At his coming out speech this week, the new head of the Federal Communications Commission appointed himself top cop on the Internet (as chronicled by Reason's own Peter Suderman). By threatening to apply the I know it when I see it standard for discriminatory violations of "open access" to the Internet, chairman Julius Genachowski follows in the footsteps of many regulators before him. But, as the University of Chicago's Richard Epstein writes in a tidy and prescient section from his new book from folks at the Free State Foundation, the plan to defend and strengthen markets via discrete bureaucratic meddling is nearly always doomed to fail:
A similar pattern is at work in the modern debates over net neutrality. The defense of that position starts out as a plea to end discrimination. Yet there is little evidence that the new dose of regulation will produce any gains in the short run. In the long run, we can expect a repetition of the sorry performance of the FCC (or, for that matter, Congress) with respect to broadcast rights to work its way through the law of net neutrality. The sad truth is that the parties who seek to develop sophisticated and sensible schemes for state control quickly lose control over the administrative process to persons whose ambitions for state control are not bound by any fine-grained rationale. The dangers for this predictable drift usually suffice to err on the side of caution. Stated otherwise, the expected rate of depreciation of sound public norms that rely on administrative discretion is high. There are too many pressure points to keep the rascals at bay. So the recommendation here is to follow classical liberal principles that treat all state intervention as a mistake until it is shown to be a good. More practically, and much to the point of the current public policy debate: Keep private control over broadband pipes by abandoning the siren call for net neutrality.
Extra points for use of the word "rascals" in a discussion of the dull, dull (yet important!) topic of net neutrality.