Net Neutrality Wars Entangle Free Speech

U.S. Representative Cliff Stearns wants so badly to stop the U.S. Federal Communications Commission from creating network neutrality rules that he appears ready to weaken the U.S. Constitution's First Amendment.

Stearns, a Florida Republican, unveiled legislation Tuesday that would require the FCC, if it passed net neutrality rules prohibiting broadband providers from selectively blocking or slowing Web content and services, to also enforce the rules on Web application and content providers.

Under a narrow reading of Stearns' legislation, the bill would prohibit search engines from ranking results and would forbid Web content providers, such as video and news sites, from entering into exclusive content-sharing agreements that are now pervasive across the Internet. If the FCC creates net neutrality rules, the bill would require the Wall Street Journal's Web site, for example, to carry news from all news outlets.

Under a bit broader reading of the Internet Investment, Innovation, and Competition Preservation Act, the bill would require Web sites to publish all comments, rants, and half-baked conspiracy theories from all Internet users, if the FCC creates net neutrality rules.

It's hard to see how legislation that would force Web sites to carry other people's content would pass a First Amendment challenge. The language in Stearns' bill is a textbook example of a law that would curtail the freedom of speech and the press.

Stearns announced his legislation at a press conference hosted by Americans for Prosperity (AFP), an antiregulation advocacy group. AFP announced Tuesday that it would launch an advertising campaign opposing FCC Chairman Julius Genachowski's plan to reclassify broadband as a regulated service.

Last week, Genachowski announced the plan to reclassify broadband in response to an appeals court decision saying the agency did not have the authority to enforce informal net neutrality principles.

At the press conference Tuesday, Stearns announced that his proposed legislation would require the FCC to issue a detailed report to Congress about market failures in the broadband industry before the agency could reclassify broadband. The bill drew praise from several broadband providers and related trade groups.

Buried in the Stearns bill, however, is a provision on "neutral network neutrality." The provision is squarely aimed at net neutrality backer Google -- some Republican lawmakers, broadband providers and other net neutrality opponents have complained that Google, in providing ranked search results and other services, isn't neutral.

The argument from net neutrality opponents goes like this: If the FCC regulates one part of the Internet, in this case, broadband providers, then it should regulate other parts of the Internet as well.

"If cable and phone can't manage their networks for congestion and quality of service, neither can Google when it comes to their data farms, search results, YouTube, etc.," a spokesman for Stearns said. "If cable and the Bells can't negotiate special deals, neither can Google."

The spokesman seems to be misreading the FCC's net neutrality proposal, at least as it currently stands. The FCC's proposed rules would allow broadband providers to manage their networks.

What the rules wouldn't allow is for broadband providers to selectively discriminate against Internet traffic. However, applying that kind of rule to a search engine or a Web site becomes troublesome, at best.

Here's the language in the Stearns bill: "The Commission shall apply and enforce any regulation governing the rates, terms, conditions, provisioning, or use of an information service ... or an Internet access service on a nondiscriminatory basis between and among broadband network providers, service providers, application providers, and content providers."

There are a lot of problems here, not the least of which is how a search engine or a Web content provider would actually achieve net neutrality.

For some Web applications, there is an expectation of net neutrality. Internet users expect a service like Skype to treat all calls the same. But what the heck would net neutrality look like for a Web content provider? How exactly would a news site achieve net neutrality?

In addition, the bill doesn't define what a "content provider" is. There's no language in the bill limiting the content-sharing rules to commercial content providers. On the Internet, we're all content providers. If the Stearns language becomes law, all Web sites could become, basically, the same collection of stream-of-consciousness rants from any "content provider." There would be little difference between NYTimes.com and 4chan.org.

Stearns didn't invoke the First Amendment at the AFP event, though he should have considered it. Another speaker at the press conference, however, did raise free-speech concerns in a rather creative reading of the First Amendment and the FCC's net neutrality proposal.

At the event, some net neutrality opponents voiced objections that make some sense. Some are concerned that the FCC's efforts to reclassify broadband and create net neutrality rules will create market uncertainty and cause broadband investment to slow.

But conservative antitax activist Grover Norquist took the argument a step further. Norquist, president of Americans for Tax Reform, compared the FCC's recent efforts to reclassify broadband as a common-carrier type of service to China's vast censorship efforts.

"The idea of putting policemen and regulators throughout the Internet ought to frighten everybody," he said. Backers of net neutrality rules are "whining that the Chinese are doing exactly what they're advocating we should do here."

In Norquist's mind, this new police regime would apparently decide what people can do on the Internet, never mind that the goal of net neutrality advocates is to give Internet users unfettered free speech. "This is an incredible attack on the First Amendment," he said.

Norquist and others imagine some huge FCC monitoring system to track net neutrality violations. The FCC's move toward broadband reclassification is in its infancy, but no one at the FCC has called for an Internet police force to monitor the activity of broadband providers.

Norquist may not realize this, but in the handful of cases where the FCC has looked into violations of its net neutrality principles, it's been broadband customers who have reported the problems. In a recent Comcast case, which led to the appeals court ruling against the FCC, a customer with a networking background first noticed that some of his applications seemed to be running slower than the others.

Norquist seems to assume that the FCC would have both the technological ability, and the inclination, to monitor a significant amount of Internet traffic. There are no indications it has either.

There are a lot of legitimate concerns about both net neutrality rules and the FCC's efforts to reclassify broadband. Opponents of both efforts, however, do themselves no favors by twisting the First Amendment into knots in their drive to stop the FCC.

(Grant Gross can be reached at grant_gross@idg.com.)

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