Cable Lobbyist Says Net Neutrality Violates The First Amendment

from the how? dept

Thu, Dec 10th 2009 3:22pm — Mike Masnick

Before we get into the details here, I should state, as a reminder, that I'm not in favor of passing laws mandating net neutrality, as I believe that there is a very strong potential for negative unintended consequences. Yet, I do think that the principle of network neutrality is important, and that it would be a serious mistake for ISPs to look to erode it. Basically, the issue is a lot more nuanced than it is often made out to be. But one thing that is quite clear is that some of the claims on all sides of the debate have gone to ridiculous levels. You may recall, for example, the flat out lie by lobbyist Mike McCurry, saying that Google paid nothing for bandwidth and its push for net neutrality was to keep getting bandwidth for free. That's a complete lie.

And now, a whole bunch of you have sent in the story about how a top cable industry lobbyist, Kyle McSlarrow, of the NCTA, is claiming that any net neutrality mandate would violate ISP's First Amendment rights. What he doesn't explain is how. And that's because he can't. He stacks a few different concepts on top of one another to argue that net neutrality could prevent cable companies from "delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service." Except, there's nothing in the suggested FCC mandates that would do that. And even if it did, it's still difficult to see how it would be a First Amendment violation.

There are tons of very good reasons why we might want to avoid mandating net neutrality through law. But arguing that it will be a First Amendment violation isn't one of them... and it makes me wonder why lobbyists fighting against the regulations keep bringing up such bad arguments.

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Filed Under: cable companies, first amendment, net neutrality
Companies: ncta

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Ima Fish (profile), 10 Dec 2009 @ 3:36pm

The problem is the word neutral. I don't think ISPs should have to be neutral. If Comcast wants to make a deal with Netflix for super-fast streaming movies, it should be allowed to do so.

The real problem is network discrimination. ISPs should not be allowed to discriminate against websites and services.

So for a real world example, if I pay for a 6 Mbps service from Comcast, Comcast should not be allowed to throttle any website lower than what I'm paying for. It simply makes no sense for me to pay for a service and have the ISP throttle it below what I'm paying for.
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Matt (profile), 10 Dec 2009 @ 3:41pm

Wait.. .no, this makes sense
The concept of net neutrality is that a cable company should not be able to edit the content its users see. It should be content-neutral. But it may not want to be content-neutral: in fact, it may very much want to use its privileged position as gatekeeper to ensure that its customers are delivered messages it wants them to see, and not delivered messages it does not want them to see. The right to be free from a government-imposed viewpoint, including the viewpoint of content-neutrality, is precisely what the First Amendment has been interpreted to protect.

The point is even more clear when one considers McSlarrow's actual point, which is that it is an amazing hypocrisy for net neutrality advocates to argue that the reason for it is the First Amendment right of consumers to consume the messages the want. McSlarrow's point was that that is _not_ what the First Amendment provides. It does not say that there will be no censorship, only that there will be no _government_ censorship. Private (cable) company censorship is certainly not implicated by the First Amendment, except that the First Amendment means that the government cannot regulate such censorship. Which is what net neutrality seeks to do.

The real problem with McSlarrow's argument isn't that he is wrong (he isn't,) but that cable companies enjoy a government-mandated monopoly that comes with strings. One of the strings is government control of content. Although this is arguably unconstitutional, I am certain that McSlarrow would not be thrilled with the alternative - complete deregulation.
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n, 10 Dec 2009 @ 3:43pm

There is no wonder... The lobbyists just have no concept of the workings of the technology they are trying to govern.
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Marcus Carab (profile), 10 Dec 2009 @ 3:47pm

Re:
I'm not sure that would be completely avoiding the problem though... speed in this case is all about priority: making a deal with Netflix would mean giving them priority for bandwidth usage, otherwise there's not really any deal. Even if they weren't actively sucking bandwidth from other sites and services, in a case of network congestion Netflix would have to get special treatment.

Unless of course they were selling unused bandwidth to Netflix at a special rate - but that would raise the question of why there was ever any throttling going on in the first place.
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Ima Fish (profile), 10 Dec 2009 @ 3:52pm

Re: Wait.. .no, this makes sense
"The right to be free from a government-imposed viewpoint, including the viewpoint of content-neutrality, is precisely what the First Amendment has been interpreted to protect..."

What you're forgetting is that cable companies and ISPs all use our right-of-ways. That is, their cables go over our land but they pay us nothing for the privilege. In other words, it is not a free market.

If Comcast truly worked out all the deals necessary to run its cables across my land, my neighbor's land, and everyone else's land, in a free market and paid actual free market prices, I'd agree with you. But once the government gives them a break, and they willingly take that break, suddenly they can no longer rest on being free and independent from the government.

The phone company survives without getting to decide who gets to call whom? Are their first amendment rights being violated?
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Marcus Carab (profile), 10 Dec 2009 @ 3:55pm

Re: Wait.. .no, this makes sense
Generally I am uneasy about NN laws, though I'm not entirely convinced either way - but I completely agree with your point about private censorship. However, I think that's exactly the reason that laws are being considered in this case: we (well, I'm from Canada, but we have a similar situation) have ourselves stuck in a spot where an extremely important tool (arguably the most important tool in the modern world) for free speech entirely controlled by private entities. The internet is already seen as a necessity by most, and has been declared a basic human right by some, and you can't deny that there are a lot of arguments for neutral internet access as an absolute necessity in a modern nation that truly values free speech.

Again, undecided - but I certainly understand the uneasiness about letting a handful of private companies control our most important communications tool.
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Ima Fish (profile), 10 Dec 2009 @ 3:56pm

Re: Re:
I didn't explain my point well.

ISPs claim that net neutrality laws would stop them from innovating and forming partnerships. They're right.

So Comcast, for example, should be able to form partnerships and offer a high speed access from those partnerships to its users.

They would do that with a multi-tiered approach. Comcast could offer for example a 6 Mbps internet service with a 10 Mbps service for "trusted partners" or some other term.

The ISP would get to innovate and make partnerships, the customer would get the internet he paid for, and no one would be shut out of access to the customer, so websites would still be allowed to innovate and get new readers/subscribers/etc, without paying the ISP for the privilege.
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Marcus Carab (profile), 10 Dec 2009 @ 3:58pm

Time to start working through all that material at the "not so nuanced" link...
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Marcus Carab (profile), 10 Dec 2009 @ 4:03pm

Re: Re: Re:
Okay I see now.

Really, the core of it in terms of throttling (as distinct from the censorship part of the debate) is that you need to get what you pay for, and the terms need to be clear. If they are going to selectively throttle bandwidth, they need to tell you upfront, not just sell you "unlimited 6Mbps service!" and then serve it up to you as they see fit - which seems to be what they are doing to some degree. They got a bit of a chiding for it here in Canada recently, but the end result was very little change, and they are still allowed to throttle (to slay the elusive bandwidth hog!)
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Karl Bode, 10 Dec 2009 @ 4:25pm

Neutrality laws....
I'm not sure I believe that neutrality laws are needed, Especially since we're still not even sure what the term means. But I continue to believe that the THREAT of possible network neutrality laws is invaluable in keeping carriers on their best behavior....
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Matt (profile), 10 Dec 2009 @ 4:33pm

Re: Re: Wait.. .no, this makes sense
To be sure, the Internet has become a free place to speak. Reasonable minds can quibble over the degree of its importance and value, but it is obviously both important and valuable. It is a bit of a stretch to go from that to malease over private control: newspapers, which were inarguably the great engines of expression not so very long ago (even I remember those days, and I don't remember much,) were and are privately owned. Somehow, expression survived without government-imposed control or regulation. But assume we make the stretch. McSlarrow's point is still valid: constitutions do not exist for the times when it is convenient for government to go along with the whims of private entities. Constitutions exist to limit government precisely when it is most inconvenient to do so, when there would be a legitimate social benefit to permitting government to do the thing the Constitution prohibits.

If there is a need for an ISP unadultered by favoritism and throttling, that need will be met in a truly free market. The problem is not with private control. It is with government sticking its thumb on the scales whenever consumers try to way the benefits of different private controllers. As Ima Fish points out, ISPs as now incarnated exist largely on public largesse. Get rid of that, and competition will increase.
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Anonymous Coward, 10 Dec 2009 @ 4:54pm

Re: Wait.. .no, this makes sense
I disagree. If I am paying you for connectivity, why would I want you to censor that connection? I believe I am a responsible adult, able to determine for myself what I do and do not wish to see.
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Anonymous Coward, 10 Dec 2009 @ 5:22pm

Mike, can you please be just as pessimistic and dismissive of the guys pushing the idea that copyright violates the first amendment as well? It's only fair, as both arguments appear to be based on nothing more than a twisted view of the universe.
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m3mnoch (profile), 10 Dec 2009 @ 5:34pm

the first amendment?
do corporations even have a first amendment?

m3mnoch.
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Marcus Carab (profile), 10 Dec 2009 @ 5:36pm

Re: Re: Re: Wait.. .no, this makes sense
I tend to agree. I'm just pointing out the root of the concern - and I can see why it leads some to want government intervention. But ultimately a market-driven solution is more desirable.
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Marcus Carab (profile), 10 Dec 2009 @ 5:38pm

Re:
The concept of copyright does not, in itself, violate the first amendment, but copyright laws can be and have been used in ways that might.
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Not a Whining BizDude, 10 Dec 2009 @ 6:02pm

I thought the 1st amendment did not apply to corporations, companies or any other business. Since when did a business become a person?
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Christopher (profile), 10 Dec 2009 @ 6:44pm

All miss the point.
It's the last mile.

Anyone who connects you to a central switching hub should not be the entity that provides content. In other words, Ford should not manage or maintain the street in front of your house. Or the NJ Turnpike Authority, for that matter. This seems to have been lost c. 1999-2000. I give it another two years before everyone rediscovers David Isen's paper on this topic.
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Of Course, 10 Dec 2009 @ 6:49pm

Re: All miss the point.
Conflict of Interest
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known coward, 10 Dec 2009 @ 6:52pm

is the 'right to charge money' a first amendment right ?
if making a product offering is a first amendment right, i get it. I do not agree but i get the arguement. Otherwise I would say to the lobbyist’s "huh"?
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Mike Masnick (profile), 10 Dec 2009 @ 7:31pm

Re: Neutrality laws....
I'm not sure I believe that neutrality laws are needed, Especially since we're still not even sure what the term means. But I continue to believe that the THREAT of possible network neutrality laws is invaluable in keeping carriers on their best behavior....

Yeah, I could agree with that. Ed Felten made that point years ago, and it still rings true.
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Mike Masnick (profile), 10 Dec 2009 @ 7:33pm

Re:
Mike, can you please be just as pessimistic and dismissive of the guys pushing the idea that copyright violates the first amendment as well? It's only fair, as both arguments appear to be based on nothing more than a twisted view of the universe.

Heh. No, one is based on sound legal theory from well known and well-respected legal scholars.

And one is from a lobbyist. And is based on nothing.

I can tell the difference. Can you?
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Anonymous Coward, 10 Dec 2009 @ 8:28pm

Re: Re:
Yup - you like one, and you don't like the other.

Got it.
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senshikaze (profile), 11 Dec 2009 @ 5:15am

Re: the first amendment?
no, but that never stopped anybody, including the courts:
http://www.celdf.org/GuestEditorials/Corporations1stAmendmentandDoNotCall/tabid/184/Default .aspx
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Glenn, 11 Dec 2009 @ 6:10am

As always...
another good chuckle provided by some lobbyist.

Net neutrality is simple contract law: either provide the subscribed Internet access... or don't--if you (the ISP) don't, then you're violating the contract (and I'm not contracting for some ISP's "filtered" Internet access).
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Bill, 11 Dec 2009 @ 7:08am

Re: censorship
There's a vast difference between newspapers and the internet. A newspaper publisher has complete say to what they do and do not print. They both own their physical medium and control the content that's in it.

The internet is different. An ISP only owns the physical medium of delivery and any services they add. The rest of the internet should not be under their jurisdiction for any reason, at any level. They should not have a right to say that certain sites, emails, etc are what I should see and others not, or prioritize one thing over another. If they want to make deals on content then that's great, and offer it high bandwidth, that's good. But, I must get what I pay for, unfiltered, uncontrolled.

The 1st amendment rights of businesses should be challenged. Since the whole concept was a literal mistake in the first place.
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Hephaestus (profile), 11 Dec 2009 @ 7:19am

Re: Re: Re: Re:
"If they are going to selectively throttle bandwidth, they need to tell you upfront, not just sell you "unlimited 6Mbps service!"

Whats funny is that this guy brought up First Amendment violations. So far we have seen throttling, not allowing various applications, and limiting other video providers access to the cable networks last mile. That would be infringing on the freedom of speech and in the case of a news channel infringing on the freedom of the press. So wouldnt they be the ones Violating the First Amendment?

See how easy it is to make a BS argument....

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
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Steven, 11 Dec 2009 @ 7:29am

Re:
If Comcast enters into a deal with Netflix to stream it's movies faster than a competitor of Netflix it's constraint of trade.

Look at it this way. what if the state you live in made a deal with a delivery company that let their trucks speed at 100mph on all highways and roads, but the delivery company's competitors had to follow the posted speed. the company that can speed has entered into a deal that gives it an unfair advantage in the marketplace and negatively effects the free market.

the internet is no longer just a means of entertainment, it is now a necessary part of commerce and any form of discrimination of preference an isp shows negatively impacts commerce.
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Anonymous Coward, 11 Dec 2009 @ 8:43am

Re: Neutrality laws....
damn I wish Canada's Rogers/Bell duopoly could be threatened into actually providing a good service at a resonable rate
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Jeff, 11 Dec 2009 @ 8:46am

I have a number of thoughts on this subject -I agree that net neutrality is a very ambiguous term. As an avowed net geek, and IT dude, I don't have a strong opinion on the veracity of Mr. McSlarrow's claim of First Amendment rights for a corporation. I do have some very strong opinions on the cable industry's becoming the defacto providers of choice. Free markets generally work to correct an imbalance of power - in this case an ISP throttling content would lose business to one that doesn't. Except that in a large portion of the US (I'm biased here) - most markets are only served by one provider. When they are the sole provider of content, they have the power to selectively choose which content you access, then they are abridging my first amendment rights, and at the same time improperly constraint of trade. ISPs do have the right to partner with whomever they wish too, but they should not have the power to then force their partnership upon me. Normally, I would have the option of voting with my feet (and dollars) and take my business elsewhere, but for a large number of markets in the US this isn't feasible (ever try going back to dial up). The arguments about public right-of-ways aren't really the core of the matter here - the core of the matter is that ISPs are not only consolidating (thus removing choices), but they are also becoming content providers (see purchase of NBC networks by Comcast). While I consistently come down on the rights of the end customer to determine what content they can access, I also believe ISPs have the right to any partnership they choose. The point of the knife if you will, is that I must be free to choose whether or not I participate in that partnership without penalty.
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AMusingFool (profile), 11 Dec 2009 @ 11:09am

Re:
I thought the 1st amendment did not apply to corporations, companies or any other business. Since when did a business become a person?
1886
http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad
And yes, it's a travesty of a decision (not that I think that the companies should have been deprived of due process, but that doesn't mean they should have all privileges of being a person), but somehow still out there. How it didn't contradict the 13th Amendment, I've no idea. After all, isn't the definition of slavery one person owning another?
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pete, 11 Dec 2009 @ 3:08pm

Telecom uses public property/right of way to place their lines. Therefore they must follow government regulations. If your standing in a highway, and a police officer tells you to disperse, and you claim first amendment, see how far that gets you.
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It's wrong, 11 Dec 2009 @ 5:31pm

Re: Re:
Ok, but did that decision re 14th amendment pertain to all amendments?

1st - " ... abridging the freedom of speech ... "
speech - Speech is the vocalized form of human communication.
(both via wikipedia)

A business is not human, therefore the First Amendment is not applicable.
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Brad Morrison, 15 Dec 2009 @ 11:57am

We missed the boat ...
... when we allowed anyone/everyone to get into the ISP business w/o regulating ISPs. I remember it well, and I missed it, lock, stock, and barrel. I was in favor of more ISPs of any kind, put 'em all online, let the free market sort 'em out.

Never occurred to me that content providers becoming ISPs could be a problem. Now, those telcos and other backboners who got to also offer retail ISP service, I knew that was a bad idea.
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