Law professor Susan Crawford just posted a lengthy legal and historical analysis on the differences between “information” and “telecommunications” services.

Two points:

1. First, in one sense, her essay is ruefully amusing since it’s all about the difficulty of keeping regulations current as technology changes. But that’s precisely the issue with Net neutrality!

   Yes, Congress or the FCC can make arbitrary distinctions about application-specific programming but if the Internet’s history teaches anything, it’s that today’s clear distinctions quickly become tomorrow’s confusing red tape. The result: litigation and uncertain deployment.

2. Second, Prof. Crawford makes a completely unfounded statement at the end that network providers have “no legal constraint on their ability to discriminate against particular uses of their networks.” This is flat-out absurd. As we’ve pointed out numerous times, Net users enjoy substantive consumer protection through unfair competition law, antitrust law, and multiple common law tort theories — and of course, the power of the marketplace.

Even Amazon’s point person for Net neutrality has conceded that Title I of the Communications Act of 1934 gives the FCC power to take regulatory action if presented with unfair business tactics by broadband providers.

At a Congressional hearing on Net Neutrality back in 2006, proponents couldn’t get their answers straight when asked to define the concept. Two years later, evidently not much has changed:

Jonathan Rintels writes this week at SaveTheInternet that Net Neutrality is “a requirement that broadband Internet consumers be permitted to access the lawful content of their choice.” We agree. But if that’s the definition, then this Net Neutrality fight is over since consumers already have that right.

Google blogged a different approach recently, saying that prioritizing some types of traffic over others is completely consistent with Net Neutrality – a comment at odds with the “all data is equal” crowd. Though it’s correct about that, Google’s problem is its position that Net users, not the company, should pick up the tab for the new pipes that need to be built to handle its video content.

Then there’s Net Neutrality advocate Susan Crawford, who testified on the Hill last week. She’s argued that content-based regulation couldn’t be done without “a heavy handed regulator.” (She’s right.) So that’s why Net Neutrality requires government policies “separating transport from other activities, and separating access from backbone and backhaul transport….”

Net Neutrality advocates can help clear up the confusion by acknowledging at least this: Writing the regulations that would govern how data traffic travels across the Internet will give an army of Washington lawyers and lobbyists a lifetime guarantee of full employment.