Law professor Susan Crawford just posted a lengthy legal and historical analysis on the differences between “information” and “telecommunications” services.

Two points:

1. First, in one sense, her essay is ruefully amusing since it’s all about the difficulty of keeping regulations current as technology changes. But that’s precisely the issue with Net neutrality!

   Yes, Congress or the FCC can make arbitrary distinctions about application-specific programming but if the Internet’s history teaches anything, it’s that today’s clear distinctions quickly become tomorrow’s confusing red tape. The result: litigation and uncertain deployment.

2. Second, Prof. Crawford makes a completely unfounded statement at the end that network providers have “no legal constraint on their ability to discriminate against particular uses of their networks.” This is flat-out absurd. As we’ve pointed out numerous times, Net users enjoy substantive consumer protection through unfair competition law, antitrust law, and multiple common law tort theories — and of course, the power of the marketplace.

Even Amazon’s point person for Net neutrality has conceded that Title I of the Communications Act of 1934 gives the FCC power to take regulatory action if presented with unfair business tactics by broadband providers.

Richard Bennett takes a look at Save The Internet’s arguments for net neutrality. Apparently, lacking good examples, they’ve decided to make stuff up. He annotates, with corrections…

“In October 2007, the Associated Press busted Comcast for blocking its users’ access to peer-to-peer file-sharing networks like BitTorrent and Gnutella. This fraudulent practice is a glaring violation of Net Neutrality.”

Nope. Comcast slows BitTorrent seeding, but doesn’t interfere with BitTorrent downloads. And it doesn’t interfere with Gnutella (a piracy tool) at all. No violation of any law.

“In September 2007, Verizon was caught banning pro-choice text messages. After a New York Times expose, the phone company reversed its policy, claiming it was a glitch.”

Nope. Verizon didn’t block a single text message. There was a 24-hour delay in issuing a shortcode to NARAL; shortcodes enable people to setup the equivalent of an e-mail list of SMS addresses. It had nothing to do with the Internet.

“In August 2007, AT&T censored a live webcast of a Pearl Jam concert just as lead singer Eddie Vedder criticized President Bush.”

This was a concert AT&T streamed from its own web site, not something Pearl Jam did on its own. This is no different from STI censoring comments on its blog, which it does all the time.

“In 2006, Time Warner’s AOL blocked all emails that mentioned http://www.dearaol.com — an advocacy campaign opposing the company’s pay-to-send e-mail scheme.”

This was simply a spam filter run amok. It happens.

“In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a contentious labor dispute.”

One word: CANADA.

“In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.”

No, they blocked VoIP, not a “web-based” anything. The FCC fined them for it, and they stopped, proving that existing law is sufficient.

“Shaw, a major Canadian cable, internet, and telephone service company, intentionally downgrades the “quality and reliability” of competing Internet-phone services that their customers might choose — driving customers to their own phone services not through better services, but by rigging the marketplace.”

Nope, Shaw sells (in CANADA) a service that prevents P2P degradation of VoIP. It’s a good service.

We like to point out that Net Neutrality is a solution in search of a problem. For Free Press and Save The Internet, however, Net Neutrality appears to be a solution in search of a manufactured excuse. As Richard Bennett points out, “STI offers only exaggerations, half-truths, and outright lies. Everyone should oppose any campaign built on such a foundation.”

While we were enjoying the beach last weekend, tech genius Richard Bennett noticed what looks like a fatal flaw with the Max Planck Institute’s Glasnost test. We’ll leave the engineering issues to Messers. Bennett and Ou but at a minimum, Bennett’s discovery should put to rest the Google-inspired idea that Net neutrality requires merely a “light touch” of FCC regulation.

Oh yes, and it will be fun to see if the Net neutrality advocates start to tip-toe away from their quick embrace of the Glasnost findings.

At least in this case, what happens in Vegas shouldn’t stay in Vegas:

“Net neutrality” is a solution in search of a problem. The Internet has delivered magnificent new opportunities to Americans precisely because it has been left free to develop with minimal government interference. Let’s leave it that way.

“Keep Congress Away from the Internet” (Editorial)
Las Vegas Review-Journal
May 22, 2008

For the whole Review-Journal editorial, click here.

Hands Off The Internet has a letter in today’s New York Times.

To the Editor:

Your May 19 editorial “Democracy and the Web” argues for broad new federal regulation of the Internet — a first in Internet history.

You say that “if Internet service providers started discriminating among content to make more money or to suppress ideas they do not like,” users will suffer. What you overlook is that there already are laws and regulators poised to deal with any such hypothetical problems.

Moreover, the first-time ever federal control of the Internet “pipes” inevitably will hinder the network management (and build-out) needed to handle the torrent of new video and other data-rich traffic flooding the Internet. Users (and democracy) then will really suffer when they face higher costs or limited service, or both.

Federal control and dumb pipes are not the answer to our broadband needs, especially when the alleged basis of the new laws is speculation.

Mike McCurry
Christopher Wolf
Co-chairmen
Hands Off the Internet
Washington, May 19, 2008

According to today’s AP wire, NetFlix has started to accelerate its transition away from a mail-in business model. The company has begun marketing a broadband device that consumers can use to stream movies and TV programs.

And the impact on the Net? Consider a few numbers courtesy of PBS’ ever-insightful Bob Cringely:

“Just look at the comparative sizes of the QuickTime HD trailers for the upcoming Indiana Jones and the Kingdom of the Crystal Skull…. The 480p trailer (that’s standard definition and slightly better quality than the 640-by-480 shows most people download through iTunes now) requires 47 megabytes while the 720p file is 78 megabytes and the 1080p version requires 126 megabytes. [Assuming a two-hour movie] the ultimate file size for the H.264 download versions [would be] 3048 megabytes, 5059 megabytes, and 8172 megabytes, respectively.”

[Image via Flickr]

In short, each two-hour HD movie download adds 3-8 GBs to the web, depending on the display resolution. Netflix won’t be sending all its movies in HD resolution yet — but it’s only a matter of time. Now think about this practice going mass-market while Congress prohibits common-sense network management as part of Net neutrality.

This Friday evening, if you pass through the 405 in Los Angeles, the I-10 in Houston or the Circle Interchange in Chicago, look around. You’ll get a good idea of the Net’s future under Net neutrality.

• “We believe that the new [Clearwire] network will provide wireless consumers with real choices for the software applications, content and handsets that they desire. Such freedom will mirror the openness principles underlying the Internet….” - Google public policy blog on its $500 million Clearwire WiMax investment, May 7, 2008
• “Exclusive web and local search provider” - Google’s investor relations statement [pdf] on what it’s getting for its $500 million (Slide #9)

There’s a pretty big temptation to crow about Google’s hypocrisy. But as Don Corleone said in The Godfather, “That would be wrong.”

Is Google backtracking on its support for net neutrality? Sure. But that was inevitable and few took the company’s Messianic pronouncements in favor of Net neutrality seriously anyway.

The real issue is that the Sprint-Google-Intel Clearwire announcement shows once again that broadband deployment is frighteningly expensive, whether wired or wireless. Even with all the benefits of modern technology, there is simply no easy way to bring high-speed service nationwide – especially to rural and underserved Americans.

Will WiMax be a nationwide silver bullet? Probably not. Will it be a plausible option for some consumers? More likely.

But that’s why the federal government is right to retain the traditional evenhanded approach to the Internet that it’s had since the 1990s and not try to regulate new technologies, especially if the financing for these systems holds the promise of lower-cost options for consumers.

As the Chinese adage goes, Let a hundred flowers bloom. Consumers will then choose the winners and this whole neutrality issue will crumble from its own irrelevance.