The United States Court of Appeals ruled today that the FCC does not have authority to require Net Neutrality on privately owned networks like Comcast’s cable Internet or Verizon’s FiOS. A variety of approaches suggest themselves to preserve the essential freedom of the Internet. One is to change the law to provide the FCC the needed authority, however this is likely to lead to protracted legislative and legal battles, where the network owners fight to preserve their control and freedom to manipulate conditions of use. Considering it is their investment, the private owners have some reasonable grounds for that position. Another approach is for the public interest to exert itself through direct investment. That is, for the public to build their own last-mile infrastructure and for that public infrastructure to be operated in their own interests, including freedom to use that infrastructure as they see fit, consistent with the physical limitations and fairness. Fiber optics to the end-user provides the best capacity bang for the buck. Public ownership provides the best freedom bang for the buck.

Someone on twitter recently mentioned Molalla Communications Cooperative as a nearby existing fiber-to-the-premises network. It is, and there are others. It has better bandwidth and pricing than we get from incumbents here in Portland, their X-Fon product has 40 Mbps down, 10 Mbps up for under $50/month. However, looking at their fine print, we find this clause:

“You shall not connect servers of any type to the Services. Molalla Communications reserves the right to suspend or terminate Service without advance warning if a violation of this policy is detected.”

If you take that literally, and I think you have to, it would mean no Linux boxes that you can log into remotely, no web servers, no business email servers, no other “normal” internet services. It prevents you from using off-site system administrators to help you solve technical problems. In many realistic circumstances, this restriction makes the service unacceptably limited. Comcast has similarly restrictive terms of service. Service providers seem to like the bright line between producers and consumers, that you are a consumer and a consumer only. “We went to the trouble of labelling you, stay in your damned box!”

Users of infrastructure should pay for the infrastructure, but having done so, they should have the ability and freedom to use that infrastructure for what they want, not limited to some artificial set of consumption-only activities. Ward Cunningham tells the story of how he changed the world because he could provide a service over a 14,400 baud modem with a $300 computer under his desk that let people communally develop and refine ideas about computer programming. The “no servers” rule would strangle in the cradle just that kind of innovation and collaboration that can make progress possible and life for everyone better. Maybe there are no creative people in Molalla (I know that’s not true), but there are in Portland. A Portland fiber network cannot have a restriction like that and be considered a success. This is why an open-access model, where many providers on the same infrastructure compete on price, quality and terms-of-service is essential.