Net Neutrality, Free Speech, and Tim Lee’s New Paper

by on November 20, 2008 · 48 comments

Tim Lee has been taking some heat here from Richard Bennett and Steve Schultze about various aspects of his new Net neutrality paper. I haven’t had much time this week to jump into these debates, but I did want to mention one important portion of Tim’s paper that is being overlooked. Specifically, I like the way Tim took head-on some of the silly free speech arguments being put forth as a rationale for net neutrality regulation. As Tim notes in the introduction of the paper:

Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Again, I agree wholeheartedly with all these sentiments, but I think Tim missed another important angle here when discussing the unfounded fears about corporate censorship and the misguided attempts to use free speech as a justification for imposing net neutrality regulations.

In his paper, Tim is essentially making an argument about the practicality of broadband providers acting as speech regulators — and he demolishes that assertion. But Tim fails to make an argument about the principle of the matter that is at stake here. Namely, some net neutrality supporters are attempting to convert the First Amendment into an affirmative grant of state power to regulate private entities, something it was clearly never intended to do.

Indeed, when Net neutrality supporters like the “Save the Internet Coalition” make statements like “Network neutrality is the Internet’s First Amendment,” I sometimes wonder if they are reading the same Constitution that I am. After all, the language of the First Amendment could not be more clear when it says, “Congress shall make no law…” It doesn’t contain any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

Beginning in the 1960′s, however, a handful of liberal legal theories began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thought. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name! But many other regulatory-minded groups — like Free Press, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

Here we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight. This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it. And that’s how we get to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Sen. Clinton is asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

And yet she and many other Net neutrality advocates insist that it is the private sector, not the government, that is the real threat to our free speech rights. Again, Tim Lee is correct to point out in his paper that, practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear. Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.  So, Tim is right on all those grounds.

But the principle of the matter is important, and we can’t let regulatory advocates get away with their effort convert the First Amendment into something it isn’t. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, argued back in 1991, “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The real danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

That philosophy and regulatory approach is completely at odds with a proper understanding of the First Amendment, and yet that is exactly what many Net neutrality regulatory advocates are asking us to accept today.  The state — not the private sector — remains the true threat to our liberties. And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Thanks for the plug Adam. And I definitely agree that it's important to remember that the First Amendment is directed at the government, not private firms.

  • http://bennett.com/blog Richard Bennett

    In general, arguments that service providers can't do this or that as a practical matter are founded on sand. Advances in technology make many things practical tomorrow that are utterly impossible today, and we can more or less expect that to happen. Some net neutrality proponents have argued that protocol detection is impossible because they assume the pirates can use various forms of obfuscation that render their activities undetectable by current technology. But these arguments assume that there's one and only one way to identify a protocol on a wire. In fact, P2P protocols are detectable simply by characteristics that can never be obfuscated, such as the number of streams to and from a client account and the volume of data they carry over time. So arguments that are really on principle are best made when they don't make too many assumptions about the limits of practice.

  • http://srynas.blogspot.com/ Steve R.

    Adam, good article. My concern is the flip side, that is that there is virtually no call for the ISPs to act in an ethical manner or to invoke standard business practices that assure the consumer receives fair value . Basically the discussion is one sided, the flaws of government involvement are highlighted, but the short comings of private side are conveniently being glossed over.

    Richard makes a very good observation: “In general, arguments that service providers can't do this or that as a practical matter are founded on sand. Advances in technology make many things practical tomorrow that are utterly impossible today, and we can more or less expect that to happen.” The entertainment industry, for example, has been demanding that ISP “filter” content to prevent what they assert is unauthorized content transfer. The technology now exists to do this and we have now seen entertainment industry demand that the ISPs protect their interests. We even have the entertainment industry pushing for legislation to require ISPs to act as their private law enforcement are. From the free-market perspective, the ISP have no obligation to filter content to protect the interests of the entertainment industry. The following quote from John Perry Barlow highlights this process at work “”The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.”.

  • MikeRT

    Your example here is one of the government passing legislation at another industry's behest. In general, ISPs have hitherto shown little desire to really police their users for copyright infringement because it's just not something that makes business sense for them to do. It's just not their problem, so why bother.

    Furthermore, I think the simplest reason why they wouldn't censor opinions they may disagree with is that it would get them negative publicity. More people are likely to leave them over that than come to them.

  • http://zgp.org/~dmarti/ Don Marti

    When a length of fiber optic cable runs through land taken by eminent domain, then that property was taken “for public use.” Its unwilling seller and the rest of the public are entitled to neutral access. If you're going to respect private property, respect private property.

  • Ryan Radia

    With regards to P2P, of course high-bandwidth streams can be identified by ISPs as such, no matter the obfuscation, and Bittorrent's fairly unusual TCP characteristics make it pretty obvious regardless of the application layer. (Although perhaps an IPSec VPN tunnel to a “friendly” endpoint, with some random padding data added in for good measure, might make it extremely tough for an ISP to tell the difference between various P2P protocols)

    What Adam's post is addressing, I believe, is the question of whether ISPs will ever be able to detect and suppress speech. Net neutrality advocates get people worked up by claiming that new laws are needed to prevent ISP censorship, but the fact is that such censorship is basically impossible. There is no valid basis for arguing that ISPs will ever be able to distinguish between a pro-abortion data transmission from an anti-abortion one. The days of communicating in plain-text are numbered, and ISPs surely realize that if they can't even successfully fingerprint pirated videos, it's a waste of time and money to attempt to stifle unwanted speech.

  • Ryan Radia

    As long as we maintain a safe harbor for providers, there will be no widespread adoption of content filtering by ISPs. AT&T knows it is fighting a losing battle, and the only people likely to be affected by any filtering effort are those unable to perform a Google search.

    Besides, ISPs that employ content filtering to the detriment of their subscribers will only push people toward competing providers that don't filter.

  • http://bennett.com/blog Richard Bennett

    I agree with Adam that the ISPs have no economic incentive to filter political speech, I'm just saying we shouldn't rule it out in technical grounds. Filtering illegal downloads is easy as pie today, and it's a harder problem than filtering speech would be if somebody set his mind to it.

    Here's a thought for free speech advocates: invent a really cool technique for suppressing free speech and patent it. Don't license the patent, and you're golden, democracy rules. All hail the patent system!

  • http://bennett.com/blog Richard Bennett

    ISPs actually do have an incentive to filter certain types of pirated content, namely to free up network capacity.

  • http://srynas.blogspot.com/ Steve R.

    On th humerus side, just heard on the radio that Exxon, due to the falling price of oil, just laid off three congressmen!!!

  • http://srynas.blogspot.com/ Steve R.

    In the ideal situation where the ISP is just providing the “pipe” there is no economic incentive to filter. However, when telecoms (as one example) are part of the network flow, there are economic incentives to filter. <a href=”http://www.techdirt.com/articles/20070327… Sues AT&T For Blocked Phone Calls
    Then there is the ye olde intimidation tactic: Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy

  • http://bennett.com/blog Richard Bennett

    There were other issues in the FreeConference situation relating to interconnect fees, so it doesn't say anything about content-based suppression of speech. And similarly, piracy mitigation isn't a free speech issue. Illegal activities are not protected by law.

    The studios and the RIAA are entitled to protect their legal rights, that's not really in dispute.

  • Ryan Radia

    Filtering some, or even most, illegal traffic can be done if ISPs simply block all P2P. But what if they switch to HTTP? Or FTP?

    Digital fingerprinting becomes next to useless when full payload encryption is applied to the data. It doesn't make it impossible to figure out the protocol (that's what end-to-end tunneling is for) but encryption makes legal P2P traffic indistinguishable from illegal P2P traffic. Pirates have plenty of methods of trading infringing files without using easily identifiable protocols like Bittorrent. The same goes for pretty much any content that an ISP might have an interest in filtering.

  • Ryan Radia

    Sure, but that's only because pirated content is a major hog of network resources. As network congestion becomes less attributable to illegal file sharing and more attributable to Hulu, Netflix, and YouTube, ISPs will have fewer reasons to target P2P and more reasons to simply implement across-the-board usage caps, per-byte billing, etc.

  • http://bennett.com/blog Richard Bennett

    Via e-mail, Disqus tells me Ryan has responded to a couple of my comments with his own comments on fingerprinting and piracy bandwidth hogs, but I don't see the comments when I look for them here. Disqus is the Sarah Palin of blog commenting systems, unfortunately. I'll respond when Disqus feels like it's safe for me to do so.

  • http://bennett.com/blog Richard Bennett

    I doubt it. P2P is trouble because of two things: its bi-directionality and its consumption of transit resources. YouTube and Hulu aren't bi-directional, and YouTube at least enters ISP networks at peering points, so there's no extra charge for the larger ISPs for transit. This is the way your ISP would prefer you to get your video streams.

  • http://bennett.com/blog Richard Bennett

    The first thing to understand about piracy mitigation is that the goal isn't 100% detection, it's simply a significant reduction in piracy. That being said, the goal can be accomplished – and is accomplished today for the most part – by snagging File Hashes on the piracy indexers such as Mininova and Pirate's Bay. Join a swarm that's downloading a popular title and you have a list of all your peers, all out in the open.

    There will always be methods of so completely hiding a file that nobody can detect it, and some of these will never be addressed. But that's OK, the search for perfection isn't essential.

  • http://srynas.blogspot.com/ Steve R.

    Ok, they have a right to protect their legal rights, but there are limits to that right. Their quest to protect their so called rights does not entitle them through the ISP to inspect my packets. Furthermore this violates due process. By analogy, they believe that they have a right to break into my house at their whim and search it just on the arbitrary belief that they may find something.

    Or to use another analogy, you should not be able to force a third party who just happens to be standing on the street corner to “protect” your property. If the content industry can somehow coerce the “third” party ISP to “protect” their so-called property rights, the concept of net neutrality will be a sham.

    Furthermore, if it is OK to inspect packets for the benefit of one special interest group for acts that may considered illegal, it doesn't take much of an imagination to see it expanded to other acts considered illegal in order to “save the children”. It's a slippery slope.

  • http://srynas.blogspot.com/ Steve R.

    Same here. My response to you hasn't shown up.I guess Disqus doesn't want to get anyone upset.

  • http://bennett.com/blog Richard Bennett

    Apparently I can reply to your comment via e-mail. We'll see if this works.

  • http://bennett.com/blog Richard Bennett

    Slippery slopes are everywhere, so I wouldn't worry about them. These
    issues about probably cause only apply to the government, as I
    understand them, but IANAL. Assuming there were something to it, the
    fact that you're hogging the pipe would probably constitute probably
    cause in any case, and inspection of content without retention doesn't
    have privacy implications.

    And if it did, all it would take is a small act of Congress to nullify
    these objections.

  • http://enigmafoundry.wordpress.com eee_eff

    Steve:

    Great comment, to which I would add just a couple of points.

    First, to the extent that a corporation that may provide the “pipes” is separate from one that provides the content, there would be no incentive to filter. When the economic incentives are tied together, some strange things begin to happen. For example, NBC provided very little coverage of the Chernobyl accident, and it was no accident that NBC was then owned by General Electric, maker of nuclear power plants. So the incentive can exist, and when coupled with the fact that in many communities there is only one available high speed internet provider, the opportunity and the motive both exist.

    Second, there have in fact been many examples of suppression of free speech by large corporations, in particular AT&T, so there is evidence that when motive and opportunity both exist, abuses, do, in fact occur.

    Third, there is a reason why the FIRST amendment came FIRST. Because the freedom of speech was considered a paramount freedom. But to those at TLF it appears not to be very important, and any suppression of the right to express is seen as a trifling concern. Many of the comments defending Tim's position center around the line of thinking that maybe some abuses will occur but they won't be that bad and the market will eventually sort out this issue. But this forgets the very important point that free speech delayed is free speech denied. If, for example important information can't be distributed before an election the damage to society is done, and it is TOO LATE to turn back the clock.

    The First Amendment is important; don't abandon it.

  • http://enigmafoundry.wordpress.com eee_eff

    Steve:

    Great comment, to which I would add just a couple of points.

    First, to the extent that a corporation that may provide the “pipes” is separate from one that provides the content, there would be no incentive to filter. When the economic incentives are tied together, some strange things begin to happen. For example, NBC provided very little coverage of the Chernobyl accident, and it was no accident that NBC was then owned by General Electric, maker of nuclear power plants. So the incentive can exist, and when coupled with the fact that in many communities there is only one available high speed internet provider, the opportunity and the motive both exist.

    Second, there have in fact been many examples of suppression of free speech by large corporations, in particular AT&T, so there is evidence that when motive and opportunity both exist, abuses, do, in fact occur.

    Third, there is a reason why the FIRST amendment came FIRST. Because the freedom of speech was considered a paramount freedom. But to those at TLF it appears not to be very important, and any suppression of the right to express is seen as a trifling concern. Many of the comments defending Tim's position center around the line of thinking that maybe some abuses will occur but they won't be that bad and the market will eventually sort out this issue. But this forgets the very important point that free speech delayed is free speech denied. If, for example important information can't be distributed before an election the damage to society is done, and it is TOO LATE to turn back the clock.

    The First Amendment is important; don't abandon it.

  • http://enigmafoundry.wordpress.com eee_eff

    Steve:

    Great comment, to which I would add just a couple of points.

    First, to the extent that a corporation that may provide the “pipes” is separate from one that provides the content, there would be no incentive to filter. When the economic incentives are tied together, some strange things begin to happen. For example, NBC provided very little coverage of the Chernobyl accident, and it was no accident that NBC was then owned by General Electric, maker of nuclear power plants. So the incentive can exist, and when coupled with the fact that in many communities there is only one available high speed internet provider, the opportunity and the motive both exist.

    Second, there have in fact been many examples of suppression of free speech by large corporations, in particular AT&T, so there is evidence that when motive and opportunity both exist, abuses, do, in fact occur.

    Third, there is a reason why the FIRST amendment came FIRST. Because the freedom of speech was considered a paramount freedom. But to those at TLF it appears not to be very important, and any suppression of the right to express is seen as a trifling concern. Many of the comments defending Tim's position center around the line of thinking that maybe some abuses will occur but they won't be that bad and the market will eventually sort out this issue. But this forgets the very important point that free speech delayed is free speech denied. If, for example important information can't be distributed before an election the damage to society is done, and it is TOO LATE to turn back the clock.

    The First Amendment is important; don't abandon it.

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