Legal View: The Internet and Core Values

Let’s be clear. Although Google and Yahoo assert that network neutrality is all about the "future of the Internet," it’s not. It’s about their business model, which is premised on "edge" applications (software and content providers) free-riding on broadband pipes. GOOGLE THE PROTECTIONIST They’re pursuing legislation to pull up the drawbridge, to protect their market dominance at the edge and preclude competition from the "core" (network and broadband platform) players. This is not an uncommon tactic, but it’s not good public policy to legislate business models in the highly dynamic and competitive market that defines the Internet. Google chief Internet evangelist Vint Cerf recently testified that "functionality" in the network’s core is problematic. Network neutrality proponents have thus focused on permitting innovation only in the network’s application/services layer. This "edge-centric" view is embodied in Sen. Ron Wyden’s (D-OR) recently introduced legislation, S.2360, which would prohibit network operators from embedding smart technology within the network infrastructure. This would freeze network innovation and stifle broadband infrastructure investment in the core. These investments are essential for the Internet’s continued development. This is not a zero sum game. A competitive marketplace should promote innovation at both the core and edge. Professor Lawrence Lessig, in his book Code and Other Laws of Cyberspace, underscores the core/edge symbiosis in his analysis of the "substantive" and "structural" values inherent in the Internet’s "constitution." While I admire Professor Lessig’s analysis of the Internet, to be sure, we are at opposite ends of the network neutrality debate. Substance and structure, core and edge, interact with each other and define and shape the services and choices available to the consumer over the Web. Indeed, continued structural innovation at the core will lead to substantive innovation at the edge. This has been the history of the Internet’s evolution. Just look at what the cable industry’s investment in broadband networks did to allow bandwidth-rich applications to flourish on the Internet. TRUE NETWORK NEUTRALITY In addition, innovation at the core is critical given the capacity demands placed on broadband pipes. Approximately 90% of traffic is generated by 5% of users. Some 60%-70% of ISP traffic is from P2P file sharing. To combat this bit anarchy, and to offer compelling content to consumers, the broadband industry is developing and deploying smart technologies in networks that will vastly improve the consumer experience and enhance the environment for new applications. The government’s hands-off approach has led to remarkable investment and innovation in the Internet. For true "network neutrality" to exist, the government should continue this approach and not adopt an edge-centric vision of the future. It should permit competition to drive advancement at the core and the edge of the Internet ecosystem. Jeremy H. Stern is a 25-year veteran of the cable industry. He is a partner with the law firm of Cole, Raywid & Braverman, LLP. Previously he worked for Continental Cablevision, MediaOne and the NCTA.