Around 2004, some of the big Internet service providers like Comcast decided to do just that: worried about people using file sharing or sending lots of video, they started looking at the contents of packets to see what was being sent, and throttling how much data of specific types a customer could receive. This led to the first push for net neutrality, of a sort that we might call net neutrality of the first kind, or “content neutrality.” Along with that, people demanded that they be able to connect their own equipment to their networks, and that third parties like new equipment companies had to be allowed to build new Internet equipment themselves.
The push for net neutrality, however, was quickly picked up by other people for other political purposes, starting with the idea that “net neutrality” meant that everyone ought to have equal access to Internet service, whether they live in the borough of Manhattan, or Manhattan, Kansas, or in a cabin twelve miles by road from the nearest human habitation. This quickly picked up other ideas: that “net neutrality” meant different ethnic groups have equal access — which would mean the government looking not just at the content of the messages, but the race of the person on the wire; or that different viewpoints ought to have equal access to the Internet — so, potentially, Fox News would be limited based on how much bandwidth the Huffington Post consumed, and even that “hate speech” and “lies” could be regulated.
This is what we might call net neutrality of the second kind: not content-neutral, but instead, content “fairness.”
Stated that baldly, a lot of people would object (and rightly, I believe). The original Obama administration proposals were much more intrusive than what we know of the new proposal — “what we know” because, oddly, the proposed rules haven’t been made public. Based on Genachowski’s speech, the new rules sound reasonably benign — which, to a cynic like me, immediately leads to a second question: why aren’t the new rules being published?
Add to that other recent proposals, like the Obama administration’s proposal for a law authorizing fairly intrusive regulation, up to the legal right to completely shut down the Internet in an “emergency.” Or the recent BBC interview in which another FCC commissioner, Michael J. Copps, suggests that the broadcast media should have to meet a more stringent “public values test” for license renewal — and makes it clear that “fairness” and “local content” are parts of that test as he sees it. One might object that this is only for the broadcast media, except for the number of other politicians who have proposed the FCC should also regulate the cable networks and Internet.
This, then, is the question I think everyone must ask when discussing net neutrality: do we mean the content-neutral, don’t read-the-postcards net neutrality of the first kind? Or the “fair access” net neutrality of the second kind?