ISPs Want to Have Their First Amendment Cake and Eat it Too

While some ISPs are busy arguing to the FCC that the First Amendment makes net neutrality rules illegal, Congress is considering a bill (HR 3817) that would exempt ISPs from liability for providing fraudulent information to their customers. ISPs, of course, love this. Limitations from liability are great!  But should they prevail on both arguments, convincing the FCC that they're more like Harper-Collins or a guy on a soapbox (by the way, have you ever actually seen a wooden soapbox?) than like the mailman, and also getting new special protections passed into law, they'd be the only "speakers" that can facilitate fraud without legal repercussions.

That may sound a bit hyperbolic, but many ISPs claim to be more than "dumb pipes"--they claim to be more like publishers.  Publishers are "speakers" of the content they publish for First Amendment purposes--which rightly keeps government from interfering with their editorial and other decisions.  But being speakers, publishers are also liable for what they publish, if it turns out to be libelous, fraudulent, or otherwise unlawful.  You can drag the publisher of a book into court, as well as the author.  Traditionally, providers of communications services--from postal services, to telegraph operators, to telephone companies, to web hosts and ISPs--have not been considered "speakers" or "publishers."  Their role has been seen as an intermediary one.  As long as they pretty much just pass messages along, they're not legally responsible for those messages' content. This is why ISPs and some online services already have a number of explicit safe harbors and immunities--under Section 230 of the Communications Decency Act they're not responsible for content their users post, and if they follow the terms of Section 512 of the DMCA they're not responsible for their users' copyright infringements.

We all know that ISPs don't like net neutrality regulations, so they're pulling out all the stops in arguing against them.  They want to say that if the FCC prevents an ISP from blocking or giving preference to certain content, that's a violation of their First Amendment rights as heinous as the government nixing an Op-Ed.  It strains credulity to think that an ISP "publishes" the entire Internet, and that blocking a service is merely an exercise of editorial discretion, but this is the position a few ISPs have staked out.  For example, Qwest has argued that, if the FCC prevented it from blocking a VoIP provider, this would "violate free speech principles because it would eliminate access providers' editorial discretion." But these arguments are playing with fire.  If an ISP is a publisher, then it is also liable for what it publishes.  They can't have it both ways.  They're arguing for a version of the First Amendment that gives them all the freedom and none of the responsibility. If ISPs get their way, unlike any other speakers they will be free to push out libel to the world, or do the digital equivalent of shouting "Fire!" in a crowded theater. This sort of special treatment flies in the face of the usual legal norms.

This problem doesn’t stem from an evil plot by ISPs to spread fraudulent information. Rather, the problem results from an incoherent concept of what ISPs are.  They can either be considered dumb pipes that transmit what Internet users request without judgment, or they can be speakers who decide what and to whom they speak. However, they cannot be both without running into problems like the one described above.

Congress has been passing laws with litigation shields for dumb pipe ISPs for sometime now.  Section 512 of the DMCA, passed in 1998, created a liability shield for ISPs for copyright infringement by customers.  The Communications Decency Act §230 (c)(1) provides a shield for ISPs, by explicitly separating ISPs from speaker-customers.  The CDA says “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Congress’s view of the ISPs and their place as neutral transmitters of information has been quite consistent and the proposed bill continues in the same vein.

HR 3817, otherwise known as the “Investor Protection Act” is part of a push to stamp out financial fraud on the Internet.  The bill seeks to prevent the transmission of fraudulent financial information… so long as the transmission isn’t by an ISP.  ISPs, if they are neutral carriers of any and all things on the Internet of course have no interest in whether transmitted data is true or false, but if they are not neutral, than how can we hold them to a lower, nay nonexistent, standard when financial fraud is at stake?

The answer is that we can’t.  We can either consider ISPs part of the neutral infrastructure of the information super highway, in which case they are not liable for what passes across their infrastructure, or we can consider ISPs gated communities that must maintain not only their roads but also provide safety for those who travel on them.  We can do one or the other, but attempting a hodgepodge of the two will only lead to problems for everyone.

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