“Today’s decision will not change consumers’ ability to access and use the Internet as they do now… We look forward to working with the FCC and Congress to keep the Internet a hub of innovation without the need for unnecessary new regulations that seek to manage the explosive dynamism of the Internet.”

Upon reading Verizon’s statement, after a federal appeals court effectively ruled that the federal government cannot enforce net neutrality, a chill ran down my spine. Net neutrality, after all, was a great idea in concept, but now the possibility of it is dead. What we’re hearing now is a bunch of celebratory big-business talking points. And while I don’t support net neutrality on behalf of the ISPs, I’m still glad it did not get turned into law.

It’s easiest to explain net neutrality legislation in terms of traffic. The fear is, without a law enforcing neutrality, Internet Service Providers (ISPs) could create “slow lanes” or “make traffic jams” to block sites or applications they don’t like. They could target individual cars and make them pay tolls or prevent them from going to their destination. Net neutrality legislation is intended to keep ISPs from doing just that.

To give an example, take Madison River. Madison River Communications was a local ISP that decided it wanted to create a full-on traffic jam to their competitor, Vonage. The FCC intervened (the FCC’s involvement itself can be discussed at a later time), Madison River paid a fine, and the dispute ended. On the other side of the coin, allowing ISPs to gauge traffic in this way can arguably be said to do some good. Comcast, for example, slowed down access to BitTorrent, but for much nobler purposes: BitTorrent users were slowing connection speeds down for everyone; why not benefit everyone and slow down traffic from one application so that everyone can move a little faster?

Net neutrality also would prevent individual websites from “paying off” ISPs to get more traffic—after all, ISPs are what builds the roads to websites as destinations to begin with, and construction isn’t cheap. In essence, websites like Facebook and Google do not profit unless their website gets hits, so it is within their interest to coax ISPs to allow them more traffic. Even if the traffic is well-earned on a popular website, it would be treated as equal to a no-name under net neutrality legislation.

It’s clear that net neutrality legislation has good arguments going both ways. Eric Burger,* a computer science professor at Georgetown University puts it best: “Net neutrality is a shade of gray. Carriers really do need to be able to manage their networks, but carriers may also abuse their position for commercial gain at the expense of the free and open Internet. There is not an obvious ‘free market solution‘ here.”

Net neutrality is ultimately a discussion of intention versus application. Obviously, Madison River shouldn’t have limited its users’ content, but Comcast should be able to better its service as it sees fit. Creating a blanket law that would deprive businesses like Comcast flexibility in managing their services is incredibly short-sighted and lacks nuance.

Overall, it’s good that net neutrality failed. The fact is, while net neutrality could be argued in either direction from a libertarian standpoint, the legislation itself falls apart because of details.

For one, the FCC does not have the authority to post net neutrality rules.  writes, “Because Congress never gave the FCC the authority to impose Net neutrality regulations on the Internet, the regulations were illegal.” Essentially, net neutrality was pushed by the wrong federal agency.

And that might be a good thing, because the Internet probably isn’t ready to be confined to regulation. After all, at the rate of innovation, how could legislation possibly keep up? For now, it’s a great concept but might not work so well in reality (as us libertarians are wont to point out in other areas of legislation).

But this is a great debate to “plug in” to. After all, minarchists, ancaps, and moderates could all make “libertarian” arguments for both sides, and continue to be pro-free market. Net neutrality is not black and white, but it is indeed neutral when it comes to how libertarians should feel about it.

Let us know what you think! Tell us your opinions about net neutrality.

*Full disclosure: Eric Burger is also Rachel Burger’s father.