This week I was pleased to join a diverse collection of think tanks and public interest groups in submitting joint comments to the FCC opposing the proposed content filtering mandate that would be part of a future AWS-3 auction. That's the proposed auction that would create a "free" nationwide wireless broadband service. As part of the deal, the company would need to need to take steps to provide a "clean" Internet connection by filtering content. This joint filing points out why that is a bad idea:
* the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge.
* even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal Reno v. ACLU decision.
* even if the Commission were to require filtering on an "opt out" or "opt in" basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government mandated "blacklist" of websites to be blocked.
* would also violate the terms and intent of two federal statutes - 47 U.S.C. Â§ 326 (which prohibits the Commission from "interfer[ing] with the right of free speech") and 47 U.S.C. Â§ 230 (which promotes user control over content and limits burdens on service providers).
* would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced.
* would also certainly lead to legal challenges that would delay the implementation of the proposed access service.
The reason I believe this fight is so important is because, ultimately, it represents an effort by the FCC to begin treating wireless broadband more like broadcast spectrum. That is, regulators want to create the classic regulatory quid pro quo: We'll rig the wireless allocation process to make it easy for you to get spectrum, and you'll be a good little boy and clean up the Net for us! This is the game the FCC has been playing for 70 years in the broadcast television and radio licensing space. And not they want to extend that nonsense to wireless broadband. As Commander Jean-Luc Picard would say: "The line must be drawn here!" We don't want the Internet regulated like broadcasting.
Many thanks to John Morris of CDT for coordinating this filing and asking me to sign on. The comments can be found on the CDT website, and I have also embedded them down below as a Scribd file. Also, Leslie Harris of CDT has a short editorial about the issue over at ABC News.com.