Protecting Free Speech in the Digital Age
Who should control the Internet? The United States and the European Union are poised to address an issue that affects the free speech interests of Internet users around the world.
[Source: Washington Post blog, by Dawn Nunziato; October 5, 2009]
In the past ten days, both the Federal Communications Commission and the EU have engaged on the issue of net neutrality, a principle requiring that Internet users themselves -- not their broadband providers -- enjoy the right to control what content and applications they can access.
After experimenting for several years with a course of deregulating broadband providers, the FCC is now heading in the direction of requiring broadband providers to serve as neutral conduits for our Internet communications. The EU should do so as well. The future of the Internet as an open, global communications medium requires no less.
Following the FCC's deregulation of broadband providers beginning in 2002, these providers have enjoyed the right to discriminate against Internet expression of which they disapproved or that competed with their commercial interests. Broadband providers exercised this power by outright blocking and slowing down peer-to-peer and Voice over Internet applications, as well as email communications, that they disfavored for one reason or another.
In 2007, for example, Comcast blocked access to legal peer-to-peer file-sharing applications and then withheld information from its users (and the FCC) about its actions. The FCC was right to reverse its deregulatory course by demanding that Comcast cease these discriminatory actions and come clean with its subscribers about its network management practices.
And the FCC's recent steps toward extending net neutrality obligations beyond this particular provider are also to be commended. Discriminatory blocking and degrading of applications and content by broadband providers is difficult to detect or remedy by ordinary Internet users. And, to make matters worse, even if we could detect such discriminatory practices, many of us currently have little or no choice among broadband providers.
Because such unwarranted discrimination by broadband providers cannot easily be remedied by the market, it is up to the government to intervene to mandate that broadband providers adhere to principles of net neutrality.
Mandating net neutrality is essential to preserving our free speech interests on the Internet. As we increasingly live and work in a world in which communications take place via the Internet, the powerful few corporations that serve as the conduits for these communications must be made to fulfill their conduit function neutrally and free of discrimination.
Just as the telephone and postal services have long been required to serve as neutral conduits for our communications and have been prohibited from censoring legal expression, so too should broadband providers be required to adhere to nondiscrimination obligations. Although broadband providers may claim that their ability to discriminate in favor of or against certain expression advances their economic interests, these commercial interests should not be allowed to trump our free speech interests.
The FCC and the EU should act now to require that the handful of powerful companies who serve as the gatekeepers for Internet expression fulfill their obligations to the public free of discrimination and censorship to protect our free speech interests in the digital age.
Dawn Nunziato, a professor of law at the George Washington University Law School, is author of "Virtual Freedom: Net Neutrality and Free Speech in the Internet Age," published by Stanford University Press in August 2009.
