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.
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
4. van schewick, b. Written Testimony before the Federal
Communications Commission at its Second En Banc
Hearing on Broadband Management Practices.
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 ( email@example.com) 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
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