Public Knowledge Joins Intervenors in Case Supporting Open Internet Rules

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Today, Public Knowledge joined with technology companies and state consumer advocates to defend the FCC's open Internet rules against a challenge by Verizon and MetroPCS. The brief for these intervenors was prepared by the Open Internet Coalition (which includes Amazon, eBay, DISH Network, Facebook, Google, Paypal, Skype, Netflix, and others), Vonage, Public Knowledge, and the National Association of State Utility Consumer Advocates ("NASUCA").

At stake are the FCC's open Internet rules, designed to protect net neutrality. Verizon has raised a host of arguments against them, saying, for instance, that the FCC lacks the authority to issue the rules, and that the rules infringe upon telephone companies' rights of free speech.

I wanted to touch briefly on the first amendment question, because it's particularly odd. Verizon is essentially claiming that an FCC requirement that it treat its customers fairly is stifling it's first amendment rights. In other words, Verizon is claiming a first amendment right to alter, degrade, or block the speech of its customers. In other words, according to this argument, a principle designed to prevent the government from suppressing speech means that it can't prevent one party from suppressing another's. That's already a fairly suspect argument, since there are plenty of perfectly constitutional laws that have the effect of preventing private censorship. For instance, telephone companies can't extend their free speech rights to preventing you from calling their competitors, and it's not unconstitutional for a court to make you pay for failing to honor a contract to publish another's article.

But what makes Verizon's argument particularly audacious is the fact that Verizon itself (as do all ISPs) vigorously supports the idea that its customers don't speak for it. Section 230(1) of the Communications Decency Act says that ISPs aren't the publishers or speakers of their customers' speech. That part of the Communications Act is typically used by ISPs to prevent them from being sued when their customers user their networks or hosting services to post things that could be considered illegal (such as defamation, offering housing on a discriminatory basis, etc.). But it's worth noting that the statute doesn't specify that ISPs aren't considered the speakers of their customers' speech only when it benefits the ISP. The simple fact of the matter is that the speech rights of their customers isn't Verizon's to claim.

The same separation between service provider and actual speaker is a large part of what underpins the safe harbor provisions of the DMCA. The fact that conduits like ISPs don't bear any fiscal liability for infringements by their users is a byproduct of the understanding that they exercise no control over what their users say. If Verizon (a prominent beneficiary of the safe harbor) is saying that rules preventing it from interfering with its customers' speech infringe its own speech rights, it's basically asserting that those communications are its speech. Shouldn't it then bear the bad (liability) with the good (first amendment protection)?

The reality is that the constitutional argument is a convenient way for the ISPs to try and wrap themselves in the flag of rights that actually belong to consumers—the consumers that the rules are designed to protect in the first place.

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