Tuesday, April 06, 2010

Net Neutrality is Dead?

The news is out after an appeals court ruling in favor of Comast: Net Neutrality is dead. Specifics of the ruling indicate that a broad policy written by Congress is not enabling legislation. Seems reasonable to me, but I think the pundits are over-dramatizing things to say the least.

The reality of no net neutrality goes far beyond the pale. When ISPs declare themselves to be the gatekeepers of the Internet, they are treading on thin ice. I'm sure a few of them will come out and say, "Hey, look, let's be reasonable. We're all people here and we don't want to hurt nobody." But behind the scenes they say that they own a private network and they insist on the right to determine how traffic flows across their private network.

Really? Private network you say? Perhaps they haven't read a really old case, Munn v. Illinois that speaks rather precisely to the heart of the matter. The gist? Owners of grain elevators positioned between the lake and the railroad were operating grain elevators without a license. The ruling? If you put your private property for hire to the public, be they grain elevators or Internet access network, you're subject to the police power. That makes you a common carrier.

There's something very special about the status of common carrier. You can't discriminate against any traffic and you must allow all the traffic through. For an example, think of a taxi. The taxi driver can't discriminate from black or white without running afoul of the laws. Same thing is true for a private network for public hire. A privately owned network connected to the Internet is acting as a common carrier and cannot favor BitTorrent over their own special video service.

The point can be made finer with the distinction of interconnection status. If you have a private network and you're not interconnecting with any other network, then yes, you can determined the priority of packets on your network. But if you interconnect with the rest of the world, you're a public network and you are prohibited from shaping traffic as a common carrier.

There is a simple solution to this: reclassify every single ISP as a communications network, like the phone companies. You will have instantly turned every ISP into an open access common carrier, but probably not without a fight.

Cable Network operators would have a choice. They could close up all their connections like goosebumps in a cold, wet breeze - or they could accept their new status as common carriers and play nice with the rest of the world.

Without that interconnection between networks, there would be no Internet. The giant ISPs want it both ways. They want to be the taxi cab and discriminate against certain traffic.

My hope is that governments worldwide will see the solution as a fair one to preserve and open and free Internet for all.
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