Net Neutrality a Civil Liberty?

I’ve spent the past couple of days at the ACLU’s membership conference. The conference provides ACLU members, such as myself, a chance to get a sense of what the ACLU is doing. This year, over 30% of the attendees are under 25 (no doubt due to the large intern crowd now in DC and the highly reduced rates). Most of the events focus on traditional ACLU issues, like capital punishment, gay rights, religious freedom, abortion, and detainee treatment.

Yesterday, I went to a panel called “Who Chooses? Freedom of Information on the Web,” hoping that the panelists would focus on (and oppose) government regulation and censorship of the internet. Instead, all four speakers (Melissa Ngo from the Economic Privacy Information Center, Gigi Sohn from Public Knowledge and Jim Tucker and Barry Steinhardt from the ACLU) spent most of their time arguing for more government regulation of the internet – specifically, for net neutrality.

Why? As Steinhardt, the director of the ACLU’s Technology and Liberty Program, said, the ACLU won a tremendous victory eleven years ago in Reno v. ACLU. In that case, the Supreme Court held that internet speech is protected by the courts’ highest standard and overturned the Communications Decency Act for violating the First Amendment. So, the ACLU was left with little to do for the internet but challenge nascent laws like the Child Online Protection Act.

But now, Steinhardt claimed at the panel, “No longer is the government the greatest threat to free speech online. The threat is now the companies that run the pipes.” The other speakers echoed Steinhardt’s contention that ISPs are violating free speech and privacy rights by doing things like using Deep Packet Inspection on certain data that runs through their pipes, not allowing certain data to come through their pipes, and selling certain data that runs through their pipes to companies that want to send customers more relevant ads.

The panelists insufficiently explained why net neutrality is a civil liberties issue. If I sign a contract with Comcast saying that they will connect their cable to my house, but I will only use it to receive everything on the internet except BitTorrent (just like I agree not to receive every TV channel available, but only the ones my cable plan provides), in what sense has Comcast violated my civil liberties? Isn’t Comcast like a private club banning certain topics from conversation in its house? And DPI sounds like another private agreement. If I don’t want Comcast to look at my data as they go through Comcast’s cables, I shouldn’t have agreed to get Comcast’s service. (See Jim Harper’s policy analysis “Understanding Privacy – and the Real Threats to It” over at Cato for more on privacy from the government vs. privacy from corporations.)

Tucker, policy counsel for the ACLU, claimed that net neutrality is not really government regulation of the internet, because ISPs only own the “on-ramps to the internet.” But whether the ISPs are the highway or just the on-ramps, they still get to control what traffic comes over their property. They can look at it, they can ban it, and they can price it discriminatorily. Government regulation of the internet is fundamentally different, because the government doesn’t own the backbone to the internet. The government doesn’t have to get the consent of companies and customers.

As Tim Lee just pointed out at TechLiberation, the ACLU lately seems to be having trouble making the distinction between private contracts and government mandates. The American Civil Liberties Union needs to get back to focusing on real civil liberties and real threats to them.