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.