Virtual Freedom

Net Neutrality and Free Speech in the Internet Age

Dawn C. Nunziato

• Publisher: Stanford Law Books
• Year: 2009
• ISBN:
  9780804772457
• Edition: 1
• Topic: Jura
• Subtopic: Naturwissenschaft- & Technologierecht

Communications giants like Google, Comcast, and AT&T enjoy increasingly unchecked control over speech. As providers of broadband access and Internet search engines, they can control online expression. Their online content restrictions—from obstructing e-mail to censoring cablecasts—are considered legal because of recent changes in free speech law.

In this book, Dawn Nunziato criticizes recent changes in free speech law in which only the government need refrain from censoring speech, while companies are permitted to self-regulate. By enabling Internet providers to exercise control over content, the Supreme Court and the FCC have failed to protect the public's right to access a broad diversity of content. Nunziato argues that regulation is necessary to ensure the free flow of information and to render the First Amendment meaningful in the twenty-first century. This book offers an urgent call to action, recommending immediate steps to preserve our free speech rights online.

1

Speech and Censorship on the Internet

ACCORDING TO THE CONVENTIONAL WISDOM, THE INTERNET is a forum for free expression of unprecedented scope and importance. And much about the conventional wisdom is accurate. Since the limitations on the permissible uses of the Internet were lifted and the Internet was opened up as a forum for expression of all kinds,¹ members of the public from every corner of the world have flocked to it to express themselves and to access the expression of others.² The Internet enables individuals to use all manner and forms of expression—text, images, voice, audio, and video—to communicate with one another on a global scale. As one federal district court explained in reviewing an early Internet First Amendment challenge, “It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country—and indeed the world—has yet seen.”³

The conventional wisdom accurately maintains that the Internet serves as an important forum for expression in large part because of the unprecedented ease of entry into this forum for expression. Yet such expression is ultimately controlled by—and may be facilitated or frustrated by—a small handful of powerful conduits, that is, the broadband providers, Internet backbone providers, email providers, and search engines that make it all happen. Within the United States market for Internet expression, a small number of broadband providers have the power ultimately to control which expression is facilitated and which is not. In recent years, the regulation of the Internet has evolved so as to grant these private entities unfettered control over individuals’ expression, to the point at which the potential for private conduits to censor speech in this medium is unprecedented. Although initially conceived— by both courts and commentators⁴—as a speech utopia, the Internet is now in danger of becoming a dystopia for expression because of this concentration of power and private regulation and control. We would do well to heed the Supreme Court’s admonition from a decade ago involving regulation of other private conduits of speech:

The potential for abuse of private power over a central avenue of communication cannot be overlooked.... Each medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems. The First Amendment’s command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.⁵

Assessing the features of the Internet as a communications medium demonstrates that—as within the cable television medium to which the Court refers above—private Internet speech conduits such as broadband providers indeed exercise substantial “control of critical pathways of communication” and enjoy the power to threaten “the free flow of information and ideas”—power that should be held in check under a proper understanding of the First Amendment.⁶

Censorship by private broadband providers is growing. Most Internet users are unaware of the restrictions on speech imposed by their Internet service providers, and may be surprised to learn that such censorship does not violate the First Amendment or communications laws (as currently interpreted by the courts). The majority of courts, which have adopted a negative conception of the First Amendment, have been unwilling to find First Amendment violations in restrictions of speech implemented by broadband providers or other private regulators of Internet expression. Similarly, policymakers within the Federal Communications Commission (FCC) have shifted toward a negative conception of the First Amendment, in which communications conduits such as broadband providers are unregulated in their obligation to facilitate the speech flowing through their pipes. Furthermore, Congress in 1996 explicitly encouraged Internet service providers (ISPs) to restrict access to content that the providers consider objectionable and expressly insulated the providers from liability for doing so⁷—even though such restrictions of speech would constitute First Amendment violations if they were undertaken by public conduits of speech. The result is that the small handful of private entities that exercise control over the pipelines for Internet expression now essentially enjoy free rein to censor such expression—and are increasingly doing just that.

It wasn’t always so. In the early years of the Internet, conduits for Internet speech were governed by regulations that prohibited them from discriminating against content or applications (and were not insulated from liability for restricting such expression). A decade ago, the FCC regulated the telephone companies that provided dial-up Internet access as “common carriers” and prohibited them from discriminating against—in the form of blocking, censoring, or degrading—Internet content or applications. Just as the telephone companies, from the early days of communications regulation, have been subject to common carriage obligations under the Communications Act of 1934⁸ requiring them to facilitate the transmission of all (legal) conversations, so too were they required under the common carriage doctrine to facilitate the transmission of all (legal) Internet content. Indeed, the Internet developed and flourished as “the most participatory form of mass speech yet developed”⁹ under this regime in which nondiscrimination obligations were imposed on Internet speech conduits. Under this nondiscrimination regime, Internet users could post, transmit, and access any and all (legal) content of their choosing. As FCC commissioner Michael Copps described the state of affairs prior to the widespread deployment of broadband Internet access:

In the dial-up world, [each Internet user] has jurisdiction over the applications that prevail, and what power that is! No network owner telling you where to go and what to do. You run the show. This freedom—this openness—has always been at the heart of what the Internet community and its original innovators have celebrated. Anyone can access the Internet . . . and read or say what they want. No one can corner control of the Internet for their purposes.¹⁰

All that began to change in 2002, when the FCC concluded that one class of broadband providers—cable broadband providers—were not subject to common carriage nondiscrimination requirements under the Communications Act. Although the lower federal courts rejected the FCC’s interpretation, the United States Supreme Court in 2005 upheld the FCC’s decision to deregulate cable broadband providers in the Brand X case.¹¹ Upon receiving the green light to remove common carriage nondiscrimination obligations from broadband providers, the FCC moved quickly to do so. Today, no broadband providers are subject to the requirement historically imposed on telecommunications conduits—to facilitate all legal content without discrimination.

Nor have the FCC or the courts ever imposed nondiscrimination obligations on any Internet email provider. While the postal service has an obligation to deliver all legal content,¹² and the telephone companies have the obligation to facilitate all legal conversations,¹³ email providers have no obligation to deliver email without discrimination. Even though email has completely outpaced snail mail in terms of the amount of content delivered daily, email providers are under no legal obligation to deliver content and have increasingly exercised their power to censor content, frequently in ways that are not transparent to the sender or intended recipient.¹⁴ Furthermore, neither the FCC nor the courts has imposed any duties on dominant search engines such as Google to serve up requested content in a neutral, nondiscriminatory manner—despite the representations of such search engines that they will serve as purely neutral conduits for the billions of pages of content available on the Internet.

These decisions by policymakers and courts to allow the market to decide whether and what speech to censor are especially unwise in light of the characteristics of the marketplace for Internet speech. The market for residential broadband Internet access is essentially dominated by the cable-DSL duopoly, and these providers have an incentive to censor or degrade applications and content that conflict with their financial, political, or other interests. Because broadband providers offer their own content and applications, they have the financial incentive to restrict or impede competing content and applications from other providers. Broadband providers have the ability, have the incentive, and—under the current regime—appear to enjoy the legal right to engage in a variety of types of discrimination against the content and applications that they are charged with carrying. And most, if not all, broadband providers explicitly claim the right in their terms of service to censor whatever speech they choose. AT&T, for example, claims the right in its “sole discretion to refuse, block, move, or remove any content that is available via the service.”¹⁵ (So don’t say you weren’t on notice.)

Since 2005, when the Supreme Court placed its imprimatur on the FCC’s decision to remove common carriage nondiscrimination obligations from broadband providers, individuals and groups concerned about the future of free speech on the Internet have sought to reimpose nondiscrimination obligations on Internet conduits in the form of “net neutrality” regulation. With the specter of such legislation hanging over them, one would expect that broadband providers would seek to minimize such acts of censorship, as public scrutiny is trained on them more than ever before. Notwithstanding such scrutiny, however, in the post–Brand X era in which they are no longer legally prohibited from discriminating on the basis of content, broadband providers (and other powerful conduits for expression) have increasingly engaged in acts of censoring, blocking, or degrading speech and content on the Internet.

Content Regulation by Broadband Providers

Incidents of censorship and other discrimination by broadband providers are difficult to establish or document with precision. First, because average users are generally unaware that their broadband provider is blocking content, and because they may not know what content is being blocked, it is difficult to identify instances of content restriction. Second, providers, when questioned, may simply deny that they are blocking disfavored content and refuse to provide the information necessary for Internet users to confirm or deny such restrictions—or to allow subscribers to make informed decisions about whether to switch to a less censorial provider (assuming that another such provider is available).¹⁶ Notwithstanding these difficulties, several instances of alleged discrimination by broadband providers and other conduits of Internet expression have been identified. In particular, broadband providers have censored expression on matters of political and societal importance that undoubtedly would be protected by the First Amendment if restricted by a public actor. They have also censored expression that is critical of them, or that potentially threatens their commercial interests, expression which is also highly valuable within our constitutional framework.

Censorship of Political and Other Socially Valuable Expression

Comcast—one of the nation’s leading broadband Internet providers—has restricted the transmission of politically charged, time-sensitive communications to its subscribers. In one incident, AfterDowningStreet, a web-based organization that advocates an end to the war in Iraq, sought to communicate with thousands of its supporters regarding its then-imminent plans to lobby Congress to consider impeachment proceedings against President Bush on the third anniversary of the incident involving the “Downing Street memos.”¹⁷ Only after several weeks had elapsed did the organization become aware that intended recipients of its email communications who had Comcast email accounts had not received these communications. As a result of Comcast’s...