The Limits of Net Neutrality

[Commentary] Network neutrality is about attempting to limit the power of Internet access network operators (like Charter or Comcast) to choose winners and losers among the services that have to use their wires — because, remember, competition is so limited — to reach consumers. It’s a kind of synthetic attempt to keep the operators from favoring their own commercial interests when sending Internet traffic from other people to you (or vice versa). But the problem is that where network operators don’t have to compete, and use their digital pipes for multiple purposes (like providing their own TV services that feel just like over-the-top video services), it’s so easy for them to act like media distribution companies, slicing and dicing and packaging, rather than transport providers. And ultimately, that kind of behavior is designed to serve their commercial interests. It’s only rational. But it’s harmful to new competitors and ultimately to consumers.

In the US, the net neutrality issue has been forced to bear too much weight. It stands in for a larger problem that a single law or regulation can’t address. It’s like a small white bird perched on the head of a hippo. The little bird is noticeable and interesting, but really just a side-effect of the reality of the hippo himself. And the hippo in this metaphor is the lack of competition for network access services, particularly higher-capacity services, in a fundamentally unregulated market.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center]