Index: [thread] [date] [subject] [author]
  From: Kenneth Canfield <ksc2103@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Sun, 05 Feb 2006 17:20:51 -0500

Paper: Net Un-Neutrality and the First Amendment

Net Un-Neutrality and the First Amendment

Selling swaths of the spectrum to a privileged few based on
technological falsehoods violates the implicit equality principle in the
First Amendment.  So at least we have the Internet, where we all can
broadcast as easily as Murdoch, and where we all are "the press."  But
if telephone and cable giants have their way, we won't have it. Once
again, only a privileged few will be "the press."  Can the First
Amendment save us?

The Internet is designed on an end-to-end principle, which operates as
"a kind of competitive neutrality."[1]  It doesn't "discriminate against
new applications or content because it" is "incapable of doing so."[2]
Thus, our content is treated the same as Murdoch's.  Anyone with a
laptop can be "the press."  When the Internet took off, this end-to-end
principle was more than a norm?it was law.  Under the Telecommunications
Act of 1996, the FCC ensured innovators and consumers were free to use
lines on a nondiscriminatory basis.[3]  If open-access were not legally
mandated, the network owners could have killed the Internet as AT&T did
in 1964, when its network was built to discriminate and the law backed
its power to discriminate.[4]

With the advent of broadband, we care about cable and DSL, not
telephone.  In its Brand X decision, the Supreme Court allowed the FCC
to classify cable broadband as an "information service," rather than a
"telecommunications service."[5]  Soon after, the FCC similarly
reclassified DSL.[6] Cable and DSL providers need no longer open their
networks to competitor ISPs.

The end of open access need not signal the end of net neutrality, i.e.,
the lack of content discrimination.  Yet the FCC's authority to require
non-discrimination by information services is uncertain.  While it fined
a phone company blocking phone calls from Vonage, it has yet to go after
a cable company taking similar action.[7]  Justice Thomas's Brand X
opinion contemplates the FCC has authority to fight discrimination, but
to my knowledge we have yet to see it.

If it is up to the service providers, we won't.  They want the
government to permit them to operate their networks so they can charge
for differing levels of service with limits on downloads, streams, and
email.  AT&T CEO Ed Whitacre exclaimed: "The Internet can't be free in
that sense, because we and the cable companies have made an investment,
and for a Google or Yahoo! Or Vonage or anybody to expect to use those
pipes [for] free is nuts!"[8]  Under AT&T's plan, Fox can pay more so
its content is preferred.

What protection does the First Amendment offer?  If Congress fails to
adopt neutrality in a new Telecom Act[9] and instead gives the companies
power to discriminate, is it violating the First Amendment?  If the
reclassification of the cable and DSL companies as information providers
proves enough to defeat net neutrality, is that alone a violation?
Under the cable and phone companies' plans, we'll return to the days
where the Times publishes and we listen.

Unfortunately, if guaranteeing neutrality requires ensuring access to
Verizon's lines, I do not believe the First Amendment helps, just as I
am not sure it requires Cablevision to carry our broadcasts on its
systems if broadcasting were freed.  In the days where being "the press"
required owning one, the First Amendment did not require Congress to buy
everyone one.  Similarly, it does not require Congress to buy us lines,
or to force Verizon to offer us the same preferred service they offer
Fox.  The spectrum is owned by the public in a way physical lines are
not.  If the government owned the wires perhaps the First Amendment
would be implicated even if the government licensed third party ISPs the
right to provide service over the wires.

However, I believe the key to using the First Amendment to save
neutrality returns us to broadcasting.  While the First Amendment does
not guarantee we can use the wires, it does guarantee we can use "the
wire-less."  But sticking 802.11 wireless cards into our laptops is not
a solution.  While the initial path our information takes may be
wireless, it may soon enter wires, where Verizon will decide we are less
important than Fox.  However, if the illegality of broadcasting is
acknowledged and the spectrum returned to the public, a full and free
wireless network may be more possible through UWB techniques.  Municipal
wireless plans play an important role as they help can grow a wireless
network and make Verizon's lines irrelevant.[10]

The power of the providers makes it unlikely a court will hold
broadcasting unconstitutional or that municipal wireless will become
common.  Thus, the First Amendment is unlikely to save the Internet.  We
have to hope that the history of neutrality, even if a lucky side-effect
of the AT&T breakup, combined with the Internet's success, will be
enough to convince Congress of its importance.  In contrast, the history
of broadcasting is regulation, so people have not seen what they are
missing.

[1-4]Lawrence Lessig, "Innovation, Regulation, and the Internet," The
American Prospect (Mar.-Apr. 2000),
http://www.prospect.org/print/V11/10/lessig-l.html.

[5]Marguerite Reardon, "Cable wins Supreme Court battle," CNET (June 27,
2005),
http://news.com.com/Cable+wins+Supreme+Court+battle/2100-1036_3-5764120.htm
l.

[6]Marguerite Reardon,"FCC changes DSL classification," CNET (Aug. 5,
2005),
http://news.com.com/FCC+changes+DSL+classification/2100-1034_3-5820713.html
?tag=st.ref.goo.

[7]Ted Hearn, "After 'Brand X,' New Challenges," MultiChannel (Aug. 1,
2005), http://mediachannel.org/blog/node/411.

[8]Jeff Chester, "The End of the Internet?," The Nation. (Feb. 1, 2006),
http://www.thenation.com/doc/20060213/chester.

[9]Lawrence Lessig, "the fiction zone that DC has become," (Jan. 13,
2006), http://www.lessig.org/blog/archives/003290.shtml.

[10]My knowledge of the technical details here is shoddy, so perhaps I
am overstating this possibility.  (Hopefully my legal view of wires is
also wrong!)

-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list



Index: [thread] [date] [subject] [author]