Thursday, September 24, 2009

No Downloads Barred: Net Neutrality Fight Steps Into the Ring (Again), FCC Proposals Facing a First Amendment TKO

While I am the first one to complain when a particular download is slow, a call is dropped, or an application is not available for a particular device, I don’t think to run to the government to step in and “fix it.” I run to the source, my service provider and curse at their customer service representative. If the Federal Communications Commission (“FCC”) has its way, they will be able to not only intervene, they will force service providers to give each customer or data the same treatment. Tossing aside policy, technology and other concerns, the FCC proposals strike out based on free speech principals guaranteed by the First Amendment of the U.S. Constitution.

On Monday, Julius Genachowski, head of the FCC, proposed broad new net neutrality regulations formally entering the FCC into the fight - determining which punches, blows and kicks are required to flow over internet service providers (“ISPs”). A copy of his speech can be found here. In his speech, Genachowski broadened the four FCC net neutrality pillars of network openness originally proposed in 2005 to include two additional ones - expanding the regulations to include mobile broadband providers. In the name of providing full internet access to all, the FCC will force ISPs to provide all content and services - aka, speech - equally over their networks. The FCC proposals are still in the discussion phase, but Genachowski’s outlined plan places net neutrality in direct conflict with the First Amendment to the U.S. Constitution.

On the surface “Net Neutrality” sounds good, right? The name just rolls off the tongue - who could possibly object to free and unhampered internet access for all. Problem is, the term has been tossed around for so long that the politicians, advocates and opponents have morphed it into whatever fits their argument of the day. The current general concept of network neutrality between applications, data, and traffic was first popularized in 2003 by Tim Wu, a professor at Columbia Law School. In 2005, the FCC issued its internet policy statement outlining their four basic pillars regarding broadband network neutrality. Since then, Congress has introduced numerous pieces of legislation aimed at these issues but to no avail. Each piece of legislation has died either on the floor of the respective chamber or in committee. A comparison of various proposed bills, public speeches, and even blog articles on this subject show too many “definitions” of “Net Neutrality” to keep up. To loosely quote Inigo Montoya from the Princess Bride, I do not think that word means what you think it means. As the technology of the internet has evolved, old predictions of no “bottlenecks” for the information superhighway have been proven wrong. Cheaper and never before imagined means of internet access have cropped up since the initial 2003 net neutrality debates. Who would have thought that we would stream movies and live television over our mobile phones (using the providers networks for such access).

While the exact nature of net neutrality might be hard to pin down, the language in the First Amendment is plain, the government shall not make any law abridging freedom of speech. No footnote, asterisk, or caveats. ISPs provide “speech” and thus have First Amendment rights. Granted, the speech of an ISP is different than that of an individual, but courts have determined that these rights do exist. Just as the government cannot pass a law preventing speech, compelling speech is also prohibited. A newspaper cannot be forced to carry editorials that contain objectionable content. The Supreme Court has only waded into internet/free speech issues on a few limited cases, never establishing a clear standard for First Amendment review (for detailed discussions - see Moran Yemini’s law review article on Network Neutrality as well as Randolph J. May’s 2007 journal article “Net Neutrality Mandates: Neutering the First Amendment in the Digital Age”). The Court has generally differentiated First Amendment free speech rights between a telecommunications service (think of telephone company monopolies that do not exercise editorial or other control over the content crossing their telephone lines) and an information service provider. In Brand X Internet Services v. FCC, 345 F.3d 1120, a cable modem provider was considered an information service provider. Information service providers do not have to allow their competitors to offer services over their lines. Similarly, DSL providers are considered information service providers and not telecommunication service providers.Should this standard be applied to ISPs, then the FCC proposal is in conflict with prior case law. Granted, cable modem providers have traveled a long way to get to the services offered via ISPs of today and the courts have yet to catch up.

Bandwidth is not unlimited, period. An ISP provider should not be compelled to provide content under pre-determined government requirements if providing that content causes harm to their overall systems. Shining example: AT&T 3G network popularity. Requiring (aka “compelling”) AT&T to offer all applications over their 3G network will cause the network to crash - think of trying to make a call via AT&T 3G networks while at Caesar’s casino during the BlackHat conference in Las Vegas, NV this past August. The 3G network system could not handle the call and data volume during BlackHat with constant dropped calls or other connectivity issues....and that is before the system is required to handle larger applications. Under Genachowski’s general proposals, AT&T would have to offer all applications, sacrificing service to all for the sake of a few. If AT&T determined additional 3G traffic was not in their customers best interest, then the First Amendment bars the FCC from compelling AT&T to carry these iPhone applications. AT&T is not the only mobile carrier, customers have the option to choose another carrier or a different type of mobile phone. The customer’s ultimate access to the internet (or in this case, an application) has not been barred, the customer just has to make a choice of which mobile carrier or ISP to use based on their needs.

As the debate begins on the new regulations and related proposals, the question remains: will the FCC be knocked down by the First Amendment? Until the final FCC policy takes shape, placing exact odds on the fight are premature. Legal geeks will be looking to the First Amendment as a potential knockout blow for the latest FCC proposed net neutrality regulations. Given prior case law, the First Amendment protections have the home court advantage and should beat their FCC net neutrality crosstown rivals.

Legal-E: My Views From the Bar
I am a lawyer, just not yours - My posts are intended to present issues from my point of view and are not intended to be advice, legal or otherwise.


Dondi West said...

You make some interesting arguments. At the same time, the FCC proposal seeks to prevent companies like Comcast from being the gatekeepers to the internet. Yeah, Comcase argues bandwidth and if bandwith was really the issue, then this post has plenty of merit. However, the real issue is that Comcast doesn't want (innovative) companies like Youtube or Netflix stealing their customers<-- this is the real issue. Maybe the middle ground is that a company can be given an excemption if they can show bona fide proof that blocking certain traffic is the only way to address a bandwidth problem. Otherwise, unlimited ability to pick and choose content should not be the default.


Simon Owens said...

There's actually a great piece in the WSJ arguing that Google isn't exactly an innocent bystander in this whole net neutrality debate which segues into a few things; notably that while Google pretends to be against internet gate keeping, it does some questionable gate keeping of its own:

1. Google picks winners and losers online through a search algorithm that no one can see and that constantly changes,

2. Google discriminates in favor of corporate partners (through sponsored search results) and their own value-add services (by making YouTube videos, Google Maps results and other products prevalent in its search results), and

3. Google discriminates against protected political speech (countless examples here and abroad).

So the FCC has an important question to ask: as it considers revamping the rules of the online road, should it look at anticompetitve behavior among dominant Internet firms? The DOJ certainly seems to think so. And if the FCC believes antitrust law is sufficient to protect against misbehaving content/applications providers, is it not sufficient to curb bad behavior from ISPs?

Anonymous said...

So how does the Net Neutrality proposal deal with prioritizing VoIP over non-realtime data (perhaps even dropping packets if the bandwidth doesn't allow more)? Strictly speaking, this is not neutral treatment of traffic, but I believe that realtime applications can't work without it.

George said...

I highlight the dangerous of Net Neutrality regulation here.