Jeffrey Hermes, a litigation partner at Boston law firm Brown Rudnick, whom I’ve sourced for a previous article on libel as it applies to podcasting, was a little late responding for an article on how the midterm elections would affect the Network Neutrality debate. Jeff sent a brief essay on the issue as a whole, which brings up some interesting points. To follow is the text of that response.

From the standpoint of a First Amendment attorney advocating freedom ofspeech and press, the network neutrality debate can be seen as a choicebetween the lesser of two evils created by the looming issue of thepossible incapacity of the Internet to carry all of the speech that isnecessary given the explosion of high-bandwidth content providers.

If you permit the creation of a tiered or other non-neutral network, youcan better allocate limited network resources such that bandwidth isused most efficiently; however, this option raises the possibility thatthe services who enact such a tiered system will create a preferredcustomer program on a for-profit basis that will result in smallercontent providers being forced out of the market and the balkanizationof the Internet as service providers each adopt their “stable” ofpreferred services. There is significant concern that the FCC’s currentposition on network neutrality is not strong enough to prevent this sortof preferred service structure.

On the other hand, even with enforced network neutrality, there is thethreat that financially strong organizations can dominate the availablebandwidth directly, as opposed to through contracts with serviceproviders. Also, by asking the government to pass affirmativeregulations governing network neutrality, it opens up a type of Internetregulation never before seen — an ironic position, given that normallythe plea for regulation is brought by those who seek to restrict, ratherthan enhance, access to channels of communication. Regulation in oneinstance can easily lead to regulation in future instances, with theresult of government interference that most Internet speakers have longsought to avoid.

If Internet bandwidth is considered a dwindling resource, then, as withany dwindling resource, those who are rich and powerful will force outthose who are not, in the absence of some form of superveningregulation. Whether there is a way to create such regulation that doesnot fundamentally alter the nature of the Internet as a generallyunregulated playing field is a very difficult and troubling question.

Of course, the final tenet, a continuation of the one introduced in paragraph three, relies on whether bandwidth is truly finite, especially 10 years down the road, which is, I think, an important distinction. Allow me to interject that the end game is control of the fiber to be laid to American homes in the next decade. Though bandwidth appears limited now, those limits, as Moore’s Law will dictate, will diminish over time. Once it does, note the logos on the sides of the pipes. Many of those pipes will branded with a V, sans the vendetta if no one opposes, lain next to the scarlet letter, who controls the rest.

He who controls the fiber, controls the future. So some protection is in order, I think, to prevent the abuse of those who control the access, and who work for the shareholder above any nation’s citizenry. Fortunately for Net Neutrality proponents, Democrats sweeping Congress is boon to the cause, as their predecessors railed against it at telecom request.

For a haunting metaphoric explanation of what telecom’s intend to make out of the internet, see Bob Frankston’s prose, “Sidewalks: Paying by the Stroll.”

Posted on Thursday, November 9th, 2006 at 4:05 pm. Permalink