Tag: aclu

More Net Neutrality Violations That Aren’t

I see ACLU’s Jay Stanley has penned a reply to my post from a couple weeks back on the civil liberties group’s report arguing for the urgency of net neutrality regulation. The main thrust of my post was that many of the examples advanced to show there’s an imminent threat to the open Internet, requiring regulatory action on the double, don’t really show anything of the sort. Stanley allows that some of their examples are “not violations of Internet network neutrality in the strictest sense” but that they “speak to the motives, intent, and trustworthiness of major telecommunications firms in treating the speech of their customers fairly.” But I’m not sure they really show that either. In fact, if I can be forgiven a little digression, two more egregious corporate offenses against net neutrality that turn out not to be.

First, one I’d missed from the ACLU report: Vague terms of service agreements. Apparently, AT&T’s terms of service had a list of grounds for suspension of service that ended with the rather nebulous provision bolded below:

AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes (a) violates the Acceptable Use Policy; (b) constitutes a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws) or a violation of these TOS, or any applicable policies or guidelines, or (c) tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.

Based on the company’s explanation, it sounds like they intended this as a sort of catch-all for behavior that wasn’t covered by their policy or the law, but was sufficiently clearly abusive to damage the reputation of a provider who allowed it. But you can certainly understand why people read it as reserving the right to disconnect people who criticize the company, and in any event, it does seem way too vague: Who wants to risk losing their service based on such ill-defined criteria? Significantly, though, I don’t see anybody claiming that AT&T or Verizon (which had similar language) ever actually did suspend a user’s account for this reason. It appears to have been one more overbroad bit of legal boilerplate drafted by a lawyer paid to shield the company from liability in as many contingencies as possible, and promptly changed when users complained. More importantly, and at the risk of stating the obvious, this isn’t really a question of network architecture. Such a broad provision could surely be enforced in a way that was contrary to the spirit of the open Internet, but it’s ultimately a provision about how AT&T treats its customers, not about how routers treat packets. Many things might be wrong with it, but violating the end-to-end principle embodied in the TCP/IP protocol isn’t one of them. Indeed, there’s nothing really Internet specific about this at all: An offline business could attempt to refuse service to people who publicly criticize the company in the newspapers. Mercifully, such behavior seems rare, but if you’re worried about the potential for a certain class of abusive contracts aimed at squelching speech isn’t that where the remedy should aim?

Second (via Seton Motley), there’s the ongoing scuffle between Cablevision and Fox. Presumably in hopes that Cablevision would be under more pressure to cut a deal for Fox cable channels if their subscribers couldn’t just get Fox content online, Fox blocked access to their Internet video content for Cablevision subscribers, prompting Art Brodsky of Public Knowledge to fret about the danger to the open Internet. He acknowledges that normally, folks worried about neutrality have focused on the threat of ISPs leveraging access over the pipes to control content, but asserts that “it shouldn’t matter who is keeping consumers away from the lawful content.”

This is just weird. Media companies “keep consumers away from lawful content” all the time! Netflix won’t let me stream their movies unless my subscription is paid up. If I try to access academic articles on JSTOR from home, whoops, I’m blocked! I have to be visiting from an IP address at Cato or some other academic institution that’s made a deal with JSTOR for access. BBC won’t let me watch Sherlock or Doctor Who on their Web site, because they’ve sold the U.S. rights to PBS and SyFy, respectively. “Net Neutrality” and “Open Internet” have a dizzying array of different definitions, but even so, the idea that either obligates content providers to make their content equally available, for free, to every user is… novel.

I harp on this because I think it indicates how muddled a lot of the debate over “neutrality” has gotten. People have a whole welter of heterogeneous concerns about the future of the Internet that increasingly seem to be lumped under the rubric of “non-neutrality” or “network discrimination,” which both obscures the plurality of potential problems and begs the question of whether, assuming a policy remedy is necessary, “neutrality” regulation is actually the ideal silver bullet response to all these diverse concerns. If there were no downside to mandated neutrality—if there were no risk of opening the door to regulatory gamesmanship, and if every imaginable deviation from neutrality were plainly harmful—then this might not be such a big deal. If there are potential downsides, though, it behooves us to get a little more granular and look specifically at what we’re concerned about, and whether there are less sweeping mechanisms that would work to address the problem.

The ACLU puts the threat of content-based restriction of expression at the forefront of their argument, but this also seems like the concern with the weakest empirical basis, even in a relatively oligopolistic broadband market. First, to the extent that content-based filtering would be executed by means of Deep Packet Inspection, it would almost certainly run afoul of the Electronic Communications Privacy Act, which permits carriers to “intercept” the contents of a communication only when this is a “necessary incident” to the provision of their service. As my colleague Tim Lee lays out at greater length in his excellent paper “The Durable Internet,” there is ample evidence that consumers will react with enormous hostility to efforts to literally cut off their access to the sites they want to visit.

If we’re worried about wholesale blocking of domains, then, I think transparency-based regulation should be sufficient. That is, an ISP claiming to offer “Internet access” shouldn’t be able to restrict access to a site while making it look as though it’s the result of some kind of technical problem—perhaps even the blocked site’s fault. On the other hand, if Comcast wants to openly and transparently offer the option of a whitelisted “family plan” to conservative parents who don’t feel up to fussing with client-based blocking software, that strikes me as the sort of limitation on “expression” that is neither a serious threat to the larger Internet architecture—the effect is only to substitute for filtering the parents would do client-side were they more tech savvy—nor a proper civil liberties concern. Again, I expect a transparency requirement would be sufficient to preclude misbehavior on this front precisely because most consumers don’t want their carrier deciding what sites they’re allowed to access, and this, more than the fear of pressure from advocacy groups or even the FCC, will tend to make ISPs hesitant to do so if they can’t do it covertly. At the very least, again, if there are potential downsides to neutrality regulation, I can’t fathom why you wouldn’t try this more modest step first and watch to see if some more radical remedy is necessary.

Of course, consumer pressure is more effective in competitive markets, and as Stanley notes, if you focus on wireline broadband, the picture is not that encouraging in much of the United States. But the fact that wireline may have the characteristics of a natural monopoly doesn’t mean that last-mile broadband necessarily does: What sectors are “natural” monopolies turns out to be highly contingent on the available technology. As 4G wireless networks roll out, and as users consider the appeal of cutting the cord, the stranglehold of the incumbent monopolists and duopolists is attenuated. Wireless broadband, of course, is not a perfect substitute—fiber will probably always have a significant speed advantage—but imperfect substitutes can exercise competitive pressure too. Rail is a natural monopoly, but Amtrak still has to worry that dissatisfied consumers will drive, fly, or take Bolt Bus—even though these alternatives differ from train travel along multiple dimensions.

Moreover, specific deviations from neutrality that respond to consumer demand may themselves help secure the very competition Stanley and I both agree will help discipline carriers and keep deviations from neutrality limited to those that serve genuine consumer interests. So—and consider this a strictly illustrative hypothetical, please—Netflix now accounts for something like 20 percent of downstream bandwidth at peak home use times. Probably there are no small number of people who’d find it appealing to cut the cord if they were assured they could come home to a movie or an episode of Firefly streaming smoothly in HD. Their cable provider, of course, can guarantee this by bundling your Internet with a dedicated video service running over the same pipes—and, of course, no pretense that there’s any parity of treatment between those two types of “traffic.” It’s at least conceivable that permitting similar bundling and cross-subsidy between wireless broadband and Netflix could hasten the demise of the effective wireline duopoly that exists in many markets, eroding the very conditions that undergird the argument for fearing non-neutral routing could be anti-consumer.

Now, to be sure, you can paint a doomsday scenario based on extrapolation from this model that I find every bit as unappealing as Stanley does: A Balkanized Internet on which every ISP has exclusive deals within one player in each online service category to provide high-bandwidth routing, while the rest of the Net limps along at speeds too slow to make innovative services viable unless backed by big corporate money. (Though this would really be a concern about innovation, not free expression: There’s actually very little reason to fear that deliberate viewpoint discrimination by ISPs under transparency rules is either likely or, more to the point, feasible.) If this were to start to happen on a larger scale—despite the demonstrable preference of most consumers for an open Internet over such a curated walled-garden model, it would be worth revisiting the question. But to impose architectural mandates in advance of such experimentation—to assume a priori that any and all deviations from neutrality would impose such great costs to expression and innovation as to trump any possible consumer gains in price or quality of service—seems very much contrary to the spirit of end-to-end.

The Phantom Menaces in the ACLU’s Case for Net Neutrality

I’m accustomed to finding myself on the same page as the American Civil Liberties Union–and in particular with the razor sharp Jay Stanley, who heads their Technology & Liberty program. But their recent report urging the necessity of net neutrality regulation only makes me more skeptical. I’ve always pretty much shared the position of my colleague Tim Lee: The open, end-to-end nature of the Internet is an important driver of both innovation and free expression–important enough that if it were systematically threatened, there would be a decent case for regulatory intervention. But that end-to-end architecture is also pretty resilient, even if some ISPs might wish otherwise. And while it’s easy to think of deviations from neutrality that would be pernicious, it’s also not hard to imagine specific non-neutral practices that might benefit consumers without undermining that broader end-to-end structure. The real policy question ought to be how to get enough competition in broadband markets that consumer choice selects for the latter against the former. Since broadband isn’t all that competitive in many regions, the question is whether we can afford to wait and deal with problems as they arise in a narrowly tailored way, or whether there’s some urgent need for a broad architectural mandate.

The ACLU says there is, and cites ten terrifying “abuses” that supposedly show the need to legislate now. But as I read over the list, I found I couldn’t help but think of those old Saturday Night Life “Coffee Talk” sketches, where a farklempt Mike Meyers would throw out such food for thought as: “Grape Nuts contain neither grapes nor nuts, discuss.” Because ACLU’s list of abuses mostly consists of examples that either aren’t actually net neutrality violations, or for which there are obvious remedies that don’t require neutrality regulation. Let’s discuss:

  • AT&T’s “jamming” of a Pearl Jam concert, in which singer Eddie Vedder’s remarks attacking then-president George Bush were bleeped out of a webcast. Obviously, it would be pretty troubling if your ISP were filtering your datastream to remove political content of which it disapproved. But that’s not what happened here at all. AT&T, via a deal with the Lollapalooza music festival, was streaming the Pearl Jam concert on its own content hub. Now, obviously, whoever was editing the stream and decided to treat criticism of Bush as equivalent to profanity made a highly dubious judgment call, but the point is that AT&T was acting as a content provider here, not a carrier: The filtering happened before the content hit the network, and no proposed neutrality rules I’m aware of would have prohibited this.
  • BellSouth’s “censorship” of Myspace. According to BellSouth’s own account, a glitch in their system temporarily left their outraged users unable to access the popular social networking site. “Some suspected” that the company was actually testing some kind of tiered access system, and decided to do so by blocking a popular site without notice, antagonizing their paying customers. Some also suspect the moon landing was faked, but I wouldn’t make it the basis of legislation.
  • Verizon briefly denied the abortion-rights group NARAL access to a program whereby users who texted a dedicated “short code” could sign up for SMS updates; the company almost immediately reversed its decision. This is, obviously, not a case involving Internet neutrality, and while it’s certainly a case involving the ability of a network owner to discriminate between users of its network services, the issues involved are pretty different. These “short code” services often permit users to either sign up for fee-based updates or donate money to causes via charge added directly to their monthly phone bill. As indicated by their prompt reversal, the rationale for denying NARAL here–desire to avoid partnering with causes on either side of a “controversial” issue–was probably ill considered, but this is clearly a case where the company is partnering with the provider in a way that goes beyond carriage, because they’re also effectively acting as a payment processor. That means they’ll have an interest in vetting partners in a way you wouldn’t expect a mere carrier to vet every content provider on the network. Even if you think this particular type of discrimination ought to be prohibited, this is really a distinct case raising issues separate from those involved in the Internet Neutrality debate, and ought to be considered separately.
  • Proposed filtering for copyright infringement. This is indeed a terrible and, in practice, unimplementable idea–for one because there’s no easy way to distinguish illegal from legal copying (as when I stream music I’ve purchased from my desktop or server to a mobile device). There’s also a pretty good case that this would already be illegal under federal wiretap laws…which may be why the “proposals,” referenced in an article from January 2008, haven’t actually gotten anywhere.

There are a handful of other cases that either may or definitely do count as potentially troubling neutrality violations–the most famous being Comcast’s throttling of BitTorrent traffic. At least two involve ISPs in Canada, which I wouldn’t have thought is the FCC’s problem. In some of these cases, I’d even agree that regulatory action is justified–but by the FTC, not the FCC. If you are advertising access to “the Internet,” then choking off access to whole classes of popular services or degrading throughput well below advertised speeds, well, that’s what we call a deceptive business practice. (In a more libertarian world, this might be handled by another mechanism; in the world we’ve got, it’s the FTC’s lookout.) Maybe there’s a case to be made for more specific transparency rules to establish when and how consumers have to be informed about non-neutral routing policies–certainly no ISP should be allowed to block access to a website and conceal the policy by making it look like a technical glitch–but I have no idea why you’d make the leap to a sweeping architectural mandate before trying something along those lines.

More generally, I’m a little puzzled about why the ACLU is weighing in on this at all. It’s true that ISP routing practices, like the practices of many private firms, could have implications for “free expression” broadly conceived. But not everything that might promote or hinder expression is part of the civil liberties portfolio, which has traditionally been limited to restraints on freedom imposed by government. To the extent federal policies inhibit broadband competition, one might say the government is in some sense complicit in whatever private policies restrict expression, but here again, the obvious remedy is to look for more pro-competitive policies. In any event, this is far enough outside their usual wheelhouse that you’d think it would make more sense for them to remain, well… neutral on this one.

Nat Hentoff on ‘Stop & Frisk’ Police Tactics

Nat Hentoff  has a terrific column in the Village Voice on the stop and frisk tactics of the New York City Police Department.  Here’s an excerpt:

Commissioner Kelly and Mayor Bloomberg, your stop-and-frisk approach trashes the Fourteenth Amendment. So while Governor Paterson merits our cheers for not being at all intimidated by you, a lot more has to be done to bring the Constitution back into New York City.

A co-sponsor of the bill, Assemblyman Jeffries, reminded all of us (The New York Times, July 16) that the signing of the bill was “the beginning point, not the end point, of a larger evaluation of the effectiveness and legitimacy” of the NYPD’s stop-and-frisk electronic dragnet.

Since there will continue to be stops, questions, frisks—and some arrests—I would be grateful, Commissioner Kelly, for your reaction to this tiny but very inflammatory story buried at the very bottom of page 14 in the July 10 Daily News, “Cuffed Brooklyn Woman Hit Back at Cops.”

The story describes that, in a lawsuit filed in Brooklyn Federal Court, two Brooklyn women, Taneisha Chapman and Markeena Williams, “claim they were wrongfully arrested by the NYPD after following the advice of a flyer (by the American Civil Liberties Union) entitled: ‘What should you do if stopped by the police?’ ”

When stopped by cops last August outside the Marcy Houses and asked to produce identification, they showed the flyer (commendably issued by the office of Assemblyman Nick Perry, Democrat, East Flatbush) that says—and James Madison would have fully approved—“It’s not a crime to refuse to answer questions. You can’t be arrested for merely refusing to identify yourself on the street.”

Daily News reporter John Marzulli wrote: “The cops were apparently in no mood for a legal debate and hauled off both women to Brooklyn Central Booking. The unspecified criminal charges were later dismissed, according to the suit.”

Read the whole thing.

For related Cato work, go here and here.

DISCLOSE Again and Maybe for the Last Time

The DISCLOSE Act, slightly modified, is headed for a cloture vote on Tuesday afternoon. The alterations to the bill have changed few minds outside of Congress. It remains to be seen whether the modification in the bill — the sponsor removed a passage allowing labor unions to transfer funds among its affiliates — will be enough to attract enough support to achieve cloture.

My policy analysis of DISCLOSE applies to the altered bill.

The Center for Competitive Politics provides an analysis of the altered bill here.

The American Civil Liberties Union is sending around a letter of opposition that states “we believe this legislation would fail to improve the integrity of our campaigns in any substantial way while significantly harming the speech and associational rights of Americans.”

The ACLU has four objections to the altered bill:

  • The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.
  • The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.
  • The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.
  • The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.

WaPo on No-Fly: Black Hole to Quicksand

I wrote here Monday, and the Washington Post editorialized today, about the lawsuit in which the ACLU is representing a group of people who believe they have been wrongly placed on the government’s no-fly list. I find the Post’s editorial needlessly equivocal and muddied.

The plaintiffs “have a point — to a point,” says the Post. “[T]he list is essentially a black hole.” But it never says how their suit overshoots the mark.

When someone vindicating a constitutional right has a point, he or she has a point—period. Due process is a right prescribed by the Constitution, not something to dither about like Hamlet.

Hewing to a reasoned-sounding middle ground, the Post says, “There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”

Think this through. The no-fly list is self-revealing. Any terrorist who tries to fly and can’t is “tipped off” that he or she is a suspect. (Does it matter whether the list or something else prevented him or her from flying? No.) Said terrorist will take steps to evade the list or someone else will take over—terrorists are fungible. The benefit of secrecy is small to the point of superfluous.

The Post correctly states that “U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter.” But then it goes all mealy: “A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.”

The secrecy rationale is tiny. The federal courts have vast experience with issues of all sensitivities. Developing a new (suitably) ”independent” panel would be a mountainous chore. And the constitutional doctrine of separation of powers cuts strongly against the Post’s proposal.

This editorial’s “middle ground” looks a lot like quicksand—a lot like the black hole the no-fly list is.

No-Fly With Me

The ACLU is representing several plaintiffs in a recently filed lawsuit challenging the U.S. government’s ”No Fly” list. The video in this “Blog of Rights” post tells the story of two of the plaintiffs. “I wanna go home!” laughs U.S. Marine veteran Ayman Latif. “I wanna see my mom. I want her to see my babies.”

No-fly listing is a constitutional aberration in which the executive branch unilaterally imposes a disability on persons it selects using unpublished criteria. It often denies these individuals any recourse by obscuring the reasons why they aren’t permitted to fly. Bills in the House and Senate would extend the use of the “no-fly” list to use in gun control.

There is no way to clear up the “no-fly” status of innocent travelers once and for all. The DHS’ Traveler Redress Inquiry Program may be good for unraveling mistaken name matching, but evidently it hasn’t cured the problem for these travelers.

No-fly listing is also a weak security measure. It’s CYA—“See? We did something!”—but it creates a class of people too dangerous to let fly but not so dangerous that they are sought for arrest.

There is some merit to watch- and no-fly-listing in the international context, where the U.S. is often unable to pursue threatening individuals. But generally, as I wrote in my book, Identity Crisis, “this procedure is like posting a most-wanted list at a post office and then waiting for criminals to come to the post office. It is a singularly lazy way to ‘pursue’ terrorists.”

Another security demerit: No-fly listing gives away the store. It tells any terrorist on a list that he or she is a suspect.

Since 9/11, airports and air travel have been something of a constitution-free zone. Exigency in the first year after that stunning attack may have justified some of the practices begun then, but we are secure and confident enough today to adhere to the Constitution. This lawsuit may vindicate due process values and the important liberty interest in freedom of movement.

Obama, Civil Liberties, & the Left

A confession: For all my innumerable policy disagreements with Barack Obama, on election night 2008, I found myself cheering with the rest of the throng on U Street. I fully expected to be appalled by much of his agenda – but I had also spent years covering the Bush administration’s relentless arrogation of power to the executive in the name of the War on Terror, its glib invocation of “national security” to squelch the least gesture toward transparency or accountability, its easy contempt for civil liberties and the rule of law. However fitfully, I thought, we could finally hope to see that appalling legacy reversed. And that seemed worth celebrating even if little else about the declared Obama agenda was.

As you might guess, I had a lot of disappointment coming – and not just with Obama.  There were, of course, principled civil libertarians on the left, like Salon’s Glenn Greenwald and Firedoglake’s Marcy Wheeler who kept banging the drum with undiminished fury. But many progressives seemed prepared to assume that Bush’s War-on-Terror policies would be out the door close on the heels of their author – conspicuously muting their outrage even as the reasons for it persisted. Meanwhile, the right – disappointingly if not entirely surprisingly – managed to fuse a penchant for breathless Stalin analogies with an attitude toward expansive surveillance powers and arbitrary detention authority that ranged from indifference to endorsement.

So it’s a little encouraging to see evidence over the last few weeks that burgeoning progressive disenchantment with Obama along a number of dimensions seems to be bringing these issues back into sharper focus. In a recent interview in Der Spiegel, Daniel Ellsberg of Pentagon Papers fame (described by the paper as a “lefty icon”) blasted Obama for “continuing the worst of the Bush administration in terms of civil liberties.” ACLU director Anthony Romero declared himself “disgusted” with the president, and Kevin Drum of Mother Jones catalogued a slew of reasons to agree with that appraisal. The real test of an issue’s salience, however, is whether it makes The Daily Show, and so perhaps the most significant bellwether is Jon Stewart’s decision to devote an unusually long and blistering segment to Obama’s failure to live up to his rhetoric on civil liberties and executive power:

The Daily Show With Jon Stewart Mon - Thurs 11p / 10c
Respect My Authoritah
Daily Show Full Episodes Political Humor Tea Party

Democrats have spent most of the past decade playing defense against “soft on national security” attacks from the right, on the assumption – borne out thus far – that the base wasn’t going to punish them for folding on civil liberties issues. But while many progressive complaints now being aired are themselves the product of an unrealistic view of presidential puissance, this really is one sphere where the president has enormous latitude to unilaterally affect policy. It’s therefore also a set of issues where scant progress can’t easily be blamed on Republican obstructionism.

During the Bush era, we saw the brief emergence of a small but hardy left-right “strange bedfellows” coalition opposed to the FISA Amendments Act. Now I find myself wondering: If progressive grumblings on this front continue and grow louder, will the Tea Party movement that’s sprung up in the intervening years realize that their own rhetoric logically commits them to the same position? And if they do, will civil libertarians on the left be open to resurrecting that odd alliance?