An End to End-to-End? A Review Essay of Barbara van Schewick's Internet Architecture and Innovation

Barbara van Schewick's Internet Architecture and Innovation surveys broad areas of computer engineering and economic theory to argue that some types of network neutrality regulation may be necessary to optimize innovation. My central critique of her argument is its use of economic theory to bolster one side of a highly politicized debate, rather than using economic analysis to clarify that debate. Van Schcwick relics on an impressive array of economic approaches, but fails to acknowledge their ambiguity. Her argument strings together a succession of questionable economic generalizations, thereby greatly weakening her conclusions. Van Schewick is not alone in using economics in this way. Too many law professors rely on theoretical models but ignore their limiting assumptions, failing to sort through the massive ambiguity inherent in their application. A close examination of van Schewick's argument, therefore, leads to general recommendations for legal interdisciplinary research methods. On December 23, 2010, the FCC released its landmark "network neutrality" Report and Order ("Order"). (1) It prohibits a dominant Internet service provider, such as Verizon or Comcast, from discriminating in favor of traffic or content that it owns or with which it is affiliated. (2) For example, the Order prohibits Comcast (or any other broadband provider) from blocking or degrading competitor content, such as Netflix downloads. (3) Washington, D.C. policy pandemonium greeted the Order, releasing the bile accumulated over the past decade of ideological debate over Internet openness. A Washington Post headline blared, "FCC Approves Net-Neutrality Rules; Criticism Is Immediate." (4) On the right, House Energy and Commerce Committee Chair, Representative Fred Upton, vowed to "use every resource available ... to strike down the FCC's brazen effort to regulate the Internet." (5) Senator Kay Bailey Hutchison promised to slash funding to the FCC, (6) and on the Wall Street Journal's opinion page, John Fund labeled the move "a coup" fomented by a cabal of communications communists. (7) On the left, the reaction was also hostile, with the consensus that the Order had little substance and failed to deliver a meaningful network neutrality regulation. (8) Given that President Obama's campaign promised to enact strong network protection, cries of betrayal echoed through the Internet activist community. (9) The beating of breasts and gnashing of teeth seemed excessive, even bizarre, given the esoteric regulation at issue. After all, as insiders and telecommunication specialists know, the Order itself has big loopholes, such as exempting wireless, rendering it close to toothless. (10) More significantly, it stands on weak jurisdictional grounds that the U.S. Court of Appeals for the D.C. Circuit is not likely to uphold. (11) That the Order, likely never to be law, should cause the policy "Chicken Littles" to see falling skies suggests mass confusion or perhaps, more cynically, efforts to influence the appellate outcome. In this context, Stanford University professor Barbara van Schewick's book, Internet Architecture and Innovation, (12) could not be more timely. It defends Internet regulation, like that which the FCC recently promulgated, as necessary to control Comcast's, Verizon's, and other broadband providers' anticompetitive tendencies (13) and, above all, to ensure the optimal amount of innovation. (14) Van Schewick is a one-time colleague of Larry Lessig, who popularized the "law as code" idea (15) and is a long-time advocate of the "end-to-end" Internet design principle discussed below. Van Schewick's prominent role in Internet debates--the FCC's Order cites and relies on her work in several instances--will make Internet Architecture an important and influential contribution within Internet policy debates. In a nutshell, van Schewick argues that (1) the Internet's "original" so-called "broad" e2e architecture (16) enables all applications; (2) real options economic theory suggests that Internet architecture should enable as many different innovators as possible; (3) "modular" Internet design reduces coordination and transaction costs of innovation; (4) dominant network operators have the incentive to discriminate against competing applications providers even if they are more innovative; and (5) evolutionary economic theory suggests more diverse innovators will provide better innovation. …