Big Telecom Claims Oversight & Accountability Violates Its First Amendment Rights

from the do-not-pass-go,-do-not-collect-$200 dept

The Ajit Pai FCC's attacks on net neutrality have received ample attention. Less talked about is the fact that the attack on net neutrality was just one part of a much broader effort to eliminate what was already pretty tepid oversight of one of the least liked and least competitive tech sectors in America.

The Pai FCC's Orwellian-named "Restoring Internet Freedom" order not only killed net neutrality rules, it dramatically rolled back FCC authority over big ISPs like Comcast, shoveling any remaining authority to an FTC ISP lobbyists know full well lacks the authority or attention span for telecom oversight. In addition to that, the FCC (again at big telecom's behest) has set about trying to claim states can't protect consumers either. With neither competition nor state or federal oversight keeping natural monopolies in line, it shouldn't take a degree in genetics to ferret out the potential pitfalls.

One of the key arguments underpinning most of the telecom sector's lobbying shenanigans of late involves one central claim: that state or federal efforts to hold giant ISPs accountable somehow violates Comcast and other ISPs' First Amendment rights. You'll recall ISPs tried to claim that net neutrality somehow violated ISPs' free speech rights, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument rather silly.

The courts didn't agree with broadband providers then, but in his dissenting opinion during those earlier court battles new Supreme Court Justice Brett Kavanaugh did. Susan Crawford over at Wired offers up a solid piece explaining why, with Kavanaugh now positioned in the highest court of the land, ISPs are very eager to start pushing this argument more forcefully in the months and years to come:

"The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers "speaker" privileges, saying that "the First Amendment bars the Government from restricting the editorial discretion of Internet service providers."

She goes on to explain how the perils of embracing this argument opens the door to a future where little to nothing constricts Comcast's worst impulses:

"Treating the transmission of data as "speech" will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable's First Amendment rights to carry out its "editorial discretion," in hopes that Justice Kavanaugh will get a chance to lock in the industry's status as a member of the press. The "speech" of a handful of giant companies will be privileged over the ability of all Americans—including all other American businesses—to communicate."

Again, the lower courts so far haven't much agreed with ISP arguments on this front. The claim was shot down during several court rulings and appeals during the net neutrality fight, and shot down again recently when Charter tried to wiggle out of allegations of racially-motivated treatment of a minority-owned broadcast channel Charter booted from its cable lineup. Charter (aka Spectrum) has also flirted with the argument unsuccessfully in its ongoing battle with New York State over years of poor service and violated merger obligations.

Again, ISPs are simply conduits to information, not acting as editors, making the whole thing a rather stupid argument. But it's a stupid argument being made in an era when stupidity is decidedly en vogue; and ISPs' very much hope to use it as a blunt weapon should any of these fights stumble their way to the Supreme Court over the next few years.

Filed Under: 1st amendment, ajit pai, broadband, fcc, net neutrality, oversight, regulations
Companies: at&t, comcast, verizon


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  • identicon
    Anonymous Coward, 13 Dec 2018 @ 6:46am

    If the ISPs are granted editorial control over the use of the Internet, they will be able to insists on being able to read all communications so that they can exercise that control, and the TLAs will no longer complain about encryption.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 8:24am

      Re:

      If ISPs are granted full 1st Amendment protection then so should other data providers such as Facebook and Google.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 8:48am

      Re:

      and if they are granted full editorial control then they should be held accountable for EVERYTHING that passes through their pipes.... hey you want control you get the responsibility as well.

      reply to this | link to this | view in chronology ]

      • identicon
        bob, 13 Dec 2018 @ 10:15am

        Re: Re:

        Yep, sounds like Comcast wants to be responsible legally when they "allow" someone to transmit child porn, sex traffic, or sell drugs online. Why dont we send FOSTA at them now and see if they want to keep responsibility.

        reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 13 Dec 2018 @ 4:32pm

        Re: Re:

        This. CDA 230 provides a safe harbor for them, but only if they are not the publisher. If the traffic through their network is their speech, then they are the publisher and they can be sued accordingly.

        I'm posting this via Comcast -- if my content flowing through Comcast's network is Comcast's speech, then my saying something like "For a good time call Jenny at 867-5309" would make Comcast liable for sex trafficking.

        reply to this | link to this | view in chronology ]

  • identicon
    Crinisen, 13 Dec 2018 @ 6:56am

    Again, ISPs are simply conduits to information, not acting as editors, making the whole thing a rather stupid argument.

    Sadly, they would love to control messages on their platform and act as editors even if that is a bad thing for the rest of us.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 13 Dec 2018 @ 7:22am

    Companies have free speech rights that override...

    ...Citizens free speech rights?

    I am not so sure that Brett Kavanaugh's ascension to the Supreme Court is as much a benefit to the concept as those wishing it were so might think. He was in the minority when he dissented at the Circuit Court level, and he is only 1/9th of the Supreme Court. What makes them think that there are 4 more votes on the Supreme Court that would add yet another level of moderation to Citizens free speech rights?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 10:30am

      Re: Companies have free speech rights that override...

      We certainly hope that the other 8 justices would shoot this down regardless of Kavanaugh's opinion on the matter. Gorsuch has been reported to have put forth some insane opinions - he might wind up following the path of stupidity, though I admit to ignorance regarding his overall body of decisions.

      Still, one justice likely to agree with them is one too many.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      AC Currant, 13 Dec 2018 @ 12:26pm

      Re: Companies have free speech rights that override...

      ACCORDING TO MASNICK: YES.

      WHERE are you the dozens of times I show exactly that on Section 230 topics?

      Masnick is for corporations CONTROLLING the speech and outlets of "natural" persons. He repeats it often, can't be mistaken. From last year:

      "And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

      https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content -free-speech.shtml

      Masnick is not hedging "lawyers say and I don't entirely agree", or "that isn't what I call serving The Public", but as VERY RARE for him STATES FLATLY. By deeming it a fundamental "Right", Masnick STATES that he wants a few corporations to have absolute and arbitrary control of ALL MAJOR outlets for The Public! He claims that YOUR Constitutional First Amendment Right in Public Forums are over-arched by what MERE STATUTE lays out!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 7:22am

    This is what is wrong with Verizon mergers

    https://www.verizon.com/about/timeline-categories/mergers-acquisitions

    and AT&T

    https://en.wikipedia.org/wiki/List_of_largest_mergers_and_acquisitions

    They are mixing a entrepreneurial firm and ideas witha monopolist firms and its ideas with the objective of producing a monopolistic - entrepreneurial firm. What they are going to reap is failure just as all the Silicon Valley did when they merged gigantic computer firms with ancient technology forgetting the entrepreneurial side.

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 13 Dec 2018 @ 7:30am

    In other news.

    Confirmed: ISP's blocking traffic to anti-ISP activist group websites and discussion threads to prevent balanced discussion of ISP behaviors. ISP's claim free speech. <*Italic*not really. At least not yet.*Italic*>

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 13 Dec 2018 @ 8:30am

      Re: In other news.

      This is why it's so important to separate the ISP business from the content creation business under anti-trust law. Apart from the vertical integration that limits consumer access to content from other providers, it blurs the line between the free-speech inherent in content creation and the social need for utility-class networks that are content-neutral.

      If the ISPs win this and start (ab)using that power, more states and local governments will vote to fund publicly-owned ISPs. They may win the speech fight, but there's a limit to how much lobbying disinformation can be made believable when people can't access their favorite website because the site didn't pony up the bucks to be carried by the ISP, or the customer didn't subscribe to the "premium internet access" add-on.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 7:46am

    These people have no idea what they are doing or how their actions today will affect them tomorrow, all they can see is the bottom line today - the future is for some else to worry about.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 8:01am

    "Big Telecom Claims Oversight & Accountability Violates Its First Amendment Rights"

    I say that corrupt industry with the help of corrupt politicians are violating everyone's first amendment rights. But according to them it is only a one way street in that they have rights while you do not.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 13 Dec 2018 @ 8:03am

    the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.

    Common sense bars the Government for recognizing that "the editorial discretion of Internet service providers" is a real thing that exists in the first place.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 13 Dec 2018 @ 8:48am

    Only people--aka, real living things--have any Constitutional rights. Things that don't physically exist--like companies--do not. In fact, governments exist to prevent companies (and the people who run them) from doing whatever they like to whomever they like. Real citizens are united in this belief.

    reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 13 Dec 2018 @ 8:58am

      Re:

      Considering that the Bill of Rights are a list of what the government may NOT do regarding The People...

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 13 Dec 2018 @ 9:10am

        Re: Re:

        "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, ... and that to secure these rights [ie. to defend them from those who would infringe upon them] governments are instituted among men."

        In other words, yes, this is literally the whole purpose why governments exist, according to American political philosophy: to protect the rights of the people.

        reply to this | link to this | view in chronology ]

        • icon
          Bamboo Harvester (profile), 13 Dec 2018 @ 9:42am

          Re: Re: Re:

          Uh... Quoting the Declaration of Independence, which is nothing more than a "FU, George!" letter of intent, doesn't do much for items pertaining to the Constitution.

          The Constitution is a listing of what the Government MUST do, while the Bill of Rights, as a list of Amendments to the Constitution, is a list of what the Government, as constituted within the Constitution, may NOT do.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 13 Dec 2018 @ 10:10am

            Re: Re: Re: Re:

            The Constitution is a listing of what the Government MUST do

            It's a listing of what they're ALLOWED to do. Some of those things, but not all, are requirements.

            The Declaration of Independence is a great source to support claims of "why governments exist", useless as it is for settling Constitutional arguments.

            reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 13 Dec 2018 @ 11:39am

      Re:

      Standard counterpoint: do you believe the New York Times did not have a constitutional right to publish the Pentagon Papers?

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Dec 2018 @ 12:30pm

    All or nothing

    If they want to say that they can choose what is and is not allowed on 'their' networks, asserting that it's a first amendment, 'editorial control' issue, then I say give it to them.

    ... Followed by holding them accountable for everything that travels over their network, where so much as a single day's worth of data would be enough for every single person working in the company to be hit for several life sentences, and fines large enough to bankrupt the company many times over.

    It's either not a first amendment issue, and they aren't liable for anything that travels through their network, or is is and they are.

    reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 13 Dec 2018 @ 12:31pm

    Companies Don’t Have Rights

    Only people do. And companies are not people.

    At least, that’s how it should be.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 14 Dec 2018 @ 7:30am

      Re: Companies Don’t Have Rights

      Erm... internet platforms, newspapers, and other entities that aren't real people wouldn't be able to operate without rights.

      reply to this | link to this | view in chronology ]

      • identicon
        Lawrence D’Oliveiro, 15 Dec 2018 @ 7:40pm

        Re: wouldn't be able to operate without rights.

        Their staff have rights as human individuals. And they have responsibilities, too; so if they don’t live up to those responsibilities, there are sanctions available (starting with social opprobrium all the way up to fines and jail time) to bring them back in line.

        The trouble with giving companies rights, is that there is no way to ensure that they are living up their corresponding responsibilities. Companies are not people, and they shouldn’t have rights like people do.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Dec 2018 @ 1:02pm

    Has to be said..

    How many articles can we find, on HOW capitalism is a Bitch??

    Every corp in the USA/EU/most of the world is based on this concept. Even the Salvation army and Deseret industry..

    But IF' it is controlled and held back it can last along time. And be Fairly run and do good things..

    BUT, when the controls are lost, removed, destroyed...WE HAVE SEEN what can happen. And there is worse to come, IF' those controls are NOT reinstalled, and HELD in place..

    Part of Capitalism is to compete...but we have removed this. Why in HELL did we help the banks?? Those at the top would have fallen, and new ones would have come to the top..WITH better ideals on "WHY you dont do certain things". Why those rules are around.

    Over the years,Iv seen Capitalism "EAT UP" other ideals and companies that had better ideas/concepts of HOW things worked... and those bigger companies/corps SPENT TONS of money to get "THEIR WAY, to be the ONLY WAY".

    If you dont understand this, let me say it this way... Computer hardware is behind the times(technically) by about 30 years.. There were innovations and designs that WORKED very well, they were RUN/WORKED by the company IMPROPERLY( the boss grabbed the money and RAN, and didnt develop what he had). Iv seen Programs that worked better them Much of the CURRENT software we NOW have.. That was based on the idea that compatibility was SIMPLE, and not complicated..or proprietary..
    Iv seen Any challenger, be Stomped on, Over powered, Bought, sold, or bought and TORN apart..
    What I mean by that...is a Anti virus group working hard to do their thing, bought up, destroyed...because the BIG company wanted a BACKDOOR into your computer, that they could HIDE.. They didnt want the smaller company finding and FIXING what they had created.(ever hear of Central point Software)..

    Iv watched Major Corps, GIVE AWAY HARDWARE, so that they can Dominate a market, and destroy the competition of 3-4 other smaller hardware designs..(MS and Apple did it)(look for Atari, commodore, and 2-3 other older computer companies)..

    There is a thought in my head About Balance in the economy.. When the money EARNED is a fair value...Where there is only 1 Type of Stock from a corp, or Large Corps are NOT ALLOWED on the stock market(they have to use their OWN money to get things done, not sell Stocks to pay for stuff).. Where Wool and Cotton, arent only for underwear.. And PLASTIC clothing, is CHEAP AS DIRT(as it used to be)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 2:00pm

    If this was telephone, that would mean that the provider could regulate who people are talking to. I think the concept that gets rid of this idea is to designate telecom providers as "common carriers". Well, internet providers also need to be designated as "common carriers".

    reply to this | link to this | view in chronology ]


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