A Bill of Rights follows the U.S. Constitution to protect us from the depredations of a powerful government to which we have ceded authority.  The existence of a Bill of Rights assumes that there's a powerful entity against which we need protection.

In the draft Stevens bill, the Consumer Internet Bill of Rights assumes that the broadband network access providers are powerful -- but it's not clear that the IBR provides much protection.

First, labeling:  users are "consumers" (not creators) or "subscribers" (think packaged content), and the IBR doesn't apply to video services "in which Internet service is not the primary service."  Because the chief goal of this amendment is to put the incumbent telcos in a position to become broadband video service providers, this exception substantially lessens whatever protections the IBR creates.

The preamble re-uses language that leads into Section 230 -- a section that shields interactive computer services like Yahoo! and eBay from liability for material created by others -- to suggest that network providers should not be subject to regulation.  This is the call of the network companies:  protect us from regulation, and you'll be protecting the internet!  If there were true competition for broadband access, that call might make sense -- as it is, it seems cynical.

But that's just the preamble.

The IBR itself "allows" "subscribers" to access applications of their choice.  That's fine as far as it goes, but it doesn't go nearly far enough.  As Ed Felten has made clear in his thoughtful explanation of the technical issues animating the network neutrality debate, "non-minimal discrimination" by network providers could make for a negative user experience of non-prioritized packets.  Users wouldn't be providing their own attention-feedback for those non-prioritized packets -- rather, the network providers would be choosing winners and losers.  This could have (in my view, would have) negative effects on the evolution of the online ecosystem. 

Again, if there was competition in the market for broadband access, this kind of non-minimal discrimination wouldn't be such a problem.  As it is, however, we have gentle competition among like-minded giants - and very few choices.

The IBR states that "subscribers" can "connect any legal device of that subscriber's choosing to the Internet access equipment of that subscriber, if such device does not harm the network."  Way back, AT&T used to claim that any foreign (not manufactured by them) device would harm their network -- they kept that up for years, and the FCC went along.  AT&T even claimed that non-AT&T covers on telephone books might be included in this argument. Not until 1968, eight years after a court decision asking the Commission to re-examine its policy, did the FCC admit that these restrictions were "unreasonable, unlawful and discriminatorily applied."  

There's no telling what the network providers could claim harmed their networks -- and it would take years to litigate such a dispute.  In the meantime, the device manufacturer would have knuckled under.

Subscribers, the IBR says, will be free to exercise these "rights" as long as they fit with the limitations of the internet service the subscriber has bought.  Through their terms of service, the network providers will simply be able to say that they don't offer pure internet service -- so some applications, some devices, some uses are off limits. Yes, to the extent a provider offers pure internet, they'll have to do that without requiring that the subscriber purchase other services from them -- but they don't have to offer pure internet.

A network provider will be free to do whatever it wants to in the name of "maintenance" or "network management" or "unlawful" uses -- and what those terms mean will be within the discretion of the network provider. 

The FCC will enforce the IBR, according to the draft bill, through its own litigation process.  The Commission is prohibited from issuing any rules or generally-applicable litigation results -- everything will be one case at a time, one drawn-out piece of litigation after another.  This means that most mild irritations/latency/jitter that would cause a user to fall back into the comfortable services provided by the network operator itself will never be made public. 

The bottom line:  The IBR doesn't shift the current situation.  Network access providers have all the power and discretion they want -- and, indeed, this bill if enacted would codify their right to packet-discriminate.

Without visibility as to what's going on (no neutral studies allowed!) or true competitive pressure, users will simply take what they can get, will buy the network providers' packages, and will settle back into their couches.  That's not ideal.

On the other hand, as I've said in the past, the only ex ante rule that will make unfettered internet access a reality is mandated structural separation.  We'd need to turn transmission into a utility in order to change the environment.