An FCC Ruling Will Be Crucial To Shaping The Future Of Free Speech

Network neutrality--that's now the official policy of the Obama administration, announced last month by the new chairman of the Federal Communications Commission (FCC), Julius Genachowski.(Pictured)

It's a development that could be more significant to the future of free speech than any milestone since the Supreme Court's decision in New York Times v. Sullivan in 1964.

The essence of net neutrality seems simple: Internet service providers should be required to treat all data equally and avoid blocking or delaying any sites or applications. That's an important principle to establish, because there are, unfortunately, cases where it has been violated--cases where network operators have censored speakers who threatened their economic interests. In 2007, for example, AT&T muted the sound during a webcast of a Pearl Jam concert at the very moment Eddie Vedder, the group's lead singer, started criticizing George W. Bush. Verizon, to cite another example, has blocked pro-choice text messages sent by naral to its members (who had even requested them). When activists objected to the decision, Verizon said it would block messages from all "issues-oriented" groups, then later apologized for the whole mess, blaming the initial decision on a "dusty internal policy." Nevertheless, it kept the policy in place--reserving the right to censor any content "that, in its discretion, may be seen as controversial or unsavory."

Those examples are bad enough, but there's an even more troubling case that shows how deeply the economic decisions of network operators can restrict free speech. Two years ago, Comcast, America's second-largest high-speed Internet provider, blocked BitTorrent, a popular peer-to-peer file-sharing application that could be used to distribute (among many other things) high-definition TV video that would compete with Comcast's video services. The obstruction was discovered by an amateur singer who wanted to share public domain performances of barbershop quartets with his fellow aficionados. After initially denying that it was blocking BitTorrent, Comcast, which was literally denying access to the King James Bible, claimed that it wasn't blocking the file-sharing application, but merely delaying it to conserve bandwidth as part of "reasonable network management."

The Comcast case is a model for the free-speech battles of the future, where Internet and wireless providers may want to favor certain content providers over others in order to maximize profits at the expense of consumer choice. This problem is especially acute in the United States because of our lack of competition among broadband companies in most markets. In many towns, Comcast (or its regional equivalent) is the only plausible supplier of broadband. This raises the fear that Internet service providers will start striking deals with the likes of Facebook, charging a price for access that Facebook can afford, but making it impossible for other companies to compete.

This kind of discrimination threatens one of the most distinctive features of the Internet: the fact that there is no easy way to discriminate among different kinds of content, just as the electrical grid doesn't ask whether your TV set is made by Sony or Panasonic. But, in recent years, that distinctive feature has been threatened. We now live in a world where the technology for watching what people do with their data packets is sophisticated enough to give a company like Comcast the ability to decide which packets can be shuffled into slower or faster traffic lanes, depending on what its business model dictates. And, in addition to having the technical ability to discriminate, Internet providers now have the legal authority to do so. In the 2005 Brand X decision, the Supreme Court ruled that cable broadband providers were not a "telecommunications service" but an "information service," and, therefore, were freer to keep competitors off the network.

You might think that a decision to block the King James Bible would violate the First Amendment, or at least raise important constitutional concerns. But, if Comcast, a private company, is blocking a particular technology, rather than discriminating against particular speakers, there's no state action and no obvious peg for a First Amendment lawsuit. That's why the FCC is crucial to shaping the future of free speech. (Disclosure: I have known Genachowski since we clerked together years ago for a federal judge.) Under the proposed FCC net-neutrality principles, broadband operators like Comcast can't "discriminate against particular Internet content or applications" and will have to be transparent about their network-management practices.

But the most controversial part of Genachowski's proposal is the extension of network-neutrality principles from broadband cable providers, like Comcast, to mobile broadband networks, like AT&T, Verizon, and Sprint--a move that places the FCC in the thick of a whole range of thorny questions, involving both economic discrimination and free speech. At the moment, for example, Apple has struck a deal that makes AT&T the exclusive carrier of the iPhone in the United States. Under the new FCC rules, deals like this may invite legal challenges or regulatory action.

As Timothy Wu of Columbia Law School puts it, a "battle royal [is] underway over what the norms of the wireless world will be--more open, like computers, or closed, like telephones." The FCC will have to decide whether we're moving to a world where you can attach your mobile phone to any wireless network, the same way you hook up your telephone or computer. Will wireless providers have a duty, if they carry the Internet, to carry the whole thing, or can they pick and choose among companies that pay them more money, in the interest of providing a faster and smoother wireless experience? Apple, for example, has denied blocking Google Voice, the e-mail and phone management tool, but asserts the right to block applications that might threaten traffic management. When Steve Jobs introduced the iPhone, he made clear that it wouldn't be open to all applications, to avoid viruses or huge demands for bandwidth that might threaten the user's Internet experience. Google's Android mobile operating system is based on the opposite model--an open platform for development, accessible to all hardware and software applications. "The big question is what steps the FCC is going to take to ensure that the competition between Google and Apple can continue," says Lawrence Lessig of Harvard Law School. "If the Google model of open competition is more compelling, then closed wireless providers like Apple will have to give way just like the closed Internet providers of the past, like CompuServe."

There are, of course, huge financial stakes in this competition. Supporters of Genachowski's proposal include not only Google but other companies that want to ensure that their services, such as Amazon and Skype, are as widely available as possible. Opposing net neutrality are, of course, telecoms like AT&T and Verizon Wireless that want to set their own prices and choose which devices run on their networks. The battle will be played out in the courts--where net-neutrality opponents will argue that the FCC has no authority to regulate wireless devices--and in Congress, which could pass a law denying the FCC regulatory authority. "You might say that won't happen, because Obama would veto such a law, but it's not hard to imagine the other side dropping a provision like this into a law Obama can't veto," says Lessig. "Then it becomes Rahm Emanuel's calculation about how much it's worth to fight." In other words, the FCC's embrace of net neutrality isn't the end of this battle over free speech, but merely the opening shot.