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Unbridled Discretion and Prior Restraint: The Verizon and Comcast Stories

Let’s say that providing communications infrastructure is an inherent function of a state. Most people think of the internet as a telephone system, and most people think the telephone companies aren’t supposed to choose which calls will go through based on their content. People think that because they think internet access, like telephone access, is a utility—like electricity conduit, water pipes, etc.—that has something to do with the government, and the government isn’t supposed to discriminate.

If it’s true that there’s something about communications infrastructure that is government-like, or government-related, then the companies involved in providing that infrastructure may have obligations to the public not to interfere with the speech of those using their facilities. This makes sense in the current market context, which isn’t very competitive.

(These obligations wouldn’t extend to the applications used by people online. If the infrastructure is the water pipe, then online applications are the soup made out of the water. Or something like that.)

These obligations include, under U.S. law, a respect for free speech.

Even if the network providers don’t have a legal obligation to respect free speech under current law (because they’re not “state actors,” a term that has a thicket of caselaw surrounding it), the role they play in society carries with it an obligation to respect this legal regime.

And yet. The network providers want to have complete control over what speech goes through and what doesn’t (BitTorrent v. streaming video from their partners). They want some speech to arrive more efficiently than other speech (tiering v. the “best efforts” network that is the internet). They want to have, in effect, power over a licensing regime. But that licensing regime carries with it the power to offer no choices at all. It has no objective limitations.

If a state government did this, we’d be horrified. We’d say that allowing the government to pick and choose which speech goes through allows that government to engage in viewpoint discrimination. We’d say that the government was engaging in prior restraints on speech. We’d say this is unconstitutional censorship.

We’re usually deeply skeptical of licensing schemes that grant unbridled discretion to government officials. Why be unsuspicious of the filtering actions of these state-like network providers?

The petitions filed in connection with the Comcast spoofing are asking, in essence, for narrow, objective, and definite standards to guide the licensing authority of the network providers. If they have to have “network management” control, then let’s say what constitutes legitimate network management.

Otherwise we’ve just set up a system of uncontrolled discretion in the hands of a few large companies that grant us access to the internet.

By Susan Crawford, Professor, Cardozo Law School in New York City

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