Comments on: Net Neutrality Regulation & the First Amendment

By: amendment - StartTags.com

amendment - StartTags.com — Tue, 26 Jan 2010 02:05:19 +0000

[...] — trounced in a Senate vote this afternoon. It pulled in 32 votes against 66 in opposition. …Net Neutrality Regulation & the First Amendment Technology …As I have argued here before, it is incredibly dangerous thinking that puts our real First Amendment [...]

By: The 10 Most Important Info-Tech Policy Books of 2009 — Technology Liberation Front

Mon, 21 Dec 2009 22:57:34 +0000

[...] betrayal of the Founder’s original intentions. As I made clear in my recent essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, [...]

By: The Progress & Freedom Foundation Blog

The Progress & Freedom Foundation Blog — Thu, 17 Dec 2009 15:44:47 +0000

The First Amendment & Net Neutrality: Be Careful What You Wish For...

As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about "Speech, Democratic Engagement, and the Open Internet." It was a shockingly one-sided affair with the deck being stacked almost entirely in favor.....

By: The First Amendment & Net Neutrality: Be Careful What You Wish For — Technology Liberation Front

Thu, 17 Dec 2009 15:38:46 +0000

[...] Thank God a few people in this town are still taking a stand for the real First Amendment. [...]

By: The Progress & Freedom Foundation Blog

The Progress & Freedom Foundation Blog — Tue, 15 Dec 2009 22:42:51 +0000

FCC Enters Parallel Universe on First Amendment & Net Neutrality Issues...

Today I visited the Federal Communications Commission meeting room to attend a workshop on "Speech, Democratic Engagement, and the Open Internet." Honestly, I think I was stuck in the Twilight Zone, because from what the speakers at this ridiculously...

By: FCC Enters Parallel Universe on First Amendment & Net Neutrality Issues — Technology Liberation Front

Tue, 15 Dec 2009 22:35:23 +0000

[...] government could use to basically beat private media providers into submission. (Funny, because I always thought “Congress shall make no law…” was a pretty clear statement. But perhaps I missed some [...]

By: mwendy

mwendy — Fri, 11 Dec 2009 23:59:25 +0000

I'll give it a read – it's the story directly above this one.

By: Steve R.

Steve R. — Fri, 11 Dec 2009 23:39:29 +0000

I will agree with the Art Gallery example where there is a clear "entry fee" and a physical door. I will also acknowledge that free speech is an entitlement from government interference. However, from my point of view, there is a whole body of people who seem to believe that their control of private property somehow entitles them to arrogantly abuse their privilege even to the point of interfering with the property rights of others. For example, when I go to UPS of FedEX, I expect them to deliver the my private property right package unopened and on-time. Based, on a lot that I read, from those opposed to net neutrality, UPS and FedEx would be in their so-called "rights" to simply toss my package in the trash if they don't like it, they are under no obligation to deliver the package, and if they want they can tear it open and inspect the contents. I find Julian Sanchez "The Virtual Fourth Amendment" to be an excellent read on this.

What I find particularly disturbing is that one of the mottoes of Libertarians is to do no harm to others. Yet, we have (Libertarian???) advocates who feel perfectly justified in harming others by depriving them of expected service/property rights to protect their property interests. Do you have a right to break into someone's house with out permission just to see, on a whim, if they may have stolen property? Witness the demands of the RIAA to filter (read) the datastream (mail). Also, why should I have respect for an abusers property rights if they feel justified in depriving me of my property rights. It a slippery slope. While things, such as due process and free speech, are citizen entitlements against government interference, the abuse of these concepts by private sector should not be tolerated.

By: mwendy

mwendy — Fri, 11 Dec 2009 21:48:07 +0000

Steve, free speech is largely a right against the government. Generally (with many exceptions, of course), the 1st Amendment isn't as readily applicable when private-to-private expressions are involved. Think about you insisting to an art gallery (which you do not own) that they hang your piece of art. They're free to say no. And the government can do little about it.

Free speech in the present context is more a function of serving the marketplace - companies, with their own unregulated, private facilities choose to allow all comers because it makes business sense. The market implores them to do so.

The present NPRM seeks to compel speech without compensation. In denying the ability of facilites-based ISPs to deny others (if they wanted to), it belittles the rights of the private property / network owner to express as he or she sees fit (which may, or may not, include hosting unaffiliated third-parties).

By: mwendy

mwendy — Fri, 11 Dec 2009 19:59:25 +0000

I'll give it a read – it's the story directly above this one.

By: Steve R.

Steve R. — Fri, 11 Dec 2009 19:39:29 +0000

I will agree with the Art Gallery example where there is a clear "entry fee" and a physical door. I will also acknowledge that free speech is an entitlement from government interference. However, from my point of view, there is a whole body of people who seem to believe that their control of private property somehow entitles them to arrogantly abuse their privilege even to the point of interfering with the property rights of others. For example, when I go to UPS of FedEX, I expect them to deliver the my private property right package unopened and on-time. Based, on a lot that I read, from those opposed to net neutrality, UPS and FedEx would be in their so-called "rights" to simply toss my package in the trash if they don't like it, they are under no obligation to deliver the package, and if they want they can tear it open and inspect the contents. I find Julian Sanchez "The Virtual Fourth Amendment" to be an excellent read on this.

What I find particularly disturbing is that one of the mottoes of Libertarians is to do no harm to others. Yet, we have (Libertarian???) advocates who feel perfectly justified in harming others by depriving them of expected service/property rights to protect their property interests. Do you have a right to break into someone's house with out permission just to see, on a whim, if they may have stolen property? Witness the demands of the RIAA to filter (read) the datastream (mail). While things, such as due process and free speech, are citizen entitlements against government interference, the abuse of these concepts by private sector should not be tolerated.

By: mwendy

mwendy — Fri, 11 Dec 2009 17:48:07 +0000

By: Steve R.

Steve R. — Fri, 11 Dec 2009 14:38:55 +0000

Regretfully things are not "simple". Here is one of many such examples: AT&T complains Google Voice blocks calls it can't (Update). The take away from this article is that word games are being played. The article writes: "AT&T said that Google should not be exempt from the ban because Google Voice "appears to be nothing more than a creatively packaged assortment of services that are already quite familiar to the commission."".

I couldn't resist another example since it deals with AT&T blocking: "Group Calls Foul on AT&T Blocking Some iPhone Video Apps"

Also, in terms of Adam's post, note that these companies are imploring the "mother" regulator to act on their behalf. So I find is awkward that this forum seems to have only have blame the regulator posts when it is the companies purposely and willfully elbowing each other to limit the customers free speech.

By: mwendy

mwendy — Fri, 11 Dec 2009 03:41:59 +0000

To some extent yes and no. Yes - last mile carriers aren't compensated for all the costs of terminating of calls. But, no - it's part of the common carrier regulation / obligations; at least there's some compensation for telecommunications / POTs service. AT&T cannot refuse your telecommunications call to that mosque.

Madison River was a consent decree, if memory serves. So, it's hard to say exactly what that was about in 1st Amendment terms / FCC authority (maybe Adam can add here).

If by data you mean information services - they see different regulation than strictly voice / POTs / telecommunications. The latter (voice, etc.) is regulated under common carrier regulation / Title II (as noted above). Information services do not share the same regulatory scheme; info services essentially sit outside of the onerous Title II regulation (they're largely, though not entirely, unregulated) and this is what the FCC is currently debating in its Net Neut proposed rules.

By: haroldfeld

haroldfeld — Thu, 10 Dec 2009 23:19:50 +0000

I know I will hate myself for asking, but I will anyway. Do you feel the same way about all common carrier and interconnection requirements? For example, can AT&T refuse to connect my phone call to a mosque because they consider it a source of hate speech or against their religious principles? Was the FCC's decision to require Madison River to complete a VOIP call likewise a First Amendment violation? Or is provision of data service somehow different from voice?

By: mwendy

mwendy — Thu, 10 Dec 2009 17:19:48 +0000

Good post, Adam. Sadly, I think the politics of the situation have gotten in the way of the Constitution's clear limitation (but, as you point out, this is old hat for regulators). Facilities-providers aren't the “bad guys”; the default position of the 1st Amendment reveals the opposite – that the government players are instead.

By saying that no (or only limited) discrimination can be tolerated on ISP networks, the Commission denies protected speech of those network operators (not to mention denies them 5th Amendment compensation).

The speech regulators seek to foster by this prohibition cuts to the core of our society – open and robust political speech / civic particpation. If it were otherwsie – say, promoting advertising, or porn – then they couldn't mount, from an optical / PR and legal sense, the battle needed to overcome the 1st Amendment prohibition.

Interestingly, this push could be the FCC's downfall – i.e., unlike “Turner” or “O'Brien” speech (lesser 1st Amend standards), I think the new rules demand strict scrutiny, with the speech pushed by the Commission far from content neutral.

Strict scutiny is hard on its own, but even harder based on conjecture. In just paragraphs 70 – 73 of the Net Neut NPRM, the FCC uses the conditional term for the harm that may result without their rules 15 times. This is all conjecture and prophylaxis. How do you impose content regulations without a market failure (or, stated differently – when the market has exploded with options and viewpoint)?

How? You do it by making the facilities / verically integrated-based provider smell like (bad word deleted).

By: Steve R.

Steve R. — Thu, 10 Dec 2009 14:47:04 +0000

What about the attempts of private sector to control the free flow of information and to even read (spy) your mail (packets)? Most of these oppressive government regulations are at the behest of zombie regulators doing the bidding of their private sector "masters". The role of the private sector in buying special interest regulations requires exposure too. Simply laying blame on the "government" is simplistic and ignores how the the "oppressive" regulations are actually put into effect.

Kicking People Off The Internet Not Enough In South Korea, Copyright Lobbyists Demand More

Mike writes: "Of course not. Reader Dan alerts us to the news that some entertainment industry lobbyists are now demanding that all file sharing services must use content filters. Otherwise, they plan to sue. Just another reminder that for some of these folks, enough will never be enough. They will keep pushing for more and more, just as consumers keep pushing back on having their own rights stripped away."

How The Entertainment Industry 'Launders' Policy Pronouncements.

Mike writes: "It's no secret that a great deal of regulations and policies are really written and pushed by lobbyists, and politicians just put their own names on it."

When the private sector attempts to frustrate freedom of speech, their involvement in the development of "oppressive" regulations requires scrutiny.

By: Tim Lee

Tim Lee — Thu, 10 Dec 2009 13:33:23 +0000

Great post Adam

By: Net Neutrality Regulation & the First Amendment — Technology … « New Emerging Technologies for Netbook Mobile Phones Laptops Gadget and Gizmos

Thu, 10 Dec 2009 05:29:07 +0000

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