It takes some courage to come right out and disagree with the prevailing wisdom that “net neutrality” is the best thing since the two-button mouse, but UC Berkeley professor Larry Downes is one of the brave ones.

Last July he wrote a provocative, yet common-sensical argument against net neutrality legislation for CIO Insight, and he follows up again this month with another worthy essay, published by Stanford’s Center for Internet and Society. Let’s quote a bit:

Discriminating may be necessary to optimize network performance - Uses for broadband infrastructure are emerging rapidly, and it isn’t entirely clear that discriminating based on content wouldn’t be the best way to optimize network performance, whether doing so would add to profits or not for the provider. The cable networks already “discriminate” in favor of programming over Internet traffic for subscribers who get both from the cable company, because the programming needs priority. Content providers are worried that if broadband providers aren’t banned from discriminating, they’ll someday (soon, perhaps) extract premiums from content providers to get their stuff delivered, or give competitors that option. But some kinds of content should get higher or lower priority as a matter of optimization, and blanket bans on prioritizing may end up making a mess of traffic overall.

And there’s more:

Maybe the Internet has worked so well because neutrality has been a persistent part of the architecture. Maybe it’s worked so well because there has been minimal government regulation of its design and operation. Maybe both. More of the latter to shore up the former is a dangerous trade-off.

Agreed. And not to be a broken record, but while we have our disagreements with Downes on a few specific policy points, those differences are minor and can be addressed later – after we’ve agreed to keep government regulators’ hands off the Internet.

The sub-headline on a recent article from Technology Review made us think about something:

“Legislation and industry concessions won’t guarantee equal access to the Internet.”

If we’re talking equal access, the existence of a high speed tier is not the issue. In fact, it’s missing the real issue: As everyone knows, the United States lags behind Western Europe and some key East Asian countries in access to high-speed Internet access.

People like Bill Moyers who prefer to call net neutrality by the phrase “Internet equality” aren’t thinking in this vein. They live in big cities on the coasts, where broadband is plentiful.

Considering that many supporters of net neutrality describe themselves as liberals, and liberals make reducing inequality a defining characteristic, it’s a little perplexing that this esoteric non-issue has become such a cause celebre. Our guess is that fighting for universal broadband offers a less obvious opportunity to rail against big business.

If the net neutrality crowd really wanted to ensure online equality, they would back-burner their theoretical complaints and face up to the non-theoretical fact that many Americans have limited access to the best Internet speeds — if at all.

Build-out of the last mile is massively expensive, years-long undertaking, and it’s the telecommunications industry that’s looking ahead to the future now. That’s the real issue.

Here at Hands Off the Internet, we’ve tried to avoid focusing too much on any one specific advocate of net neutrality. But let’s turn from the political activists toward the leading corporate net neutrality backer, Google. As Bennett points out, in late November 2006 Google quietly applied for a QoS patent, which reads in part:

The present invention provides efficient and effective quality of service for information that is time sensitive (e.g., real time data)…In one embodiment of the present invention time sensitive information is cut through routed on a virtual channel and pre-empts non time sensitive information. In one embodiment a communication path probe is cut through routed via intermediate network devices to establish a communication path before other information is communicated from a originating source to a final destination…

Wait. Just. A second. Google wants to do QoS now? This patent sounds like the work of a Hands Off the Internet blogger, not the chief antagonist to the development of the next generation Internet. But maybe this comes as no surprise. While the activists are invested in the matter for political reasons, Google knows where their bread is buttered. And QoS just makes sense. Matt Sherman elaborates:

Google has no interest in neutrality of any sort, be it on the content level or the physical network. By cynically backing net neutrality regulation, they hope to subdue potential competitors through force of government. At the same time, they work to build advantages that are theirs alone.

As Sherman says, they have every right to pursue their economic benefit. But they should not expect to get away with telling the public (and their political supporters) one thing while they busily go about doing the opposite.

The anti-net neutrality Washington Post op-ed by former FCC advisers Dave Farber and Michael Katz from last week generated considerable buzz in the blogosphere, a great deal of it positive. Here’s a sample:

Richard Bennett, one of our favorite bloggers, says:

Most of the people who’ve made substantial contributions to the Internet in the past are converging on this point of view: it’s harmful to make too many restrictions on the services the network provides to users and applications. Contrast this view, which is empirically provable, with the assertion on the other side that there’s are mystical and unprovable reasons to favor a dearth of network services. The evidence is all on the side of de-regulation.

At Verizon’s Policy Blog Link Hoewing comments:

First, while the debate around net neutrality is centered around possible dangers that could undermine the Internet, the fact is that way the Internet works can be improved and we have see no problems emerge despite the fears that have been expressed.

Second, the Internet is a highly adaptive and competitive environment that has evolved through the investments and ideas of countless players who have been free to try things out. It has grown successfully in the past and there is no good reason to think that it will not do so in the future. Legislating or trying to impose regulations in this environment makes no sense and could do harm.

Here’s Scott Cleland:

Like David and Mike, I am well aware of the potential problems that market power could have. I have a long and public record of standing up to monopoly behavior that I viewed as out of bounds. But I am also a fact and analysis person. The facts and the analysis show this is a competitive marketplace becoming even more competitive in the future.

And Cynthia Brumfield of IP Democracy, always a thoughtful commentator on technoglogy issues, reiterates her position that there’s no compelling need for net neutrality laws:

I’m on the record as saying that net neutrality legislation gives me the willies, and mostly because I don’t trust the government not to screw up what is a very vibrant, yet fragile, marketplace. I agree with Farber, Katz, et. all. that “we should wait until there is a problem before rushing to enact solutions.”

Welcome comments all. Congress should pay careful attention to the experts here, and take the political activists with a grain of salt. Net neutrality ain’t all that and a bag of potato chips. Heck, it’s not even a bag of potato chips.

A headline in a Washington trade publication said it all:

“Passions are sure to run high with reintroduction of Net neutrality legislation.”

(Source: Warren’s Washington Internet Daily)

As the old lawyer’s saying goes, when the facts are against you, pound on the law. When the law’s against you, pound on the facts. And when both are against you, pound on the table.

So before passions run high, let’s recap a few facts about today’s Internet:

• Annual percent increase in Internet traffic (2005-06) – 60 percent

• Average number of spam emails sent per day (October 2006) – 61 billion

• Percent increase from October 2005 – 100 percent

• Percent of 2006 VOIP calls judged to have “unacceptable quality” – 19 percent

• U.S. world ranking in broadband access – 16th

• Percent of major Internet carriers that abide by the FCC’s nondiscrimination principles – 100 percent

The list could go on, but the point for Net users is that online quality is dropping as traffic surges and deployment remains slow. Neutrality regulations not only won’t help, they’ll just make things worse.

Kudos to the Rocky Mountain News for this great editorial highlighting the inevitable result from misguided Internet neutrality regulation:

What’s changing [on the Internet] is that bandwidth-sucking content is going online faster than the Qwests and Comcasts can build the room to handle it. It’s as if Hummer owners thought they were entitled to squeeze their behemoths onto traffic lanes that were designed to handle Mini Coopers.

The telcos and cable companies want the Hummer drivers to pay extra and widen the lanes…. But Washington should not spike the concept by mandating net neutrality - or cyberspace is likely to get a lot more congested for no good reason, and with the gridlock only worsening over time.

A few years back, the Net’s intelligentsia spoke of a “bandwidth glut.” No more. Surging data traffic has eaten up available bandwidth, producing bottlenecks that can ruin an online experience.

As The News notes, neutrality regulation will only make things worse for the Net user. And that’s no snow job.

The New York Times’ Steve Labaton had an interesting article recently on the neutrality issue, which included this line:

“… there remains considerable Democratic opposition [to neutrality regulation]. Last June, a vote on an amendment by Mr. Markey similar to what he plans to introduce failed by 269 to 152, with 58 Democrats voting against the measure. Many of those Democrats have been allied with unions, which have sided with the phone companies because they believe that the lack of restrictions will encourage the companies to invest and expand their networks.”

True enough. And for a completely unvarnished sense of how seriously the unions object to neutrality regulation, check out this from the 700,000-member Communications Workers of America.