Last week, Verizon filed a brief with the U.S. Court of Appeals for the D.C. Circuit laying out their various and sundry complaints against the Federal Communications Commission’s Open Internet Order, which put net neutrality regulations in place for Internet service providers. The telecom giant is suing to have the FCC’s order thrown out, and one of their legal arguments is raising more than a few eyebrows. Verizon, per the court document, considers itself your Internet editor. Or your Internet editor-in-waiting.
It goes like this: the Open Internet Order says that Verizon, as a provider of broadband Internet, can’t block or slow access to (legal) online content because they disagree with its message or are being paid by an outside party to do so. This is essentially how the internet has operated since its inception, and the Open Internet Order is intended to prevent ISPs like Verizon from becoming gatekeepers. Verizon, however, argues that it has the constitutionally protected right to decide which content you, as a Verizon customer, can access — that it is no different from a newspaper editor:
Broadband providers transmit their own speech both by developing their own content and by partnering with other content providers and adopting that speech as their own. For example, they develop video services, which draw information from, and are then made available over, the Internet. Many also select or create content for their own over-the-top video services or offer applications that provide access to particular content. They also transmit the speech of others: each day millions of individuals use the Internet to promote their own opinions and ideas and to explore those of others, and broadband providers convey those communications.
In performing these functions, broadband providers possess “editorial discretion.” Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others. Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, Order ¶ 14 (JA__), they nonetheless possess discretion that these rules preclude them from exercising.
This argument is fraught with problems. Jeff Jarvis observes that if Verizon is asserting editorial control over the content that passes over its pipes, then that implies ownership of that content. “Does Verizon really want to be responsible for everything distributed on the net, including libel, theft, and other illegal behavior? I doubt it.” Verizon cites as precedent Turner Broadcasting System, Inc. v. FCC (1994), in which the Supreme Court ruled that cable companies enjoy First Amendment protection because they exercise editorial discretion in transmitting the speech of others, and are not merely neutral pathways over which speech is transmitted without restriction or interference. Internet service providers, per Verizon’s reasoning, are no different.
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But here’s the hitch: it’s tough for an ISP to argue that it isn’t a neutral pathway when ISPs also benefit from laws that treat them as neutral pathways. For example, if you use your Verizon internet connection to commit copyright infringement, you might end up in a heap of trouble, but Verizon won’t. The Digital Millennium Copyright Act of 1998 says ISPs can not be held responsible if infringing material merely passes through their network. Indeed, when the Recording Industry Association of America sued Verizon to turn over the name of a subscriber thought to be engaging in copyright infringement, Verizon successfully argued that they were “acting merely as a conduit for an individual using a P2P [person to person] file sharing program to exchange files,” and were thus not legally obligated to release the name.
As Penn State law professor Rob Frieden sees it, ISPs like Verizon are playing both sides:
ISPs seemingly can turn on and off their speaker status to qualify for two different types of limits on government regulation of the content ISPs deliver. When operating ostensibly as neutral conduits, these episodic advocates of free expression gladly abandon this status for an even more desirable one: qualifying for safe harbor exemptions from tort and copyright infringement liability. 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 have embraced conduit neutrality, which vitiates their expressive freedom, but which qualifies them for insulation from content liability.
But even if you allow that ISPs do have the right to “editorial discretion” when it comes to the content that passes through their networks, that doesn’t change the fact that no one is actually forcing Verizon to publish or promote the content or opinions of others. The Open Internet Order mandates equal access to online content (allowing for reasonable discrimination). “Under net neutrality mandated non-discrimination Verizon’s packets and speech are just as likely to reach the end user as Netflix’s or Google’s,” writes GigaOm’s Stacy Higginbotham. Verizon is arguing that its freedom of speech requires that it have the power — a power that, by its own admission, it has never used — to deny content producers access to consumers, and vice-versa.
Verizon’s “editorial discretion” filing was fortuitously timed, in that in coincided with the release of two competing visions for the future of the internet. The “Declaration of Internet Freedom,” launched by Free Press on July 2 and endorsed by a small army of open-internet advocates, calls for “an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.” A few days later, the limited-government group Campaign for Liberty unveiled their “Technology Revolution” manifesto, which decries “the hammer of government control and regulation” of the internet. The manifesto opposes “any attempt by Government to tax, regulate, monitor, or control the Internet.”
The strictly laissez-faire approach advocated by Campaign for Liberty endorses the sort of environment that values the “freedom” of Verizon to assert editorial control over your Internet usage, picking and choosing which content you’ll have access to over your own freedom to make these choices for yourself. The alternative is the Internet we have now, in which “broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner,” as Verizon’s own court filing helpfully puts it.
That’s the promise of an open Internet: consumer choice driving innovation online. By holding out for “editorial discretion,” Verizon wants to preserve their right to pick favorites, wall off the garden, and start charging for admission.