Wed 11 Nov 2009
Net neutrality regulation violates First Amendment
Posted by Goldwater Institute under Constitutional Law , Freedom of Speech , Judicial , Technology[8] Comments
by Nick Dranias
Goldwater Institute
The Federal Communications Commission wants to force network service providers–the companies that own and operate the wires, routers and computers that keep the Internet humming–to transmit streaming audio, video and anything else on terms the FCC deems “neutral” regardless of how much bandwidth the data consumes. Network providers say the regulation will eliminate their ability to manage network traffic and effectively clog up the Internet. They argue that such “net neutrality” will deter and destroy private sector investment in the Internet.
But there’s something more important than that at stake. It’s the First Amendment.
In Comcast Cablevision v. Broward County, Judge Donald M. Middlebrooks struck down a county ordinance that forced a cable company to give its competitors equal access to its communication infrastructure. Much like advocates of net neutrality argue today, the county government argued that its “open access” ordinance did not offend the First Amendment because it ensured the transmission of more, rather than less, information by more companies. Judge Middlebrooks rejected that argument, ruling that the First Amendment prohibits government from forcing owners of communication infrastructure to transmit information against their will. He also held that government has no power to force the distribution–or “circulation”–of information because “[l]iberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable.”
Net neutrality should suffer the same fate. Forcing network service providers to transmit information “neutrally” is actually worse than forcing “open access” on cable companies. Because unlike cable companies, network service providers typically do not enjoy government monopoly franchises. For this reason, net neutrality is even more like forcing a printer to publish books, newspapers, periodicals, pamphlets and leaflets on the government’s terms. And when it comes to government seizing command and control over freedom of the press, the First Amendment is anything but neutral.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute’s Dorothy D. and Joseph A. Moller Center for Constitutional Government.
November 11th, 2009 at 9:42 am
Wow – talk about red herring, over half this article is devoted to something that even the author admits is not the issue of net neutrality.
Net neutrality is really about keeping the small number of internet service providers, many of which have benefited from monopoly conditions, from instituting tiering or other models in the literally last few mile of communication they provide.
For instance without net neutrality nothing would stop Cox and Comcast to give preferential treatment to certain traffic, for a fee, and throttling other traffic. Maybe they decide to work with Microsoft to speed up searches on Bing but de-prioritize Google searches. Or upgrade traffic to the iTunes store but downgrade traffic from Amazon. Maybe they upgrade traffic from Whitehouse.gov and lower from townhall.com? Anyway, the point is that this type of tiering of the internet would have serious implications for speech and commerce as it would allow powerful companies and institutions to pay for priority service thus destroying competition.
I find it odd that the Goldwater Institute is actually arguing against this since it seems so anti-free market. It seems the only people vigorously opposed to this are the big ISPs.
November 11th, 2009 at 10:41 am
This is a very complex issue, and the simplistic assessment of the Goldwater Institute does not reflect well on that organization.
There are many different facets to “net neutrality” – should an ISP be able to restrict certain types of traffic that could cause problems is one issue, and one that a conservative would most likely be in favor of.
However, there is another aspect that is more troubling – the concept that some very large ISP’s – including some who have monopolies in certain geographical areas – want the ability to CHARGE more for allowing access to certain sites. They want to create artificial scarcity.
For example, let’s say you connect to the Internet at a rated speed appropriate for a residential account. You pay $50 a month. Meanwhile, Yahoo.com also has an internet connection, but because of the gargantuan bandwidth requirements of their site, they pay $100,000 a month – they have a commercial account, with massive data circuits facilitating their connection to the internet. They pay THEIR ISP, and only their ISP. This is the way it works now, and it’s fair. It’s like the old days where a business would pay to the phone companies for 100 phone lines, and anyone who had a phone could also call them.
However, some of the larger ISP’s want to RESTRICT THE TRAFFIC OF ENTITIES THAT ARE NOT THEIR CUSTOMERS – they want to slow down the connections to sites like google, yahoo and MSN – unless someone pays an extra fee. They’re still trying to figure out if their customers should pay a “premium access” fee for service that is not artificially degraded, or if there’s a way to approach the big boys of the internet and say, “We have x million customers, and we’re going to slow down access to your sites unless you pay us a certain amount of money a month.” In short, they want to charge people who are not their customers. It’s an abuse of power and will generally ensure that any site that gets popular will suddenly be liable to extortion if they have a problem with paying twice for the same access. In short, it’s a corporate power grab.
The situation is made even more nebulous by the unclear role of the FCC. Why is the FCC involved in data communications to such an extent? The FCC was originally designed for broadcast communications, using the argument “radio spectrum bandwidth is a limited natural resource that is owned by the public and therefore subject to regulation” – an argument that stems from the fact that you can only have a limited amount of entities broadcasting radio wave before the RF spectrum becomes saturated.
But, Internet travels over a variety of mediums, and there is no real limit to how much traffic it can carry – the only limit is what private industry is willing to invest. How did the FCC become so involved in this issue which is such a deviation from it’s original purpose?
As a conservative, a consumer, and the former owner of an ISP, I decry the Goldwater’s Institute’s quick dismissal of “net neutrality”. This is a complex issue, and there’s tremendous amounts of money influencing all sides – except for the side of consumers. As an former ISP owner and a conservative, I don’t want the government telling me I can take appropriate measures to ensure the integrity of my network. I want the right to shape and direct traffic coming from my subscribers if that traffic is interfering with the majority of my customers. I also need the right to stop unsolicited inbound traffic that is disruptive.
However, as a consumer, and as a conservative that realizes business will sometimes get abusive when there are no controls, I don’t want giant ISP’s creating artificial scarcity and double-dipping, charging any site that becomes large just because they can. A person – or business entity – should pay their ISP for their rated bandwidth. Period. If I have a popular site, and I pay $10,000 a month to Savis for my access, I shouldn’t ALSO have to pay Cox another $5,000 a month just because they have a lot of customers who are paying THEM. No double-dipping!
And, finally, as a conservative, I am concerned about the “mission-creep” of the FCC. We’ve gotten away from the original purpose of the FCC – and while some regulation is needed to prevent abuses of power by telecommunication providers, I am not sure the FCC is the proper entity for this purpose. They’ve gotten a bit big for their britches.
And before anyone chimes in about, “well, the private market should control this and anyone can start an ISP!”, that’s just not correct. The barriers to entry in this market are HUGE. Most of our telecom structure was built using a mix of public and private funds, and under terms of right-of-way that would be impossible to match under today’s structure. Plus, the “big boys” of the telecom industry have an army of lobbyists that can through up tons of roadblocks that in themselves would burn through tens of millions of dollars in legal fees to anyone who challenges the established order. There are some very, very complex issues here and I doubt the ability of our sound-bite obsessed politicians to truly grasp them.
As a side-note, the wikipedia article on Net Neutrality isn’t bad.
-Steve Calabrese
November 11th, 2009 at 10:45 am
Oh, yeah, looking again at the original article, and the phrase “regardless of how much bandwidth the data consumes”, I must point out that *ALL* ISP’s oversubscribe their bandwidth – if every subscriber tried to use the maximum bandwidth at the same instant, things would slow to a crawl, just like a bank does not have enough cash on hand to pay every depositor at the same instant if they all decided to make a withdrawal at once.
However, just as banks have reserves, responsible ISP’s have reserve bandwidth that is in place to handle sudden spikes in traffic. In other words, greed is at work when an ISP decides to cut corners to over-subscribe bandwidth more than they can REASONABLY expect to need on a peak news day, when video streams tend to be the highest. I have no sympathy for Cox, Comcast and the like if they’re whining that they can handle it when everyone hits movies.yahoo.com on the same day to download the latest Twilight trailer.
November 11th, 2009 at 11:16 am
The FCC Net Neutrality regulations do not create a “free and open” internet. The regulations have the effect of turning the internet infrastructure and content into what can be considered public property. That is needed for the government regulators to manage and oversee internet services.
The result will be to deter investment in the broadband and wireless backbone…of course, I am sure there is an 0bama bailout or stimulus for that.
As far as free speech goes, the government will now determine what is useful internet information…and what is not useful.
We can debate what Cox and Comcast “might” do, but we all know what the government regulators will do.
November 11th, 2009 at 2:32 pm
Chad – how on earth does net neutrality allow the government to determine what is useful or not? That does not even make sense.
November 11th, 2009 at 11:13 pm
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November 12th, 2009 at 2:39 pm
Wow – I was just using an article from Americans for Tax Reform, about this very issue! This is also a particularly interesting piece.
I wish I had more time to look into, and write about, this important issue. Thanks again for your coverage.
And thanks to you all, for continuing this weblog; I was glad to have spoken to you in person, at last year’s “Defending the American Dream” Summit; please keep up the great work!
November 13th, 2009 at 10:39 pm
“For this reason, net neutrality is even more like forcing a printer to publish books, newspapers, periodicals, pamphlets and leaflets on the government’s terms.”
What? That’s a stupid analogy. It’s network neutrality not web host neutrality.