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.