Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits A Presentation at the 37th Research Conference on Communication, Information, and Internet Policy George Mason University School of Law Arlington, VA September 25-27, 2009 Rob Frieden, Professor of Telecommunications and Law Penn State University Web site : Blog site:

2 ISPs Operate As Content Creators and Managers As Well As Conduits ISPs have exploited regulatory asymmetry that enables them to toggle between claims of First Amendment speaker status and insistence that they merely operate as neutral conduits (but of course, not as common carriers). ISPs have exploited regulatory asymmetry that enables them to toggle between claims of First Amendment speaker status and insistence that they merely operate as neutral conduits (but of course, not as common carriers). As speakers, ISPs claim private property ownership rights, the need to manage their networks, their qualification as largely unregulated information services providers and ample competition in the marketplace of ideas via an Internet-mediated forum to support limited, if any, need for government oversight. As speakers, ISPs claim private property ownership rights, the need to manage their networks, their qualification as largely unregulated information services providers and ample competition in the marketplace of ideas via an Internet-mediated forum to support limited, if any, need for government oversight. But as neutral conduits, ISPs eschew any content creator or manager activities with an eye toward maintaining legislatively conferred insulation from liability for any harms resulting from the content they carry. But as neutral conduits, ISPs eschew any content creator or manager activities with an eye toward maintaining legislatively conferred insulation from liability for any harms resulting from the content they carry. Technological and market convergence supports multi-faceted ventures, arguably qualifying for more than one regulatory classification. Technological and market convergence supports multi-faceted ventures, arguably qualifying for more than one regulatory classification. Congress, the FCC and reviewing courts expect mutually exclusivity between regulatory models and service definitions: regulated telecommunications service provider vs. largely unregulated information service provider; speaker/non-speaker. Congress, the FCC and reviewing courts expect mutually exclusivity between regulatory models and service definitions: regulated telecommunications service provider vs. largely unregulated information service provider; speaker/non-speaker.

Having it Both Ways When ISPs operate (or claim to operate) as neutral conduits they qualify for near total When ISPs operate (or claim to operate) as neutral conduits they qualify for near total insulation from secondary liability for torts and copyright infringement occurring over their networks. (Sec. 230 of the Communications Decency Act and Sec. 512 of the Digital Millennium Copy Right Act). Unlike other media, such as cable television, whose operators rejected any parallel to conduit neutrality as anathema to their First Amendment speaker rights, ISPs heretofore have embraced conduit neutrality, which vitiates their expressive freedom, but which qualifies them for insulation from content liability. Unlike other media, such as cable television, whose operators rejected any parallel to conduit neutrality as anathema to their First Amendment speaker rights, ISPs heretofore have embraced conduit neutrality, which vitiates their expressive freedom, but which qualifies them for insulation from content liability. Absent the imposition of controversial quasi-common carrier network neutrality/cable must carry obligations, ISPs can monitor, manage, prioritize, subordinate, and otherwise affect content in their capacity as programmers and walled garden formatters. Absent the imposition of controversial quasi-common carrier network neutrality/cable must carry obligations, ISPs can monitor, manage, prioritize, subordinate, and otherwise affect content in their capacity as programmers and walled garden formatters. When it suits them, ISPs can abandon these roles above, or appear to do so when the risk of liability reaches a certain risk threshold. When it suits them, ISPs can abandon these roles above, or appear to do so when the risk of liability reaches a certain risk threshold. Structural separation between conduit and speaker function would allow ISPs to operate in both spheres. Structural separation between conduit and speaker function would allow ISPs to operate in both spheres. 3

The Information Service Classification Safe Harbor When ISPs qualify as information service providers, they need not separate content from conduit, because the classification subordinates the telecommunications component without risking the imposition of common carrier responsibilities. When ISPs qualify as information service providers, they need not separate content from conduit, because the classification subordinates the telecommunications component without risking the imposition of common carrier responsibilities. The Brand X case endorses ISPs’ ability to emphasize content creation, selection, packaging, and processing function. The Brand X case endorses ISPs’ ability to emphasize content creation, selection, packaging, and processing function. ISPs have successfully manipulated this bi-modal environment to their commercial advantage by finding ways to operate non-neutral networks without regulatory sanction. ISPs have successfully manipulated this bi-modal environment to their commercial advantage by finding ways to operate non-neutral networks without regulatory sanction. The FCC has rejected ISPs’ invocation of First Amendment protection as inapplicable, but rarely has anyone, including advocates for network neutrality rules, examined the scope of ISP speaker rights and whether such rights dominate over subscribers, and unaffiliated content providers seeking to reach them via ISP networks. The FCC has rejected ISPs’ invocation of First Amendment protection as inapplicable, but rarely has anyone, including advocates for network neutrality rules, examined the scope of ISP speaker rights and whether such rights dominate over subscribers, and unaffiliated content providers seeking to reach them via ISP networks. Don’t providers of information services qualify for First Amendment protection even if they largely operate conduits to provide the services? Put another way, how different is the ISP option of supplying content in a walled garden or “home” web page different from cable television operators selection of content? Bear in mind that ISPs soon will use packet sniffing and other verification technologies to determined whether a subscriber can have access to premium content. Don’t providers of information services qualify for First Amendment protection even if they largely operate conduits to provide the services? Put another way, how different is the ISP option of supplying content in a walled garden or “home” web page different from cable television operators selection of content? Bear in mind that ISPs soon will use packet sniffing and other verification technologies to determined whether a subscriber can have access to premium content. 4

Convergence Triggers a Regulatory Quandary Technological innovations make it possible for ISPs to provide subscribers passive conduit access, or actively managed access to services that offer functional equivalent and competitive alternatives to cable television and to broadcast radio and television. Technological innovations make it possible for ISPs to provide subscribers passive conduit access, or actively managed access to services that offer functional equivalent and competitive alternatives to cable television and to broadcast radio and television. Because the FCC has interpreted the Communications Act to foreclose imposition of Title II common carrier responsibilities, an emphasis on content and the Commission’s reticence to regulate it implies that ISPs have First Amendment speaker rights and that the Commission must respect these rights when applying any form of non-Title II, non-conduit related regulation. Because the FCC has interpreted the Communications Act to foreclose imposition of Title II common carrier responsibilities, an emphasis on content and the Commission’s reticence to regulate it implies that ISPs have First Amendment speaker rights and that the Commission must respect these rights when applying any form of non-Title II, non-conduit related regulation. Technological innovations also make it possible for ISPs to monitor, filter, and inspect content, e.g., to determine if a particular subscriber also subscribes to a pay cable channel, such as HBO, thereby entitling that subscriber to access such content via the ISP while the ISP otherwise would block such access to non-subscribers. Technological innovations also make it possible for ISPs to monitor, filter, and inspect content, e.g., to determine if a particular subscriber also subscribes to a pay cable channel, such as HBO, thereby entitling that subscriber to access such content via the ISP while the ISP otherwise would block such access to non-subscribers. “Packet sniffing” technologies can help ISPs operate more efficiently and with less risk for harm to their network caused by a cascade of service requests designed to cause congestion or outages, proliferation of spam, and the variable, legitimate service demands of subscribers. These technologies also can help ISPs offer new services that facilitate non-neutral network operation with an eye toward providing customized services that prioritize or downgrade traffic streams based on classifications of customers, and the traffic they generate for downstream or upstream delivery. “Packet sniffing” technologies can help ISPs operate more efficiently and with less risk for harm to their network caused by a cascade of service requests designed to cause congestion or outages, proliferation of spam, and the variable, legitimate service demands of subscribers. These technologies also can help ISPs offer new services that facilitate non-neutral network operation with an eye toward providing customized services that prioritize or downgrade traffic streams based on classifications of customers, and the traffic they generate for downstream or upstream delivery. 5

How Non-Neutral Can an ISP Be? When ISPs operate their conduit function in a non-neutral way, the First Amendment rights of speakers upstream and subscribers downstream may be impacted negatively if the ISP engages in discrimination designed not to provide premium delivery services (such as “better than best efforts” routing) for an additional fee, but to discipline, punish, competitively handicap and otherwise degrade, or block messages of disfavored network users in either direction. When ISPs operate their conduit function in a non-neutral way, the First Amendment rights of speakers upstream and subscribers downstream may be impacted negatively if the ISP engages in discrimination designed not to provide premium delivery services (such as “better than best efforts” routing) for an additional fee, but to discipline, punish, competitively handicap and otherwise degrade, or block messages of disfavored network users in either direction. ISPs do not trigger First Amendment concerns when they operate as “equal opportunity” discriminators, e.g., Comcast’s use of software to detect and degrade peer-to-peer file transfers. ISPs do not trigger First Amendment concerns when they operate as “equal opportunity” discriminators, e.g., Comcast’s use of software to detect and degrade peer-to-peer file transfers. ISPs potentially do impact the First Amendment interests of content providers and/or subscribers when non-neutral network operating strategies succeed in substantially blocking access to specific messages and types of content. Might an ISP have a public relations, competitive, or other reason to target content? Should an ISP operate at the gatekeeper and “good samaritan” to decide whether to block content that might offend some subscribers, but which nevertheless qualifies for some degree of First Amendment protection? ISPs potentially do impact the First Amendment interests of content providers and/or subscribers when non-neutral network operating strategies succeed in substantially blocking access to specific messages and types of content. Might an ISP have a public relations, competitive, or other reason to target content? Should an ISP operate at the gatekeeper and “good samaritan” to decide whether to block content that might offend some subscribers, but which nevertheless qualifies for some degree of First Amendment protection? It becomes quite easy, absent transparency and regulatory oversight, for an ISP to cross the line and use network management as a blanket justification even for tactics designed to handicap competitors and favor affiliates or premium paying subscribers by blocking, throttling, delaying, and dropping traffic packets even in the absence of network congestion. It becomes quite easy, absent transparency and regulatory oversight, for an ISP to cross the line and use network management as a blanket justification even for tactics designed to handicap competitors and favor affiliates or premium paying subscribers by blocking, throttling, delaying, and dropping traffic packets even in the absence of network congestion. 6

Recommendations Structural separation would permit a single commercial venture to pursue both carrier and conduit functions, but not in an integrated manner. Structural separation would permit a single commercial venture to pursue both carrier and conduit functions, but not in an integrated manner. Telephone companies and ISPs detest this option, but embrace it when providing wireless and telephone directory services. Several nations, including Australia, New Zealand and the U.K. have imposed or approved structural separation of the incumbent telephone company into a carriers’ carrier/wholesaler and competitive provider of retail services. Telephone companies and ISPs detest this option, but embrace it when providing wireless and telephone directory services. Several nations, including Australia, New Zealand and the U.K. have imposed or approved structural separation of the incumbent telephone company into a carriers’ carrier/wholesaler and competitive provider of retail services. The duty to operate in a transparent fashion, modest reporting requirements, and formal dispute resolution rules should accrue ample dividends including assurance of parity between the ISP, its subscribers, and unaffiliated content providers. The duty to operate in a transparent fashion, modest reporting requirements, and formal dispute resolution rules should accrue ample dividends including assurance of parity between the ISP, its subscribers, and unaffiliated content providers. 7