by Dawn C. Nunziato. Stanford, CA: Stanford Law Books, 2009. 216 pp. Cloth. $65.00. ISBN: 9780804755740. Paper. $22.95. ISBN: 9780804763851. E-book. $22.95. ISBN: 9780804772457.
Reviewed by Gloria C. Cox, Honors College and Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.
Most people regard the Internet as a remarkable development that has broadened access to information for billions of people, making it possible to live intellectually in a world of unlimited and uncensored information. Law Professor Dawn Nunziato takes a different view in VIRTUAL FREEDOM: NET NEUTRALITY AND FREE SPEECH IN THE INTERNET AGE. While she agrees that the Internet makes information available, she argues that the idea of a free and uncensored Internet is simply a myth. In fact, she explains, a few powerful gatekeepers (Google, for example) decide what will be available. In the author’s words, “In sharp contrast to the utopian vision of the Internet as an open, public forum that enables individuals to exercise their free speech rights in an unprecedented manner, the Internet is actually in danger of becoming a forum in which speech is subject to control by a few dominant actors” (p.23).
Taking strong exception to the statutes, court rulings, and agency decisions that have permitted Internet Service Providers (ISPs) to censor and manipulate information, Nunziato argues for laws and regulations to prohibit ISPs from discriminating on the basis of content. What comes across clearly in VIRTUAL FREEDOM: NET NEUTRALITY AND FREE SPEECH IN THE INTERNET AGE is the author’s strong belief that Internet access is a great deal like access to any other means of communication – the public park, the street corner, or the telephone – and because of that reality, use of the Internet should be protected by the First Amendment just as other forms of communication are.
Of Americans with Internet access, 95 percent are served by cable companies or broadband providers. Access is easy, often taking just a few seconds from sitting down at the computer to reading something online. Much harder is the process of finding out what Internet Service Providers are doing to Internet content, simply because the consumer ordinarily has no way of knowing when information has been blocked, deleted, prioritized, or otherwise manipulated, unless it comes to light serendipitously. In fact, censorship of Internet content, including e-mail, takes place all the time without our knowing it has happened.
Some might say this is a lucky development, because ISPs block material we do not want anyway: e-mail scams, phishing messages, or offensive material such as pornography, obscenity, and violence. There is, of course, some truth to that view, but, unfortunately, censored material goes well beyond offensive material and includes a great [*304] deal of political information and opinion, especially debates about international issues such as wars and human rights violations. Examples include restrictions on war and anti-war debates put in place by Google and Comcast, and blocks by SBC Global and Earthlink on sites that present conservative political viewpoints (p.7). As the world’s most popular search engine (accounting for six billion searches a month worldwide), much has been made of Google’s willingness, after four years of holding out, to create a censored version acceptable to Chinese officials.
This is not to suggest that ISPs are doing anything illegal. On the contrary, customers have almost invariably agreed to all these practices just by clicking the terms of agreement box that allowed them access to service. Customers can even lose service by daring to criticize their ISP. According to Nunziato, both Verizon and AT&T “include clauses in their terms of service authorizing them to terminate the accounts of subscribers who criticize them or their business partners” (p.10).
The legal rights of ISPs to take down material and thus make it unavailable were expanded when the Digital Millennium Copyright Act became law in 1998. For copyrighted material, all the owner of the material has to do is send a notice to the Internet Service Provider, and the offending material will be taken down. As there is no need for litigation, companies are free to object to whatever they dislike, even if their objection is simply a commercial or political one. Take Diebold, for example, which notified Internet Service Providers of its objections to discussions about possible flaws in its voting machines. Once the complaints were received, ISPs removed the material to which Diebold objected (p.19).
A foundational argument of the book is Nunziato’s view that these issues constitute important questions of free speech that should be resolved by an affirmative interpretation of the First Amendment. She acknowledges the limitations of the First Amendment, as it simply prohibits Congress from doing things to limit speech rather than placing affirmative obligations on Congress to enact laws to make information available and promote access to venues and technology. Many legal scholars, including Nunziato, advocate a more affirmative view of the First Amendment that would require government to make sure a diversity of information is available to the public. It would mean, as the author notes, that “the state may need to do more than nothing” (p.32).
To explore further the concept of affirmative obligations, the author delves into several doctrines, most of which enjoyed greater popularity in the past than now. These doctrines, such as the fairness doctrine and the common carriage doctrine, have in common recognition of the fact that some entities that serve important public purposes may actually be privately held and managed. That being the case, such private entities assume a public mantle requiring them to allow and even support public purposes. One interesting example the author provides is the company town, a common feature in the South decades ago when textile companies built rent houses for workers on company land. What happens, then, if someone, a member of the Jehovah’s Witnesses or another religious or [*305] political group, let’s say, comes to such a town to distribute literature? In response to litigation, courts recognized that the streets of such towns function just as those of a government-incorporated municipality, and free speech rights thus attach to them. Companies who owned the mills and the mill towns could not, therefore, ban distribution of fliers or other activities associated with exercise of First Amendment rights. Nunziato thus establishes that affirmative obligations apply in other circumstances, and argues that they should also extend to the Internet.
Each of these doctrines has an interesting legal history, which makes for an important body of case law. The Fairness Doctrine was challenged in RED LION BROADCASTING v. F.C.C. and upheld by the Supreme Court, whose opinion included the statement that “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. . .” (p.57). More recently, in 1992, so-called Must Carry obligations were included in legislation requiring cable television providers to carry local network and public television stations. Cable companies challenged these obligations in TURNER BROADCASTING SYSTEM v. F.C.C., arguing that the rule impaired the free speech rights of cable operators. Once again, the Supreme Court upheld the Must Carry obligations on the basis that these policies support the need for well-informed citizens.
Must Carry obligations rest on the Common Carriage Doctrine, which was designed in the 1930s and imposed on telephone and telegraph service, as well as the U.S. Postal Service, to “ensure[s] open, non-discriminatory access to the means of communication.” Common carriers, therefore, cannot decide that one person’s message will be allowed and another will not – unless the communication violates some other federal law. If broadband providers were considered common carriers, they would not be able to censor or manipulate what they make available on the Internet. The fact that they are not considered common carriers rests on a feature of the Telecommunications Act of 1996, which distinguished between telecommunications services, which were made subject to common carriage requirements, and information services, which were not. Telephone companies provide telecommunications services and are, therefore, common carriers and must provide service without censorship or discrimination. The F.C.C. decided in 2002, however, that broadband is an information service and is not, therefore, a common carrier.
The author also relates Internet issues to public forums, which for most people elicit thoughts of gatherings in public parks and such. Legally, public forums are divided into three types: 1) traditional public forums, such as the street corner or park; 2) designated public forums, such as the elementary school auditorium opened up one evening for a public meeting; and 3) nonpublic forums, such as a military base or prison. These are actual physical spaces, of course, and one of the author’s concerns is that courts have refused to think of cyberspace as a public forum, holding instead to the view that a public forum must be an actual public space. Nunziato argues that there are not many such physical public [*306] spaces left, and people now are more likely to debate ideas from the chairs in front of their computers than the street corner.
She strongly argues for the designation of Internet access as a public forum for the free exchange of ideas, although that position has not gained the support of the federal judiciary. Nunziato’s views are also those of the American Library Association (ALA). The Children’s Internet Protection Act, aimed at keeping children from seeing offensive material and perhaps being harmed in other ways, requires libraries to provide filtering software on computers. The ALA objected, contending that such policies block not only offensive sites but many other sites that are not harmful. The Supreme Court disagreed with the ALA’s arguments, and ruled that Internet access from public libraries does not constitute a public forum or designated public forum.
The Federal Communications Commission is the key player here, though, as it was an agency ruling that put ISPs in the information services category, thus freeing them of common carrier obligations. Nunziato notes that F.C.C. officials seem to be showing some signs of discontent with the distinction, and may be contemplating a change of heart. In fact, on May 6, 2010, the F.C.C. posted a report explaining how the agency intends to make changes that will once again bring broadband providers under F.C.C. control, with common carrier obligations imposed upon them. It appears that Nunziato’s position on these matters is likely to be adopted by the Federal Communications Commission in fairly short order.
In sum, this short but detailed book provides a great deal of information about an important subject, conveying it in the context of the author’s open opposition to current policy and support for bringing greater neutrality to the Internet. It is a useful book about a subject that will likely be of considerable legal interest for decades to come.
Godinez, Victor. May 6, 2010. Tech blog: FCC proposes framework for greater Internet regulation. Retrieved on May 12, 2010, at http://www.dallasnews.com/sharedcontent/dws/bus/stories/050710dnbusfcc,47538a.html
AMERICAN LIBRARY ASSOCIATION v. UNITED STATES, 539 U.S. 194 (2003).
RED LION BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 395 U.S. 367 (1969).
TURNER BROADCASTING SYSTEM, INC. v. F.C.C., 512 U.S.622, 657 (1994).
© Copyright 2010 by the author, Gloria C. Cox.