The battle over federal "net neutrality" rules resumes Monday when a federal appeals court takes up the challenge filed by one of the country's largest Internet service providers: Verizon. The phone company, which argues that the Federal Communication Commission's rules violate federal law and the Constitution, asserts that ISPs have a 1st Amendment right to edit or block the data flowing from websites to their customers. The company's stance is strange and self-contradictory, considering its long-standing efforts to be freed from liability for the "speech" that travels through its wires. The court should reject it out of hand.
Adopted by a divided FCC in December 2010, the neutrality rules prohibit ISPs on wired networks from blocking legal sites and services, imposing extra charges to deliver a website's data to subscribers or "unreasonably" prioritizing some types of traffic over others. That sort of hands-off treatment has been a standard practice among ISPs since the first data were transmitted. But the commission's order does not stop ISPs from offering "specialized" services over the same wires that give preferential treatment to content partners; a good example is the pay-TV service that Verizon sells through its FiOS high-speed Internet lines.
Verizon argues that "just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others." That would be true if ISPs marketed Internet connections that looked like cable TV, with limited packages of websites the ISPs selected. Obviously they don't, and it's hard to imagine who'd be willing to give their ISP that kind of control.
Nor is delivering data from a website to one's customers a form of legally protected speech. The Internet access that ISPs provide isn't an expression, it's a conduit. As Duke University Law School professor Stuart M. Benjamin has written, "a company's nondiscriminatory transportation (of bits or anything else) enables communication, but it has no content, and thus expresses no ideas."
Verizon's assertion that it has a 1st Amendment right to edit the data passing through its network contrasts sharply with the position it has taken in fights over its users' unauthorized downloading of movies and music. For example, it has shielded itself from liability for copyright infringement by invoking legal "safe harbors" reserved for services that merely transmit users' data with no editorial control.
If Verizon wishes to offer an online service with content that it curates for users, or that lets content providers pay for prioritized access to its customers, it's free to do so under the commission's rules — just not as a substitute for Internet access. That's the thrust of the commission's neutrality rules. And with most homes having no more than two choices for truly high-speed Internet access, it's a principle worth preserving.
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