Net Neutrality: Rules vs. Principles

There's been a lot of great discussion on Dave Farber's IP List about Net Neutrality. But what just tipped me over to blog about it was a great post today by Chris Savage making a distinction between rules and principles. This is a distinction that needs to go into every thinking person's mental toolkit. Chris writes:

A lot of confusion in the Net Neutrality debate has do with the hoary distinction in jurisprudence between "rules" and "principles."

A first approximation for the non-lawyers here: the tax code is full of RULES: Take this number, divide it by that number, place the result on line 17 if it's greater than $57,206 and on line 19 if it's less. Etc. RULES are intended to direct or forbid very specific behaviors.

PRINCIPLES, on the other hand, are more general. When driving you are required to use "reasonable care." If you don't, then you are negligent and can be held liable, in a tort case, for the damages you cause. And though there are plenty of rules about driving, tort liability is based on the PRINCIPLE of reasonable care, and is assessed on a case-by-case basis.

"Net Neutrality" is a principle, not a rule. Without getting into endless and mind-numbing discussion of how the FCC might or might not classify this or that IP-enabled service, what Net Neutrality is basically about is the principle of non-discrimination. The principle of non-discrimination doesn't say that you cannot make any distinctions at all as between customers, services, what you charge, etc. It just says that whatever distinctions you make, have to be reasonable.

So, Professor Yoo's discussion of particular ways that network operators today treat traffic differently in different circumstances is kinda beside the point. It just shows that there are reasonable distinctions that can be made. E.g., sure, give live video packets priority over email attachment packets. That's reasonable. Net Neutrality says, though, that normally you shouldn't give YOUR video packets priority over a COMPETITOR's video packets.

Chris' point struck me as bloggable whether or not you give a hoot about net-neutrality. Certain ideas, like the difference between rules and principles, are building blocks that make you smarter, exemplars of Edwin Schlossberg's maxim that "the skill of writing is to create a context in which other people can think." But for those of you who do care about net-neutrality, some other thoughtful posts about this topic on the mailing list include:

• Jason Weisberger, formerly of Cable & Wireless, giving some concrete financial details on Net-neutrality from an infrastructure-provider's point of view.

• Dave Farber's own proposal to get some folks together out of the public eye, where posturing can be avoided, on a fact-finding mission to discover "what it is people agree to and what they don’t agree to." Like so many of the heated debates on the net, it often isn't clear whether people are arguing from the same data, or even about the same thing.

• A snippy interchange between David Reed and Brett Glass that also contains a nice summary of David's argument for the end-to-end principle.

• Chris Savage weighing in against Reed on a related discussion, this time invoking Ronald Coase to make the point (in this case about spectrum allocation) that market mechanisms generally do work.

• An interesting discussion between Chris Savage and Gerry Faulhaber about whether or not the carriers are monopolies that should be subject to different rules than companies in a true marketplace.

• A provocative argument that differential pricing by carriers is no different from what Google does in giving advertisers preferred placement in search results. This analogy seems specious to me for a number of reasons, but since Ted Stevens has used it as the basis for a bill in Congress, it's worth reading about.

• A link to the provocative proposal by David Reed and others (including O'Reilly editor Andy Oram) for a bill formally recognizing the principles of the Internet, and making it false advertising to call services that don't adhere to those principles "internet" services.

Overall, the disputants fall into two camps, based on which of two principles (the end to end nature of the current internet, or the power of markets to set efficient pricing) seems more important to them. So ultimately, even though Chris Savage made the distinction between rules and principles, we still need mechanisms for deciding about the relative importance of competing principles.

P.S. This is just a small sampling of the heated but thoughtful discussion on the list. When I want to understand the various points of view on any technology policy issue, there is rarely a better place to go than the IP (Interesting People) list. Unfortunately, the search interface is only so-so, and the mailing list posts themselves don't include web archive links, so it's always a bit of a chore to find and link to postings, even when I've already read them in email. But subscribe to the email list, and you'll discover that there's a world of conversation going on in venues that bloggers normally don't report.