Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Network Neutrality Symposium in Yale Law and Policy Review's Inter Alia
As the FCC prepares to vote on newly proposed net neutrality rules next Tuesday, the Yale Law and Policy Review has released a symposium on net neutrality in its new online companion, Inter Alia.
Featuring an all-star lineup of net neutrality scholars, the symposium considered various ways to frame the ongoing debate. Dawn Nunziato begins the conversation in The First Amendment Issue of Our Time by outlining the basic contours of the debate from a traditional economic frame. She argues that broadband providers should be regulated much like common carriers. Thus, both wireline and wireless providers should both be subject to nondiscrimination mandates with respect to all content. To the extent that such providers adopt specialized services--for example, a service focused on medical information--regulators should consider applying principles of public forum doctrine, which would allow providers to limit traffic to particular subjects or purposes for which the services are designed. Beyond those special circumstances, however, the internet should remain open and free.
Jonathan Zittrain then asks us to reorient our perspectives on net neutrality is his piece, Net Neutrality as Diplomacy. Instead of framing net neutrality debates in terms of economic efficiency and market choices, Zittrain argues that we should refocus the debate in a diplomatic frame. As individuals secure more and more outposts on the internet--through Twitter, Facebook, Picasa, and Quicken, for example--the internet increasingly becomes an extension of our identities. These outposts are analogous to diplomatic outposts, which serve as extenions of a particular country's homeland. Thus, like diplomats who are free to travel between international outposts with the protection of la valise diplomatique--or the diplomatic pouch--packets of information that travel on the internet should, in this frame, receive similar protection.
In Search, Speech, and Secrecy: Corporate Strategies for Inverting Net Neutrality Debates, Frank Pasquale cautions against broad deference to corporate entities that may disguise their efforts to control data flows online. He fears that ISPs will use trade secret law and other legal tools to shield the underlying architectures of the internet from scrutiny. These underlying architectures--including those that govern search results--have a significant bearing on how all of us perceive information flows on the internet. He urges us to consider broader oversight of Internet companies that control these information flows--such as through offices that record, analyze, and scrutinize their practices.
Susan Crawford, finally, reminds us that net neutrality may be the least of our worries in The Looming Cable Monopoly. Given the limited deployment of fiber in the United States and our heavy reliance on cable broadband, a vast majority of internet users in this country will depend entirely on cable companies for their broadband. In such a world, net neutrality almost seems irrelevant. Instead of focusing primarily on net neutrality regulation, she appears to suggest that regulatory energies should be focused on busting the looming monopoly.