The Open Internet Goes to Court

This afternoon the New America Foundation held a panel discussing the upcoming court case that pits Verizon against the Federal Communications Commission (FCC). The case began back in 2010 and has moved slowly, but oral arguments are finally scheduled to begin on Monday. Verizon is challenging the FCC’s “Open Internet Order,” particularly the non-discrimination rules that are in it. Those rules prevent internet service providers (ISPs) from blocking access to content or applications, unless they were unlawful. In laymen’s terms, Verizon and Comcast are both ISPs that compete with one another and both have incentives to prevent consumers from accessing their competitors products and related applications. The non-discrimination rules ensure that they cannot do that or restrict access to any other domain of the web.

Verizon is challenging the FCC’s authority to implement those rules, arguing that the commission is infringing on the company’s freedom of speech. Effectively, Verizon is saying that it’s ability to block applications and content is speech and is protected by the First Amendment. Not surprisingly, the FCC disagrees with Verizon’s claims, saying that the telecom network is just a carrier of speech.

The panel was moderated by Sarah Morris, the Senior Policy Counsel for the Open Technology Council at New America. After a brief introduction, Susan Crawford, the Former Special Assistant for Science Technology and Innovation Policy to President Obama and a professor at Benjamin N. Cardozo School of Law, lit into Verizon’s claim, calling it an “astonishing and laughable argument.”

“The D.C. Circuit must firmly squash Verizon’s First Amendment claim that any oversight of its high-speed internet access service would be unconstitutional,” she said. “The D.C. Circuit must stop this argument in its tracks. Verizon says that in its capacity – when it’s wearing that hat as a high-speed internet provider – it is the same as the Washington Post and that any effort by government to constrain its ability to slice and dice and prioritize and make deals with content providers about that high-speed internet access should be found unconstitutional under the First Amendment.

“Verizon’s goal here is to make this sound like a serious, legitimate, constitutional argument,” she continued. “If they get there, that’s a win. If it sounds serious, that’s a win for them.”

Matt Wood, the Policy Director for Free Press, elaborated on his organization’s goal of net neutrality, meaning that ISPs treat all information on the internet equally (aka they can’t discriminate).

“Net neutrality isn’t some sort of content regulation,” he said. “It isn’t regulating the internet even though people will try that tired line on you even today. What it is is a simple statement that the person you pay to ship something can’t mess with the contents they’re carrying for you. Contrary to Verizon’s claim, ISPs can’t edit the internet. They can’t edit your email messages. They can’t tell you which websites you can go to and which ones you can’t go to.”

All the panelists supported the FCC in the case and agreed with Crawford and Wood’s position that Verizon’s claim was unsubstantiated.

A former legal advisor to FCC Chairwoman Mignon Clyburn, Angie Kronenberg, adamantly supported her old employer’s rule, emphasizing that the rule was made years ago now and it was time for Verizon to move on.

“This is not a First Amendment right that Verizon has,” she said. “The commission must address larger issues.

“We need to be having a different discussion. It’s time.”

However, no one made the argument as clearly as Crawford did, comparing Verizon’s role as a communications transport network to that of a sidewalk.

“The sidewalk is different from the conversation,” she said. “Right now we’re worried about the sidewalks unconstrained power to rise up and make more money by picking and choosing the particular conversations of which it approves.

“Indeed, the First Amendment and its protection of dissent and freedom of the press is demeaned by Verizon’s argument in this case.”

With oral arguments starting Monday, we’ll soon find out if the D.C. Circuit agrees.


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