Invoking and Avoiding the First Invoking and Avoiding the First Amendment: How Internet Service Amendment: How Internet Service

Providers Leverage Their Status as Both Providers Leverage Their Status as Both Content Creators and Neutral ConduitsContent Creators and Neutral Conduits

A Presentation at the A Presentation at the 37th Research Conference on Communication, 37th Research Conference on Communication, Information, and Internet Policy Information, and Internet Policy

George Mason University School of Law Arlington, VAGeorge Mason University School of Law Arlington, VA

September 25-27, 2009September 25-27, 2009

Rob Frieden, Professor of Telecommunications and LawPenn State University

rmf5@psu.eduWeb site : http://www.personal.psu.edu/faculty/r/m/rmf5/

Blog site: http://telefrieden.blogspot.com/

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ISPs Operate As Content Creators and Managers As Well As Conduits

ISPs have exploited regulatory asymmetry that enables them to toggle between claims of First ISPs have exploited regulatory asymmetry that enables them to toggle between claims of First Amendment speaker status and insistence that they merely operate as neutral conduits (but of Amendment speaker status and insistence that they merely operate as neutral conduits (but of course, not as common carriers). course, not as common carriers).

As speakers, ISPs claim private property ownership rights, the need to manage their networks, As speakers, ISPs claim private property ownership rights, the need to manage their networks, their qualification as largely unregulated information services providers and ample competition in their qualification as largely unregulated information services providers and ample competition in the marketplace of ideas via an Internet-mediated forum to support limited, if any, need for the marketplace of ideas via an Internet-mediated forum to support limited, if any, need for government oversight. government oversight.

But as neutral conduits, ISPs eschew any content creator or manager activities with an eye toward But as neutral conduits, ISPs eschew any content creator or manager activities with an eye toward maintaining legislatively conferred insulation from liability for any harms resulting from the maintaining legislatively conferred insulation from liability for any harms resulting from the content they carry.content they carry.

Technological and market convergence supports multi-faceted ventures, arguably qualifying for Technological and market convergence supports multi-faceted ventures, arguably qualifying for more than one regulatory classification. more than one regulatory classification.

Congress, the FCC and reviewing courts expect mutually exclusivity between regulatory models Congress, the FCC and reviewing courts expect mutually exclusivity between regulatory models and service definitions: regulated telecommunications service provider vs. largely unregulated and service definitions: regulated telecommunications service provider vs. largely unregulated information service provider; speaker/non-speaker.information service provider; speaker/non-speaker.

Having it Both WaysHaving it Both Ways When ISPs operate (or claim to operate) as neutral conduits they qualify for near totalWhen ISPs operate (or claim to operate) as neutral conduits they qualify for near total

insulation from secondary liability for torts and copyright infringement occurring over insulation from secondary liability for torts and copyright infringement occurring over their networks. (Sec. 230 of the Communications Decency Act and Sec. 512 of the their networks. (Sec. 230 of the Communications Decency Act and Sec. 512 of the Digital Millennium Copy Right Act).Digital Millennium Copy Right Act).

Unlike other media, such as cable television, whose operators rejected any parallel to Unlike other media, such as cable television, whose operators rejected any parallel to conduit neutrality as anathema to their First Amendment speaker rights, ISPs heretofore conduit neutrality as anathema to their First Amendment speaker rights, ISPs heretofore have embraced conduit neutrality, which vitiates their expressive freedom, but which have embraced conduit neutrality, which vitiates their expressive freedom, but which qualifies them for insulation from content liability.qualifies them for insulation from content liability.

Absent the imposition of controversial quasi-common carrier network neutrality/cable Absent the imposition of controversial quasi-common carrier network neutrality/cable must carry obligations, ISPs can monitor, manage, prioritize, subordinate, and must carry obligations, ISPs can monitor, manage, prioritize, subordinate, and otherwise affect content in their capacity as programmers and walled garden formatters.otherwise affect content in their capacity as programmers and walled garden formatters.

When it suits them, ISPs can abandon these roles above, or appear to do so when the When it suits them, ISPs can abandon these roles above, or appear to do so when the risk of liability reaches a certain risk threshold.risk of liability reaches a certain risk threshold.

Structural separation between conduit and speaker function would allow ISPs to operate Structural separation between conduit and speaker function would allow ISPs to operate in both spheres.in both spheres. 33

The Information Service Classification Safe HarborThe Information Service Classification Safe Harbor When ISPs qualify as information service providers, they need not separate content from conduit, When ISPs qualify as information service providers, they need not separate content from conduit,

because the classification subordinates the telecommunications component without risking the because the classification subordinates the telecommunications component without risking the imposition of common carrier responsibilities.imposition of common carrier responsibilities.

The The Brand XBrand X case endorses ISPs’ ability to emphasize content creation, selection, packaging, and case endorses ISPs’ ability to emphasize content creation, selection, packaging, and processing function.processing function.

ISPs have successfully manipulated this bi-modal environment to their commercial advantage by ISPs have successfully manipulated this bi-modal environment to their commercial advantage by finding ways to operate non-neutral networks without regulatory sanction.finding ways to operate non-neutral networks without regulatory sanction.

The FCC has rejected ISPs’ invocation of First Amendment protection as inapplicable, but rarely The FCC has rejected ISPs’ invocation of First Amendment protection as inapplicable, but rarely has anyone, including advocates for network neutrality rules, examined the scope of ISP speaker has anyone, including advocates for network neutrality rules, examined the scope of ISP speaker rights and whether such rights dominate over subscribers, and unaffiliated content providers rights and whether such rights dominate over subscribers, and unaffiliated content providers seeking to reach them via ISP networks.seeking to reach them via ISP networks.

Don’t providers of information services qualify for First Amendment protection even if they Don’t providers of information services qualify for First Amendment protection even if they largely operate conduits to provide the services? Put another way, how different is the ISP option largely operate conduits to provide the services? Put another way, how different is the ISP option of supplying content in a walled garden or “home” web page different from cable television of supplying content in a walled garden or “home” web page different from cable television operators selection of content? Bear in mind that ISPs soon will use packet sniffing and other operators selection of content? Bear in mind that ISPs soon will use packet sniffing and other verification technologies to determined whether a subscriber can have access to premium content.verification technologies to determined whether a subscriber can have access to premium content.

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Convergence Triggers a Regulatory QuandaryConvergence Triggers a Regulatory Quandary Technological innovations make it possible for ISPs to provide subscribers passive conduit access, Technological innovations make it possible for ISPs to provide subscribers passive conduit access,

or actively managed access to services that offer functional equivalent and competitive alternatives or actively managed access to services that offer functional equivalent and competitive alternatives to cable television and to broadcast radio and television. to cable television and to broadcast radio and television.

Because the FCC has interpreted the Communications Act to foreclose imposition of Title II Because the FCC has interpreted the Communications Act to foreclose imposition of Title II common carrier responsibilities, an emphasis on content and the Commission’s reticence to common carrier responsibilities, an emphasis on content and the Commission’s reticence to regulate it implies that ISPs have First Amendment speaker rights and that the Commission must regulate it implies that ISPs have First Amendment speaker rights and that the Commission must respect these rights when applying any form of non-Title II, non-conduit related regulation.respect these rights when applying any form of non-Title II, non-conduit related regulation.

Technological innovations also make it possible for ISPs to monitor, filter, and inspect content, Technological innovations also make it possible for ISPs to monitor, filter, and inspect content, e.g., to determine if a particular subscriber also subscribes to a pay cable channel, such as HBO, e.g., to determine if a particular subscriber also subscribes to a pay cable channel, such as HBO, thereby entitling that subscriber to access such content via the ISP while the ISP otherwise would thereby entitling that subscriber to access such content via the ISP while the ISP otherwise would block such access to non-subscribers.block such access to non-subscribers.

““Packet sniffing” technologies can help ISPs operate more efficiently and with less risk for harm to Packet sniffing” technologies can help ISPs operate more efficiently and with less risk for harm to their network caused by a cascade of service requests designed to cause congestion or outages, their network caused by a cascade of service requests designed to cause congestion or outages, proliferation of spam, and the variable, legitimate service demands of subscribers. These proliferation of spam, and the variable, legitimate service demands of subscribers. These technologies also can help ISPs offer new services that facilitate non-neutral network operation technologies also can help ISPs offer new services that facilitate non-neutral network operation with an eye toward providing customized services that prioritize or downgrade traffic streams with an eye toward providing customized services that prioritize or downgrade traffic streams based on classifications of customers, and the traffic they generate for downstream or upstream based on classifications of customers, and the traffic they generate for downstream or upstream delivery. delivery.

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How Non-Neutral Can an ISP Be?How Non-Neutral Can an ISP Be? When ISPs operate their conduit function in a non-neutral way, the First Amendment rights of speakers upstream When ISPs operate their conduit function in a non-neutral way, the First Amendment rights of speakers upstream

and subscribers downstream may be impacted negatively if the ISP engages in discrimination designed not to and subscribers downstream may be impacted negatively if the ISP engages in discrimination designed not to provide premium delivery services (such as “better than best efforts” routing) for an additional fee, but to provide premium delivery services (such as “better than best efforts” routing) for an additional fee, but to discipline, punish, competitively handicap and otherwise degrade, or block messages of disfavored network discipline, punish, competitively handicap and otherwise degrade, or block messages of disfavored network users in either direction.users in either direction.

  ISPs do not trigger First Amendment concerns when they operate as “equal opportunity” discriminators, e.g., ISPs do not trigger First Amendment concerns when they operate as “equal opportunity” discriminators, e.g., Comcast’s use of software to detect and degrade peer-to-peer file transfers.Comcast’s use of software to detect and degrade peer-to-peer file transfers.

ISPs potentially do impact the First Amendment interests of content providers and/or subscribers when non-ISPs potentially do impact the First Amendment interests of content providers and/or subscribers when non-neutral network operating strategies succeed in substantially blocking access to specific messages and types of neutral network operating strategies succeed in substantially blocking access to specific messages and types of content. Might an ISP have a public relations, competitive, or other reason to target content? Should an ISP content. Might an ISP have a public relations, competitive, or other reason to target content? Should an ISP operate at the gatekeeper and “good samaritan” to decide whether to block content that might offend some operate at the gatekeeper and “good samaritan” to decide whether to block content that might offend some subscribers, but which nevertheless qualifies for some degree of First Amendment protection?subscribers, but which nevertheless qualifies for some degree of First Amendment protection?

It becomes quite easy, absent transparency and regulatory oversight, for an ISP to cross the line and use network It becomes quite easy, absent transparency and regulatory oversight, for an ISP to cross the line and use network management as a blanket justification even for tactics designed to handicap competitors and favor affiliates or management as a blanket justification even for tactics designed to handicap competitors and favor affiliates or premium paying subscribers by blocking, throttling, delaying, and dropping traffic packets even in the absence premium paying subscribers by blocking, throttling, delaying, and dropping traffic packets even in the absence of network congestion.of network congestion.

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RecommendationsRecommendations

Structural separation would permit a single commercial venture to pursue both Structural separation would permit a single commercial venture to pursue both carrier and conduit functions, but not in an integrated manner.carrier and conduit functions, but not in an integrated manner.

Telephone companies and ISPs detest this option, but embrace it when providing Telephone companies and ISPs detest this option, but embrace it when providing wireless and telephone directory services. Several nations, including Australia, New wireless and telephone directory services. Several nations, including Australia, New Zealand and the U.K. have imposed or approved structural separation of the Zealand and the U.K. have imposed or approved structural separation of the incumbent telephone company into a carriers’ carrier/wholesaler and competitive incumbent telephone company into a carriers’ carrier/wholesaler and competitive provider of retail services.provider of retail services.

The duty to operate in a transparent fashion, modest reporting requirements, and The duty to operate in a transparent fashion, modest reporting requirements, and formal dispute resolution rules should accrue ample dividends including assurance of formal dispute resolution rules should accrue ample dividends including assurance of parity between the ISP, its subscribers, and unaffiliated content providers. parity between the ISP, its subscribers, and unaffiliated content providers.

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