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, in its sole discretion, shall determine whether User’s conduct or
activities or the use of the Services violate any provision of these Terms of
Use or are otherwise prohibited. Concord Light reserves the right to pursue any remedies available in law
or equity, to seek injunctive relief against the User without the necessity of
posting a bond, to prevent irreparable harm that such violation or prospective
violation may cause or to take any such action that it deems necessary to
compensate Concord Light for any injuries, losses, or damages incurred, to
correct suspected violations or to prevent any potential future violations, including but not limited to, the issuance
of written or verbal warnings, filtering, blocking, suspending, or terminating
accounts or Services or terminating access to Concord Light’s network….Such
actions may be taken by Concord Light without prior notice to the Customer or
User (emphasis added).
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:
While
Concord Light does not control or monitor the Content of online communications,
Concord Light may, remove or block access
to any Content from its servers that does not comply with the Terms of Use or
that Concord Light deems to be unlawful, harmful, or offensive or otherwise, in
its reasonable discretion. The User agrees that Concord Light is not
responsible for any failure or delay in removing such Content (emphasis added).
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.”
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