Yesterday my Elon Law colleague Enrique Armijo, who writes about the application of the First Amendment to new technologies, filed a comment in the FCC's net neutrality proceeding. As CIS blog readers know, the FCC has shown interest in using its preemption authority to remove barriers to municipalities establishing their own broadband services to compete with private ISPs. Enrique's filing, which is based on past research, raises a critical issue: protecting the First Amendment rights of users of government-run networks.
As the filing notes, many of the terms of service for both utility-type municipal networks and public-private partnerships for free public WiFi services impose onerous conditions on users that would raise First Amendment concerns in other contexts - conditions that, for example, bar users from using the networks to "transmit material that is abusive or hateful," to post comments on third-party blogs "that are excessive or intended to annoy or harass" (even if such comments wouldn't violate the policies of the blog itself). The networks also often reserve for the operator (remember, here the government) the right to disconnect users for any reason, even for content-based ones. Enrique proposes that if the FCC does preempt state laws that bar municipalities from establishing their own broadband networks, it do so only for those municipalities that protect their users' free speech rights.
The filing notes in closing that if municipal broadband is going to be a solution to our net neutrality problems, we must make sure that the First Amendment is a design principle, not an afterthought. While I’ve not written extensively on FCC matters, my take on network neutrality has been aligned with Enrique’s. Indeed, the basis for my interest in maintaining an open Internet is precisely because of its unprecedented ability to open channels to information that simply don’t exist in its absence. Because the issue of information access is central to the reason for CIS’ founding, I’m sharing Enrique’s work here.