UPDATE (June 14, 2016):
Victory! Today the federal Circuit court for the District of Columbia issued a decision upholding the Open Internet Order in full. The court agreed with the ACLU that because internet service providers serve only as a conduit for others to speak online, net neutrality rules do not infringe on ISPs’ constitutional rights. Read the decision here.
The ACLU did something unusual this week: Along with our friends at EFF and the ACLU of the Nation’s Capital, we filed a legal brief taking the federal government’s side on a First Amendment issue. As longtime defenders of the First Amendment, we almost always find ourselves opposing government actions, not applauding them. You may wonder, what caused this rare meeting of minds that usually find themselves on opposite sides of a courtroom? The answer: net neutrality.
Internet Service Providers have challenged the Federal Communications Commission’s new rules that ensure net neutrality, and our friend-of-the-court brief supports those rules as essential to preserving a free and open Internet.
In a landmark case challenging government censorship online, ACLU v. Reno, the Supreme Court rightly recognized the Internet as “the most participatory form of mass speech yet developed.”But in order for this incredible platform for speech to achieve its true revolutionary promise, we have to be able to access it.
Internet Service Providers are the literal gatekeepers to this world. When you get online and search for particular speech, you should have confidence that the results you see aren’t secretly filtered, altered, or slowed by your ISP because they don’t want you to see that particular speech.
If you go online to figure out which workers’ union you might want to join, you wouldn’t expect that your ISP is hiding access to a telecommunications workers union they’re locked in a political fight with. But, that happened in Canada. You probably wouldn’t guess that your Netflix queue didn’t load because your ISP is Comcast—which held Netflix fiscally hostage until they paid higher fees for access. That happened. Nor would you think that you could be prevented from using FaceTime to call your grandma, just because you use AT&T. Yeah, that happened too.
Without effective neutrality rules, ISPs can and will act as censors of digital information, rather than neutral conduits for the speech they carry over their networks. And you might not even realize it’s happening, because it’s difficult to identify what you’re not being shown.
That’s why we need government action. And earlier this year, the FCC answered the call by issuing the Open Internet Order, which sets forth rules that are necessary to prevent invisible content discrimination and protect our online marketplace. For starters, it regulates ISPs as “common carriers”—basically, a utility like the radio spectrum waves. This means they have a duty to transmit our speech whether they like what we say or not. To do that, the order includes bright-line rules forbidding ISPs from blocking access to legal online speech (like the Canadian union’s website),throttling or slowing down data on the basis of its type (like what happened to FaceTime), or prioritizing certain traffic in exchange for payment (as Netflix was forced to do). These rules add up to preserve the expectations we have of our ISPs: that they remain neutral conduits—that is, common carriers—for online speech. They shouldn’t, and now can’t, act as censors instead.
ISPs have challenged the legality of the order in federal court, and some people in the case argue that it actually violates the free speech rights of ISPs. But we’re convinced that the order doesn’t violate the First Amendment—it vindicates it.
That’s true for a few reasons. First, we know that without fair and neutral access to online content, our 21st Century marketplace of ideas lies out of reach. The consequences for our individual rights are simply immense. Can you even wrap your head around an Internet that produces pockmarked results based on secret fiscal alliances? It certainly wouldn’t be the Internet we think of now.
But in contrast, the impact on ISP’s expression is downright minimal. Critically, the FCC’s order doesn’t regulate ISPs when they themselves are speaking. Many ISPs play two roles: providing access to the Internet writ large and hosting their own content. For example, Verizon both provides Internet services and hosts its own speech on its website. The order regulates Verizon and other ISPs only in the role as conduits of information—that is, it requires them to be the neutral carriers of speech they insist that they already are.
In addition, ISPs enjoy certain exclusive rights provided by the government. The ISP market was born and remains anchored on top of existing cable and wireless networks subsidized and auctioned off by the government. And with this massive advantage, a small number of ISPs have dominated the broadband market: only 37 percent% of Americans have a choice between two or more broadband providers that offer useable bandwidth (those providing a download speed of 25Mbps or better for you nerds out there). That means it’s a monopolistic market in part created by the government—which has an interest in making sure that its citizens all get to enjoy the digital fruits of that labor. In sum, while the consequences for individual speech and expression are massive, the impacts on ISPs simply aren’t.
Imagine if big companies could control what you do, see, or say on the Internet. The only thing standing between you and that possible future is the FCC’s Open Internet Order. And we filed a brief Monday to make sure it sticks.