Beyond net neutrality

When Mark Zuckerberg created Facebook in his Harvard dorm room, he didn’t need to ask Comcast, Verizon, or other Internet service providers to add Facebook to their networks.

He also didn’t have to pay these companies extra fees to ensure that Facebook would work as well as the websites of established companies. As soon as he created the Facebook website, it was automatically available from any Internet-connected computer in the world.

This aspect of the Internet is network neutrality.

Federal Communications Commission Chairman Tom Wheeler's decision to water down network neutrality regulations isn't even the biggest threat to the open Internet right now. The Internet itself is changing in ways that threatens to make the conventional net neutrality debate almost irrelevant.

Netflix’s deal to pay first Comcast then Verizon for private connections was signed only under protest. Netflix charged that it had been coerced to pay "tolls" just to deliver content to their own customers. That might sound like a net neutrality violation, but the practice doesn't actually run afoul of the network neutrality rules advocates have been pushing for the last decade. Those rules ban "fast lanes" for content that arrives over the Internet backbone, the shared information super highway that carries the bulk of the Internet traffic today.

Conventional network neutrality rules don't regulate this kind of deal. If the only way to get excellent service on America's largest broadband networks is to negotiate a private connection directly to those networks, smaller companies with less cash and fewer lawyers are going to be at a competitive disadvantage.

In other words, those public transit links that were providing Netflix with subpar service could become the de facto slow lanes on Comcast's network, while private, direct connections could become the fast lane. Neither the FCC's 2010 Open Internet Order, which the courts struck down earlier in 2014, nor FCC Chairman Tom Wheeler's new proposal, would govern this kind of interconnection dispute.

The bottom line is that network neutrality advocates will need to broaden their thinking to respond effectively to the Internet's changing structure. Merely banning fast lanes isn't going to accomplish much if the largest ISPs are allowed to sell new private roads.