Network Neutrality in 1992

I've been remiss in blogging of late; I had a really busy summer and beginning of Fall. I have a bit more time now and hope to resume some blogging about papers and cases shortly. In the meantime, it doesn't take long to write a post about your own work, so I figured it would be an easy way to (re)break the ice.

I've written an essay with a former student, Christie Larochelle, who is now clerking in Delaware (she was a tenured physics professor before attending law school). As part of a hometown symposium for the Villanova Law Review's 60th anniversary, we tackled an interesting topic: rumblings about network neutrality at the birth of the commercial internet. More on the article and on coauthoring after the jump.

 Here is the abstract:

In 1992, before the the term "network neutrality" was a twinkle in Tim Wu's eye, before Chicago's famous "Law of the Horse" symposium, and soon after the birth of the commercial internet, a group of scholars and practioners met at what is believed to be the first Cyberlaw symposium - hosted by Hank Perritt and Villanova Law School.

The group discussed many of the same issues that continue to vex scholars today, including access to networks and whether to treat hosts as distributors or publishers. This essay, in celebration of the Villanova Law Review's 60th anniversary, considers one pointed (and surprising in retrospect) argument against what we now call net neutrality through common carrier regulation.

David Johnson, who would go one to lead the Electronic Frontier Foundation and coauthor one of the most cited internet law articles ever, made the case that common carrier regulation should not govern access to networks, and that contracts should apply instead. He memorialized this position in an essay cowritten by then Villanova student Kevin Marks. It was an interesting argument from an important figure, made surprising by a seeming reversal today: Johnson favors the current common carrier network neutrality rules.

This essay considers this turnabout by making three contributions. First, it critically examines the Johnson & Marks analogy that networks are like the trucking industry, including analysis of what happened in trucking since 1992. Second, it considers an alternate analogy, railroad regulation, and shows where proponents and opponents of this analogy are persuasive. Third, it explores what has changed in 1992 to see why Johnson changed his mind, and whether his argument would have turned out differently if he were faced with today's market back in 1992.

The essay is short, and I think a really interesting look at the ways analogies can be helpful for internet law issues (and they ways they aren't). Among other areas, I think we added the most value in our discussion of the assumptions that must go into decisions about whether to apply common carrier rules (and how) as well as our analysis of both railroad and trucking industries and carriage rules.

I thought I would add a note about co-authoring with a student, which I had never done (I suppose I could copy this part to the faculty lounge). I chose to co-author here for a couple reasons. First, I thought it would be interesting to maintain the parallel with Johnson and Marks from the original article. Second, Christie did a lot of hard work in preparation for the article and was a great student, so I thought it would be a worthwhile opportunity for each of us. And it was (speaking for me, at least). I thought I would mention this, as its something worth considering for my faculty colleagues.