs to operate under the same rules. They will operate with blocking of content, throttling of vehicles under some circumstances, and paid-prioritization throughout.

Although they violate network neutrality principles, Internet businesses and common carriers are not evil. They are consumer-friendly. Through blocking, throttling and paid prioritization, they make consumers better off. If only ISPs were allowed to operate under the same rules.

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