I had hoped to take a longer break from the theme of Net Neutrality, but a piece on Om Malik’s blog by Daniel Berninger seems to be screaming for a reply. Berninger hails from Tier 1 Research; his credentials show a close association with Jeff Pulver’s Free World Dialup, and hence a piece that is sympathetic to the ‘Save the Internet’ movement.

His legalistically styled piece attempts to suggest that, in the absence of conformance to network neutrality principles, telephone companies will lose their common carrier status and therefore should lose their access to low cost rights-of-way. Good try, Dan.

He defines network neutrality as:

Internet access without discrimination by use or user except as required for network management purposes.

If that is the legal definition being proposed, then I think we have no problem. Telecom carriers on both sides of the border (and generally around the world) are used to non-discriminatory provisions in their Telecom Acts.

The problem, I think, is that most Net Neutrality advocates aren’t really interested in just non-discrimination. They are really looking for non-differentiation.

Non-discrimination means that every similarly situated user has an equal opportunity to purchase a given product with a given grade of service or quality.

Non-differentiation would mean that every bit of traffic has an equal opportunity to go through the network without any ability to differentiate or apply priorities. All bits would be treated the same.

Non-differentiation clauses can’t be found in any Acts. They make no sense.

I think that we want more than just vanilla flavoured internet. Some of us want extra-rich and creamy internet. Others want cheap, store-brand no-frills internet. I like soft-serve chocolate internet (in a cup, not a cone—it’s the low-carb thing). Non-discrimination means that everyone has a right to buy the same kind of ice cream that I can buy. But nowhere does it say that you get to buy extra-rich ice cream for the same price as no-frills. Nor does it say that my grocery store can’t get an incentive in order to offer premium ice cream for the same price.

I think that we want our electronic financial trading transactions to have higher priority than our movie and music downloads. If you (or banks or brokers) don’t want to pay a little more for that kind of service—no problem. But you are then choosing to take the risk associated with those bits getting slowed down by traffic jams. Why can’t we pay for access to the express lanes?^*

If my bank or broker wants to provide me a better quality guarantee for their website as part of their service, why is this evil? They should be able to buy the telecom services to support their objectives. Same for any other content provider.

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* Tim Wu’s metaphor of having express lanes reserved solely for GM cars is extreme. The better metaphor is a toll road versus a freeway—many cities have them. You can bet that not all the users are paying the tolls themselves—their employers want them to get to work or between jobs faster. That isn’t discrimination—anyone willing to pay the price can ride in those lanes, regardless of who pays. And if GM or an oil company wants to offer a subscription to the toll lanes as an incentive to buy their products ...?