No Thanks, Net Nannies

The FCC's proposals for new Internet regulations are based on bad data and bad assumptions.

In the summary of its recent notice of proposed rule-making, the FCC praised the Web's success as a platform for innovation and expression and declared its intention to "seek the best means of preserving a free and open Internet." 

This opening statement of intent was meant to introduce the commission's proposed new net neutrality rules for Internet service providers. Instead, it serves to undercut them. Isn't it usually true that the best way of preserving a system that's almost universally agreed to be working quite well already is to leave it alone? 

Proponents of net neutrality would likely respond that it's necessary to preserve the Web's long-standing openness. Without tougher regulations, they might say, we could end up with a corporate-controlled Internet that stifles free speech, hurts innovators, and denies the public its rightful access to a powerful communications tool. And they might point to studies they argue prove their points.

But key reports being used to bolster the cause of net neutrality are flawed and unconvincing. And neutrality advocates have precious little in the way of hard data to back up their worries about an Internet broken by corporate control. 

Before announcing its proposed net neutrality rules, the FCC commissioned a study by Harvard's Berkman Center for Internet and Society. The 232-page report, which was recently released in draft form, examined global broadband policy, ranked outcomes by country on a variety of metrics, and reported that "the lowest prices and highest speeds are almost always offered by firms in markets where, in addition to an incumbent telephone company and a cable company, there are also competitors who entered the market, and built their presence, through use of open access facilities."

But according to George Ou, policy director for Digital Society, a tech-policy-focused non-profit funded by tech-industry group Arts + Labs, the report, which places U.S. broadband performance in the middle of the pack, relies heavily on misleading and likely erroneous data. 

For example, one metric ranks countries by fastest broadband speed offered by an incumbent provider. But the ranking relies on OECD reporting about the providers' advertised rates, which aren't always comparable across national borders. Residents of Japan, for instance, may have access to connections advertised at an ultra-fast 100 mbps, but, based on real-world usage data from Akamai, one of the web's leading providers of data storage, those connections frequently deliver actual speeds far slower than advertised.  

FCC officials have also reportedly cited another report showing numerous instances of blocking by ISPs. But according to Richard Bennett, a longtime software engineer and networking consultant who now serves as a tech-policy research fellow at the Information Technology and Information Foundation, the tool used to gather information on ISP blocking activity is unreliable, producing false positives on multiple tests.  

Indeed, although net neutrality advocates frequently insist that strict rules are necessary to prevent blocking and other bad behavior by ISPs, reported instances of troublesome blocking are few and far between. Moreover, they're unlikely to ever be a serious problem.

As economist Ev Ehrlich, who served as under secretary of commerce for economic affairs in the Clinton administration, recently pointed out, such accusations beg serious questions:

Who would possibly subscribe to an Internet provider that limited what content its subscribers could see or what innovations it could access? Who would buy broadband from a provider that announced "On my service, you can only trade with Schwab or buy music of iTunes or books from Amazon?" …Who would ever do business with a grinning-idiot provider who only let you get your content from sites that met with Fox's or MSNBC's approval? Why piss off half your customer base to keep the other half?"

And even if an ISP wanted to block political views, it simply wouldn't be possible to do so in any sustained way. As the libertarian Cato Institute's Tim Lee wrote in a 2008 paper on Net neutrality, "network owners have neither the technology nor the manpower to effectively filter content based on the views being expressed." Yet as Erhlich says, "that's the argument—that providers will do stuff like this that nobody wants and make it stick."

Peter Suderman is an associate editor at Reason magazine.