In perhaps the most absurd attack on net neutrality yet attempted, a federal judge argues that the rules established in 2015 by the FCC violate the first amendment rights of… internet service providers. Fortunately, this line of reasoning is as ineffectual as it is mistaken.
The DC Circuit Court of Appeals upheld the net neutrality order last year; it was a significant victory for proponents. But because not every judge weighed in on the decision, there was a petition for another hearing “en banc,” meaning with all judges present.
The decision issued today rejected that petition on numerous grounds, though not unanimously. Judges Janice Brown and Brett Kavanaugh attached lengthy dissenting statements.
It is Judge Kavanaugh who makes the first amendment argument. He relies on a court decision from 1994 involving Turner Broadcasting in which cable TV providers were found to exert (and deserve) free speech rights when choosing programming to air; they could not, the court found, be required by law to carry certain shows or promote the views of certain people.
It was a good decision and still timely, but in attempting to apply it to net neutrality, Kavanaugh immediately loses the plot:
Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.
This is, of course, wrong on several counts. If you’d like to know exactly why, the majority opinion in the court’s ruling (PDF) goes through it in detail. But briefly summarized:
- Cable operators advertise an editorially curated selection of programming. ISPs advertise indiscriminate access to all internet content.
- ISPs do not “decide” what information they will transmit. In many cases they have no way of knowing what information they are transmitting.
- ISPs in fact enjoy safe harbor and other rules because they are indiscriminate providers of access, and could be held liable if they “approved” content deemed illegal, infringing, etc.
Kavanaugh also takes a trip down the slippery slope, suggesting that having designated broadband providers for special regulation, the next stop is Google, Facebook and TechCrunch — well, he didn’t mention it by name, but it’s implied. The conflation of telecommunications provider with edge provider, social media and press outlet is extremely disingenuous.
Judge Brown shows a similar unfamiliarity with the fundamentals of internet service in her dissenting statement. She wishes to make it plain that under the Telecommunications Act of 1996, from which the FCC derives much authority, “information services” are explicitly excluded from common carrier regulation like the 2015 net neutrality rules.
And it’s true! But like Kavanaugh, Brown immediately undermines her own position with a baffling misunderstanding of the facts:
Unsurprisingly, the Act’s definition of “information service” fits broadband Internet access like a glove. “[G]enerating, acquiring, storing,” or “making available information via telecommunications” is what users do on social media websites like Facebook. See id. § 153(24). “[T]ransforming” or “utilizing” “information via telecommunications” is what users do on YouTube. See id. “[A]cquiring, storing,” and “retrieving… information via telecommunications” is what users do with email. See id. The “offering of a capability” for engaging in all of these activities is exactly what is provided by broadband Internet access.
The things she lists (with the possible exception of email for those still on, say, an @comcast.com address) are all accomplished by services that operate totally independently of internet providers. Her argument is the equivalent of saying that telephone lines can look up any fact, because you can call the New York Public Library. It’s like saying the US Postal Service has a huge selection of vacuums to choose from, because they deliver from Amazon.
Internet providers do not generate, acquire, store, transform, utilize or retrieve information. They take information that has been generated, acquired, stored, transformed, utilized or retrieved by others — and transmit it. That is their defining characteristic, and the capability that they offer as a product.
Tellingly, the majority opinion skips over this self-destroying argument to address a more salient one about the nature of an important Supreme Court decision granting the FCC power to classify broadband providers how it chooses. The explanation is clear and helpful, and only 10 pages long if you’re interested. You can read the ruling here.
