[NYTr] Unbridled discretion, prior restraint: Verizon &Comcast stories

[All the News That Doesn't Fit]

Scrawford Net - Nov 19, 2007
http://scrawford.net/blog/unbridled-discretion-and-prior-restraint-the-verizon-and-comcast-stories/1052/

Unbridled discretion and prior restraint: 
the Verizon and Comcast stories

by Susan Crawford 

Let’s say that providing communications infrastructure is an inherent
function of a state.  Most people think of the internet as a telephone
system, and most people think the telephone companies aren’t supposed
to choose which calls will go through based on their content.   People
think that because they think internet access, like telephone access,
is a utility — like electricity conduit, water pipes, etc. — that has
something to do with the government, and the government isn’t supposed
to discriminate.

If it’s true that there’s something about communications infrastructure
that is government-like, or government-related, then the companies
involved in providing that infrastructure may have obligations to the
public not to interfere with the speech of those using their
facilities.  This makes sense in the current market context, which
isn’t very competitive.

(These obligations wouldn’t extend to the applications used by people
online.  If the infrastructure is the water pipe, then online
applications are the soup made out of the water.  Or something like
that.)

These obligations include, under U.S. law, a respect for free speech.

Even if the network providers don’t have a legal obligation to respect
free speech under current law (because they’re not “state actors,” a
term that has a thicket of caselaw surrounding it), the role they play
in society carries with it an obligation to respect this legal regime.

And yet.  The network providers want to have complete control over what
speech goes through and what doesn’t (BitTorrent v. streaming video
from their partners).  They want some speech to arrive more efficiently
than other speech (tiering v. the “best efforts” network that is the
internet).  They want to have, in effect, power over a licensing
regime.  But that licensing regime carries with it the power to offer
no choices at all.  It has no objective limitations.

If a state government did this, we’d be horrified.  We’d say that
allowing the government to pick and choose which speech goes through
allows that government to engage in viewpoint discrimination.  We’d say
that the government was engaging in prior restraints on speech.  We’d
say this is unconstitutional censorship.

We’re usually deeply skeptical of licensing schemes that grant
unbridled discretion to government officials.  Why be unsuspicious of
the filtering actions of these state-like network providers?

The petitions filed in connection with the Comcast spoofing are asking,
in essence, for narrow, objective, and definite standards to guide the
licensing authority of the network providers.  If they have to have
“network management” control, then let’s say what constitutes
legitimate network management.

Otherwise we’ve just set up a system of uncontrolled discretion in the
hands of a few large companies that grant us access to the internet.

[Susan Crawford is currently a Visiting Professor of Law at the Univ. of
Michigan Law School, teaching cyberlaw and communications law. Next
term (spring 2008), she will be a Visiting Professor of Law at Yale Law
School. She is a member of the board of directors of ICANN and is the
founder of OneWebDay, a global Earth Day for the internet that takes
place each Sept. 22. Ms. Crawford received her B.A. (summa cum laude,
Phi Beta Kappa) and J.D. from Yale University. She served as a clerk
for Judge Raymond J. Dearie of the U.S. District Court for the Eastern
District of New York, and was a partner at Wilmer, Cutler & Pickering
(Washington, D.C.) until the end of 2002, when she left that firm to
enter the legal academy. Susan, a violist, usually lives in New York
City and teaches at Cardozo Law School.]