The problem with defining Net neutrality so the government can regulate it is a little like the problem of defining obscenity so the government can ban it: You know it when you see it.
That shorthand didn't work very well for the U.S. Supreme Court, and it's not working that well for Google, as a report in Monday's editions of the Wall Street Journal made clear. The article said that Google "has approached major cable and phone companies" with a plan to "place Google servers directly within the network of the service providers," in apparent violation of the company's long-standing exhortations that Net neutrality means everything-must-be-treated-equally.
Google promptly replied to the Journal in a post Sunday evening by Richard Whitt, its Washington telecom counsel. Whitt dubbed the Journal story "confused" and "hyperbolic," and offered this elaboration:
Perhaps the Journal was hasty; the story dwelt little on the technology being used (which is the heart of the matter), included little comment from Google itself, didn't mention caching, and mostly explored what this could mean for Washington politicking next year.
Google has offered to "colocate" caching servers within broadband providers' own facilities; this reduces the provider's bandwidth costs since the same video wouldn't have to be transmitted multiple times. We've always said that broadband providers can engage in activities like colocation and caching, so long as they do so on a non-discriminatory basis.
All of Google's colocation agreements with ISPs - which we've done through projects called OpenEdge and Google Global Cache - are non-exclusive, meaning any other entity could employ similar arrangements. Also, none of them require (or encourage) that Google traffic be treated with higher priority than other traffic. In contrast, if broadband providers were to leverage their unilateral control over consumers' connections and offer colocation or caching services in an anti-competitive fashion, that would threaten the open Internet and the innovation it enables.
But if there's a bit of confusion here, that's to be expected. Much like pornography is in the eye of the beholder, so is Net neutrality.
In a February 2008 post on its public policy blog, Google said: "Some major broadband service providers have threatened to act as gatekeepers, playing favorites with particular applications or content providers, demonstrating that this threat is all too real."
Let's read that a second time. Early this year, Google was upset that broadband providers may ink deals - "playing favorites" - with certain content providers. That was then. Today Google is actively encouraging broadband providers to ink deals with certain content providers - that is, itself, especially for YouTube videos. (Here's Google's own definition of what should and should not be permitted.)
Of course, Google includes the obligatory disclaimer that anyone else should be able to enter into deals with broadband providers for colocation or caching as well. Fair enough. But if one of the justifications for Net neutrality was to protect the ability of the next Google or Yahoo or Facebook to become popular without cozying up to AT&T, Verizon, and Comcast, well, that particular justification seems to have evaporated.
This is hardly the end of Net neutrality regulations. There's no indication that President-elect Barack Obama has changed his mind about its desirability, and liberal advocacy groups are planning a legislative push in 2009. Web firms may still find it useful to attempt to shackle AT&T, Comcast, and so on with vague and open-ended rules. But what this episode should demonstrate is that some of Net neutrality's most vigorous proponents may not like it when those same vague and open-ended rules apply to them.
Disclosure: The author is married to a Google employee.
By Declan McCullagh