Net neutrality vs free speech

I am technologist by trade — a web developer — so you’ll have to pardon me if I get a bit worked up on places where tech intersects politics. You’ve heard me harp on the issue (and threat) of net neutrality legislation. Time for more!

My basic argument has been that differentiated, premium services are part of a healthy and forward-looking market. The proposed legislation actually makes it illegal to charge for better service and build the better network. It is an attempt to cast the ‘net as a public utility, emulating our sclerotic power and traditional telephone systems.

We need to think about the next generation of high-bandwidth ‘net services and leave all options on the table. Skype, Google, iTunes and a hundred other life-enhancing innovations were neither anticipated nor sanctioned by the government. We can’t possibly know what will exist in five years, and we are perennially on the verge of a new wave of amazing things. Let’s not regulate them before they exist.

That’s the background, so let’s go further: network neutrality legislation should be fought on grounds of free speech.

Free speech, as in the First Amendment, means that government cannot restrict the means of communication. Free speech also means that individuals and companies can decide what is said, and not said, using their resources.

Even if you are attracted to the idea of net neutrality as a concept (I am not), consider this: the likelihood of a federal bureaucracy correctly defining “neutrality” is about as high as its defining “decency”.

Think about recent attempts to legislate decency. Do you feel like the FCC are overstepping their bounds, applying a crude hand, perhaps even violating the First Amendment? I do too.

We should apply this thinking to such attempts to proscribe how bits cross the wire. The proposed neutrality legislation is exactly that: a law that dictates how private network traffic must be managed.

That network traffic, in my humble opinion, is speech. It’s not a question of finding the right kind of law. It is a question of whether the government is within their right to legislate at all. I say no.

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News.com has very good coverage of recent developments. Some of it is encouraging, such as Randolph May’s piece, which posits that we should approach claims of network abuses on a case-by-case basis, with existing law.

Also, the PFF blog has an inspiring note from a technologist who gives a scientist-in-the-trenches account of why now is exactly the wrong time to legislate. I would excerpt it, except that I found every sentence to be pithy and valuable. I suggest you simply read it yourself.