Category Archives: Infrastructure

A Few Words on Comcast v. FCC: Net Neutrality Neutralized

The D.C. Circuit Court of Appeals issued its opinion today in Comcast’s appeal of sanctions issued in 2008, rejecting the FCC’s authority to issue the sanctions in the first place.  (Brent Kendall of The Wall Street Journal has already reported the story, see “Court Strikes at Net Neutrality.”)

The ruling punished the cable company’s efforts to throttle peer-to-peer traffic over its network of some customers using the BitTorrent application, a network management principle the FCC said violated its “policy” on open and transparent Internet or “net neutrality.”   Since Comcast agreed to more subtle forms of traffic management and to make such decisions more transparent, the FCC left them with a slap on the wrist.  Comcast appealed nonetheless.  (Appeals of FCC adjudications go directly to the D.C. Circuit.)

I’ve read through the court’s 36-page opinion, which will serve as an important marker in the “net neutrality” debate.  It largely follows the harsh line of questioning taken during the oral arguments for the case back in January, where the panel challenged the FCC to identify a specific statutory provision that gave them authority to impose the neutrality principles—in this case, in an adjudication that Comcast had failed to follow the rules.

In 36 pages, there is not a single reference to any arguments made by Comcast.  Instead, the court “begins and ends” by dismantling the brief of the FCC, rejecting every effort to tie the Commission’s “ancillary jurisdiction” to something—anything!–in the Communications Act that could justify the sanctions.

When the FCC issued its Notice of Proposed Rulemaking on net neutrality in October of last year (rules that would in essence codify the basis for sanctions in the Comcast case), it cited as its authority to issue the rules none other than “ancillary jurisdiction”–making the same argument there that the D.C. Circuit has now rejected.  (See Paragraph 83 of the NPRM.)

FCC Commissioner Robert McDowell dissented from that aspect of the NPRM, noting “My view is that regulation of network management is simply not reasonably ancillary to responsibilities set forth under other sections of the Act.”

The D.C. Circuit agrees.  In conclusion, the court notes:

It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.”  It is also true that “[t]he Internet is such a technology,” indeed, “arguably the most important innovation in communications in a generation.” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.” [citations omitted]

The spin doctoring of this opinion will now commence.  But it is very hard to see how the NPRM can go forward—or survive even the briefest of legal challenges should the FCC simply do so—given this ruling.  The FCC could try to appeal to the U.S. Supreme Court or go back to Congress for explicit authority to issue net neutrality rules.  As I’ve written earlier, the FCC could also try to reclassify Internet services under the common carrier rules of Title II, where it has extensive regulatory powers.

Each of these paths is fraught with dangers and unintended consequences.

Perhaps it’s time for the Commission instead to take a step back and ask a question that was missing from the many posed in the NPRM:  Why regulate at all?

Net Neutrality Tail Wags Broadband Dog

I published an opinion piece today for CNET arguing against recent calls to reclassify broadband Internet as a “telecommunications service” under Title II of the Communications Act.

The push to do so comes as supporters of the FCC’s proposed Net Neutrality rules fear that the agency’s authority to adopt them under its so-called “ancillary jurisdiction” won’t fly in the courts. In January, the U.S. Court of Appeals for the D.C. Circuit heard arguments in Comcast’s appeal of sanctions levied against the cable company for violations of the neutrality principles (not yet adopted under a formal rulemaking). The three-judge panel expressed considerable doubt about the FCC’s jurisdiction in issuing the sanctions during oral arguments. Only the published opinion (forthcoming) will matter, of course, but anxiety is growing.

Solving the Net Neutrality jurisdiction problem with a return to Title II regulation is a staggeringly bad idea, and a counter-productive one at that. My article describes the parallel developments in “telecommunications services” and the largely unregulated “information services” (aka Title I) since the 1996 Communications Act, making the point that life for consumers has been far more exciting—and has generated far more wealth–under the latter than the former.

Under Title I, in short, we’ve had the Internet revolution. Under Title II, we’ve had the decline and fall of basic wireline phone service, boom and bust in the arbitraging competitive local exchange market, massive fraud in the bloated e-Rate program, and the continued corruption of local licensing authorities holding applications hostage for legal and illegal bribes.

But the FCC has not ruled out the idea of reclassification. Indeed, just as the piece was being published, FCC Chairman Julius Genachowski was testifying before a Senate committee considering Comcast’s proposed merger with NBC Universal. When asked whether the agency was considering reclassification, the Chairman responded: “We are defending the position that Title I gives us the authority we need. We’ll continue to assert that position and hope we will get a favorable decision. If the court does something that requires us to reassess, we’ll do that.”

I leave for another day a detailed discussion of whether the FCC could in fact reclassify broadband Internet as a telecommunications service without explicit authority to do so from Congress. It was the Commission, after all, who argued successfully in the Brand X case that broadband Internet clearly fit the definition of information service. (I criticized the Brand X case when it was decided as not going far enough, see “Cure for the Common Carrier,” CIO Insight, April 2005)

Under the Chevron Doctrine, the U.S. Supreme Court gives great deference to agencies in the interpretation of their governing statutes. Brand X held that the two definitions were ambiguous and that the FCC’s resolution of that ambiguity was reasonable. Under Chevron, that ends the involvement of the courts. To reclassify broadband, the FCC would have to argue that its interpretation was not in fact reasonable.

Left out for reasons of length was a discussion of the history of the two terms and the source of the definitions given for them in the 1996 Act. That history demonstrates even more clearly, I think, that regulation of the Internet cannot and should not be governed by Title II.

Title II telecommunications services are subject to the “common carrier” provisions—including unbundling, rate oversight, and the Universal Service Fund—that were created over the years to manage the legal monopoly held by AT&T. Under the 1913 Kingsbury Agreement, AT&T was able to maintain its control over most aspects of U.S. telecommunications in exchange for accepting government oversight. In 1934 Congress created the Federal Communications Commission, which addressed itself to regulating AT&T’s interstate business. State and local authorities handled the intrastate business.

Over the last thirty years, the AT&T monopoly has been largely broken up by a combination of disruptive technologies (alternate transport including cable, satellite, and cellular, and new architectures including the Internet) and government interventions. The equipment monopoly of AT&T’s Western Electric subsidiary went first, followed by the separation of local and long distance in 1984. Competition in long distance was followed in 1996 by the forced opening of local services. What was left of the original AT&T was acquired by some of its former subsidiaries in 2005.

Meanwhile, since the 1950’s the computer revolution has been busily transforming business and life. In the early days of standalone computers, there was no overlap between computing and telephony, but with the advent of time-sharing and later interactive and distributed computing, private data communications began to develop using much of the infrastructure invented for voice. A simple—and I think, entirely reasonable—way to distinguish between “information services” and “telecommunications services” is to understand that historically “information services” meant private data communications and “telecommunications services” meant voice.

For the most part, information services have remained outside of the FCC’s regulatory clutches for the simple reason that AT&T, until 1980, was banned from offering data communications. (It’s a long story, but that ban is the reason Linux—derived from AT&T’s UNIX operating system—is open source.) Since the regulated monopoly wasn’t involved in the computer or data communications business, there was no basis for subjecting it to common carrier rules. That’s a fortunate accident of history, of course, because leaving computing unregulated has meant all the difference in its dramatic growth.

The legal border between Title I and Title II goes back at least to 1956 and an earlier attempt to break up AT&T. The effort failed, but a Faustian bargain was struck. AT&T and its subsidiaries (including Western Electric and Bell Labs) agreed to stay out of the computer business (“information” or “enhanced services” as it was called at the time) and remained under the regulatory control of the FCC for traditional telephony (“telecommunications services”). In exchange, the government let AT&T stay together.

At the time, commercial computing was in its infancy. There was no data communications and certainly no Internet.

In 1980, AT&T was released from its pledge not to offer data services. But four years later, before they could really do very much with their freedom, the company was broken up by Judge Harold Greene, who then ran the communications industry from his chambers until Congress finally passed the 1996 Act.

In any case, by the 1980’s the computer industry had evolved dramatically. The provisioning of private data services was a fast-growing business. IBM, DEC, and other providers had developed proprietary networks and proprietary standards, and used them to lock customers into their hardware and software products.

All of that had changed by 1996. For the first time, it was not only businesses but consumers who were using information services. Public data networks operated by America On-Line, CompuServe and Prodigy had millions of subscribers and were growing rapidly. Netscape Navigator unleashed the full potential of the World Wide Web as a non-proprietary networking standard, creating new industries and services which continue to evolve at a staggering pace. The protocols that made up the Internet had shifted from a government and university use to public use.

Given this history and the great uncertainty in 1996 as to where commercial and consumer computing was headed, Congress decided that the fast-growing provision of data communications should remain outside the control of the FCC. Hence “information services” remained unregulated and “telecommunications services” remained regulated. The terms and their definitions in the 1996 Act were lifted, for better and for worse, straight out of the 1984 decree in the AT&T antitrust case.

(Much of this history is recounted in detail by Prof. Susan Crawford in a 2009 article in the Boston University Law Review, “Transporting Communications.” Though I don’t share Prof. Crawford’s conclusions, the story is told quite well.)

One could argue (I have) that the need for Title II regulations even as applied to wireline voice communications (what’s known in the industry as POTS – Plain Old Telephone Service) makes little sense now that nearly everything has converged under the Internet—including voice. Or put another way, the continued application of common carrier rules are introducing more costs to consumers than any inefficiencies that might exist in an unregulated world.

But it’s much harder to make the case that we should actually move data communications over to Title II in addition to POTS, especially if the only reason behind doing so is to salvage the Net Neutrality rulemaking. To mix some metaphors, that’s both the tail wagging the dog and killing goose that lays the golden eggs. It also flies in the face of the history of the two titles, the consumer experience of life under Title I, and common sense.

The White House’s New Internet Policy, and thoughts on Comcast v. FCC

I published the first of two pieces on CNET today about interesting and even encouraging developments in Washington over Internet policy. (See “New Year, New Policy Push for Universal Broadband”)

In short, I believe that over the past year the Obama administration has come to see Internet products and services as one of the best hopes for economic recovery and continued competitiveness for U.S. businesses.  At least as a matter of policy, this is the first administration to see digital life as a source of competitive advantage.

Tomorrow’s piece concerns the “spectrum crisis” and what the federal government hopes to do to solve it. (The federal government “owns” the radio waves, after all.)

Cut due to the length of the piece was a longer analysis of the arguments a few weeks ago in the U.S. Court of Appeals for the D.C. Circuit in Comcast v. FCC, in which cable provider Comcast challenged a sanction the FCC issued in 2008 for the company’s attempts to limit use by some customers of peer-to-peer applications including BitTorrent.

Depending on how the court rules, the commission’s proposed Net neutrality rules could be dead in the water for lack of authority to regulate in this space.

Here’s the longer version of that section:

The fate of net neutrality may depend on the outcome of important development that took place during CES, but at the other end of the country. This involved litigation over the one notorious instance of non-neutral behavior that largely reawakened the net neutrality debate in 2008.

Comcast admitted that it has used some fairly clumsy techniques to limit the speed or sometimes the availability of peer-to-peer Internet services that allowed users to share very large files, notably using the BitTorrent protocol. In the wake of that revelation, Comcast agreed to change its practices and to make them more transparent, and made peace with BitTorrent developers. (They are also in the process of settling a class-action lawsuit brought by Comcast customers affected by the limits.)

The FCC issued a non-monetary sanction against the company, claiming that the techniques violated net neutrality principles which, while not formally enacted by the FCC, nonetheless applied to Comcast. Comcast challenged the sanctions in the U.S. Court of Appeals for the D.C. Circuit, which hears all challenges to FCC rulings.

On Jan. 8th, hours before Chairman Genachowski took the stage at CES, the D.C. Circuit heard oral arguments in Comcast’s appeal. As was widely reported, the three-judge panel considering the appeal questioned government lawyers severely.

Some statements from the judges suggested they were skeptical at best about the Commission’s authority to sanction Comcast. Chief Judge Sentelle, who sat on the panel, complained about the Commission’s view of its own authority. “You can’t get an unbridled, roving commission to go about doing good,” he was reported to have said. Judge Randolph, another panelist, complained that the lawyers for the FCC could not “identify a specific statute” that authorized the sanction.

The case is certainly important, though too much was read into the tone of the arguments by a number of mainstream media sources. As a former circuit court law clerk, I can attest to FCC Commissioner McDowell’s warning at CES not to draw conclusions about the outcome of the case from comments or even the appearance of hostility by appellate judges at an oral argument. (McDowell, notably, was one of the Commissioners who dissented from the Comcast sanction, on the grounds that the FCC did not have the authority to issue it.)

Wired, for example, ran the extreme headline: “Court to FCC: You Don’t Have Power to Enforce Net Neutrality.”

The accompanying article was a little less hyperbolic, but still misleading: “A federal appeals court gave notice Friday it likely would reject the Federal Communications Commission’s authority to sanction Comcast for throttling peer-to-peer applications.” That was an interpretation of the arguments echoed in many publications.

There is, however, no way to predict from the oral arguments how appellate judges are “likely” to rule. They may have just been in a bad mood, or annoyed with the government’s lawyers for reasons unrelated to the merits of the appeal. Unlike political office holders, federal judges are appointed for life, and do not measure their questions or comments at oral arguments to signal how they are likely to rule in a case.

Indeed, the judges may have objected not so much to the conclusion urged by the FCC as much as the line of reasoning the Commission followed in its briefs. The Commission may have relied too much on its general authority to regulate communications companies, for example, rather than citing more specific regulatory powers that Congress and the courts have already recognized.

Still, the outcome in this case could have serious repercussions for the proposed net neutrality rules. Why? Most of the FCC’s rulemaking authority comes from longstanding regulatory power over telephone companies, classified as “common carriers” who must follow nondiscriminatory practices overseen closely by the Commission.

But cable Internet providers are not common carriers, and indeed the FCC itself argued that point successfully in a 2005 Supreme Court case. The FCC later determined that traditional phone companies, when offering broadband Internet service, were also not subject to common carrier regulations.

So if broadband Internet services are not subject to common carrier rules, where does the FCC get the authority to propose net neutrality rules in the first place?

The Commission argued both in the Comcast case and in its proposed net neutrality rules that its jurisdiction comes from “traditional ancillary authority,” that is, from authority that is implicit in the governing statute that defines the FCC’s power. The skepticism expressed at oral argument seemed to be focused on the argument that ancillary jurisdiction was all the FCC needed to sanction Comcast’s behavior.

The D.C. Circuit could rule that such authority does not extend so far as to allow the FCC to create or enforce net neutrality. It could also rule more narrowly, and reject the sanctions only on the grounds that they were not issued pursuant to a formal rulemaking–that is, the kind of rules now being considered. Or, of course, the court could agree with the Commission that ancillary authority is sufficient both to issue the sanctions and to enact formal rules.

The proposed rules are not directly at issue in the Comcast case. Even if the court rules that ancillary jurisdiction is insufficient to make net neutrality rules (as, among others, the Electronic Frontier Foundation has argued, see “FCC Perils and Promise”), the FCC could technically still go ahead with its rulemaking. But the court would surely hold the new rules exceed the agency’s power, and pretty quickly.

Rather than pass rules that would be dead on arrival, the Commission would likely head back to Congress for explicit authority to define and enforce net neutrality regulations. Since 2007, there have been several bills floating around committees that would grant precisely that power (and, indeed, mandate that the FCC use it) but none of them has yet to be reported out. There are also bills explicitly forbidding the FCC from enacting net neutrality rules, also sitting in committee.

The Post-CES Hangover

It’s taken me all week to recover from the information and sensory overload of the 2010 International Consumer Electronics Show in Las Vegas. I want to give particular thanks to the staff of Tech Policy Central, which put on a superb program of speakers and content.

Boiling down my notes from all the sessions, I’ve just finished a long article on what looks to be a dramatic new policy toward the Internet emerging from the White House and the Federal Communications Commission.   More on that early next week.

In the meantime, I strongly recommend Steve Wildstrom’s recent article, which reaches many of the same conclusions I do, in far fewer words and with much greater clarity.  See “Why We Need Telcom Reform and Won’t Get it.”

My post from the show itself , “Why the White House is Backing Away from New Neutrality,” was published last Friday on CNET–indeed, just a few hours after I finished it. Given the controversial nature of the FCC’s Notice of Proposed Rulemaking issued in October, it’s probably no surprise that the article proved provocative. Several articles and blog posts praised the piece, and several more were critical of both my analysis and, unfortunately in a few cases, my motivation for writing it. (On the latter point, see the addendum CNET added to the piece that makes clear there was no conflict of interest.)

Oddly enough, this was one article where I wasn’t actually offering an opinion on the wisdom of the proposed rules, as I have of course done elsewhere.

In any case, the initial public comment period on the proposed rules has now closed. It remains to be seen how the FCC will proceed from here (some dates are already given), but for now it’s time to wade through what were undoubtedly a mountain of filings.  For a good start, see Cecilia Kang’s timely post from today.

More to come.

Net Neutrality: Back Away Slowly

genachowskiMy analysis on recent developments in the FCC’s proposed net neutrality rulemaking, based in part on comments I heard yesterday at a conference being held as part of the Consumer Electronics Show in Las Vegas, was posted this morning on CNET.

To me, these and other information crumbs suggest a more measured approach to keeping the Internet open after early comments from the FCC and the White House suggested dramatic expansion of the government’s regulation of ISPs.

The reason for the about-face, as I say in the article, is the growing realization in Washington that the best solution to anti-consumer practices would be more competition rather than micromanaging the network.

As part of the National Broadband Plan being developed by the FCC, the White House is hoping to see universal access at high speeds–anywhere in the United States.

Unlike previous administrations, the Obama government recognizes that information technology is now the driver of economic activity, and a better U.S. infrastructure would not only help with recovery but also keep the U.S. competitive in a global innovation market.

Rattling the neutrality sabre doesn’t fit that agenda, especially when the vast majority of necessary investments in fiber will have to be made not by the feds but by the carriers. The Administration is looking for ways to cooperate, not antagonize, private investment.

Today, FCC Chairman Genachowski takes the stage. It will be interesting to see if there’s any detectable change to his rhetoric on the subject. I’m betting there will be. Stay tuned.

Net Neutrality Doublespeak: Deep Packet Inspection is a Bad Idea, Except When it Isn’t

An interesting tempest in a teapot has emerged this week following some overblown rhetoric by and in response to celebrity causemeister Bono. There’s a deeper lesson to the incident, however, one with important implications for the net neutrality debate. (More on that in a moment.)

In a New York Times op-ed column on Jan. 2, 2010, Bono provided “10 ideas that might make the next 10 years more interesting, healthy or civil.” These include the salvation of the entertainment industry from the clutches of peer-to-peer file sharers, who are just a few turns of Moore’s Law away from being able to “download an entire season of “24” in 24 seconds.”

“Many will expect to get it for free,” Bono laments, apparently unaware that in the U.S., we don’t have a mandatory television license for television content as they do in the U.K. (U.K. residents pay £142.50 a year tax, the principal source of income for the BBC.) So long as you watch 24 when Fox broadcasts it, you will expect to and indeed will get it “for free,” without breaking any laws whatsoever. Hooray for America.

Bono’s proposal to solve this problem, also factually challenged, is to force ISPs to clean up the illegal sharing of copyrighted content:

We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content. Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world….

As several commentators have already pointed out, America’s “noble effort to stop child pornography” has almost nothing to do with looking inside the broken up pieces of Internet transactions, known as  “deep packet inspection.”  Indeed, as I write in Law One (“Convergence”) of The Laws of Disruption, most federal and state efforts at solving that scourge at least in the online world have been so broad and clumsy that they instantly fail First Amendment scrutiny. (Another feature of American law that Bono may not fully appreciate.) Congress has tried three times to pass laws on the subject, two of which were declared unconstitutional and the third reigned in to be almost meaningless.

State efforts have been even more poorly-crafted. I write in the book about Pennsylvania’s Child Sexual Exploitation Unit, formed in 2008 by act of the Pennsylvania legislature. Staffed by three former state troopers, the CSEU “analysts” surfed the web looking for sites they felt contained child porn, then wrote letters demanding that ISPs block access to those sites for all their Pennsylvania customers. (The easiest way for large ISPs including AOL and Verizon to do that was simply to block the sites, period.)

Aside from the lack of any training or standards by the regulators, the sites that made the list included several host sites with hundreds or thousands of private websites that had nothing to do with pornography of any kind. By the time the courts put the CSEU out of business a year later, Pennsylvania had banned 1.19 million websites, only 376 of which actually contained content the troopers deemed offensive. (An official geographic survey of Spain and the International Philatelic Society made the banned list.) There was also no mechanism for getting a web address off the list, even if the ownership and contents changed hands.

But that’s a mere quibble, as is the fact that Chinese censorship of content, hardly a “best practice,” apparently includes some 30,000 Internet police and perhaps millions of servers—and even then, the surveillance appears to be on the back-end, after the packets have already been reassembled. (Not surprising, China hasn’t exactly published its processes in the Harvard Business Review.)

Regular readers of this blog will be expecting the twist ending, and here it comes. I’m less interested in the misinformed opinions of a musician and humanitarian than in the response it drew from Internet activists. Gigi Sohn of Public Knowledge characterized Bono’s proposal as “mind-bogglingly ignorant” both as to what really caused the fall of the music industry and the technology that would be required for ISPs to become the content police on behalf of copyright owners. Packet filtration, Sohn points out, would lead to “blocking lawful content and encouraging an encryption arms race that would allow filesharing to proceed unabated.” And anyway, the real problem here is overprotective IP laws. (I agree.)

Somewhat less hyperbolic, Leslie Harris of the Center for Democracy and Technology (CDT) wrote today on The Huffington Post that ISPs are taking concrete and responsible steps stop to reduce child pornography that don’t include deep packet inspection, and reiterated Sohn’s point about an encryption arms race.

More interesting, however, Harris notes the danger of mandating ISPs to exert “centralized control over Internet communications.” Harris writes:

In this country, ISPs do not control what their users send to the Internet any more than a phone company controls the topics of someone’s phone call. Does the U.S. really want to move in the direction of the Chinese model of always-on surveillance? Once we begin to break into all Web traffic to search for copyright violations, evaluating content for its “decency” or appropriateness for children, then analyzing each user’s search habits to determine buying habits and government surveillance without lawful process (remember the NSA warrantless wiretapping) will follow close behind.

The U.S. has the most vibrant, free and innovative Internet because we don’t have gatekeepers in the middle of the network.

Well, at least we don’t yet.

As I’ve pointed out before (see, for example, “Zombieland – The Return of Net Neutrality”) my principal concern with net neutrality is not the idea that information should flow freely on the Internet. That’s a fine principle, and central to the success of this largely unregulated, non-proprietary infrastructure.

Rather, I worry about the unfortunate details of implementation. If net neutrality also means that ISPs are forbidden from offering premium or priority routing within the back-end segments of the network they control (that is, the last mile to the consumer), then it will necessarily fall to the government to monitor, audit, and investigate the flow of packets across the network, if only in response to complaints by consumers of real or perceived non-neutral behavior.

Under the rules proposed in the fall, the FCC has said only that it will investigate complaints of non-neutrality on “a case-by-case basis;” under the proposed Internet Freedom Preservation Act, any consumer would have the right to complain directly to the FCC, which would be required to investigate all complaints within 90 days.

How else can the FCC determine whether some packets are being given priority in defiance of neutrality rules without intercepting at least a random subset of those packets and opening them up?

Very quickly, the enforcement of net neutrality would lead us  into the “model of always-on surveillance,” not by ISPs but, worse, by federal regulators. The opportunities for linking the FCC’s enforcement powers with “government surveillance” will be even more irresistible than if would be if the ISPs were the ones exerting the “centralized control.”

This, of course, is a worst case scenario, but that is not to say that the risk of the worst case scenario becoming reality is particularly low. Indeed, the history of FCC interference with broadcast TV content, a long a sad story that persists to this day, suggests that the worst case scenario is also the most likely.

(On enforcement, Public Knowledge says only that it “supports a Network Neutrality system that can be enforced through a simple complaint process managed by the Federal Communications Commission, where the network operator must bear the burden of demonstrating that any interference with traffic is necessary to support a lawful goal.” Simple for whom? The complainant, not the investigator.)

I agree that the U.S. has the most free and innovative Internet because we don’t have “gatekeepers in the middle of the network.” So why do groups including Public Knowledge and the CDT, who clearly understand the risks of private and–even worse–of public interference with the flow of packets, advocate so strongly in favor of neutrality rules?

Perhaps because, like Bono, they haven’t thought through the implications of their rhetoric.