Quick, what do Pearl Jam and the Justice Department have in common? The constantly evolving debate surrounding Internet neutrality. That the new pitch of this debate has rock stars and the executive branch weighing in should surprise no one who has followed this issue.

For well over a year, Internet pundits, congressmen and many a concerned citizen have discussed how to best allow for the Internet to grow in subscribers and bandwidth without hampering its dynamism, or the competitive spirit of entrepreneurialism that has made it such a powerhouse of innovation. Internet service providers have claimed that a tiered access to the Internet would be best, with companies or Web sites requiring large bandwidth paying for access to a higher tier of speed and service. Simultaneously, a chorus of voices including church groups, bloggers and Internet activists have denounced this practice as contrary to the egalitarian nature of the Internet and demanded regulation to prevent tiered service. At the heart of the issue lies the increasing consolidation of large companies. With Internet service providers often being part of companies that offer Internet content, they would have a salient conflict of interest if made gatekeepers of everyone’s Internet.

On Sept. 6, the Department of Justice submitted an ex parte filing detailing its opinions on the issue of the regulations. Defining the objective of the Internet as “a thriving and dynamic Internet capable of meeting the demands of consumers for fast and reliable access to a rich variety of content and applications,” the document goes on to make recommendations against regulations preventing a tiered Internet. Pundits immediately jumped on the document, declaiming it as the act of a conservative presidency that clearly has big business’s interests at heart. While the Justice Department’s reasoning may be flawed, the foundation of their logic is correct: In order to justify regulation, the burden of proof lies with the activists to demonstrate a smoking gun or other rationale for action.

Beyond this firm foundation, however, the document drips into more cloudy rhetoric and fortune telling. It argues that regulation could stifle investment and innovation in a readily expanding marketplace, and that the lack of examples of abuse by Internet providers makes regulation superfluous. Of course, the general argument in favor of “non-regulated competition” does not delve into the dirty, greasy cogs of the Internet machine. The Justice Department only analyzes investment and innovation as it relates to the hardware of developing networks, but the wider entrepreneurialism of Internet businesses is a qualitatively different type of competition. Even without being abused, tiered access removes the competitive spirit of the Internet by making it harder for a startup to run its operation without raising as much capital as large, established companies. Protection of consumers requires analysis on both these types of competition, and by focusing on one type, the Department of Justice confuses the language of the issue and does not adequately investigate the possibilities of market failure.

The highly technical nature of Internet neutrality creates a barrier to entry to the very debate. In the filing, the Justice Department likens tiered Internet to the Postal Service’s charging different prices for different speeds of delivery. In truth, it would be more like if individuals paid to increase speed of delivery at both the sender and receiver level. The analogy overlooks the fact that users already choose network speed and pay rate based on what type of connection they use: dialup, DSL or cable. This sort of logic gap reinforces the importance of consumers’ being well informed and active. Because there are different proposals for regulation and for a tiered Internet, nothing short of individual investigation for the truth will do; reliance on pundits, government officials or business leaders for the “answer” will not provide a silver bullet.

The tension came to a head this summer when AT&T, a proponent of tiered Internet, apparently censored anti-Bush lyrics in a Pearl Jam concert that was streaming on their video site. The ensuing uproar found the company — so long the proponent of a “just trust us” attitude toward Internet neutrality — blamed the gaffe on a third-party company involved in the broadcast. Nevertheless, as Pearl Jam wrote, “AT&T’s actions strike at the heart of the public’s concerns over the power that corporations have when it comes to determining what the public sees and hears through communications media.” While the debate regarding regulation continues, one cannot help but wonder whether market forces can sufficiently protect individual consumers in the face of large, consolidated companies.

Dariush Nothaft is a senior in Saybrook College. His column appears on alternate Wednesdays.