Are Internet service providers more like wolves, foxes, bridge owners, or priests with the “sacred role of making available to citizens a forum for speech and self-expression"? According to the American Civil Liberties Union, ISPs are like all four; it's the government's job to make sure that they behave more like the priests than like the wolves, foxes, and discriminatory toll collectors.

In an analogy-stuffed new paper (PDF) on network neutrality, the ACLU argues that the Internet has now entered its “third stage.” The first stage was the dial-up era, where a million ISPs bloomed across the US and competition was rampant thanks to common carrier regulation of the telephone network. In the second stage, the “constant vigilance and loud campaigning of Internet activists” kept network neutrality provisions in play even as the regulatory basis for them crumbled.

Now we come to the third stage, where “the giant for-profit companies that now dominate Internet access do not want to be constrained by network neutrality rules.” Thanks to a 2010 court decision in favor of Comcast, the FCC has lost much of its ability to enforce nondiscrimination principles on the Internet. Combine this with the recent rise of deep packet inspection hardware, and the ACLU foresees a brave new world of filtering and control “which could fundamentally alter the architectural structure of the Internet.”

Many of the arguments here are familiar, and are made in the service of a basic argument: the FCC must impose some level of common carrier rules on ISPs to keep the Internet open. If that doesn't happen, we could be looking at Internet packages that look a lot like (gulp) cable TV packages:

But the paper does make several succinct points worth noting.

Public pressure is not enough in a noncompetitive market. Internet activists and ordinary 'Net users have reacted vociferously to each newly publicized attack on perceived neutrality. The pressure was great enough that companies like Comcast altered their most objectionable practices and have not re-introduced them even after a favorable court ruling.

But relying on the vigilance of volunteers and activists has limits, especially because of the information asymmetry between those who build an ISP network and those who use it. It can be terrifically difficult to determine exactly what an ISP is doing with its packets. "Violations of network neutrality are not always easily detectable,” says the ACLU, and it notes that the atmosphere of vigilance “cannot last forever."

A free speech issue? The ACLU claims that network neutrality is a free speech issue, because the Internet is the best platform ever created for disseminating one's views cheaply and widely. But when claims about “free speech” are thrown around on Internet message boards, one sometimes suspects a lack of understanding on the part of the commenter; in the US, "freedom of speech" means freedom from government interference.

The ACLU makes this point, but then argues that freedom of speech does still have some meaning when applied to Internet providers. “Access to the Internet is provided by private corporations enabled by the government, and protecting the same interests and values that the First Amendment protects, requires in this case that the government creates strong policies against incursion by companies that are, at root, profit-seeking rather than civic-minded.”

The exaflood! As for the idea that discriminatory network management might be necessary to keep the Internet from melting down, especially under the tidal wave of streaming and downloadable video now flooding the 'Net, the ACLU paper makes a sensible point.

“At any given time, there will always be applications that are too data-intensive to be performed over the Internet. Ten years ago, high definition streaming video overtaxed the Internet's carrying capacity. At every point in the future, there will probably be other applications that are just out of reach. That line will continue to move as always happens. Does it make sense for America to allow the architecture of the Internet to be changed in ways that are dangerous for free speech and innovation, in order to push that line slightly forward—for some applications—rather than continuing to invest in general increases in Internet carrying capacity that will soon wash away current limits?"

A parable, and some wolves

This isn't a paper that will change any minds already made up, but it is a surprisingly readable overview of the network neutrality debate. How many tech policy papers come with their own "parable," anyway? (Note: you can tell it's a tech policy paper because even the parable features two footnotes.)

In order to help farmers bring their goods to market, a town awards a company a charter to build a bridge across a river and gives the company the right to collect a toll. But the toll collector begins treating farmers differently—making some wait longer to cross, and charging higher tolls to some farmers based on the food that the farmer is carrying, whether the bridge keeper approves of the farmer’s lifestyle and politics, and whether the farmers are willing to make individual side deals with the bridge keeper. In response, farmers and others call for the city to declare the bridge a common carrier—impose a “bridge neutrality” rule that says it can still charge a toll but cannot discriminate among those who pass. Friends and beneficiaries of the bridgekeeper protest that such a rule would interfere with the “free market.” But the bridge is not much of a market—and permitting the bridgekeeper to do these things actually distorts the other marketplace that depends upon it, as farmers with inferior produce gain an advantage just because they have gained favor with the bridge keeper and can bring their vegetables across more cheaply. The city’s action doesn’t threaten markets; to the contrary it protects them and helps them operate for the maximum benefit of all.

Or, if you're looking for something a little more crowd-pleasing, there's always the last paragraph quote from Isaiah Berlin: "Freedom for the wolves has often meant death to the sheep.” And just to dispel any doubt, you're the sheep.