In a recent Washington Post op-ed, Mark Howell, the chief information officer for Concord, Massachusetts, claims that the Concord municipal broadband utility is “Saving Net Neutrality, One House at a Time.” His op-ed states:
If the Facebook privacy debacle has shown one thing, it’s that technology companies have become immensely powerful and seemingly accountable to no one. Recent federal rollbacks of net neutrality and online privacy protections have put Americans in an even weaker position when dealing with Internet service providers.
But there is a way for the public to push back: through Internet service provided by local governments, which are directly accountable to citizens.
Of course, Facebook was never covered by the 2015 FCC “net neutrality” regulation because it is not an Internet service provider. And online privacy protections were not rolled back, but rather they were transferred back to the Federal Trade Commission, which is better suited to the task as the government agency that has the lead role in protecting on-line privacy. Putting aside these two important facts, there is considerable irony in the claim from a municipal broadband system that private Internet service providers be singled out for conduct that allegedly is inconsistent with “net neutrality.” After all, municipal broadband providers have a long history of blocking or otherwise restricting on-line content and failing to respect privacy concerns of their users.
Here I want to focus on Mr. Howell’s net neutrality claim. He asserts, without qualification, that Concord’s municipal broadband utility, Concord Municipal Light Plant (Concord Light) “strictly abide[s] by the principles of free speech and net neutrality, which means that all Internet traffic is treated equally.
However, the Concord Light Terms and Conditions tell a very different story. Concord Light, like many municipal broadband utilities, places significant restrictions on speech based on content and reserves for itself the right to block broad categories of speech based on what it says.
For example, Paragraph 12.d of the Concord Light Terms and Conditions reads:
Defamatory or Abusive Language or Content – Using the Services to transmit or post any material, including text, sounds or images, that may be defamatory, harassing, abusive, fraudulent, tortious, unlawful, threatening, intimidating, or invasive of an individual’s personal privacy is prohibited. Any use that degrades, threatens, or victimizes an individual, group or class of individuals or an entity, is prohibited.
These overly broad prohibitions on speech are troubling. Concord Light is a government agency subject to the First Amendment restriction that governments “shall make no law . . . abridging the freedom of speech." First Amendment doctrine is clear that outright government bans on protected speech – even indecent speech, let alone speech that is “defamatory, harassing, abusive, fraudulent, tortious, unlawful, threatening, intimidating, or invasive of an individual’s personal privacy” – are not narrowly tailored enough to survive strict scrutiny.
The Concord Light Terms and Conditions make it clear in Paragraph 15 that Concord Light, a government agency, intends to determine, in its own unfettered discretion, what constitutes “defamatory, harassing, abusive, fraudulent, tortious, unlawful, threatening, intimidating, or invasive of an individual’s personal privacy,” as well as what the Concord government agency deems objectionable on the basis that it “degrades, threatens, or victimizes an individual, group or class of individuals or an entity.” Once Concord Light finds such content that it considers objectionable, it reserves for itself the right to resort to “filtering, blocking, suspending or terminating accounts or Services”:
Concord Light makes the same threat to censor or block content “that Concord Light deems to be unlawful, harmful, or offensive or otherwise, in its reasonable discretion” in Paragraph 6:
Enrique Armijo, Associate Professor of Law at Elon University School of Law and a member of the Free State Foundation’s Board of Academic Advisors, has written extensively on how government-run broadband networks have poor track records in protecting free speech rights. In his review of actual terms of service imposed by municipal broadband systems, Professor Armijo wrote:
These terms of service decidedly are not examples of network neutrality. These government-owned networks severely restrict users’ speech on the network in exchange for access – and in doing so, facially violate the First Amendment in any other context. First Amendment doctrine in the United States makes clear that outright bans on protected speech – even indecent speech, let alone “excessive,” “derogatory,” “abusive,” or “hateful” speech – are never sufficiently narrowly tailored to survive constitutional scrutiny. It is also black-letter free speech law that prior restraints – and there is no question that a network operator’s “rejecting or removing” material because of its content before that material reaches its intended recipient is a prior restraint, as is the case here – are presumed unconstitutional. And the right to speak anonymously is well enshrined in the Speech Clause’s protections as well. Terms of service such as those used in Chattanooga, Wilson, and potentially scores of other cities thus violate basic tenets of First Amendment law, let alone the principle that network providers should not block or throttle speech because of what it says (internal citations omitted).
The Concord Light Terms and Conditions appear to be even more problematic than the restrictions on speech Professor Armijo found in Chattanooga, TN, and Wilson, NC. In particular, Concord Light’s ban on speech that, in the sole discretion of the government-run utility, “degrades, threatens, or victimizes an individual, group or class of individuals or an entity” appears on its face to go beyond the bans on speech in government-run broadband systems Professor Armijo examined. As Professor Armijo concludes:
We should thus be wary of mayors arguing that what is good for Comcast or Verizon is no good for them. The fact that they proclaim, however loudly, that they favor net neutrality, including the restrictions on blocking and other practices contained in the FCC’s 2015 Order, while employing terms of service for their own government networks that are wholly inconsistent with those restrictions, ought to give one pause.
For a critical analysis of recent claims made by the American Civil Liberties Union, similar to those made by Concord Light’s Mr. Howell, that municipal broadband systems are better suited to protecting free speech and privacy rights than private broadband companies, see my April 9, 2018 Perspectives from FSF Scholars entitled “A Critique of the ACLU’s ‘Public Internet Option’ Study.”