Federal Communications Commission Chair Julius Genachowski called this week for the agency to formally adopt a set of rules governing access to the Internet. The proposed rules are meant to ensure "net neutrality" by preventing broadband providers from giving preferential access to certain customers or restricting competition. The principle that the everyone should have equal access to communications networks because they are a public good goes back at least to The Pacific Telegraph Act of 1860, which required "That messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception." As Google, a long time proponent of net neutrality, famously put it, "Just as telephone companies are not permitted to tell consumers who they can call or what they can say, broadband carriers should not be allowed to use their market power to control activity online."
Exactly how to ensure that everyone has equal access to the Internet is not a simple question. As the Electronic Frontier Foundation points out, the FCC has no explicit statutory authority to regulate the Internet—and given how vulnerable the agency is to political pressure, it is not clear that it should have that authority. And there may be technical reasons to prioritize certain kinds of data in order to improve the overall performance of the network. Treating all types of net traffic the same way may encourage consumers to use more bandwidth than the network can handle.
But broadband providers are the main opponents of neutrality rules. They would naturally like to use their control over what's called "the last mile" of web infrastructure—the part that connects your computer or your phone to the Internet—to make as much money as possible. Although they generally deny that they would ever use their power to limit what people could do on the Internet, Comcast has been accused of interfering with peer-to-peer services like BitTorrent. And just this year AT&T—which has been intensively lobbying Congress to block the FCC's proposal—blocked iPhone users from using Skype on its network, explaining that "we have no obligation—nor should we have—to facilitate or subsidize our competitors' businesses."
Now Sen. John McCain (R-AZ)—who has gotten almost $900,000 in contributions from telecom interests opposed to net neutrality—is sponsoring a bill called the "Internet Freedom Act" that would block the new FCC regulations. In an op-ed in the Washington Times, McCain calls the rules "another government power grab over a private service provided by private companies in a competitive marketplace." And in a statement yesterday he said they would amount to "a government takeover of the Internet." McCain argues that the rules would stifle innovation and depress the job market. While it's true, as Bret Swanson has argued, that limiting the ability of broadband providers to charge for access to the Internet reduces their incentive to invest in new infrastructure, ensuring that everyone has equal access to the web is precisely what makes it so valuable. And the fact is that the Internet has blossomed under essentially the same neutrality rules McCain is opposing. While there are certainly real issues to work out about how best to regulate web providers, what McCain's bill protects is the freedom of providers to limit our access to the Internet, not our freedom to use it.