Now that the official Restoring Internet Freedom NPRM has been passed by the FCC and published, the legal and political arguments are heating up. TechCrunch blogger Devin Coldeway dug into his bag of tricks and spun not one but two blog posts alleging the FCC is lying about the law and the facts: The FCC’s case against net neutrality rests on a deliberate misrepresentation of how the internet works and These are the arguments against net neutrality — and why they’re wrong.

Gigi Sohn, the advisor who counseled former FCC Chairman Tom Wheeler on firing up the Netroots, is back on the blog circuit with a post on The Verge castigating the NPRM: Breaking down the FCC’s proposal to destroy net neutrality. Ars Technica, TechDirt, and Motherboard are up their usual tricks, but not in a novel or interesting way: TechDirt praises Coldeway and Yahoo’s Rob Pegoraro for sticking it to the FCC, for example.

With the exception of Sohn’s post, the rest of the blog coverage consists of legal and technical analysis of details of the controversy from the standpoint of non-experts. So there’s a large element of the blind leading the blind in most of it. Coldeway, for example, argues that ISPs clearly offer a Title II service despite the fact that the Supreme Court has already said either Title I or Title II will do.

Democrats Don’t Want to Settle the Issue

Brian Fung examines the politics of the issue from the Democrats’ point of view in the Post: Democrats want to turn net neutrality into the next GOP health-care debacle. Inadvertently, Fung raises the key issue in his definition of net neutrality:

The rules were passed in 2015 to protect consumers, making it illegal for Internet providers to block, slow or charge websites extra fees.

Fung compares the fight over net neutrality – really Title II and FCC authority – to healthcare, gun control, and climate change in an analysis explaining why Democrats refuse to work with their Republican colleagues to settle the controversy. Dems see it as a winning campaign issue.

Healthcare is an actual life-and-death issue, but the rationale for all of the demonstrating and gnashing of teeth over Title II net neutrality is at an entirely different level.

Net Neutrality Isn’t Nearly as Serious as Healthcare

My ISP, Comcast, is often portrayed as the major violator of net neutrality and the poster child for Title II. Yet Comcast (and its predecessors in providing me with cable modem, TCI and AT&T Broadband) has never prevented me from visiting a website in the 18 years I’ve been buying ISP services. It hasn’t slowed down my access to web sites, nor has it charged “extra fees” to websites (without good reason.)

Even if this were to happen, the outrage doesn’t rise to the level of being turned away from a hospital while you’re on the verge of dying. But if the biggest threat to net neutrality hasn’t really violated it, how serious is the risk?

Of course, the advocates of net neutrality will insist to their dying days that the threat of website blocking is real, even if it’s not exactly imminent. But they have to leave the US to find examples.  For a week in July 2005, Canadian telco Telus blocked access to two websites operated by its striking unions.

Canadian Website Blocking Doesn’t Make the Case

Telus insisted that its terms of use permitted this action, which it said it had to take in order to protect employees from harm. The union had posted photographs of strike breakers and encouraged people to harass them. It also posted Telus phone numbers and encouraged people to jam their lines with complaints. And this was long before John Oliver.

As soon as Telus obtained an injunction against the union’s actions, access to the sites was restored. The union, of course, picketed Telus offices the whole time this dispute was playing out.

We have labor disputes between unions and phone companies in the US too – AT&T, CenturyLink, and the Communication Workers of America are embroiled in two right now – but no American ISP has blocked any websites.

A Question of Motives

We found during the SOPA/PIPA controversy and subsequent events that American ISPs don’t even want to block websites if ordered to do so by the courts. If anything, they’re much too inclined to turn a blind eye to sites engaging in criminal activity.

In the absence of evidence of website blocking, advocates of Title II ISP regulation claim that ISPs want to block websites even though they haven’t. The arguments for net neutrality rely heavily on this kind of x-ray vision into secret motives. The 2015 Open Internet Order asserts that secret motives underlie its “virtuous circle” conjecture:

The key insight of the virtuous cycle is that broadband providers have both the incentive and the ability to act as gatekeepers standing between edge providers and consumers. As gatekeepers, they can block access altogether; they can target competitors, including competitors to their own video services; and they can extract unfair tolls.

The Order fails to explain why they haven’t, even though it does express an inconvenient truth that explains this better than I can:

In other words, when a broadband provider acts as a gatekeeper, it actually chokes consumer demand for the very broadband product it can supply.

There you have it: ISPs don’t block websites because doing so would choke consumer demand for the product they sell. So the hypothetical site blocking problem is already solved by the very real incentive to sell a product; this is according to the Wheeler FCC’s own analysis.

Do We Really Need to Regulate Behavior that Doesn’t Happen?

It’s far from certain that regulating non-existent behavior is worthwhile. Regulations always have undesirable side-effects, so they should be devised and applied with care. In light of this truism, the FCC’s Internet Freedom NPRM asks whether a regulation banning website blocking is needed:

At the outset of our review of the Commission’s existing rules, we seek comment on whether ex ante regulatory intervention in the market is necessary in the broadband context. Beyond the few, scattered anecdotes cited by the Title II Order, have there been additional, concrete incidents that threaten the four Internet Freedoms sufficient to warrant adopting across-the-board rules?

It’s a reasonable question. Yet Gigi Sohn sneers at the FCC for having the nerve to ask it:

With regard to the basic rules of net neutrality — no blocking, no throttling, no paid prioritization and transparency — the NPRM asks the same general question: are they necessary? Here again, the text of the NPRM and leading questions reveal the majority’s preference: to have no net neutrality rules at all.

It appears to me the Commission’s preference should be to enact no regulations without a coherent and reasonable foundation. Regulation for the hell of it isn’t really desirable. But you can’t really blame Sohn for adopting her accusatory tone: she’s compelled to argue for a position that can’t be justified, so pounding the table is in order.

Some Websites Should be Blocked

Criminal websites – such as those that sell counterfeit drugs and unlicensed works, traffic in revenge porn or conduct child prostitution –  should be blocked. We know that blocking such sites reduces crime. Granted, historical net neutrality regulations exempt unlawful websites, but net neutrality advocates complain about all blocking.

The real issue here is any action taken by an ISP or any other player in the Internet ecosystem to leverage its assets in a way that harms consumers, innovation, or competition. While we already have laws for that, net neutrality claims to provide a superior approach.

Net Neutrality was Sold as the Silver Bullet

Rather than worry about who’s running a lawful business and who isn’t, who’s leveraging assets to harm competition and who isn’t, making arguments in court and painfully seeking the truth, net neutrality in its purest form seeks to make bad behavior on the part of ISPs impossible. According to its creator, Harvard law professor Larry Lessig:

End to end. The core of the Internet, the core value that defined its power, the core truth that made innovation around it possible, is this e2e,” Lessig said in a 1999 talk. “The fact – a fact – that the network could not discriminate in the way that AT&T could.”

Comcast couldn’t privilege its own content over Netflix’s or PBS’ or Disney’s or your blog’s. He explained: “The network was stupid; it processed packets blindly,” he said. “It could no more decide what packets were ‘competitors’ than the post office can determine which letters criticize it.”

This was not just a nice thing, it was the very nature of the Internet. Without it, the Internet will become, as Tim Wu put it, “just like everything else in American society: unequal in a way that deeply threatens our long-term prosperity.”

This is all very appealing. Wouldn’t it be great if we could permanently prevent bad Internet behavior with one simple rule? Too bad it doesn’t actually work.

Net Neutrality Doesn’t Deliver What it Promises

End-to-end is part of Internet history, but so is traffic differentiation. On the one hand, some forms of discrimination at the packet level are constructive. Applications have different needs and it’s good for networks to provide them with the type of service they desire.

And on the other, not all bad behavior on the Internet utilizes packet discrimination. Identity theft doesn’t; privacy violation doesn’t; biasing search results to harm competitors doesn’t; fake news doesn’t.

Website blocking doesn’t exist. Degrading access to websites may exist, but there’s no way to know whether it’s happening. Paid prioritization can either be good or bad depending on the effects it produces. In reality, it needs to be evaluated economically and technically for us to know. But it doesn’t exist either.

Consequently, it can be argued that net neutrality is nothing more than empty symbolism. In that respect, it does share a lot with most legislative proposals on gun control, climate change, and healthcare. So maybe Brian Fung is right and the Democrats are onto something.