Although most of the commentary simply echoes various groups’ long-held positions, the Electronic Frontier Foundation, the nation’s foremost cyber-rights watchdog, provided a crucial insight about the plan that goes to the core of the net neutrality issue.

EFF found merit with some aspects of the proposal, particularly with regard to limiting the FCC"s regulatory authority. The NGO stated that although they strongly support net neutrality, “we are opposed to open-ended grants of regulatory authority to the FCC.” EFF also thought that a Verizon/Google recommendation for using standard setting bodies to “develop reasonable network management” was an “intriguing” approach to “handling concerns about politicization of the FCC processes….”

The most significant element of EFF’s critique, however, is their objection to limiting net neutrality to “lawful” content. EFF stated that the plan would limit “nondiscrimination to ‘lawful’ content without defining the term or giving any indication of who decides what is ‘lawful,’ opening the door to entertainment industry and law enforcement efforts that could hinder free speech and innovation.”

Whether or not to permit network management practices that discriminate against unlawful content is the crux of the net neutrality debate. EFF would like the issue addressed by applying non-discrimination provisions to content irrespective of its lawfulness while the FCC largely pretends that the lawfulness issue does not exist.

Although the FCC would nominally limit regulatory protections to “lawful” content, their net neutrality plans ignore the fact that most content distributed through peer-to-peer file sharing mechanisms is unlawful. As the Library of Congress’ Copyright Office stated, “the files distributed over peer-to-peer networks are primarily copyrighted works….”

The FCC’s new net neutrality plan rests on the fundamental mistake the agency made in their Comcast decision, determining that there is harm in companies limiting what is mostly the unlawful dissemination of music, movies, software and other protected intellectual property.

Until the FCC’s error in the Comcast decision is corrected, a responsible net neutrality framework cannot be developed.