Timothy Lee makes the pragmatic argument against the need for legislation to enforce network neutrality. Here’s his evidence that the market is already rejecting violations of network neutrality:

This isn’t to say that ISPs will never violate network neutrality. A few have done so already. The most significant was Comcast’s interference with the BitTorrent protocol last year. I think there’s plenty to criticize about what Comcast did. But there’s a big difference between interfering with one networking protocol and the kind of comprehensive filtering that network neutrality advocates fear. And it’s worth noting that even Comcast’s modest interference with network neutrality provoked a ferocious response from customers, the press, and the political process. The Comcast/BitTorrent story certainly isn’t going to make other ISPs think that more aggressive violations of network neutrality would be a good business strategy.

And here’s his argument for why legislation is a bad idea:

So it seems to me that new regulations are unnecessary to protect network neutrality. They are likely to be counterproductive as well. As Ed has argued, defining network neutrality precisely is surprisingly difficult, and enacting a ban without a clear definition is a recipe for problems. In addition, there’s a real danger of what economists call regulatory capture—that industry incumbents will find ways to turn regulatory authority to their advantage.

I agree with him that legislating network neutrality is fraught with peril in terms of unintended consequences and problems defining what, exactly, network neutrality is. What his arguments would indicate is that there’s a pressing need for transparency in this market.

First it’s up to the market to demand transparency, but if that doesn’t work out, I think it’s completely appropriate to pass laws that require Internet service providers to disclose how they handle traffic on their networks. Comcast tried to get away with throttling BitTorrent traffic without telling anyone last year, and I imagine that this is the usual sort of anti-network neutrality activity that we’ll see. If Time-Warner launches its own Internet TV operation, RoadRunner could silently throttle traffic from Hulu.com, for example. If this sort of activity were all disclosed, customers would be in a better position to decide whether they want to subscribe to a service provider that interferes with this fashion.

It’s also much easier to define disclosure requirements for ISPs than it is to define and regulate network neutrality. I’d much rather see the government put effort into creating the conditions that enable the market to work most effectively than to make winners of companies most able to game the system created by a new regulatory regime.