Since I’ve been criticizing a paper opposing neutrality regulation lately, it seemed only fair to criticize the other side for a change. A reader wrote in to point out that Bill Herman has recently released a new version of his paper advocating neutrality regulations. Before I get started with my critique, I want to mention that I’ve interacted with Herman in the past, and he’s a smart and thoughtful guy. I didn’t find myself persuaded by his paper, but it’s a well-written and thorough argument for his position.
In this post, I’ll critique one of the two arguments he makes in parts II and III of the paper, in which he sketches out the dangers posed by network discrimination: the contention that without new regulations, ISPs will begin censoring Internet content. It seems to me that the paper demonstrates one of the same shortcomings I noted in the Hahn/Litan paper: although it talks a lot about network discrimination in the abstract, it’s extremely vague about the details of how such a regime would actually work.
Indeed, there’s a yawning gulf between part II, where Herman talks about the general principles at stake, and part III, where he attempts to document past abuses and project future ones. Here’s a quote from the former:
For decades, the Court has held that the health of our democracy demands “the widest possible dissemination of information from diverse and antagonistic sources. . . .” While this is subject to other First Amendment values such as editorial discretion, it is upheld as the guiding principle in the current case law regulating cable television. Cable companies certainly have a reasonable claim to editorial discretion, yet they are forced to carry certain programs in the name of a healthy local news sector and greater net diversity of news outlets. The value of diversity is even clearer in the case of BSPs, who disavow any editorial control over the Internet. Wu and Lessig also dismiss the idea of BSPs as editors. This claim can be extended into an even clearer argument for a neutrality regime. At least one First Amendment scholar believes the Constitution requires state intervention when state-created telecommunications monopolies obstruct the speech of their customers.
In contrast, Yoo implies that First Amendment values are best upheld by permitting broadband providers to act as editors of the Internet. This elides the utter lack of either a general expectation or industry-wide practice of editorial discretion on the part of ISPs–not to mention the clause tucked into the Communications Decency Act specifically stating that ISPs are not editors. It is more useful to view each content creator or end-user as her own editor of the Internet, subject to other non-ISP exceptions such as workplace norms and content-filtering software.
Reading this left me scratching my head. I certainly agree with Herman that editorial diversity is an important component of free speech. But for the life of me, I can’t figure out why either Herman or Yoo would think there’s a snowball’s chance in hell of ISPs gaining editorial control over Internet content. Herman continues:
Now that we have a communication system with the technical capacity to support millions of independent media outlets, we should guarantee that the editorial control over that system stays as widely diversified as possible. A broadband provider should no more be able to stop a customer’s email or blog post due to its political content than a telephone company should be permitted to dictate the content of customers’ conversations. The guarantee that these speech acts be legally unconstrained “is a fundamental aspect of individual liberty.”
To see how silly this is, let’s focus on his concrete example: censoring blog posts. I’m trying to envision how this would work, and I’m drawing a blank. According to Technorati, there are now 50 million blogs. If we assume that only 10 percent of those are active, and that the active ones get 1 post a week, it would still require hiring a veritable army of censors to browse each and every blog and mark blogs that need to be censored. It’s hard to imagine why any company would undertake such an endevour.
Even if they did, it seems unlikely that it would have the desired effects. Let’s say, to take the Christian Coalition’s favorite delusion, that those Godless telcos decided to censor pro-life websites. They hire 1,000 employees to read each of the 5 million active blogs and enter those determined to be pro-life into a centralized database. If they spent 15 minutes examining each blog, this process would take about 6 months. Then AT&T would install filtering software that blocked access to those websites that the censors had determined to be pro-life.
If AT&T were stupid enough to do this, three things would happen almost immediately:
- Some pro-life computer geeks would begin troubleshooting the problem and quickly pinpoint who was blocking the sites, how they were doing it, and which sites were being blocked. It wouldn’t take long for them to notice that they were all right-of-center.
- Word would spread quickly around the blogosphere, creating an enormous outcry. This incident, in which a Kentucky state government office allegedly blocked access to some left-of-center blogs, is a good example of what would happen. Only the outcry would be much bigger if the censorship were deliberate, systematic, and occurring over the course of months.
- The proprietors of pro-life blogs would begin deploying a variety of tactics to evade the filters. Mirrors of popular pro-life blogs would be set up to evade the filters. Public-spirited pro-lifers would begin offering free web proxy services to help others evade the censorship.
- Angry pro-lifers would begin cancelling their AT&T service in droves. Those would could switch to cable service would do so. Some of those who didn’t have another option might cancel or reduce their services out of sheer spite.
- Every pro-lifer in the country would suddenly become a strong proponent of network neutrality regulation.
- Blogs that have nothing to do with abortion, including this one, would denounce AT&T for its censorship and post information about how to evade it.
But most importantly, even if AT&T could overcome all these obstacles such a policy would likely be counterproductive. Such deliberate, systematic censorship would likely galvanize the pro-choice movement and generate greater sympathy for their cause from the broader public. Indeed, if I were a prominent pro-life leader, I would absolutely love to have this happen to me. Contributions to pro-life organizations would go through the roof. I’d get invited on national television to denounce censorship. It would give my issue the kind of publicity that money can’t buy.
So I just don’t see it. And indeed, I think my skepticism is confirmed by the paucity of Herman’s specific examples in part III. Since the advent of broadband, on a continent with a third of a billion English speakers, this is the entirety of Herman’s empirical evidence of censorship:
In a further violation of network neutrality, broadband providers explicitly reserve the right to censor the content uploaded or downloaded by their customers. This policy statement by Cox Communications is typical: “Cox reserves the right to refuse to post or to remove any information or materials from the Service, in whole or in part, that it, in Cox’s sole discretion, deems to be offensive, indecent, or otherwise objectionable.” AT&T takes it up a notch, reserving the right to block any content for any reason. “AT&T and its designees shall have the right (but not the obligation) to monitor any and all traffic routed though [sic] the Service, and in their sole discretion to refuse, block, move or remove any Content that is available via the Service.” Further, in July 2005, “Telus, Canada’s second largest telecommunications company, actively blocked access to Voices for Change, a website supporting the Telecommunications Workers Union.”
Companies reserve the legal right to do all sorts of things they don’t intend to actually do, so I the legal boilerplate doesn’t tell us a whole lot. Which leaves just one example of actual censorship, and that example occurred in Canada. As I’ve written before, I don’t think the Telus story is a particularly egregious example of unjustified censorship. But even if we give Herman the benefit of the doubt and assume the Telus example is a good one, that’s still awfully thin gruel. In the last five years, the overwhelming majority of North American Internet users had totally unfettered access to content. A tiny minority, on the other hand, were blocked from accessing a single website for a matter of days. That hardly strikes me as ominous.
Now I suspect that if pressed, Herman would concede that censorship isn’t really what he and other pro-regulatory folks are concerned about. The big worry is economically-motivated discrimination among applications or service providers. But if that’s the case, I wish they’d stick to that argument rather than painting far-fetched horror stories about telco censorship. They have neither the desire nor the ability to do so.
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