Washington will spend the summer and at least part of the fall debating the relative merits of D.C. Circuit Court Judge Brett Kavanaugh’s elevation to the U.S. Supreme Court. The debate will likely focus on issues including abortion, presidential privilege and power, gun rights and other “hot button” topics.
But Kavanaugh has also dipped his toe into the waters of internet regulation in general, and the FCC’s authority to impose now defunct net neutrality rules on internet service providers (ISPs)—an issue that might find its way to a newly constituted Supreme Court. And in this area, Kavanaugh has held that ISPs have a right to control what you watch and what you access. But not as a matter of contract, and not as a matter of their right to be generally free from regulation—Kavanaugh believes that your ISP has a right under the First Amendment as a “publisher” to decide what internet “channels” it want to “carry” and which ones it wants to block. Presumably as a publisher, it doesn’t have to tell you that it is blocking the content. Moreover, while people posting things on the internet—from civil liberties groups to Russian trolls—have a right to publish (put stuff on the web), the ISP’s First Amendment “right,” according to (potentially Justice) Kavanaugh essentially trumps (pun intended) the right of these entities to publish, since the ISP controls what viewers see.
Recognize that this doctrine goes well beyond whether ISPs should provide internet content on a neutral basis, or whether the FCC does or does not have the statutory authority to compel net neutrality rules—or even whether such rules are a good idea or not.
Under a Kavanaugh court, the government is without the authority—under the U.S. Constitution—to ensure that ISPs provide access to the internet in a fair manner, because the ISP has a First Amendment right to decide for itself what content that others create it wants to make available to you. Even worse, it then has a First Amendment right to block content based on what is good for the ISP. You won’t be able to access Comcast’s webpage from a Verizon ISP. Yelp reviews critical of Cox Cable suddenly disappear for Cox subscribers. If you want to post to the FCC’s website support of their net neutrality rules, your ISP can block that posting. They can also block you from making VoIP calls to anyone they think you shouldn’t be talking to, or about things they don’t want you to be discussing. They can interpose themselves between you and Facebook or you and your Twitter feed, filtering out or blocking content they don’t want you to post, or that they don’t want you to see. To paraphrase Lilly Tomlin’s Ernestine, “We don’t care. We don’t have to. We’re your ISP.”
In United States Telecom v. FCC, Kavanaugh, as a dissenting judge from an en banc panel of the DC Circuit Court panel, opined that not only did the FCC not have the authority to regulate the blocking, throttling and editing practices of ISPs under the statute, but that Congress could not grant the FCC the authority to prevent ISPs from blocking any sites of its choosing because the ISP had a right to decide for itself what it wanted to carry and what it did not.
He began by saying, “The threshold question is whether the First Amendment applies to internet service providers when they exercise editorial discretion and choose what content to carry and not to carry. The answer is yes.”
Wait. A. Minute. ISPs decide what content to carry and not to carry? Really? ISPs do a lot of things, but deciding what parts of the internet to “carry” and not to “carry” is not one of them. Sure, ISPs can block (and be required to block) certain prohibited content such as files that match MD5 hashes for known child pornography. But ISPs are … well, internet service providers. They provide their customers with access to—you guessed it—the internet. Anything internet-addressable—IoT devices, the Deep Dark Web, TOR sites, anything on “the internet”—is accessed through an ISP.
ISPs can (and with the abandonment of net neutrality, will) decide how to provide access to the internet, what speeds to deliver, whether to favor one provider’s content over another in terms of speed and quality of service (what you and I would call fast and slow lanes, but ISPs would call something like fast lanes and really cool superfast lanes) but ISPs do not exercise “editorial discretion” to device what content to carry and what not to carry.
Kavanaugh treated ISPs a publishers of the content that people seek on the internet. He explained:
The net neutrality rule … compels private Internet service providers to supply an open platform for all would-be Internet speakers, and thereby diversify and increase the number of voices available on the Internet. The rule forcibly reduces the relative voices of some Internet service and content providers and enhances the relative voices of other Internet content providers. … the First Amendment does not allow the Government to regulate the content choices of private editors just so that the Government may enhance certain voices and alter the content available to the citizenry.”
No, and no.
First, net neutrality rules don’t compel ISPs to provide a platform for all speakers (although they should). If I want to get an IP address and have a website hosted somewhere, the ISP is not required to host my content. But, if I have content online, an ISP can’t block others on their ISP from seeing that. And ISPs are not “private editors.” If they were, they could take the website of, say, ABC company and deliver different content to their customers based on what is best for the ISP. Fundamentally, the decision does not understand what ISPs are and what they do.
Kavanaugh likened cable TV operators, who get to decide what channels to carry and what packages to offer their customers. He noted, “Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers.” But the Judge forgot some basic differences between cable operators and ISPs. First, there are a limited number of cable TV “channels” that can be offered—in the order of magnitude of hundreds, and if you include international channels, thousands. More importantly, the cable operator has to pay the content provider (the cable channel) for access to the content. Not true for ISPs. ISPs don’t pay websites for access. Consumers may pay websites for access, and ISPs may negotiate fees and expenses for certain high-bandwith users (such as Amazon or Netflix), but web pages and web services are not the same as cable TV channels. While your local NBC affiliate can decide what it wants to broadcast (and therefore what you will receive from them) the manufacturer of your antenna doesn’t get to decide what you can and cannot watch based on content.
ISP’s do a lot more—and in a fundamentally different way—than cable TV operators. ISPs transmit email. ISPs carry chat sessions. ISPs act as intermediaries for carrying social media content. The fundamental purpose of the ISP is to deliver all content—in both directions to their customers. And this is part of the problem with litigation by analogy. If an ISP is like, well, a newspaper, because it “delivers the news,” then the law of newspapers with respect to the First Amendment applies.
Fundamentally, ISPs are not newspapers. They are not phone companies. They are not cable TV operators. And most importantly, they are not publishers—and they don’t want to be. Indeed, if you were to sue an ISP for exercising its “editorial discretion” in deciding to allow a defamatory article about you to be “published” to its subscribers, it would undoubtedly invoke the provisions of Section 230 of the Communications Decency Act, which expressly says that ISPs are not publishers of the content that others put on their sites. Sauce, meet goose.
ISPs are internet service providers. They provide–with varying degrees and service levels—their customers with access to “the internet.” The series of tubes that permit their customers to interact in ways that are consistent with the customers’ First Amendment freedoms, not those of the ISP. Sure, ISPs—like other companies—have First Amendment rights. Verizon can petition its Members of Congress, and can organize grass-roots campaigns with respect to its position on net neutrality. It can have a business model that gives a discount for certain services. But it can’t force content on “subscribers” or limit content that others post.
At least it can’t until Kavanaugh is elevated to the Supreme Court. If he can find four buddies to agree with him (I’m talking to you Sam Alito, John Roberts, Clarence Thomas and high school classmate Neil Gorsuch), then your ISPs rights will trump yours. Stay tuned.