I’m sure this is something that’s been raked over before, but I don’t see a common understanding of what ‘Net Neutrality’ actually is. Despite many of the Internetorati demanding it by law. Whatever.

There appear to be several different camps, which you could paint as “bottom of IP”, “middle” and “top”.

The bottomistas would see enforced Internet Protocol itself as a premature optimisation and violation of the end-to-end principle. Unhappy that you only get IPv4 or IPv6? Still grumpy that you only have IPv4 and not even IPv6? Really miserable that your VoIP packets are staggering under the poisonous load of IPv6 headers? You’re a bottomista.

I suspect there are some fundamentalist bottomistas who would object to your service providers not giving you a choice of Ethernet, ATM or roll-you-own-L2-protocol. We’ll pretend to be out and not answer the door when they knock.

The middlemen draw a distinction between “raw IP” (before the ISP gets a hold of it), and “retail IP”, which is what you and I get to experience. This kind of suggests that the OSI 7-layer model got it horribly wrong, because there’s a fundamental cleave right in the middle of layer 3, where IP sits. Fair comment, but sounds pretty radical to me. Although I’ve never really got layer 6, so maybe they’re onto something.

Then you might be a “top of IP” kind of girl. You can cope with the discrimination creeping higher up the stack to the next layer, where particular TCP and UDP ports and flags are screened off. But you only get queasy if particular commercial service providers or applications are targeted. Blocking off port 25 is OK to you, since it doesn’t discriminate against any particular email service provider.

Sadly, these are all hogwash and bunkum.

Net Neutrality is a dead end, because as Searls and Weinberger correctly noted, the Net isn’t a thing, it’s an interconnected set of agreements. These are bilateral and freely entered into. And since those agreements weren’t modeled off a viral template such as the GNU General Public License, they are all unique. There’s no contagious clause that insists the Internet becomes a “thing” by virtue of everyone having to agree to freely and neutrally pass packets in an ever growing pool of Neutraldom. So to impose neutrality you’re going to have to interpose yourself into a lot of contracts. (Another reason why “Internet Governance” is an oxymoron when referring to anything beyond IP address allocation and routing, which do require some central agreement and co-ordination.)

There’s no grand “first principle” from which you can derive network neutrality as an economic argument. No public choice, competition, game theory or otherwise construct that leads us there. Indeed, saying that the public would benefit if there was a transfer of wealth from providers to users isn’t good enough. You’re playing with matches in the oil refinery when you start messing with property rights. Yes, those networks are mostly funded by risk capital. The local loop copper of a fixed operator may still be hangovers from monopoly days, but generally those assets were brought into the private sector on clear rules, the stockholders took a punt, and some of the better informed ones who saw the long-term potential of DSL etc. got to reap a windfall. Of course in parallel the telcos have done a superlative job of lobbying for rules that keep competition out, but that’s a different issue.

But wait a moment, it gets worse.

What if I wanted to allow people in the street to access my WiFi? But I only want to offer web and email, so as to make P2P file sharing tricky. As a good public-spirited citizen I put up a splash page so they know exactly what’s going on. Am I allowed to? Or is Net Neutrality only for the mythical mystical “them”?

When in deploying my network do I need to “design-in” neutrality? Concept, build or operation? Should we be outlawing the deployment of PSTN-specific GSM networks because they’re “unfair” to non-PSTN voice applications like Skype? Am I allowed to deploy non-technological measures for neutrality, such as contract terms? Am I allowed to read the packets, but not block them, in order to enforce my contract (repeat - freely entered into by both partners)?

What level of jitter and congestion is perceived as “neutral”? What if I deploy technology like Qualcomm’s 1xRTT, which separately supports voice and data, with PSTN-only voice, but the data is a bit lousy for VoIP? Is that being unfair, or merely a realistic response to the limitations of technology?

Is neutrality a wholesale or a retail problem? What if the access infrastructure owner offers “neutral” IP connectivity, but no retail provider chooses to pass that on directly to the public without layering on some filtering and price discrimination?

Oh, and what’s so special about the Internet? Do other IP-based networks need neutrality principles? Do any networks? Should more network industries be forced to forego “winner takes all” rewards? Google looks awfully dominant at adverts, doesn’t it… I wonder if that ad network needs a bit of “neutrality”?

Incidentally, although I’m against blanket rules enforcing neutrality, although I would reserve it as a tool for post hoc competition and antitrust law enforcement. And I think you can make a stand on Network Neutrality on political and free speech grounds, but that requires a very different policy approach (i.e. not one that confiscates the proceeds of private capital investment).

And if the users value a neutral connection so much, perhaps it’s time for them to self-organize a bit, build their own networks, or tender for connectivity together—rather than rolling over and accepting whatever the local telco can cableco provide by default. But that would burst the illusion that government is here to save us from ourselves and we’ve no need to take personal responsibility for our connectivity freedom.

The moment you try to define Network Neutrality, you have to choose a layer, a time, a market, the participants. You have to make non-neutral choices in order to define the boundary of your Neutralsphere. There is no ‘neural’ space devoid of favouring the interests of particular market players. The contradiction is inherent. There is no way to finesse it away.

Everything’s bass-ackwards. Neutrality is a sign of healthy supply competition and sophisticated ways of demand expression. It’s an output, not an input. Beware demanding net neutrality as a blanket principle, rather than a scalpel to excise particular local anti-competitive acts. Kruschev declared the corn harvest was great, too—but it didn’t create the incentives for more corn to be sown and for the system to succeed on future iterations. And net neutrality rules are likely to have the exact opposite effect of that intended too.

Net neutrality messes up freedom of contract, freedom of association, and property rights.

I don’t buy it.