Senator to ISPs: "Think twice" about 'Net neutrality... or else

By Nate Anderson | Published: May 06, 2008 - ars technica

Sen. Ron Wyden (D-OR) stepped in front of a group of tech executives in Washington this morning to deliver a caffeinated and surprisingly sharp defense of network neutrality. Pledging to use "every ounce of my energy to protect network neutrality," Wyden had a message for ISPs who might be pondering new charges for various forms of access: "think twice." If ISPs start down that road, they might soon find that they lose key legal protections including "safe harbors" and tax freedom.

Wyden delivered his ultimatum at a Computer & Communications Industry Association conference in DC, where he cast the entire network neutrality debate in terms of a legislative compromise. Years ago, Congress began protecting ISPs from the twin threats of regulation and taxation; in return, ISPs were expected to deliver an unimpeded connection to the Internet. A move away from a neutral 'Net would undermine the "very philosophical underpinnings of what we fought for for the last 15 years," according to Wyden. If that happens, he sees no reason for Congress to continue sheltering ISPs.

The two specific pieces of legislation encompassed by this threat are the Communications Decency Act and the Internet Tax Freedom Act. While much of the CDA was tossed out by a federal judge on the grounds that it unconstitutionally limited free speech, section 230 of the act survived. 230 provided a safe harbor to ISPs and web sites, exempting them from liability for content posted to or through them, a provision that benefits Ars and every other website that allows user-generated content and comments. The law saved ISPs "vast sums," according to Wyden.

The Internet Tax Freedom Act has also kept most taxes from being applied to Internet connections, even though states have repeatedly shown interest in taxing these links.

In return for helping out ISPs, what did Congress get in return? "Monopolies," according to Wyden, or, in other cases, duopolies where one or two main gatekeepers controlled access to the 'Net for most US citizens. Wyden's rhetoric grew downright militant as he contemplated the various ways that these ISPs might start hitting consumers with fees. "The sword cuts both ways," he said, implying that the ISPs might find themselves having to collect more taxes and pay for more litigation if they continue to agitate Congress by pondering or implementing non-neutral fees.

Part of the reason that the issue gets so much traction is because network neutrality has become one of those wonky crossover issues that stirs up passions even among normal 'Net users. Rep. Anna Eshoo (D-CA), speaking at the same event, issued a reminder of how much popular traction the idea has gained: when she goes into high school classrooms, the kids "ask me about 'Net neutrality," she said.

With Rep. Ed Markey (D-MA) holding an important network neutrality hearing this morning in the House, Eshoo expressed her confidence that Markey's bill would be taken up by Congress but that it would face a serious challenge on the House floor. Should it fail there, "I think the Capitol would fall down around members' ears if the opposition were successful," she said.

Rep. Mike Doyle (D-PA) agreed with Eshoo and noted that the two sides are separated by what now seems to be "almost a religious difference." Doyle chalks up some of the antagonism to a generational divide, as the only people of his generation who grew up using the Internet were the people who invented it. 'Net neutrality isn't a "wild plan to destroy the Internet," Doyle continued, arguing that a younger generation brought up using the Internet understands exactly what's at stake.

Or, as FCC Commissioner Jonathan Adelstein put it later in the day, "Anyone who messes with the open Internet does so at their peril."

Swords, peril, wild plans, and a crumbling Capitol; all we need are wild animals in the streets and possibly a rider on a pale horse for the network neutrality debate to officially complete its ascendancy from a network management issue to a millenarian apocalyptic battle cry. Despite the rhetoric on this issue, it looks unlikely that Congress will actually take any action this year.