Net Neutrality: Rules vs. Principles

I found this post from Tim O’Reilly very helpful in thinking about the Net Neutrality debate.

Tim focusses on a helpful distinction made by Chris Savage — between rules and principles. The gist is:

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…

It seems to me that this distinction is useful in all kinds of areas. For example, in relation to IP legislation, an important principle is that monopolies are at best a necessary evil and should be avoided or limited wherever possible. This means that any proposal to extend an IP right (which is, remember, a legislative grant of monopoly rights) should always be viewed with extreme scepticism.

Toll booths on the Net

From Good Morning Silicon Valley

Believers in the Internet as a free flowing, end-to-end service were talking about the end of it all today, after a Net neutrality amendment to telecom legislation was voted down in a Senate committee yesterday on an 11-11 tie. We’ve been over this ground before (see “That’s a mighty fine looking stream of data you’ve got there … shame if anything happened to it.”), so this time we’ll let ZDNet’s Mitch Ratcliffe say it: “The Senate Commerce Committee, splitting 11 to 11 and therefore rejecting compromise language, set the stage for a carrier-controlled Internet. If the bill passes the Senate and is signed by the President, you can kiss the Net you know ‘goodbye.’ Farewell, open networks and open standards. Soon every packet will be subject to inspection and surcharges based on what it carries and who sent it or where it is going. The compromise language would have guaranteed that all traffic sent over carrier backbones would be treated equally, regardless of its source or destination. Carriers will be free to target especially profitable traffic for surcharges.” Those who frame this as a fight to keep the government’s sticky fingers out of the “natural” workings of the market were pleased. “For those of you who think this is a bad thing — recall the FCC’s actions after the Super Bowl ‘wardrobe malfunction.’ If you think the U.S. government is going to lay down neutrality rules and then keep a hands off attitude beyond that, you probably also think you’ll find a pony under every large pile of manure,” writes James Robertson. Both sides agree, however, that there is fighting that remains to be done, with Net neutralists taking heart from managing the tie in committee and momentum for a Senate floor fight growing.