Still, there is a potential trade-off here that legislators need to resolve. Allowing discrimination reduces user choice and application-level innovation. It distorts competition in applications and content, harms economic growth and constrains democratic discourse. Sacrificing the vital innovative and competitive forces that drive the Internet’s value to get more broadband networks seems too high a price; as Tim Wu has put it, it is like selling the painting to get a better frame. ⁶ While it is impossible to protect application-level innovation and user choice once network providers are allowed to discriminate, there are ways to solve the problem of broadband deployment that do not similarly harm application-level innovation and user

choice (for example, if insufficient profits really are the problem, subsidizing network deployment may be one).

Changes in technology have given network providers an unprecedented ability to control applications and content on their network. In the absence of network neutrality rules, our ability to use the lawful Internet applications and content of our choice is not guaranteed. The Internet’s value for users and society is at stake. Network neutrality rules will help us protect it.

 

References

1. frischmann, b. M. and van schewick, b. network neutrality and the economics of an information superhighway: a reply to Professor yoo. Jurimetrics Journal 47 (summer 2007), 383–428.

2. lessig, l. Testimony before the United States Senate, Committee on Commerce, Science, and

Transportation, at its Hearing on: The Future of the Internet. 2nd session 110th U.s. congress, 2008.

3. van schewick, b. towards an economic framework for network neutrality regulation. Journal on Telecommunications and High Technology Law 5, 2 (2007), 329–391.

4. van schewick, b. Written Testimony before the Federal Communications Commission at its Second En Banc Hearing on Broadband Management Practices.

2008; http://www.fcc.gov/broadband_network_ management/ hearing-ca041708.html.

5. van schewick, b. Architecture and Innovation: The Role of the End-to-End Arguments in the Original Internet. Mit Press, cambridge, Ma, forthcoming 2009.

66. Wu, t. Why you should care about network neutrality. Slate Magazine (May 1, 2006).

Barbara van Schewick ( schewick@stanford.edu) is the co-director of stanford law school’s center for internet and society, an assistant professor of law at stanford law school, and an assistant professor electrical engineering (by courtesy) at stanford’s department of electrical engineering in stanford, ca.

this column builds and partly draws on my academic work on network neutrality; see ^{1, 3–5}. thanks to Joseph grundfest, lawrence lessig, larry kramer, and Mark lemley for comments on an earlier version of this material.

Counterpoint: David Farber

Let’S Say that I am completely in favor of network neutrality. But what would such a strong position actually mean? The definition of “network neutrality reshapes itself like our lungs. It expands, drawing in causes ranging from freedom of speech to open access. Then it contracts, exhaling a lot of hot air, and starts all over again. I would like very much to sharpen the focus to those essential issues that will form the basis of a future expansion of broadband Internet services as well as the widespread deployment of such capabilities.

There is one constant about the Internet: it has continued to evolve and

change, often in ways none of us—even those of us directly involved in its development—would have predicted. This simultaneously makes the Internet so valuable and so vulnerable. Its growth and expansion into all corners of society have made it a major part of global life—but this expansion and the value of the Internet also frequently leads to efforts by some to try and predict and control its direction.

We’ve had cycles in the past where the Internet faced challenges due to rapid growth or the development of new forms of malware or online attacks. For example, in the dial-up era of the 1980s, the growth of list servers and FTP file downloads caused great concern about congestion. In the 1990s, there was a

 

34 CommunICatIons of the aCm | feBRuaRY 2009 | vol. 52 | No. 2

similar fear that the Internet would “crash” due to the rise of the Web. At various times, fears of new forms of viruses and botnets have arisen as well. In every case, the cooperative efforts of network providers, applications developers, and volunteers with a great amount of expertise have helped us make changes in protocols or add capacity that have helped us get through.

The evolution of the Internet is thus driven equally by competition and cooperation, and by and large we continue to find ways, as messy and informal as they often are, to address problems as they arise.

I am concerned that we may succumb to fears about possible dangers to the Internet’s future and react with proposals to legislate or regulate its operations. Many of these ideas are designed around presumptions as to how the Internet will evolve. We have seen the Internet become a truly mass-market phenomenon on a global basis. Broadband networks have been and are being deployed that are moving us toward higher levels of speed and capability. Some now suggest there is the potential for abuses that might harm consumers as these networks grow. They argue that the companies deploying wire-line broadband networks might use their position as network owners to favor the applications and services they provide and/or harm competing servic-

illUstration by leander herzog