I think the concern is somewhat misplaced, because we've already seen the FCC take multiple stabs at regulations on net neutrality, that have been based on the principle of no or limited interference with lawful content, and they haven't required inspection of traffic.
Its not a requirement that ISPs block unlawful content, its a prohibition on blocking lawful content. A strong enough prohibition on blocking lawful content (e.g., one which provides consequences whenever lawful content is blocked, even if the intent was to block unlawful content and the lawful content just got caught up in the net) actually reduces the incentive for ISPs to attempt to identify and block unlawful content, since attempting to do so but making a misidentification in the process can result in penalties.
In fact, I'd argue that a no-blocking-lawful-content rule combined with a safe harbor provisions preventing ISPs from being liable for transmission of unlawful content by customers so long as the ISP wasn't actively involved in soliciting or promoting the specific illegal content is probably a good protection against ISP-initiated snooping, since it eliminates any liability-based incentive for it.
OTOH, it doesn't stop ISP-snooping-at-behest-of-government, but if you get a mechanism to do that, its going to be outside the context of net neutrality.
I agree that my concern may be misplaced and everything could work out fine. I'd categorize myself as "cautiously optimistic" about these laws still, but wanted to bring this up since I don't see much discussion about it.
Additionally, I almost brought this up in my original post, but decided against it, but "lawful content" is another phrase I commonly see in the same discussions. IANAL, but my understanding is that unlawful != illegal. "Lawful" means the subject is specifically addressed and permitted by law, and "unlawful" is anything else. So traffic can be legal, but not lawful.
My biggest fear is that we in the tech community will rally behind a net neutrality law which sounds good in theory, but ends up a nightmare in practice. Phrases like "ISPs will not be able to filter lawful content" are nowhere close to "ISPs will not be able to filter traffic". I'd much prefer the latter in a net neutrality law.
> IANAL, but my understanding is that unlawful != illegal. "Lawful" means the subject is specifically addressed and permitted by law, and "unlawful" is anything else. So traffic can be legal, but not lawful.
Inasmuch as there is a distinction between "lawful" and "legal", but its pretty much the other way around. Both address conformity to the law, but "legal" focusses more on procedural, technical conformity. Something can be lawful (e.g., a contract for a non-prohibited purpose wherein non-prohibited performances are exchanged) but illegal (because, say, its a contract for a purposes for which the law requires certain procedures for registration, etc., of the contract, and these were not correctly completed.)
In the case of content in the US, an example might be commercial adult content where all the content standing on its own conformed to the law (so that it was lawful), but where the producers had not followed all the technical record-keeping requirements relating to such content (such that it was illegal.)
While your concerns are valid and should be discussed, I don't think they warrant backing down from supporting what Obama calls for here and what we've generally been calling for, reclassifying ISPs under title II. I'm not aware that being under title II gives them a requirement (explicitly or implicitly) or an incentive[1] to filter "unlawful" content.
I agree with GP that the issue of snooping is important but is an issue unrelated to net neutrality (other than that they both concern the internet).
[1] That is, an incentive greater than the pressure they've received in the past from law enforcement/the NSA/the CIA already.
Its not a requirement that ISPs block unlawful content, its a prohibition on blocking lawful content. A strong enough prohibition on blocking lawful content (e.g., one which provides consequences whenever lawful content is blocked, even if the intent was to block unlawful content and the lawful content just got caught up in the net) actually reduces the incentive for ISPs to attempt to identify and block unlawful content, since attempting to do so but making a misidentification in the process can result in penalties.
In fact, I'd argue that a no-blocking-lawful-content rule combined with a safe harbor provisions preventing ISPs from being liable for transmission of unlawful content by customers so long as the ISP wasn't actively involved in soliciting or promoting the specific illegal content is probably a good protection against ISP-initiated snooping, since it eliminates any liability-based incentive for it.
OTOH, it doesn't stop ISP-snooping-at-behest-of-government, but if you get a mechanism to do that, its going to be outside the context of net neutrality.