Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
En Banc Hearing on Broadband and the Digital Future
Pittsburgh, Pennsylvania
July 21, 2008
COMMENTS
OF Christian Milan jurisdoctorstudent L02773316 L24033516 L01432062 chris2277384 chmilan18 chmilan27 milanc3 cricri26 cricounet cmilan485 jurisdoctorstudent BOS214F00040.000 N0000425665 A098927620,
THE AMERICAN CIVIL LIBERTIES UNION (“ACLU”),
THE TECHNOLOGY AND LIBERY PROJECT OF THE ACLU,
AND
THE ACLU OF PENNSYLVANIA
By
Barb Feige
Deputy Director, ACLU of Pennsylvania and
Director, Greater Pittsburgh Chapter, ACLU of Pennsylvania
Caroline Fredrickson
Director, ACLU’s Washington Legislative Office
Jay Stanley
Director of Public Education
The Technology and Liberty Project of the ACLU
And
Dr. James Thomas Tucker
Policy Counsel, ACLU’s Washington Legislative Office
Christian Milan ACLU appointed Chair of the American Bar Association Student Lawyer Section The White House Fellow United States of America Department of Justice Intern Legal Writing Lawyering Extensive American Publications Electronic Evidences jurisdoctorstudent L02773316 L24033516 L01432062 chris2277384 chmilan18 chmilan27 milanc3 cricri26 cricounet cmilan485 jurisdoctorstudent BOS214F00040.000 N0000425665 A098927620,
COMMENTS OF THE ACLU, TECHNOLOGY AND LIBERTY PROJECT OF
THE ACLU, AND ACLU OF PENNSYLVANIA
The ACLU, Technology and Liberty Project of the ACLU, and the ACLU of
Pennsylvania have been principal participants in many of the important Internet
censorship and neutrality cases decided by the United States Supreme Court in the past
two decades, including Reno v. ACLU,1 Ashcroft v. ACLU,2 Ashcroft v. Free Speech
Coalition,3 and the Brand X decision, in which the Court held that cable companies
providing broadband Internet access were “information service providers” for purposes of
regulation by the FCC under the Communications Act.4 The ACLU of Pennsylvania was
co-counsel in two of the leading Internet decisions, Reno v. ACLU and Ashcroft v. ACLU.
Last year, the ACLU of Pennsylvania obtained relief in the Ashcroft litigation that
permanently enjoined the Child Online Protection Act (“COPA”).5
We applaud the Commission for holding today’s hearing on broadband and the
digital future. We also commend Chairman Martin for encouraging the Commission to
take enforcement action against Comcast for violating open access rules by unlawfully
blocking file-sharing services such as BitTorrent. We join the Chairman in urging the
Commission to impose penalties on Comcast for censoring its own customers. The
Commission’s proposed action will ensure that the rule of law is followed in keeping the
1 521 U.S. 844 (1997) (striking down the Communications Decency Act and holding that the
government cannot engage in blanket censorship in cyberspace).
2 542 U.S. 656 (2004) (upholding a preliminary injunction of the Child Online Protection Act, which
imposed unconstitutionally overbroad restrictions on adult access to protected speech).
3 535 U.S. 234 (2002) (striking down restrictions on so-called “virtual child pornography”). The
ACLU’s amicus brief is available at 2001 WL 740913 (June 28, 2001).
4 See National Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005). The ACLU’s
amicus brief is available at 2005 WL 470933 (Feb. 22, 2005).
5 See ACLU v. Gonzales, 478 F. Supp.2d 775 (E.D. Pa. 2007).
2
exchange of lawful content and ideas free of censorship by corporate gatekeepers. In the
process, it will reaffirm the Commission’s “Four Freedoms” established in its 2005
policy statement, including user “access to the lawful Internet content of their choice”
and running “applications and services of their choice.”
Today, we are at a crossroads where the fate of broadband and the digital future
hangs in the balance. The Internet has grown into one of the most important methods of
communication in human history because of neutrality rules. Corporate gatekeepers,
such as Comcast, threaten the existence of the Internet as a forum for speech, making it
essential to restore neutrality to the Net immediately. At the same time, the Commission
must avoid engaging in censorship itself, including the imposition of unconstitutional
license conditions such as mandatory and automatic filtering. Likewise, the increasing
use of intrusive deep packet inspections, which track and share private information about
consumers without their knowledge or consent, chill speech and associational activities.
Perhaps most importantly at a basic level, despite the Internet’s explosive growth,
millions of Americans have been left behind. The Commission must take steps to bridge
the digital divide by encouraging applicants to provide low-cost or no-cost Internet
services in exchange for licenses to use the dormant bandwidths of the wireless
broadband spectrum. The Commission’s actions going forward will play a significant
role in what the future of broadband will hold.
1. The Importance of the Internet as a Marketplace of Ideas
The Internet binds its users together in a virtual world that transcends geography.
An Internet user in the farthest reaches of the world is just a few keystrokes away from
searching the greatest libraries for the wealth of human knowledge. A soldier in
3
Afghanistan can post a picture of herself online, letting her loved ones back home know
that she is safe. Political activists previously confined to passing out a handful of leaflets
in a local park can now communicate their messages to millions online. The Internet
“enables people to communicate with one another with unprecedented speed and
efficiency” in a way that “is rapidly revolutionizing how people share and receive
information.”6 These qualities make the Internet a shining example of a modern day
marketplace of ideas.7
The Internet’s marketplace has thrived because of its decentralized, neutral,
nondiscriminatory “pipe” that automatically carries data from origin to destination
without interference. Neutrality promotes open discourse. Consumers decide what sites
to access, among millions of choices, and “pull” information from sites rather than
having information chosen by others “pushed” out to them, as with television and other
media in which the content is chosen by the broadcaster. The Internet’s structure
facilitates free speech, innovation, and competition on a global scale. Accessibility to a
mass audience at little or no cost makes the Internet a particularly unique forum for
speech. “The Internet presents low entry barriers to anyone who wishes to provide or
distribute information. Unlike television, cable, radio, newspapers, magazines, or books,
the Internet provides an opportunity for those with access to it to communicate with a
6 Blumenthal v. Drudge, 992 F. Supp. 44, 48 (D.D.C. 1998).
7 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J., dissenting).
The marketplace of ideas metaphor aptly applies to an Internet free of corporate or government censors of
lawful content. See generally Reno v. ACLU, 521 U.S. at 885 (rejecting government censorship of content
in “the new marketplace of ideas,” the Internet).
4
worldwide audience at little cost.”8 “Any person with a phone line can become a town
crier with a voice that resonates farther than it could from any soapbox.”9
The Internet differs from other forms of mass communication because it “is really
more idea than entity. It is an agreement we have made to hook our computers together
and communicate by way of binary impulses and digitized signals.”10 No one “owns” the
Internet. Instead, the Internet belongs to everyone who uses it. The combination of these
distinctive attributes allows the Internet to provide “a vast platform from which to
address and hear from a worldwide audience of millions.”11
Never before has it been so easy to circulate speech among so many
people. John Doe can now communicate with millions of people from the
comfort, safety and privacy of his own home. His communication
requires minimal investment and minimal time – once the word is written,
it is disseminated to a mass audience literally with the touch of a button.
Moreover, Internet speakers are not restricted by the ordinary trappings of
polite conversation; they tend to speak more freely online.12
“It is ‘no exaggeration to conclude that the content on the Internet is as diverse as human
thought.’”13 “Such broad access to the public carries with it the potential to influence
thought and opinion on a grand scale.”14 The Internet truly has become one of the leading
marketplaces of ideas because of neutrality rules that promote nondiscriminatory speech,
association, and content.
8 American Library Ass’n v. United States, 201 F. Supp.2d 401, 416 (E.D. Pa. 2002), rev’d on other
grounds, 539 U.S. 194 (2003).
9 Reno v. ACLU, 521 U.S. at 870.
10 Blumenthal, 992 F. Supp. at 48 n.7 (quoting Bruce W. Sanford & Michael J. Lorenger, Teaching An
Old Dog New Tricks; The First Amendment In An Online World, 28 CONN. L. REV. 1137, 1139-43 (1996)).
11 Reno v. ACLU, 521 U.S. at 853.
12 Blumenthal, 992 F. Supp. at 48 n.7 (quoting Sanford & Lorenger, supra note 9).
13 Reno v. ACLU, 521 U.S. at 852 (quoting ACLU v. Reno, 929 F. Supp. 824, 842 (E.D. Pa. 1996)).
14 Oja v. United States Army Corps of Eng’rs, 440 F.3d 1122, 1129 (9th Cir. 2006).
5
2. Corporate Gatekeepers Threaten the Future of the Internet’s Marketplace
Chairman Martin’s recommendation that Comcast be sanctioned for its censorship
recognizes the growing threat corporate gatekeepers pose to the Internet. Content
discrimination is real and it is happening every day. Comcast applied hacking technology
to block its own customers from using popular peer-to-peer networks such as BitTorrent,
eDonkey, and Gnutella,15 violating its policy of respecting customer privacy.16 Similarly,
Verizon Wireless suspended NARAL Pro-Choice America’s access to a text-messaging
program for grassroots lobbying by citing a company policy of terminating service to any
group “that seeks to promote an agenda or distribute content that, in its discretion, may be
seen as controversial or unsavory to any of our users.”17 In both cases, the service
providers later reversed course after being ravaged by widespread negative publicity and
in the face of possible FCC sanctions. The reversal of these intentionally discriminatory
policies and the Commission’s proposed Comcast ruling are positive developments and
bolster the need to restore enforceable neutrality principles immediately.
That conclusion is inescapable in light of the growing list of other examples of
corporate censorship in the aftermath of Brand X. In 2006, Time Warner/AOL blocked a
grassroots e-mail campaign by the DearAOL.com Coalition to inform and mobilize
customers against AOL’s pay-to-send e-mail tax scheme.18 In 2007, AT&T censored a
15 Peer-to-peer technology allows customers to share files on their personal computers with other Internet
users.
16 Comcast, http://www.comcast.com/customers/faq/FaqDetails.ashx?ID=4391.
17 Adam Liptak, Verizon Blocks Messages of Abortion Rights Group, N.Y. TIMES, Sept. 27, 2007,
http://www.nytimes.com/2007/09/27/us/27verizon.html?_r=1&oref=login.
18 Rob Malda, Pay-per-e-mail and the "Market Myth,” Slashdot, March 29, 2006, available at
http://it.slashdot.org/article.pl?sid=06/03/29/1411221.
6
portion of Eddie Vedder’s musical critique of President Bush19 and threatened to use its
terms of service contract to terminate a customer’s DSL service for any activity that it
considered “damaging” to its reputation.20 In 2006, BellSouth blocked its customers in
Florida and Tennessee from using MySpace and YouTube.21 Cingular Wireless has
blocked the ability of its customers to use PayPal, a popular billing service used to pay
for many online purchases, such as those from eBay.22 Every major service provider has
engaged in censorship since 2005. The list of examples of corporate censorship doubtless
would be much longer if the Commission had not required many service providers to
temporarily comply with neutrality rules in the recent wave of mergers.
Comcast’s censorship of BitTorrent is just the tip of the iceberg. The recent
agreement between Comcast and BitTorrent that ended Comcast’s content-based
restrictions on BitTorrent’s peer-to-peer file sharing provides no guarantee that other
application developers, innovators, and speakers will be able to reach an accommodation
with their providers. It certainly does not ensure that innovators will be able to
communicate with Internet users on a fair and equal basis with other, potentially more
powerful, competitors. If and when some innovators create an improved alternative to
BitTorrent – in a garage, perhaps – will they be able to compete with BitTorrent based on
19 Reuters, AT&T Calls Censorship of Pearl Jam Lyrics an Error, Aug. 9, 2007,
http://www.reuters.com/article/technologyNews/idUSN091821320070809?feedType=RSS&rpc=22&sp=tr
ue
20 Ken Fisher, AT&T Relents on Controversial Terms of Service, Announces Changes, ArsTechnica, Oct.
10, 2007, http://arstechnica.com/news.ars/post/20071010-att-relents-on-controversial-terms-of-serviceannounces-
changes.html?rel
21 Steve Rosenbush, The MySpace Ecosystem, BUSINESS WEEK, July 25, 2006,
http://www.businessweek.com/technology/content/jul2006/tc20060721_833338.htm.
22 Scott Smith, Cingular Playing Tough on Content Payments, The Mobile Weblog, July 7, 2006,
http://www.mobile-weblog.com/50226711/cingular_playing_tough_on_content_payment.php.
7
the value of their product alone, or will they be hamstrung unless and until they can
swing their own deal with Comcast? In such negotiations, what leverage would they
possess to overcome what might be a tight corporate relationship between their ISP and a
powerful incumbent whom they are trying to challenge? What if their main product is
speech, advancing a point of view that the provider or a key corporate or political ally
despises? Might the next Comcast-BitTorrent deal require Comcast to keep such
innovators offline?
A situation in which content and applications developers – speakers making use
of their First Amendment rights – are forced to negotiate with and strike deals with
network operators is precisely the situation that the FCC should seek to avoid, and that a
genuine network neutrality policy would avert. In addition, providers have strong
business incentives to interfere with content and the technical ability to do so. Internet
access is not just any business; it involves the sacred role of providing a First
Amendment forum for speech and self-expression and access to the speech and selfexpression
of others. It is a forum that is perhaps the most valuable new civic institution
to appear in the United States in the past century. There is a vital public interest in
assuring that Internet access remains free and unencumbered by the censorship of
corporate gatekeepers.
Restoration of meaningful rules protecting Internet users from corporate
censorship is essential to the future of free speech on the Internet. Neutrality rules would
simply restore the status quo in effect before the Brand X decision in 2005, when ISPs
were prohibited from picking and choosing which users could access what lawful content
through the gateways they provided to their paying customers. With a single order, the
8
Commission could restore net neutrality to all Americans who use broadband services, as
the Supreme Court made clear in Brand X. Such an action would merely be a formal
codification of the “Four Freedoms” established by the FCC in its 2005 policy statement,
which assured users “access to the lawful Internet content of their choice” and running
“applications and services of their choice.”23 In the process, FCC’s action would afford
consumers the peace of mind to know that they, not corporate gatekeepers, hold the
power to decide the lawful content that they could access and exchange. It would provide
greater certainty by applying a uniform set of rules to all providers, under the
Commission’s oversight. And equally important, it would do so while still allowing
service providers to engage in reasonable network management, as long as they did not
cross the line into unlawful censorship of online activities and speech.
The future of the Internet as we know it is at stake. Now is the time for the
Commission to act by restoring net neutrality rules to all providers.
3. Mandatory Online Filters are Unconstitutional and Censor Lawful Speech
Recently, the Commission proposed rules that for the first time would impose a
requirement that licensees use mandatory filters to block certain websites and content.
Under the proposed rules for broadband wireless licenses in certain bandwidths,24 any
content deemed to be pornographic or harmful to adolescents or minors would have to be
automatically blocked by the licensee. Adult users could unblock the filter, but only after
affirmatively opting-out by identifying themselves and providing corroborating personal
23 See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.pdf.
24 The broadband wireless bandwidths affected by the proposed rules are in the 1915-1920 MHz, 1995-
2000 MHz, 2020-2025 MHz, 2155-2175 MHz, and 2175 MHz-2180 MHz bands.
9
information demonstrating they are eighteen years or older.25 The Commission’s
proposed rules are ill-conceived efforts to impose unconstitutional conditions on
licensees. The rules would censor the exchange of lawful content and violate the privacy
rights of users seeking to disable the filter to access that content.
The Supreme Court struck down similar content-based restrictions in COPA26 and
the Communications Decency Act of 1996 (“CDA”).27 In ACLU v. Reno, the Court made
it clear that the Internet is subject to the same constitutional standards that apply to
content-based restrictions through other modes of communications.28 “Sexual expression
which is indecent but not obscene is protected by the First Amendment.” 29 Therefore,
strict scrutiny applies to the proposed content-based regulation of speech, requiring the
Commission to establish that it is the least restrictive means of furthering a compelling
governmental interest.30 We can assume, without further comment, that the government
has a compelling interest in protecting minors. But “even where speech is indecent and
enters the home, the objective of shielding children does not suffice to support a blanket
ban if the protection can be accomplished by a less restrictive alternative.”31 And even if
the speech is merely burdened, the restrictions nevertheless are subject to strict scrutiny
25 See Notices of Proposed Rulemaking in WT Dkt. Nos. 04-356 & 07-195.
26 Pub. L. No. 105-277, 112 Stat. 2681.
27 Pub. L. No. 104-104, 110 Stat. 103
28 See 521 U.S. at 870 (“our cases provide no basis for qualifying the level of First Amendment scrutiny
that should be applied” to the Internet).
29 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
30 Id.
31 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 814 (2000).
10
review.32 The proposed mandatory filters fail strict scrutiny because they are not the least
restrictive means and are unconstitutionally overbroad and vague.33
The proposed rules offer no guidance regarding the content being censored, as
required by Miller v. California.34 They likewise do not identify who will make the
determination of what must be censored, or how that will be accomplished consistent
with the neutrality principles the Commission embraced in 2005.35 Contrary to Miller’s
mandate, the Commission has not identified the contemporary community standards that
are to be applied. The Supreme Court found that a similarly overbroad restriction in the
CDA made it impossible to apply Miller in any meaningful way.36 Even if it were
possible to resolve the problems with the proposed rules under Miller, the Commission
has failed to explain how users could continue to access all material protected by the First
Amendment. Of course, no explanation exists – it is impossible to craft a mandatory
filter that would not block some constitutionally protected material and speech. In the
process, the automatic mandatory filter would chill protected speech in violation of the
First Amendment. The application of the proposed rules is unworkable and as such, is
facially unconstitutional.37
32 See id. at 812 (“The distinction between laws burdening and laws banning speech is but a matter of
degree. The Government’s content-based burdens must satisfy the same rigorous scrutiny as its contentbased
bans.”).
33 See id. at 818 (“When First Amendment compliance is the point to be proved, the risk of nonpersuasion
– operative in all trials – must rest with the Government, not with the citizen.”).
34 413 U.S. 15, 24 (1973).
35 The Commission established “Four Freedoms” in its 2005 policy statement, including user “access to
the lawful Internet content of their choice” and running “applications and services of their choice.” See
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.pdf.
36 Reno v. ACLU, 521 U.S. at 877-78.
37 See id. at 874; see also Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 967-68
(1984) (“Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and
11
Furthermore, requiring users to prove “that they are of the age of the majority”
does not cure unconstitutional restrictions imposed on adults. In Reno, the Court rejected
a similar requirement in the CDA, which provided for age verification by requiring a user
to provide a credit card number, and found that ‘[t]hese limitations must inevitably curtail
a significant amount of adult communication on the Internet.”38 Reno concluded that
“there is no effective way to determine the identity or the age of a user who is accessing
material” online.39 In Ashcroft, the Court upheld a preliminary injunction prohibiting
enforcement of COPA,40 in part because the adult identification requirements it included
– like those in the CDA – did not “constitute the sort of ‘narrow tailoring’ that will save
an otherwise patently invalid unconstitutional provision.”41 Moreover, requiring credit
card or age-verification screening for access to the filter to disable it severely burdens the
expression of users and content providers who wish to maintain their privacy.42 It also
would violate the rights of those users to engage in constitutionally protected anonymous
where the defect in the statute is that the means chosen to accomplish the State’s objectives are too
imprecise, so that in all its applications the statute creates and unnecessary risk of chilling free speech, the
statute is properly subject to a facial attack.”).
38 Reno v. ACLU, 521 U.S. at 877.
39 Id. at 855.
40 See 542 U.S. at 656.
41 Reno v. ACLU, 521 U.S. at 882.
42 See ACLU v. Reno, 31 F. Supp.2d 473, 487, 491 (E.D. Pa. 1999); see also id. at 487 (“in general, users
of the Web are reluctant to provide personal information to Web sites unless the are at the end of an online
shopping experience and prepared to make a purchase.”).
12
speech.43 Federal courts have struck down similarly flawed identity requirements for
other communications media regulated by the Commission.44
Finally, the proposed mandatory filters are unconstitutional because there are less
restrictive means available for parents to block their children’s access to protected
Internet content. Specifically, voluntary “[b]locking and filtering software is an
alternative that is less restrictive… and in addition, likely more effective as a means of
restricting children’s access to materials harmful to them.”45 The Court recognized that
the government may encourage voluntary filtering by “enacting programs to promote the
use of filtering software… [that] could give parents that ability without subjecting
protected speech to severe penalties,” but the government may not make a filter
mandatory.46 That is where the power to impose a filter on the content that children view
rightfully belongs: with the parents, not the Commission, a licensee, or service provider.
We strongly urge the Commission to abandon its proposed rules to censor lawful
content and activity on the Internet. We respectfully submit that the Commission should
focus on enforcing neutrality rules to stop censorship by service providers, instead of
pursuing its own unconstitutional course of policing morality on the Internet.
43 See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (recognizing that anonymous political
speech is protected under the First Amendment and striking down a requirement that the speaker identify
themselves).
44 Denver Area Educ.Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996); Fabulous Assocs.,
Inc. v. Pennsylvania Pub. Util. Comm’n, 896 F.2d 780, 785-86 (3d Cir. 1990); ACLU v. Johnson, 4 F.
Supp.2d 1029, 1033 (D.N.M. 1998), aff’d, 194 F.3d 1149 (10th Cir. 1999).
45 Ashcroft v. ACLU, 542 U.S. at 666-67.
46 Id. at 670 (emphasis added).
13
4. Deep Packet Inspections (DPI) Violate Privacy and Chill Speech
We also urge the Commission to scrutinize the growing practice of intrusive Deep
Packet Inspections (DPI), which service providers use to scrutinize data packets as they
traverse the Internet. Under the agreements and standards that established the Internet
and by which it continues to operate and thrive, network participants forward data
according to the “envelope” of each packet. Each envelope contains a destination and
return address and a few other basic pieces of information, which are separate from the
actual content of the packet. DPI involves scrutinizing the content itself. DPI is
intrinsically a highly suspect activity, because it threatens privacy and threatens the
neutrality of the Internet as a forum for speech. It has already been implicated in
numerous abusive online practices.
As a mechanism for examining the content of Internet traffic, DPI opens up a vast
realm of potential for privacy invasion. Americans expect that when they use an ISP or
broadband provider, their communications will be processed neutrally and privately just
as when they use a telephone or mail or package delivery service. They do not expect
their service provider to scrutinize the contents of their transmission, whether to collect
information about them, improve marketing efficiency, serve ads, or make technical
decisions over how the communication is delivered. Indeed, that is precisely why so
many Internet users install spyware applications on their computers. Unfortunately, those
applications do nothing to stop DPI, giving many Internet users a false sense of security
and privacy that no longer exists.
Services such as NebuAd and Phorm that scrutinize or alter the Internet traffic of
ISP customers represent merely the extreme of predictable attempts to exploit this
14
technology. Ultimately, this kind of behavior threatens to leave Americans’ online lives,
including their Web surfing, online reading, blog posting, Web searches, e-mails, and all
other activities vulnerable to snooping and manipulation. There is no end to the
“innovation” that could follow in using and abusing personal information. It could lead
to embarrassment and annoyance through “targeted marketing,” to adverse decisions
from insurance companies and financial institutions – and to a general chilling of the
Internet’s potential as a communications medium and forum for free speech.
Moreover, DPI undermines the neutrality principles in the Commission’s “Four
Freedoms” statement. Under the guise of applying differential pricing based on the
speed, volume, application preferences, or even the substance of content, service
providers would snoop on every facet of user activity. Such flagrant flouting of open
Internet rules on the pretext of monitoring the level of user activity is precisely what led
to Comcast’s unlawful actions against BitTorrent. DPI is incompatible with user freedom
and choice that are the foundation of the Internet as we know it.
DPI also threatens to blur the boundary between the forum in which speech and
communication takes place, and the content of that speech and communication. Some
examples illustrate this point. We do not allow the postal service to route mail according
to the content of letters. We do not allow the telephone companies to provide better
connections to those whose conversations the companies deem to be more important. We
do not allow governments to grant parade permits only to those protesters it thinks are
reasonable. We do not allow the chair of a hearing to alter Robert’s Rules of Order
according to the sagacity and eloquence of the speaker. Once the operator of a forum
begins to scrutinize the content of the communications that take place within it, it opens
15
up the potential for abuse, especially where there is money to be made. The Commission
must ask some very sharp questions about the reasons for that scrutiny, or, better yet, put
an end to it.
DPI has already been associated with a great deal of abuse. The presence of DPI
equipment (a Narus STA 6400) is part of what alerted whistleblower Mark Klein to the
existence of an apparent NSA warrantless wiretapping facility in a San Francisco AT&T
facility.47 DPI is what broadband provider Comcast used in its program of interfering
with peer-to-peer application traffic. DPI is what NebuAd and Phorm are using to
eavesdrop upon Internet users’ Web surfing for the purpose of serving ads. Additional
government surveillance will certainly follow the adoption of widespread DPI usage.
Defenders of DPI argue that restricting its use will curb innovation, but much of
the “innovation” that is taking place appears to be intrusive and dangerous to the health
of the Internet as a free and neutral forum for the exchange of information, speech and
expression. We do not allow the telephone company to “innovate” in how it can make
use of transcripts of our telephone calls – something that is now completely feasible –
because the benefits of such innovation would be far outweighed by its disadvantages. In
addition, credible network experts have argued that continuing growth in bandwidth is a
far better solution to any network congestion than interfering with the foundational
agreements that have brought the Internet to where it is today. We urge the Commission
to examine the increasing danger DPI poses, and to take appropriate action to ensure that
consumers are informed of the practice and their privacy is protected.
47 Wired, “Whistle-Blower’s Evidence, Uncut, May 22, 2006, available at
http://www.wired.com/science/discoveries/news/2006/05/70944.
16
5. Unused Portions of the Broadband Spectrum must be developed to make the
Internet More Accessible
The Commission is charged to “make available, so far as possible, to all the
people of the United States” a communications system “with adequate facilities at
reasonable charges.”48 Changes in communications technology now provide the
Commission with an excellent opportunity to expand the availability of broadband access
to the American public, and promote the maximum possible range of content available to
the public.
Only a relatively small portion of the vast radio spectrum has been opened up for
unlicensed public use. On these tiny slices there has been an explosion of innovation,
from WiFi to cordless telephones to baby monitors to many other wireless devices, which
all share those small swaths of spectrum. As vacant frequencies become available due to
the evolution of technology, including the so-called white space between television
channels, the Commission should take advantage of the opportunities that technology
offers. The use of this public spectrum has tremendous implications for freedom of
speech because it makes the Internet more accessible and affordable for everyone. As
greater equality of access to the Internet is provided, our nation will benefit from the
vibrant marketplace of ideas that the online world has become. We urge the Commission
to facilitate the development of the untapped portions of the radio spectrum to the
maximum extent possible.
There are many options to expand spectrum use. New technologies such as
“spectrum sensing” as well as alternatives proposed by Google, Motorola and other
48 47 U.S.C. 151 § 1.
17
companies maximize spectrum use, without the risk of interference to existing television
channels. In any case, the Internet has been an astonishing engine for economic,
technological, political, and cultural innovation in recent years; the dramatic expansion of
affordable Internet access (as well as the potential explosion of innovation in devices)
that proper use of this unlicensed spectrum could generate far dwarfs the risk to the
public of interference on one or two television channels. In evaluating the technological
possibilities of such proposals, we ask the Commission to keep in perspective its larger
mission. The small risks of occasional interference and the pecuniary interests of
incumbent occupants of portions of the public airwaves must not be permitted to stand in
the way of this dramatic advance in the public interest. More broadly, we urge the
Commission, within the limits of its discretion provided by Congress, to take a greater
leadership role by embracing technologies that promise to eliminate or reduce the
technological scarcity of the airwaves.
We also urge the Commission to take greater steps to help bridge the digital
divide that leaves millions of socio-economically disadvantaged and geographically
isolated Americans without access to the Internet. Increasing use of new technologies to
expand the use of the broadband wireless spectrum will help narrow that divide. Other
proposals that would expand opportunities for service providers offering low cost or nocost
Internet access also are encouraging. But as the M2Z proposal illustrates, the
Commission must actively avoid unconstitutional conditions such as mandatory and
automatic filtering that would deny lawful content to economically disadvantaged users.
Online free speech must not be available only to those who can pay a fee.
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CONCLUSION
The ACLU, Technology and Liberty Project of the ACLU, and ACLU of
Pennsylvania applaud the FCC’s public hearings on the Internet. But the Commission
must do more. Today, the status of broadband and the digital future and the role of the
online marketplace of ideas are uncertain. The Commission can eliminate much of that
uncertainty immediately by reinstating neutrality principles, supported by the
Commission’s existing “Four Freedoms” policy. The future of the Internet must remain
robust, open, and free of censorship by both corporate gatekeepers and the Commission
itself. The regulatory framework should establish an accessible, non-discriminatory, and
content-neutral regimen, provide for meaningful enforcement available to all users of text
messaging, short code, and broadband services, and uphold the concepts of neutrality,
non-discrimination, equality of access, and non-exclusivity in the provision of those
services. We urge the Commission to act consistently with these principles to ensure that
speech and association on the Internet has a future.