Individualshave been debating on the issue concerning whether to adopt netneutrality. The most contentious issue, which raises the bigquestion, is whether to adopt the proposed laws of net neutrality.While some individuals argue that the net neutrality should beadopted, others have an opposing idea. Most of those arguing againstnet neutrality have the idea that net neutrality is likely to ignorethe provisions of the First Amendment. Net neutrality consistentlyrequires ISPs to post or send content that the ISPs may prefer not topost or send. These constitute speech restrictions, which tend toinfringe the constitutional rights of the ISPs. From the provisionsof the First Amendment, the Congress should not be involved in makinga law that abridges the freedom of speech (Lind andErik16). According to the First Amendment, it is critical to giveentities the freedom to act in accordance to the editorial judgmenton the basis of content. However, this right is denied by the netneutrality. In this assignment, the concept of net neutrality will bediscussed, its proposed rules, and its impact on the First Amendment.
Netneutrality entails a network design model, which argues for broadbandnetwork suppliers to be entirely detached from information sent overtheir networks. According to net neutrality, there should be no bitof information, which should become prioritized over another (Marsden44). This implies that an information network like the internet isuseful and most efficient to the mass, when it is less focused on aspecific audience and in its place attentive to many users.Therefore, net neutrality makes all internet traffic to be treatedequally. In order for net neutrality to hold, some rules wereproposed in order to guide the openness of the internet.
Prosand Cons of
Oneof the pros for neutrality is that there are no restrictionsconcerning what portions of the internet that users can access,except what the government decides. For example, the users are notgiven limitations on file sharing, emailing, video conferencing, andinstant messages among other needs. So, users of the internet benefitfrom this unlimited access. Another pro is that the ISPs cannotchange the rates that they charge for downloading, uploading files,or even charge depending on what users access (Hazlett42). Besides, there is no restriction concerning the speed that usersshould access the internet. In addition, net neutrality provides aplaying field for competing firms. On the other hand, a con of netneutrality is that it limits the ISPs from blocking what users shouldaccess, which is a denial of right of ISPS in carrying out theirobligation (Hazlett48). Thus, it tends to oppose the provisions of the First amendment.
ProposedRules Involved with
Rulefor Ensuring Neutrality on All Public Networks: neutrality can beconsidered as an essential property of public broadband internetaccess. According to this rule, all Internet Service Providers (ISPs)and broadband providers that offer service to the general public mustensure neutrality without regard to the underlying transmissiontechnology and local market conditions.
Rulefor Protecting Against Unreasonable Discrimination
Accordingto this rule, every individual in the US must be capable of accessingapplications, legal content, and services on the internet without anyunreasonable discrimination by the operators and owners of ISPs andpublic broadband networks. This rule ensures that the ISPs do notengage in offering favorable transmission to the affiliated contentsuppliers or discriminate against certain internet services on theground of the identity of users, kind of services being offered, orthe content of the data (Marsden24). Unreasonable discrimination is in Title II of the CommunicationsAct. This rule has been applied in situations, where providers tendto treat customers in a significantly different manner.
Rulefor Prohibiting Paid Prioritization
Accordingto this rule, ISPs and public broadband providers should not beallowed to engage in selling prioritized transmission to givencontent, service providers, and applications over other internettraffic that share similar network facilities. In case there isprioritization of certain internet traffic, there is a likelihood ofinherently disadvantaging other content, service providers, andapplications.
Rulefor Providing Transparency
Theprovisions of this rule is that ISPs and public broadband networkproviders must be capable of disclosing network management practicesin the public and in a way that permits users and content, serviceproviders, and application in ensuring informed choices. Besides, itshould allow policy makers in determining whether the practices goalong with the network neutrality principles. In addition, this ruledoes not need disclosure of information, which can jeopardize networksecurity (Marsden26).
Rulefor Adopting Enforceable Policies
Thisrule provides that rules and policies for enforcing the principlesmust be transparent and clearly stated. This implies that any ISP orpublic broadband provider that is noted to have violated the rulesshould become subjected to penalties after adjudication on the basisof case-by-case.
Rulefor Accommodating Public Safety
Thisrule supports the idea that reasonable accommodations should be madebased on the evidence that the accommodations are deemed necessaryfor public health, safety, law enforcement, emergency situations, ornational security.
Rulefor Maintaining the Status Quo on Private Networks
Thisrule argues that operators and owners of the private networks, whichare not openly accessible to the general public, must continue theiroperations according to the practice and rule that indicates thatprivate networks are usually not subject to regulation (Marsden28). On the other hand, end users like companies, schools, orhouseholds should be free in deciding how they utilize the broadbandservices they receive from ISPs and network operators.
Rulefor No Blocking
Accordingto this rule, an individual that is involved in providing fixedbroadband internet access service should not engage in blockinglawful content, non-harmful devices, applications, or services,subject to a rational network management. Besides, according to thisrule, an individual involved in providing mobile broadband internetservice should not engage in blocking consumers from having an accessto lawful websites, subject to rational network management. Inaddition, such an individual should not block applications, whichcompete with video telephony or provider’s voice services, subjectto a rational network management.
Impactof on the First Amendment
Theadoption of the net neutrality is likely to have an impact on theFirst Amendment. Net neutrality consistently requires ISPs to post orsend content that the ISPs may prefer not to post or send. Theseconstitute speech restrictions, which tend to infringe theconstitutional rights of the ISPs. From the provisions of the FirstAmendment, the Congress should not become involved in making a lawthat abridges the freedom of speech (Abrams47). Just like newspapers, cable operators, music and movieoperators, and magazines, ISPs possess free speech rights. In fact,they are all speakers for First Amendment purposes, despite thetechnology or medium of they may utilize in conveying their speech.As such, the ISPs have First Amendment rights as entities that areentitled to use their facilities in conveying messages that theychoose. Under traditional First amendment jurisprudence, it is a freespeech infringement, when a speaker becomes compelled to conveymessages that the speaker does not want to convey since this is justlike preventing the speaker from conveying messages that the speakerwishes to convey. Neutrality laws like the currently proposed, whichrequire an ISP to send or post, or allow access to any content of thesubscriber’s choosing, are compelled access rules. Even though thepermission does not literally tend to restrict an ISP from publishingcontent of its own wish, the mandate could compel the ISP to make orconvey available content, which in its editorial judgment, wouldotherwise choose not to make available or convey.
Inthe digital era, data processing capacities, transmission capacity,and computer storage capacity are not costless resources. To anextent, an ISP is usually needed to carry more applications andcontent than it could otherwise choose in case it could exercise theeditorial discretion that it has. There is a likelihood of having afinancial impact on the ISP. More so, the cost will rise because ofthe increased transmission, storage, and processing capabilitiesrequired in meeting new carriage requirements. ISP network resourceis not a free good through requiring an ISP to engage in carryingcontent it would prefer not carry, net neutrality imposes costs,which can force the ISP to forego to carry other content it couldprefer making available.
Thenet neutrality proposals that tend to prevent an ISP from blockingaccess by its subscribers to any lawful websites could imply that theISP could not have a choice in restricting access to materials, whichin its view is indecent or unpatriotic. As provided by the FirstAmendment that an ISP has the freedom of exercising its editorialjudgment on the basis of content, the neutrality laws would haveviolated this provision (Abrams84). The net neutrality law has an impact of rending the provisionsof the First Amendment non applicable. As it has been indicated, thenet neutrality proposed rules tend to contradict the provisions ofthe First Amendment, which gives entities the right to act undertheir editorial judgment in considering the content that will reachthe public. Therefore, through following the net neutrality laws,there would be a contradiction to the First Amendment.
Onthe other hand, the First Amendment usually depicts the limitationthat is there on the side of government making and changing laws. Incase the proposed net neutrality laws become considered as effective,the First Amendment will lose the limiting power it has on the sideof the government. This is because it would have eliminated the powerthat it has been given in restricting the government from making lawsthat infringe on the freedoms of entities.
Accordingto net neutrality, there should be no bit of information, whichshould become prioritized over another. Net neutrality seeks toprevent providers of the internet service from slowing or blockingusers’ connections in accessing online content (Marsden58). According to the proposed rules by the FCC concerning netneutrality, there should be no discrimination and transparency mustprevail. Without the consideration of net neutrality, it would befeasible for ISPs to devise a new scheme of charging users more forservices. This has an impact of making it cumbersome to communicateonline and exceedingly easy for entities to sensor the speech ofusers. Just like it was the case for Cable TV, the internet wouldhave problems, where gatekeepers can exert control over what onesees. Thus, through the net neutrality, consumers of the internet arelikely to reap benefits since they will have the freedom of accessingthe internet at an affordable rate and the internet suppliers willnot have control over what they watch (Nunziato64). Despite the benefit that comes with net neutrality, there arealso disadvantages that are associated with net neutrality. The netneutrality proposals that tend to prevent an ISP from blocking accessby its subscribers to any lawful websites could imply that the ISPcould not have a choice in restricting access to materials, which inits view is indecent or unpatriotic. According to the FirstAmendment, an ISP has the freedom of exercising its editorialjudgment on the basis of content, which implies that the neutralitylaws would have violated this provision in case net neutralitybecomes considered. Besides, the First Amendment argues that, it is afree speech infringement, when a speaker becomes compelled to conveymessages that the speaker does not want to convey. Therefore, thereis an infringement of speech freedom through adopting net neutrality(Nunziato106).
Abrams,Floyd. SpeakingFreely: Trials of the First Amendment.New York [u. a.: Penguin books, 2005. Print.
Hazlett,Thomas W. TheFallacy of .New York: Encounter Books, 2011. Print.
Lind,Nancy S, and Erik Rankin. FirstAmendment Rights: An Encyclopedia.Santa Barbara, Calif: ABC-CLIO, 2013. Print.
Marsden,Christopher T. NetNeutrality: Towards a Co-Regulatory Solution., 2010. Print.
Nunziato,Dawn C. VirtualFreedom: and Free Speech in the Internet Age.Stanford, Calif: Stanford Law Books, 2009. Print.