Net Neutrality

Net Neutrality Supporters Should Actually Hate the Regulations They're Endorsing

The Obama-era "Open Internet Order" discourages a free internet.


Tea / Dreamstime

If you went on the internet at all last week, you could not help but miss some of the web's most popular websites publicizing their campaigns that defend the Obama-era telecommunications regulation known as the Open Internet Order (OIO). Last Wednesday, tech heavyweights like Google, Facebook, Twitter, Reddit, and even Pornhub held a "Day of Action" to support the controversial FCC rules. The websites bombarded users with blog posts encouraging folks to contact their representatives and popup messages bemoaning the future of a slow and tiered internet. But ironically, these websites' stated goals are in direct contradiction of the regulations that they ostensibly support.

Simply stated, the OIO does not in fact secure the principles of "net neutrality" like so many of these websites implied to their users. In fact, the OIO may have the adverse effect of actively discouraging the principles of net neutrality through a loophole that would exempt motivated Internet Service Providers (ISPs) from OIO regulations. This cannot be emphasized enough: The OIO allows and encourages ISP filtering, a huge no-no in the world of net neutrality.

This is a point that my Mercatus Center colleague Brent Skorup has made since shortly after the OIO rules were first introduced in February of 2015. It's a bit of a nuanced argument, and one that would not be immediately obvious to anyone who does not closely read all FCC reports and related court cases as a profession. But as the general public is whipped into a veritable frenzy to defend the OIO rules or risk Internet catastrophe, it's a critical fact to hammer home in the debate.

To understand just how muddled the discussion surrounding "net neutrality" and the OIO has become, we need to know a bit about: 1) how the concept of net neutrality developed and what it means; and 2) the political pressures and compromises that were made in the run-up to the introduction of the OIO.

First, the definition of "net neutrality" is incredibly hazy. You could almost say that more people agree that net neutrality is a good thing than can agree on any particular definition. The concept was first laid out by law professor Tim Wu in his seminal 2002 article, "A Proposal for Network Neutrality." Wu lays out hypothetical scenarios where ISPs block or throttle access to content for reasons ranging from cost to anti-competitive activities. His article attempts to distinguish content differentiation that he finds reasonable and should be allowed from those that he finds unjustifiable and should be prohibited. The article generated a fair bit of controversy even under this more limited framework—critics responded by pointing out some benefits of non-neutral Internet arrangements—but it was at least a relatively narrow and understood topic.

From there, the concept of "net neutrality" morphed into something that was both utopian and unworkable. If you type the phrase into Google, the top definition provided is the "principle that Internet service providers should enable access to all content and applications regardless of the source, and without favoring or blocking particular products or websites." Yet this definition stands in sharp contradiction to the vision outlined by Wu, who noted that "a total ban on network discrimination, of course, would be counterproductive." This kind of extreme understanding of net neutrality has been dismissed by early Internet pioneer and MIT computer scientist David Clark as a "happy little bunny rabbit dream" that would be both impossible and undesirable to implement.

Unfortunately, the unhinged understanding of "net neutrality" has since won the day. And it has fueled average people's nightmares about what the future of the Internet holds—even though it looks a lot like what we've always enjoyed. (After all, the OIO regulations were only proposed in 2015.)

The core of these fears is a future where consumers are forced to purchase tiered package for Internet access of specific websites, or face slow service or even a complete blackout. Consider this image macro, which is popular on sites like Reddit and Twitter. The meme evokes a world where ISPs would be free to filter traffic through various "fast" and "slow" lanes that could be accessed by special fees.

Of course, we did not see ISPs engage in this kind of behavior in the pre-OIO history of the internet—which is to say, for the entire history of the internet. But ironically, the OIO actually creates incentives for ISPs to do just that.

How? The original OIO language attempted to deal with any First Amendment objections to the new FCC regulations by differentiating between platforms that engage in "editorial intervention" versus those that are mere conduits for speech, such as most ISPs. But this created a problem because some ISPs do engage in editorial curation—specifically, religion-oriented ISPs that filter out content objectionable to certain faiths. In 2016, the US Court of Appeals crystallized this loophole in its interpretation upholding the OIO, which noted that ISPs that explicitly offer "'edited' services" to its customers would not become subject to the OIO.

In other words: Tell your customers that you filter content, and you're free from the shackles of the FCC!

Which brings us to our second point: The OIO was not based on years of measured research and debate, but was a politically-expedient compromise to rally the Democratic base. Skorup notes that former FCC Chairman Tom Wheeler and his staff explicitly did not favor the Title II approach of the OIO until President Obama exerted pressure on him to do so in 2014. According to Gene Kimmelman of the progressive advocacy group Public Knowledge, the move was an effort to secure a "clean victory for us to show that we are standing up for [the] principles" of the Democratic Party.

The result was a half-baked and rushed OIO that contained a glaring loophole which inadvertently enshrined in law what net neutrality advocates had been fearing the whole time. It's a remarkable outcome, and one that even OIO hardliners now bemoan.

(Although some of the more Machiavellian net neutrality advocates know about these loopholes but simply don't care. Instead of a narrow grant of FCC power, they got a broad swath of Internet regulations that can be gamed to benefit certain parties and inject government into even larger social domains.)

This comedy of errors has resulted in a situation where the OIO is untenable for both true net neutrality advocates and net neutrality skeptics like myself. On the one hand, as discussed, the OIO explicitly violates the principles that many net neutrality activists hold dear. On the other hand, the OIO erects a major new permissioned regime that threatens to stifle internet innovation and favor certain firms and industries over others. In particular, the OIO employs a vague "general conduct standard" that could prompt regulators to clamp down on any online activity that they don't like. This kind of catch-all "standard to rule them all" could further frustrate the stated aims of net neutrality advocates.

So with the OIO, we find ourselves in a rare scenario where diametrically opposed parties to a narrow policy question can beneficially work together to destroy a regulation that accomplishes neither of our aims.

Unfortunately, the emotional inertia surrounding the hot potato of pure net neutrality renders many people's rhetorical shields frustratingly difficult to penetrate. But those of both sides of the issue who understand the flawed premises of the OIO should shout this fundamental error from the rooftops. After this bad policy is gone for good, we can get back to fighting over the core issues that really matter.

NEXT: 40 Ways the World Is Getting Better

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  1. Never let the facts get in the way of a good story.
    Story being the operative word.

    1. The NN crowd has been flooding social media for weeks. Their message is overwhelming. Very few of them, even those who think of themselves as techies, know what it actually means.

  2. The big name champions of “net neutrality” are knowledgeable enough to know that it is a meaningless catch phrase. Yet they persist in using it, because they know it is also a powerful slogan among the less tech savvy.

    This is about regulatory capture and existing technologies recognizing that their business models are exquisitely vulnerable to the next set of technologies to come along. So better to defend the status quo than confront the risks inherent in innovation.

    1. “This is about regulatory capture and existing technologies recognizing that their business models are exquisitely vulnerable to the next set of technologies to come along.”

      What innovation? Faster and cheaper internet service? You think that’s what this is about?

      1. What innovation?

        So, you don’t even know what the innovation is, but you’re damned sure going to regulate it aren’t you?

        Fuck off slaver.

        1. I’m asking because I wasn’t sure what innovation he had mind. You don’t need to take offense at that.

          If you are concerned that I am going to regulate the internet, you can set your mind at peace. I’m not.

          1. Did you actually read what I wrote?

            Because my closing sentence “So better to defend the status quo than confront the risks inherent in innovation.” Was directly preceded by “…existing technologies recognizing that their business models are exquisitely vulnerable to the next set of technologies to come along.

            So, if you are asking what ‘innovations’ I have in mind, my answer is I do not have any specific innovations in mind. But I do expect that, absent the heavy hand of government squelching innovation, sooner or later existing technologies will be supplanted by newer ones.

            Much like the internet has largely supplanted fax machines.

  3. The OIO allows and encourages ISP filtering, a huge no-no in the world of net neutrality.

    Yes, well, the Obama administration was very, very good at encouraging people to believe it was doing one thing (and oh boy did those people want to believe) while in fact doing the opposite. If the Obama administration threw a child’s birthday party, it’d end up with a dead hooker, several fires, and dozens of escaped zoo animals.

    1. Citizen X – you are my hero! I love this analogy!

    2. So best party ever?

    3. “If the Obama administration threw a child’s birthday party, it’d end up with a dead hooker, several fires, and dozens of escaped zoo animals.”

      That sounds more like a secret Muslim party.

      1. “That sounds more like a secret Muslim party.”

        Yea so one in the same

    4. Sadly, I don’t seem to get invited to those parties any more.

  4. Net neutralty proponents seem to be fueled by an attachment to a Platonic Ideal that they cannot admit can be corrupted in implementation and paranoia and hatred of corporations and the profit motive (it does not help that many ISPs have local monopolies and are notorious for poor customer service). They dismiss distrust if government power as fear of a bogeyman. It is not a position they can be easily tslked out of as they are simply dismissive of free market arguments.

    1. They dismiss distrust if government power as fear of a bogeyman.

      Well, yeah. Government is us. It’s we the people. Says so right there in the founding documents. We the people. So if you’re scared of government then you’re scared of the people. Which is total bullshit. People in government have good intentions. They aren’t there to make profits. They are there to do the will of the people. They are selected by democratic elections, by the will of the people. Government is the will of the people. Jesus, fucking libertarians. Don’t understand the basics of democracy.

      1. You’re joking, right? Either that, or you’re the most na?ve person on the planet.

        1. Look at his handle.

        2. A guy with “sarcasm” in his name is joking? I’d take that bet.

          1. I’ll take that bet — but for which comment? This or the grandparent? Oooooh, tricksie ……

      2. As Ronald Reagan liked to say, “The nine scariest words in the English language are ‘I’m from the government and I’m here to help.'”

      3. Damn right I’m scared of the people. Shit on a monkey, have you ever met the people?

  5. And again, we are rhetorically describing an exception addressing 1st Amendement concerns with a rule by the pejorative term “loophole”, as if the problem with OIO would go away if the exception did not exist. That is a good way to undermine liberty as a concern.

  6. Nothing is as neutral as social justice.

  7. It takes a special level of stupid to assume more government regulation will make anything better, quicker, or more efficient.

    1. Look. We need rules. If government doesn’t set policy then the corporations can do whatever they want. That can’t be allowed. All they care about is making a profit. They’ll rip you off at every turn. No, we need regulation. The more the better. The alternative is corporations getting rich.

      1. Yep. I fully agree. Next thing you know, those evil corporations will start paying dividends just to keep people thinking kindly of them. I mean, even now they are raising their stock prices so high that ordinary citizens have to pay taxes on their profits when they sell the stock. OMG!

    2. of course it can just look at am-trak oh no how about the VA oh wait no, how about health care no wait, oh I know NASA oh wait no they can’t even get men into outer space anymore your right i think our governments job is to actually take us backwards since thats all they’ve done since the 60’s

  8. How about this- allow more competition with new ISPs. Several startups are beaten down by regulation and frivolous lawsuits by existing companies. Get me a choice better than between bad and worse and I’ll address this situation in the marketplace.

    1. It would be fantastic if we had the choice to go with a different ISP, but it seems that everywhere I’ve lived thus far in Texas gives you one choice of DSL/Broadband. One.

      This isn’t a ‘competitive’ market, although there could be technical reasons why it is the way it is. I couldn’t say, I’m lucky to get my home network functioning and encrypted. I honestly do not understand the nuance of large-scale networking.

  9. Considering the proposed regulations are not even in effect, how can they be ‘repealed’?

    1. That’s what tells me how ignorant most NN proponents are, and how dishonest the remaining few are. All those articles urging people to write to the FCC, acting as if the internet is going to revert to some dark age of crony corruption … when the NN regs have never been in effect!

  10. Net neutrality pits net content providers like facebook and amazon against access providers like comcast and verizon, so discussing this in terms of big business really doesnt make sense – it has to be focused on consumers, and frankly consumers benefit from the OIO more so than without it. Yes there are highway costs that ISPs would have to take on, and that might raise costs for access – but it would also prevent unfair or anti-competitive business practices at the same time as many of these companies are vertically integrating (hello TimeWarner).

    Just a few points about the article:

    1) “edited services” are slightly different from bandwidth filtering, etc. as you know you aren’t being given access to a site for a particular reason. To that end, unless you’re using the same word to conflate the two concepts, the existing loophole doesn’t create “incentives” for ISPs to slow bandwidth of competitors, etc., any more than getting rid of the OIO would.

    2) If it were so easy to get around, we wouldn’t be seeing massive resistance by ISPs, as the loophole has a lot of uncertainty surrounding its use.

    1. And this weird historical argument, that we hadn’t seen vertically integrated companies act anti-competitively in this specific arena, so we shouldn’t expect them to going forward keeps coming up here on reason when it really shouldn’t. For one, the companies hadn’t began vertically integrating, these vertical alliances are new. More to the point, its happened all over the tech sphere, and the problems have inarguably existed in markets forever – so to pretend like people won’t act in their self interest here, as opposed to elsewhere, is disingenuous to say the least.

      The entire point of the free market is that it depends on people doing exactly that: acting in their self interest. Thats not a bad thing, unless we close our eyes to it and pretend it won’t happen.

    2. Or states/cities can stop offering monopolies to companies and the Feds can crack down on collusion.

      There is a reason why, where I live, if I want cable TV, I can only choose Spectrum. If I want high-speed internet, I have two main options, and U-Verse, which I have, is fairly shitty.

      All of these horrors caused by “monopolistic practices” are largely caused by government allowing them to be monopolies.

      1. No, see, the only way to protect yourself against a monopoly that has no power to compel you ti interact with it is to create another monopoly that does have the power to compel you. It’s blindingly obvious. The logic is impeccable.

        1. le sigh

          1. Le dumbass.

      2. @damikesc

        Yeah, I agree with this but I think you can view the issues seperately. The Government granted monopolies that came out of the AT&T breakups are a problem. To a certain extent, we are seeing a breakaway via wireless internet from the hardwired access problems that companies had breaking into cable markets, but right now if we want to do things like stream HD content or play video games online we still need the speed that hardwire gives us.

        1. Hahahaha. You actually think that wireless spectrum is LESS regulated? I begin to see the root of your problem…

          1. No, I wasn’t discussing regulation differences. I was discussing barriers to entry in a specific market thats been a virtual locked in monopoly thanks to local governments and big business.

  11. Of course, we did not see ISPs engage in this kind of behavior in the pre-OIO history of the internet?which is to say, for the entire history of the internet.

    This, IMO, sounds exactly wrong in a post-modern sense. Like, after the invention of the magic wand, nobody remembers how savages had to go out and catch food, starvation never existed.

    I can remember a time when you got 56K of bandwidth. If you wanted more, you paid to have a second ‘tier’ (phone line) installed. Even in the days of mainframes, teletype terminals, and punchcards you signed up for priority times or put your punchcards in the queue and came back intermittently over the course of a couple of days to see if they’d had the free time to run your program.

    1. I can remember a time when you got 56K of bandwidth. If you wanted more, you paid to have a second ‘tier’ (phone line) installed.

      Shit, there are still plenty of businesses that have a ‘voice tier’, ‘fax tier’, and a ‘data tier’. Each paid, priced, used, and maintained separately. Sometimes through the same provider, sometimes not.

  12. The “Open Internet Order” does not lead to a more free or accessible online environment.

    again – this assumes that ‘activists’ actually want what they claim they want…

    …rather than just use those claims as an excuse/cover for their real desires, which is “greater regulatory control over a huge slice of the economy” and a new batch of regulated cronies to pay perpetual tribute-funds

    Its certainly a more-cynical view, but its opposite, which never even seems to consider that political activists might have layered motives, is ridiculously naive; at some point you have to address the obvious =

    “Why is it that the policies that Progressives endorse tend to be the *worst* ways of accomplishing their stated goals of ‘social justice’ (or helping consumers/oppressed people), yet are almost always the *best* ways of establishing lasting political bureaucracy which gives them enormous power and influence?”

    Stop taking stated goals at face value. Minimum-wage-hike advocates don’t actually care if it makes min wage workers poorer. Pipeline protestors don’t care if there are far better ways they could help indian tribes, or that rail-transport is worse. Charter school opponents don’t care if they hurt minority students. You’re just validating their cover and granting them moral authority they don’t deserve

    1. “Minimum-wage-hike advocates don’t actually care if it makes min wage workers poorer. Pipeline protestors don’t care if there are far better ways they could help indian tribes, or that rail-transport is worse. Charter school opponents don’t care if they hurt minority students. ”

      Let’s be frank. Nobody cares about poor workers, Indians or ‘minority students.’ So get off your high horse.

      1. I care about the policies that help the most people the most effectively, and that includes those groups. Freer markets in energy, education, and labor provide greater benefits to all.

        Its not a “high-horse”, shithead, its moral consistency.

        1. That’s a utilitarian. Not a libertarian, whose primary concern is individual rights.

          1. You can care about both you know. The individuals who comprise the groups known as “poor workers”, “indians” and “minority students” are… individuals.

            1. “”poor workers”, “indians” and “minority students” are… individuals.”

              So are rent-seeking cronies. Kumbayah, sucker.

          2. A person concerned with individual rights would therefore see net neutrality as a tremendous affront to their right to contract as they see fit.

  13. The motivations of the NN enthusiasts is pretty simple. They probably have had terrible customer service interactions with the very few big ISPs Verizon, Comcast, AT&T who seem monopolistic and often*are* monopolistic due to limited options in many areas. Due to the lack of trust, terrible customer service and monopoly presentation, they think the ISPs will screw them if at all possible. Therefore, anything the ISPs are against (like NN regulation) they are for. Can you blame them?

    1. …except, as bad as customer service is with any cable/ISP, it is world’s better than the service you get from any entity involving the government.

      I’d rather talk to Comcast on the phone for 5 hours then go to the local SSN admin office and do a damned thing there.

      1. “…except, as bad as customer service is with any cable/ISP, it is world’s better than the service you get from any entity involving the government”

        You mean the US government. The internet service in some countries, like South Korea for example, is exceptional, and the Korean government is involved up to its eyes. Same with Japan.

        1. Thats nice but we aren’t discussing how other governments work we are talking about our government which has a history of f’ing up everything it touches and when it touches you it hasn’t always been for your betterment. Our government is the creepy uncle that hugs the nephews & nieces and your wife a little to long.

          1. “government which has a history of f’ing up everything it touches”

            The government has been involved in the Internet since the get go, linking Norad facilities together. What are some examples of the government fucking up the Internet? You must have a few big ones in mind given the scale of the involvement and the history going back more than half a century.

            1. establishing local monopolies by implementing government rules

              1. Don’t these local monopolies oppose net neutrality?

    2. Comcast sends me what looks like collection notices to market their special bundles. It also tends to take them about 3 months to get auto-pay working right. I was trying to think of other businesses that won me over with that kind of marketing, or where that kind of marketing even makes sense… Renting means I don’t even have an alternative high speed landline option. So sure, the quasi-monopoly part is easy to understand. I also run international websites, and China slows encrypted signals. I can understand not wanting the government to have to heavy of a hand, but the anti-network neutrality argument that it “hasn’t happened to me” reason keeps giving is garbage.


    This captures everything on why opposing Net Neutrality is a must. Thank you for this.

  15. I consider “network neutrality” to be questionable at best. I had been a supporter until about two years ago. Then one of the major ISPs offered free Internet access to low-income areas, on exactly the basis that Net Neutrality advocates object to: access to most sites would be free, but accessing a few sites that provide videos — and hence use _a lot_ of bandwidth — would be slower unless the customer paid for a higher tier.

    And I remember thinking, “Whoa! Our beloved NN would result in poor people being denied Internet access just so those of us in the middle class — who can afford $50+ a month for our network connection — can get unlimited access to YouTube Red, Hulu, Netflix, Amazon Video, and, yes, Motherless. Is this really an improvement?

    Part of the problem is political, or perhaps a matter of justice: this would be another way in which the upper middle class (of which I’m a part) makes things better for themselves while making things worse for the working class and the poor. But part of it is also technical: there really are types of content that _should_ be given priority. If I’m conducting a phone conversation (VoIP) or live video (livestreaming, Skype, etc.), I would really want those packets to get priority at the intermediate nodes. And especially at the most likely bottlenecks — the servers at my ISP’s nearest “central office” where the cable from many houses comes together to send and receive packets over the much wider “pipes” of Tier 1 providers.

  16. (continued)
    But who decides? Should the ISP decide that VoIP and Skype get more priority? If so, what about the next innovation that may require extra bandwidth or, more likely, a lower or more consistent latency.(*) Or should Congress or the FCC? That’s even worse — an ISP can adapt to a new technology within a few months if they see their customers adopting it, but getting the FCC to change the rules will take years, and getting a change through Congress could take decades.

    There’s a simple technical solution: allow users to choose. Add a field that specifies what kind of service this packet requires: BULK (can get by with less bandwidth and/or tolerate greater latency), NORMAL (the usual amount of bandwidth and/or latency, whatever that may be), FAST (needs higher bandwidth and hence higher priority at intermediate nodes), and CONSISTENCY (needs latency to be as near constant over time — periods of a few seconds — as possible).

    Of course, users won’t really label the packets. The apps they use will. But what’s to prevent an app from simply claiming its packets need FAST and or CONSISTENCY service, simply so that it will look better than its competitors? Some technologists will remember a time when Sun’s Sparc computers had Ethernet adapters that used a slightly smaller delay factor than the official specification. As a result, their packets would usually win the retransmission competition on a near-capacity LAN. (Sun stopped doing that after they were caught.)

  17. (continued) Simple: every user gets a “quota” of how many gigabytes and/or megapackets they can prioritize in a given month. After that, your requests for faster/more consistent service get ignored. If you want extra, you can pay for it. Users who find their livestreams not working right will call up and ask tech support, and be told what is happening — and maybe some help in finding out which app is the culprit. Then they’ll probably uninstall those apps. And the market will take care of things, as it usually does.

    And if you _do_ want to watch a whole lot of Hulu, why you can buy a package with a larger quota. Again, the market takes care of things, without need for government intervention.

    So, what’s the answer. Well, actually I don’t have one. I don’t like the idea that Youtube, Hulu, etc. may get faster “pipes” because they can afford to pay for those, but the next startup that needs a lot of bandwidth will have trouble getting into that market (a “barrier to entry”). But it also seems to me that any government attempt to legislate “network neutrality” will either be doomed to failure or will make things substantially worse.

    (*) A few extra milliseconds won’t wipe out a VoIP connection, but if latency — the time for individual packets to make it from source to destination — varies by +/- 20ms the result is likely to make the conversation completely unintelligible.

    1. I don’t see why protocol level prioritization is much of problem with NN, if the protocol is open. Packets being delayed based off of where they come from or if they paid is where the problems lie. If there’s a fiat on airwaves and easements, I think it’s completely reasonable for individuals command a fiat of equal access to that line of communication. The lines wouldn’t connect without easements and pirate radio doesn’t obey frequency law. Yes, running the infrastructure has a cost that needs to get covered. Denying equal access to these modes of communication violates our property rights and rights of free speech. Who the hell gave the cable company the right to dictate whose communications get priority? How is it again that paid speech is speech, but free speech is government overregulation?

  18. Only one mention of throttling in the article or comments. The issue that NN may not address is that government-granted monopolies (wired broadband internet providers) are furthering their monopoly by throttling competing content services, such as Netflix, Hulu, Amazon, etc.

    That’s an issue for consumers.

    Of course the solution is a free market and competition in wired broadband internet.

    Good luck with that in most cities.

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