When New York City first started replacing its public pay phones with free Internet kiosks, it probably didn’t expect homeless people to start watching porn on them.
So the company behind the Internet service, LinkNYC, has now installed a software filter to prevent people from accessing adult material from each of the 180 Web-enabled kiosks scattered around Manhattan and the Bronx.
“It sucks, man. It was great,” one homeless man said of the ban (and the porn), according to the New York Post.
LinkNYC’s decision effectively creates a curated version of the Internet for the kiosk’s millions of potential users. Why is that interesting? Well, as part of a closely watched federal court case last week, a panel of judges ruled that curated Internet services are exempt from the government’s rules on net neutrality – a set of regulations aimed at ensuring that no ISP can block or slow down the websites you want to reach.
Those very rules were upheld in a 2-1 vote last week at the U.S. Court of Appeals for the D.C. Circuit. The decision marked a major victory for regulators and a defeat for the ISPs that had sued to have the rules overturned. The broadband companies claimed the regulations were illegal and unconstitutional; the court ultimately disagreed, siding with the government.
Although the Federal Communications Commission prevailed over the ISPs, it now falls to the agency to implement its regulations. And, partly due to the judges’ comments on curated Internet services, this may be a messy process. It raises tough, murky questions about how the federal government should think about such filtered broadband services as the FCC tries to enforce its rules for an open Internet.
You see, the government’s ban on carriers blocking or throttling websites applies to “broadband Internet access service,” but only as defined by the FCC. An ISP whose service does not fit this definition is exempt from the regulations, meaning it can block content without legal repercussions.
The problem is, while the FCC took pains to define what was a “broadband Internet access service,” or BIAS, it left things a little unclear as to what wasn’t. Are you still a BIAS provider – and therefore required to obey net neutrality – if you only offer up a curated Internet experience?
Until the court addressed this in its ruling last week, it wasn’t clear where services like these stood with respect to net neutrality. But now, it seems the answer is no. If an Internet provider were to deliberately “exercise editorial discretion – for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience,” then it would not meet the FCC’s definition of a BIAS, the court said, because the service wouldn’t be offering “substantially all” websites to consumers, just a limited subset of them.
So it looks like curated Internet services, at least in the eyes of the law, aren’t really “Internet providers.” And what’s more, trying to regulate these selective curators risks violating the Constitution, the court hinted, because the act of curation, as with newspapers, is protected by the First Amendment.
The challenge is establishing who falls into which camp, a task that may make life more difficult for regulators as they try to implement their net neutrality regulations.
Instead of being able to apply its rules across the board, the FCC now must pause to consider which bucket an ISP falls into before trying to enforce the rules – or be accused of infringing on free speech. The D.C. Circuit didn’t create this ambiguous situation; the FCC did when it chose to distinguish between BIAS and non-BIAS providers. But the court’s ruling forces us to think about what’s essentially a whole other class of ISPs and its relationship to what we’d probably call “regular” Internet providers by comparison.
Could this exemption for filtered Internet service be used as a loophole for major Internet providers like Verizon and AT&T to try to evade the rules? FCC officials said no, because the rules are written to prevent that kind of chicanery. For one, they still allow the FCC to go after misbehaving companies that provide the “functional equivalent” of broadband Internet access service, even if it isn’t strictly BIAS. For another, the regulations contain specific language allowing the FCC to investigate perceived cases of deliberate rule evasion.
Besides, large Internet providers such as Comcast would just be shooting themselves in the foot if they didn’t allow customers to go everywhere on the Internet, said Matt Wood, policy director for the consumer group Free Press, in an interview with The Washington Post on C-SPAN’s “The Communicators” series.
But that doesn’t minimize the task for regulators. And it still doesn’t tell us very much about what rules, if any, filtered Internet services must abide by if not net neutrality.
Analysts say that curated Internet services aren’t common, but such ISPs do serve important groups of customers who feel that the mainstream carriers aren’t the right choice for them. Many block violent or sexual Internet content on moral or religious grounds.
Fred Campbell, director of the think tank Tech Knowledge, said his research has led him to several providers that fit this description, such as a New York-based ISP that’s geared toward Jewish customers. The service essentially blocks all content that’s inconsistent with the Jewish faith, Campbell said on “The Communicators.”
“If the FCC were to take action against this ISP for their editorial decisions,” he said, “they then could say, ‘As this is being applied to me, it’s violating my First Amendment rights.'”
And as the example of LinkNYC suggests, this thorny conundrum doesn’t just affect small, minority-focused ISPs. Nobody has yet complained that LinkNYC’s porn ban is a violation of net neutrality – and it’s likely nobody will – but what if it started filtering other types of content it decided were inappropriate? Unlike Twitter or Facebook deciding to filter objectionable material, LinkNYC is a company that offers access to the Internet, not a website on the Internet. And that means the FCC would need to take seriously consumer complaints stemming from such practices, even if it’s less than clear that the agency is empowered to do anything about them.
If you think this is just an academic exercise, think again: Industry officials who have a stake in the First Amendment claims are arguing this point precisely.
(c) 2016, The Washington Post ยท Brian Fung
