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Computers, Privacy & the Constitution
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First Amendment- For or Against Net Neutrality?-- By EdenEsemuede - 01 Mar 2024IntroductionIn theory, the First Amendment guarantees a right to free speech. Subject to a few limitations in certain spaces, Americans should enjoy a right to express their thoughts and opinions. If Supreme Court case Reno v. ACLU is to be believed, those rights also extend to the Internet. However, what is not clear is how easy it has to be to express ones freedom of speech online. This essay will analyze some of the Internet Service Provider’s best first amendment arguments against Net Neutrality, ultimately arguing that none of them meet constitutional muster, despite their success in past administrations. With any luck, this discussion will allow constitutional scholars and readers alike to recognize the merits and limits of Net Neutrality, demanding it as the first step in a right to self expression.BodyHistoryCoined by Columbia Law Professor Tim Wu in 2003, Network Neutrality is the idea that information on the internet is equally accessible. In a Net Neutrality landscape, Internet Service Providers cannot charge one company or entity more to show their content at higher/improved quality. For example, a net-neutral world means that Comcast cannot charge Netflix more to make their videos buffer less. From the perspective of consumers, part of protecting a person’s right to speech would also involve protecting their right to broadcast that speech equally. From a consumer perspective, Net Neutrality supports free speech. However, Internet Service Providers often argue that Net Neutrality disrupts their own rights, limiting their own access to free speech. The truth is a little more complicated than their arguments suggest.ISPs as SpeakersThe underlying tenant of ISP first amendment violation is underwritten by the false idea that ISPs are, themselves, speakers. In some twisted reversal of fate, Internet Service Providers who champion the destruction of Net Neutrality do so under the argument that the government is limiting the ISP’s free speech. The argument goes that the ISPs are speakers whose freedom to ‘say’ what they want is limited by the big, bad, Biden FCC. ISPs analogize themselves to newspapers where forcing them to include ALL information requires increasing costs, limiting their ability to promote worthwhile content. Unfortunately, an ISP’s job is not to editorialize. The ISP is not analogous to a newspaper, but rather the public square in which the newspaper is distributed. In essence, the argument falls apart because an ISP is not an individual speaker. Proponents of Net Neutrality want the internet to be just that- neutral- not editorialized. Perhaps individual newspapers can engage in the editorializing, but not the medium as a whole. A more effective analogy lies in comparing an ISP to various telephone companies: Verizon should not be able to block the text messages of Abortion advocates. ISPs should not be able to slow down an abortion advocate’s website. Now that it is clear that ISPs are not speakers, other arguments about their rights to free speech fall apart.2018 Restoring Internet Freedom OrderEstablished in June of 2018, the Restoring Internet Freedom Order reclassified the internet as an information service, rather than a telecommunications service under FCC regulation. The FCC’s goal was to implement a ‘light touch’ regulatory approach, promoting a free, open, and investment-friendly internet. In theory, it would have preempted state net neutrality laws as well, creating a US-wide regime of unregulated Internet service providers. If upheld, it would allow the ISPs to better-reach underserved communities (such as those in rural areas). This investment-prone regime allows consumers to choose the service plan that is best for them. Essentially, and unregulated internet promotes more coverage and more choice by allowing investors with targeted agendas to spend money on the services they wish to promote. However, if the ISP is not a speaker, then it cannot choose whose agenda it pushes, or who has access. The principles of net neutrality demand neutral, equal access to the internet regardless of the community in which one resides. Issues of rural accessibility are not questions of requiring more funding, but rather questions of providing equitable infrastructure. ‘Neutral’ regulators are in a better position to implement these features than targeted investors. Furthermore, the arguments of the Restoring Internet Freedom Order bring out a clear inconsistency in the world of antitrust, because they are based on the false premise that consumers can effectively choose between more and less-free ISPs. Questions of access mean that people must often choose between Comcast and Comcast, ringing in monopoly concerns. Additionally, people cannot make informed choices on the content of their internet if they do not know what they are missing. People cannot choose between vastly different public squares if they do not know that every square is different and can only access one.Conclusion and Lindering ConcernsBy examining net neutrality’s history and the arguments made by ISPs against net neutrality on first amendment ground, this paper has demonstrated the inherent deceptiveness in the ISP’s position. Instead, United States regulators enforce Net Neutrality through the FCC. However effective against against total ISP control, calling increased government regulation ‘neutral’ insists on a questionable premise. Is the government really neutral? Perhaps it is in comparison to a purely profit driven ISP, but not on its own merits. For all the arguments on free speech and antitrust the government imposes on behalf of limiting ISP behavior, it says nothing of privacy. Instead, with the FCC encouraging equal access, it can also monitor all of its citizens equally. As Julien Assange wrote, “Privacy [is not] inherently valuable…. the destruction of privacy widens the existing power imbalance between the ruling factions and everyone else. Without privacy, ‘free internet speech’ is a misnomer. The speech is not free, it is equally, ‘net neutrally’, controlled.SourcesHistory OVERVIEW: https://publicknowledge.org/net-neutrality-timeline/ https://www.aclu.org/news/free-speech/free-speech-and-net-neutrality-separating-fact-fiction https://kb.osu.edu/server/api/core/bitstreams/1dd89a8a-124f-580f-bfa8-6ddbc5768053/content?ref=broadbandbreakfast.com#:~:text=Contrary%20to%20the%20apparent%20belief,would%20prefer%20to%20make%20available. https://www.aclu.org/news/national-security/verizon-reverses-course-abortion-text-messaging https://www.federalregister.gov/documents/2021/01/07/2020-25880/restoring-internet-freedom-bridging-the-digital-divide-for-low-income-consumers-lifeline-and-link-up#:~:text=The%20Restoring%20Internet%20Freedom%20Order%20reversed%20the%20Title%20II%20Order,services%20as%20a%20commercial%20mobile https://www.reuters.com/business/media-telecom/telecom-sector-opposes-us-plan-reinstate-net-neutrality-rules-2024-04-03/ https://www.nytimes.com/2017/11/21/technology/fcc-net-neutrality.html https://publicknowledge.org/public-knowledge-praises-fccs-order-protecting-internet-condemning-comcast-discrimination/ https://archive.ph/BrY5tThis didn't go anywhere yet, and I think that's reflective of a difficulty. Requiring parties engaged in providing routing services for packets (Internet service provision) not to engage in anti-competitive routing practices no more affects their first amendment rights than does requiring telephone companies to complete calls to numbers of parties who buy their telephone service from a different phone company. "Network neutrality," a phrase invented by a telco executive, is just deceptive. "Rules against anti-competitive routing" correctly describes the issue and explains why there aren't First Amendment arguments of any kind. Completing the draft will make that point clearer, I'm sure.https://www.youtube.com/watch?v=zq-2Yk5OgKc https://www.jonesday.com/en/insights/2021/04/net-neutrality-and-the-first-amendment You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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