Welcome back, Infobahn

Last summer, the catch phrase was “Blurred Lines.” Seemingly everywhere I went, that catchy tune by Robin Thicke was playing in the background — at the grocery store, pool parties and anywhere else that an iPhone could be connected to a pair of speakers. This summer and now extending into the fall, another catch phrase seems to have taken hold, at least in the corridors of Congress and the Federal Communications Commission (FCC) where the concept of net neutrality is being discussed widely.

That brings us to “dirt roads.” Here’s how the two phrases are used together to convey a very ominous image, courtesy of Los Angeles-based filmmaker Brian Knappenberger: “Internet service could split the flow of traffic into tiers, by offering priority treatment to big corporations who would pay higher fees. That would mean a fast lane for the rich and a dirt road for others, harming small businesses and users.”

{mosads}Coincidentally, Los Angeles also was the site exactly 20 years ago where then-Vice President Gore delivered a keynote address at the University of California, Los Angeles (UCLA) that set forth the Clinton administration’s vision of a “National Information Infrastructure.” That phrase was a bit clunky, so it soon was popularized as the “Information Superhighway.” Then, as New York Times columnist William Safire noted, it was transformed into an even shorter and more exotic-sounding catch phrase: “Infobahn.” Safire proudly wrote, “I predicted … that the mouthful would be shortened to info way or I-way, but it seems the German word Autobahn has provided the combining form for Gore’s footprint in the sands of time.”

Having traveled on the German Autobahn, I am well aware that it is organized around fast and faster. The paving is immaculate and there are no dirt roads on any of its more than 7,900 miles. Most sections of the Autobahn contain two or three and sometimes four lanes per direction, in addition to a hard shoulder emergency lane.

About two-thirds of its stretches have no permanent speed limit. If you have a Porsche or a BMW, you can shift into overdrive and test the acceleration capabilities of these high-end performance machines. For those who are driving Volkswagens or Fiats, they won’t be able to comfortably rev up to a cruising range of 130 mph, but instead would likely speed along at a posted advisory limit of 81 mph.

That won’t make anyone feel like they are traveling on a dirt road, however. Certainly there are those who would grumble that it’s not equitable that some drivers can go much faster because they have paid for more expensive vehicles that can achieve higher speeds.

But as a policy matter, it’s difficult to imagine anyone advocating that Porsches or BMWs be prohibited by law from the Autobahn, or that a regulatory requirement be imposed so that they could not outperform a Volkswagen or Fiat. Yet in a parallel setting in telecommunications, there appears to be active FCC consideration of undertaking a comparable task — namely, subjecting some of the fast-lane Internet to common carrier regulation under Title II of the Communications Act. Since telecommunications, like automobile manufacturing, relies on innovation and investment, mandating a new set of restrictive rules actually could have the effect of slowing down broadband Internet development as an unintended consequence of putting too heavy a thumb on the scale of regulation.

Current fast broadband speeds, accessible to virtually all Americans, make the dial-up world of Gore’s 1994 superhighway vision seem akin to a bygone era of horses and buggies. But his closing comments at UCLA then are worth noting as timely in today’s Internet policy discussions. “And so we meet today on common ground, not to predict the future but to make firm arrangements for its arrival. Let us master and develop this new language together. The future really is in our hands.” It’s time to get back on the Infobahn once more.

Brotman teaches at Harvard Law School and is a nonresident senior fellow in the Center for Technology Innovation at the Brookings Institution. He is the author of Communications Law and Practice, now in its 36th edition.