Wednesday, September 23, 2009

Let's Rally Around Net Neutering

For those of us opposed to Internet regulation under the guise of the "net neutrality" label, admittedly a superficially appealing slogan, it has always seemed to me that we needed to come up with an equally appealing moniker to capture the reality behind the proposed net regulation. For many years, I've thought "net neutering" was a good such banner.

Indeed, I had started to use the term "net neutering" in the 2004-2005 time frame in opposition to the net neutrality forces. At the time, I believe it was the earliest use of the term. In 2005, I published a paper titled, "Net Neutrality and Net Neutering in a Post-Brand X World: Self Regulation, Policy, Principles and Legal Mandates in the Broadband Marketplace." And, when I edited a book with my then-colleague Tom Lenard that was published in 2006, I titled it: "Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated?" In 2007, I published a law review titled, "Net Neutrality Mandates: Neutering the First Amendment in the Digital Age."
(The constitutional objection to net neutrality is a whole other story.)

Thus I was pleased to see Holman Jenkins' column in today's Wall Street Journal titled, "Neutering the 'Net,"
in which he explains why FCC Chairman Genachowski's just announced proposal to impose new net neutrality mandates would have the effect of neutering the net.

For many years, I have thought that, in today's digital age, imposing analog-age common carrier-type rules – yes, that is truly what net neutrality mandates are – would have the effect of neutering the net. In other words, such Internet regulation would slow down innovation and investment by removing incentives for Internet service providers to differentiate themselves lest they violate nondiscrimination (neutrality) mandates.

Because there are many sound policy and legal arguments why new common carrier-type regulation should be rejected for the Net, it is not essential to have a sound bite slogan to refute proposals for such regulation. After all, it ought to be the ideas that matter. But I sure think "net neutering" is a good banner around which to rally, one which fairly captures the peril inherent in net neutrality regulation.

Let me know what you think.