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Internet Censorship: Subtle, Non-Governmental, and Totally Legal

By Masoud Shafaee - Jul 22nd, 2008 at 3:57 pm

A new trend is emerging in which Internet service providers (ISPs) and other network operators are taking voluntary measures to enforce copyright laws and combat online piracy. These sorts of policies may go too far and burden completely legal speech, and yet lie beyond the realm of the First Amendment, which only limits the government’s regulation of speech.

When commercial Internet access became widely available to the public in the nineties, the availability of pirated music soon flourished. Today, with an ever-increasing number of consumers subscribing to high-speed Internet access, the prevalence of illicit digital goods has only grown; these days, newly released DVDs and expensive, high-end software are just as easily accessible as music, if you know where to look.

Several attempts have been made to combat this trend. The Recording Industry Association of America (RIAA) has filed more than 26,000 individual lawsuits against people it claims are illegally sharing music and breaking copyright laws. Though these efforts have been somewhat successful from the RIAA’s point of view, the problem persists as users adapt to the RIAA’s (and the Motion Picture Association of America’s) targeting methods and come up with new ways to avoid detection.

Websites that host user-generated content, for their part, have been using Section 230 of the Communications Decency Act (which grants them immunity from liability for illegal content posted by their users) in order to edit and remove any infringed works that may be found on their sites. One of the CDA’s stated goals is to encourage website operators to self-regulate by freeing them of liability. Yet as any cursory glance at YouTube will reveal, copyrighted materials are still being posted online. All of this has converged to a point where private ISPs are now contemplating taking dramatic steps to police Internet traffic–but with potentially devastating impacts on free speech.

AT&T and some other media and technology companies, for example, have floated the idea of filtering information at the network level to screen for pirated content. The idea of an ISP snooping on its customers’ content alarms many who are used to the idea of anonymous Web surfing.

The lack of competition in the ISP market puts AT&T (and other ISPs) in a commanding position to enact these sorts of policies. ISPs enjoy virtual regional monopolies in their roles as Internet gatekeepers, as consumers are stuck with whatever Internet pipeline is available in their area. It goes without saying that this is ultimately bad for consumers–and bad for free speech.

This is not to take a blasé attitude to online piracy. However, what may at first appear to be a means of combating piracy can transform into something far more burdensome on speech. Snippets of video content lawfully sampled under copyright law’s “fair use” doctrine, for instance, could be blocked by overzealous filtering schemes. And inevitably, methods used to combat piracy can mutate into means of censoring free speech. The fear of “mission creep” is also very real. If ISPS and other network operators voluntarily decide that they don’t want any violence, profanity, or pro-choice content streaming over their networks, for example, this would have a marked influence on the nature of free speech on the Internet.

Because the First Amendment doesn’t apply to private companies, and absent any statutes treating ISPs as common carriers, it is imperative that ISPs demonstrate great caution before fundamentally changing the way in which consumers access the Internet. In a welcome development, Verizon said earlier this year that it has no interest in implementing an AT&T-type filter on its networks. More companies should take Verizon’s lead to ensure that the Internet retains the free and dynamic qualities responsible for its remarkable worldwide growth.

Tags: First Amendment, free speech, Internet, tech