The illusion of
'net neutrality'

By Christopher Wolf
The International Herald Tribune

LONDON — A short distance from the West End theater where "The History Boys" is still playing, a group of British parliamentarians and other decision makers recently gathered to consider the deceptively-labeled issue of "Net neutrality."

In the United States, under that clever but misleading rubric, calls have been made for the first-ever heavy regulation of and restrictions on broadband providers. The calls arise out of fears of hypothetical content and access discrimination by the cable, telephone and other companies that link consumers to the Internet.

My role at the forum was to be the Internet History Boy. I was to explain that existing laws already protect against these imagined future harms, and to provide some Internet history. Since its inception, the Internet has flourished because of the absence of restrictions. There is no "Department of Internet Regulation," and that's a good thing.

In terms of legal history, courts regularly are confronted with theoretical conflicts that have not yet occurred and they regularly refrain from meddling. As a matter of prudence, the judicial branch of government will not rule on such cases as they are not "ripe" for review. Claims that rest upon future events that may never occur routinely are thrown out of court.

One reason courts refrain is that it is difficult, if not impossible, to fashion appropriate remedies in the abstract without harming the parties and the public interest.

In policymaking, too, in the absence of a real problem, there is a substantial risk of "solutions" harming the companies making the investment in — and responsible for — the Internet infrastructure, and of harming the public interest in the rapid build-out of the next-generation Internet.

Without knowing what constitutes a bull's eye, it is difficult if not impossible to aim relief. The courts know this to be the case when they are presented with hypotheticals. In the case of regulated "Net neutrality," policymakers would be wise to exercise similar restraint. To imagine a new department of Internet regulation is to glimpse the nightmare of unintended consequences.

Others at the gathering explained that new video and other high-bandwidth applications will soon send a massive wave of data across the Internet. To handle the traffic, billions of dollars will need to be invested to make the Internet smarter, faster and more efficient. Thoughtful consumer advocates recognize that the costs of that build-out should be spread fairly among consumers and companies which put the greatest demands on the Internet.

An overly regulated Internet in the name of so- called Net neutrality will limit choices for consumers, tie the hands of those building the next generation Internet and place the greatest burden on all consumers.

As proponents of legislation use the term "Net neutrality," it refers to a rigid regulatory regime that ultimately could allow the U.S. government (and self-interested litigation parties) to get in the way of new technologies and new services on the Internet.

Current proposals could prevent broadband providers from offering enhanced levels of service for specialized applications such as telemedicine, or to offer their own branded or co-branded products or services — arrangements that will help pay for the build-out of the next generation of Internet "pipes."

When talking about an Internet future, it is good to remember the wisdom of Shakespeare's phrase, "what is past is prologue."

The astonishing growth of the Internet has been due to a "hands off" policy, with the marketplace and existing laws creating the parameters rather than rigid regulatory edicts whose adverse side-effects could well be severe. Let's hope lawmakers and policymakers keep that in mind.

Christopher Wolf, a Washington-based lawyer with the firm of Proskauer Rose LLP, is co-chairman of a public policy coalition called "Hands Off the Internet."