Once we decide that Network Neutrality is a good thing to (re)enshrine in law, then we need to ask how to do that effectively. One way would be to pass a law saying, “Thou shalt not discriminate.” That’s the current approach. But network operators will say that they must manage their network, and if, in the course of network management, they were to disadvantage some source, destination, application, service or content, they might be accused of violating the law.

So any Network Neutrality law must have a Network Management Exception.
(Of course, we know from the work of Andrew Odlyzko [e.g. this paper] that most congestion is caused by a few bottlenecks, which, in general, are cheap and easy to replace. But we can’t mandate that the network operator manages congestion by building more capacity. We don’t want the government in the network management business!)

Currently Comcast is impeding BitTorrent uploads [AP story, my post]. Susan Crawford has an incisive analysis of the Comcast affair. At the end of it, she calls for Structural Separation. Below, I attempt to explain why.

Comcast could claim that BitTorrent were a major bandwidth hog that it must “manage” to protect its network. In fact, it appears to be doing just that—a Comcast spokesman says

’‘We have a responsibility to manage our network to ensure all our customers have the best broadband experience possible… This means we use the latest technologies to manage our network to provide a quality experience for all Comcast subscribers.’’ [link to AP article]

Contrarily, other reasonable observers could claim that Comcast were deliberately discriminating to protect its main-line video entertainment by blocking or degrading a popular method for sending video. In other words, a Network Management Exception cuts both ways.

If a law specified explicitly what constituted reasonable network management, the motivation for a network operator-cum-apps-provider to game it to favor the network operator’s own applications would be overwhelming. We’ve seen telecom laws gamed, undermined and picked apart in the past.

If, instead, we had a law that said, “Network operators must not have a financial interest in any of the content carried by that network,” we could be assured that any network operator’s network management would be for the sole purpose of running the network. Such a law would keep government out of the network management business. Enforcement would be via financial audit. Such a law is called Structural Separation.

Then the network operator could manage its network any way it wanted, and we would be assured that it was not gaming the system to favor its own apps, services or content, because it would own no apps, services or content. And we would be assured that any innocent consequences of network management that inadvertently disadvantaged some other app, service or content were indeed innocent and would be quickly remedied.

Furthermore, once unencumbered by the need to use their network to advantage their own applications, network operators would be free to discover what Odlyzko found and what Internet 2 discovered [PDF]—that the best way to manage congestion is simply to build more capacity!

(There would need to be one minor exception to Structural Separation to allow network operator web sites for customer interaction, service ordering, network status display, etc. This would be much simpler than a NN Law’s Network Management Exception, and much easier to enforce.)

In my humble opinion, the simplest, most sustainable way to ensure a neutral, non-discriminatory network is with a Structural Separation law.