Following the theme of amici in the Title II challenge, an interesting one came up today from Tim Wu, the man who coined the term “net neutrality”. Wu filed in support of the FCC, confining his comments to the single question of whether the classification of ISPs was already settled law at the time the ’96 Telecom Act passed. His opinion that it was not settled, but rather in a state of flux.

That’s an amazing admission. In 1996, the TCP/IP Internet was 15 to 20 years old, but it had only just been made fully open to the public. The “openness” of the Internet wasn’t viewed as an essential or even important property; for 90% of the Internet’s history, it hadn’t been “open” in the most elementary way because the general public had been excluded from participation.

The framers of the ’96 Act didn’t have detailed opinions about Internet management practices because the Act wasn’t really about the Internet. Rather, it was an attempt to move the management of the US telecom industry from Judge Green’s chambers to the FCC, where telecom market management clearly belongs. It was also concerned with creating retail competition in a regulated monopoly market.

Wu’s brief is a useful overview of a certain period of telecom law, from the late ‘60s to the mid- ‘90s. This was a historical period when Congress, academics, businesses, and regulatory agencies grappled with the consequences of attaching data processing equipment to the Bell System’s new-fangled digital network. Digital carriage permitted data processing services to be performed from afar, which gave rise to computer time-sharing.

So the regulatory questions of the day concerned the services Bell could offer, their terms of use and tariffs, and the regulatory status of remote computing services. These questions were addressed in the FCC’s “Computer Inquiries” and in a number of court cases, and Wu wants to apply this body of precedent to Internet regulation.

But the question is whether these issues (with their obvious intellectual constructs such as the distinction between data processing and data communication) are relevant to the Internet we have today or even the one we had in 1996. It’s clear that questions about how to distinguish communication services from Information Technology (IT) are pertinent to the FCC because they define the boundaries of the Agency’s mission. It’s less clear how law drafted while the Internet was being developed applies to the Internet as a particular system and not merely a manifestation of the timeless principles of the FCC’s mission.

Wu argues that the classification question must be settled by legal precedent alone, without any consideration for what the Internet actually is. This is question-begging, because it makes the real question before the court – and before the FCC initially – a mere presumption. That question is whether the Internet is merely a turbo-charged AOL or something significantly different and unprecedented. Legal precedent doesn’t tell us the answer to this question because the Internet is fundamentally different from the services that were on the table during the Computer Inquiries: private lines leased from a regulated monopoly for use between facilities all owned and used by the same customer.

Wu himself realized the stakes in Internet regulation when he wrote “Network Neutrality, Broadband Discrimination”, in which he entertained a non-regulatory path to a properly functioning Internet even if he didn’t endorse it:

The basic principle behind a network anti-discrimination regime is to give users the right to use non-harmful network attachments or applications, and give innovators the corresponding freedom to supply them. Such a regime avoids some of the costs of structural regulation by allowing for efficient vertical integration so long as the rights granted to the users of the network are not compromised.

But might network neutrality be accomplished without any regulation at all? Basic economic theory suggests that operators have a long-term interest coincident with the public: both should want a neutral platform that supports the emergence of the very best applications. (pp 142-3)

Wu rejected this option because he believed ISPs were too preoccupied with short term issues. But the ultimate long-term issue – the ability of the Internet to support the “very best applications” is limited by the architecture of the Internet itself. As Wu explained in the paper:

I believe there are several reasons to question the fit between open-access remedies and network neutrality. First, the concept of network neutrality is not as simple as some IP partisans have suggested. Neutrality, as a concept, is finicky, and depends entirely on what set of subjects you choose to be neutral among. A policy that appears neutral in a certain time period, like “all men may vote”, may lose its neutrality in a later time period, when the range of subjects is enlarged.

This problem afflicts the network neutrality embodied in the IP protocols. As the universe of applications has grown, the original conception of IP neutrality has dated: for IP was only neutral among data applications. Internet networks tend to favor, as a class, applications insensitive to latency (delay) or jitter (signal distortion). Consider that it doesn’t matter whether an email arrives now or a few milliseconds later. But it certainly matters for applications that want to carry voice or video. In a universe of applications, that includes both latency-sensitive and insensitive applications, it is difficult to regard the IP suite as truly neutral as among all applications.

This point is closely linked to questions of structural separation. The technical reason IP favors data applications is that it lacks any universal mechanism to offer a quality of service (QoS) guarantee. It doesn’t insist that data arrive at any time or place. Instead, IP generally adopts a “best-effort” approach: it says, deliver the packets as fast as you can, which over a typical end-to-end connection may range from a basic 56K connection at the ends, to the precisely timed gigabits of bandwidth available on backbone SONET links. IP doesn’t care: it runs over everything. But as a consequence, it implicitly disfavors applications that do care. (p 149)

It doesn’t appear that Tim Wu’s surrender to telecom precedent will help the Internet overcome its inability to support the very best applications after all; in fact, it makes those obstacles effectively insurmountable.

I think Wu was right the first time, as a technical matter. Overcoming the Internet’s technical bias will disrupt some long-standing norms. The fact that all (or nearly all) of the Internet’s communication circuits are shared sets it apart from Computer Inquiries territory. That much should be obvious.