Why Al Franken Was Right About Net Neutrality

Last week Senator Al Franken made an important speech, calling Internet neutrality "the First Amendment issue of our time." If I had heard that claim a few years ago, I would have thought it verged on political hyperbole. But after reading the comments filed by major ISPs in the FCC's net neutrality proceeding, I think Franken is right. For many members of Congress net neutrality isn't a polling point heading into the November elections, but few other issues hold significance for the future of speech and the democratic exchange of ideas in this country.

Lost amid the intrigue of the Internet neutrality negotiations at the FCC, the announcement of the Google-Verizon proposal, and the wonky terminology of the debate (How many people outside the Beltway actually know what "Title II re-classification" means?) is one simple fact: The Internet is at a crossroads. The FCC's net neutrality proceedings have exposed two competing visions for the future of the network that the Supreme Court has called "the most participatory form of mass speech yet developed." Here's the brutal truth: when the dust from rulemaking and the inevitable court battles to follow has settled - the Internet that we have come to know and love may no longer exist.

The first vision, which could be called "the cable-ization of the Internet," has been described in arresting language by ISPs, including AT&T, Time Warner, and Verizon. Over the past year, they have submitted comments to the FCC arguing that by delivering Internet content to their customers, they are engaging in speech protected by the First Amendment. They compare their role to that of newspapers and cable TV operators, and boldly assert their need to exercise "editorial discretion" (quoting AT&T) over all content that is carried over all their networks, trying to hang their hat on the Supreme Court's recent decision in Citizens United that swept away decades of campaign finance rules while bestowing breathtaking free expression rights on corporations.

Verizon says the right of ISPs is "to deliver speech to their customers, whether in the form of the provider's own content and applications or that of commercial partners that they select, organize, or otherwise package for delivery." This counters everything we value about the Internet. Missing from this characterization is the content currently carried by broadband ISPs: speech produced by unaffiliated providers and even their competitors. Facebook, YouTube, NetFlix and yes, the Huffington Post, did not spring into being because they were "selected" as partners or "packaged for delivery" by the ISPs. New innovators posed to launch sites such as Diaspora are not required to pony up cash or lobby ISPs to favorably "exercise" their "editorial discretion." More important: users exercising their First Amendment rights that generate the countless blog posts, videos, tweets, emails, and websites that make up the diversity of online content.

Comparing broadband ISPs to newspapers is ludicrous, and more than a little frightening. Newspaper staffs create, edit, or review all of the material that appears in the publication. Newspaper subscribers don't expect to see a competitor's articles or that they will be able to create and share their own content in the paper (outside of the limited Op-Ed page or occasional letter to the editor). But this is precisely what an ISP's subscribers are purchasing: access to "the unique and wholly new medium of worldwide human communication" that is the Internet, as the Supreme Court said in the landmark Reno v ACLU decision.

To be fair, ISPs do provide, select, and organize some content through their own websites. For example, AT&T operates yellowpages.com. And some content on the Internet may be owned by the same company that owns the ISP (think Time Warner Cable and AOL before the breakup). But this "affiliated" content is separate and distinct from the function of serving as an ISP. Importantly, the ISPs have never exercised their newly discovered "editorial control" to treat that content more favorably. When you get right down to it, ISPs are more paperboy than newspaper.

As troubling as the ISPs' vision may be, if left to their own devices this is the "Internet" they would build. It is one in which First Amendment rights are held principally, if not exclusively, by the ISP. They would be free to deliver only content they approve and can directly profit from.

And for the free speech rights of other online content creators, which the Supreme Court in Reno deemed worthy of the highest level of First Amendment protection, it would be the ISPs' prerogative whether or not they get to exercise those rights. Imagine trying to blog, or clicking a link to HuffPo, and discovering that your ISP doesn't "carry" that service. Does that sound like the Internet of today? No.

Second Vision
The second vision of the Internet embraces the Reno recognition that the Internet is not like cable TV. That it is a many-to-many medium, a new public square where openness is valued over attempts at censorship or control. It is a vision that puts the free speech rights of citizens and innovators first, and it is this vision that has made the Internet the engine of innovation, economic growth, political participation, and yes, sneezing pandas.

In this way the Internet is more like the phone network, where you can call anyone you want as long as they have a valid number. (Indeed this is why CDT has supported the FCC's proposal to label Internet access a telecommunications service.) The notion that the ISP oligopoly might edit what you can and cannot access online, limit your ability to speak to everyone with an Internet connection, or subject your online speech to a "pay to play" regime should be just as offensive as the phone company deciding who you can and cannot call.

Importantly, this vision has also strongly benefitted ISPs. Laws like "Section 230" of the Communications Act and the Digital Millennium Copyright Act provide broad immunity from liability for ISPs and other online service providers for the content created by third parties. In particular, "Section 230" is arguably as important to free expression online as the First Amendment. The entire theory of Section 230 - and of the Internet that relies on it - puts users (not ISPs) in control and accountable for speech on the Net.

Now, if the ISPs' comments are to be believed, they want to exert control over the content they carry. Is this really the future that broadband Internet service providers really envision for the Internet? Or is this a bad case of "leave no argument behind" aggressive lawyering - throwing everything at the wall to see what sticks - that only serves to further polarize the debate? (Forgive me reader . . . I am a lawyer.)

Maybe it is time for the ISPs to send their lawyers out for a long run around the Tidal Basin, while the folks who really care about the Internet, from all sides of the neutrality debate, sit down and figure this out.