Papers

Proposal of a policy model in defense of the public sphere through Internet access regulation

Pedro Silva¹
psilva@sfsu.edu

13 December 2006

1 The Internet and the Public Sphere

Consider the public sphere as defined in [8]. It is the "realm of our social life in which something approaching public opinion is formed [with] access² guaranteed to all citizen" (p. 49). However, the public sphere's place in western media has been...challenged, in later years [6,7]. To this has contributed the widespread model of commercial broadcasting [10,4]. On the other hand, I have shown how the Internet can substitute broadcasting in fostering political and cultural participation [11]. Building on the argument that free Internet access is the key to creating "community and social capital" [5,p. 307], I argue that, in face of the traditional digital divide and the recent net neutrality debates, the public sphere may well lose its platform all too soon. In [11] I contend that neither market regulation or self-regulation is consistent with the idea of a public sphere. Moreover, I propose that government regulation of access to the web will accomplish it.

To that end, this paper divides Internet access into user and content-producer access. It attempts to understand whether there is a significant difference in the way limitations to access negatively effect the public sphere. This is important because, as I will show in section two, any regulatory implementation will have to deal with obvious First Amendment scrutiny issues; it is fundamental that a policy regulating Internet access do so in a targeted manner. I also make a case for Internet access being a substantial government issue, in light of the relevant literature, namely [9,1,2,3,5].

2 Internet access

The key concept in the workings of the public sphere, as it relates to media, is access. "The success of the internet in the US fundamentally rests on 30 years of consistent FCC policy which sought to maintain network openness by making key network components available to all" [1,p. 489]. This is in striking contrast with perspectives coming from the FCC itself, for example: [9] proposes that it was the FCCs early deregulatory efforts that facilitated the "growth of computer applications offered over the public telecommunications network" (p. 6). However, such deregulatory environment was achieved primarily before 1995, after which the National Science Foundation privatized the Internet backbone, to use the author's own words. This means that deregulation was possible, and indeed desirable, because there wasn't a primarily commercial interest in place. By definition, the two spheres of interest in the Internet were the academia and the government. In any case, such deregulation was meant to encourage openness of standards, of which public access is a function. Furthermore, such deregulation's effectiveness is not even certain: [1] argues that "Policy intervention, not `unregulation' [sic], forced network incumbents to open their networks to (...) new entrants" (p. 494).

Widespread access provides for decentralization of information. However, there is both information-generation and information-use potential associated with the Internet, and both are functions of access. There are, then, both user and producer-related access. The next two sections deal with the differences between both, as they related to the public sphere.

2.1 User access

User access relates to how widespread access is to the population in general, in non-limiting conditions. If the conditions of access are such that the individually-relevant content is not available due to obsolete technology , that does not constitute a case of user access to the Internet. There are ramifications beyond the obvious in this argument: limiting access conditions include, in addition to obsolete technology on the user-end, discriminatory technology which limits the free access ³ of the user in a relevant way. Since the point of the public sphere is the free access to a platform that is not constrained by an economic value system, in other words, where the individual is considered to be capable of political action in a responsible manner -not merely a consumer -any kind of user access restriction to any kind of content breaches the necessary conditions for the existence of a public sphere on the Internet.

2.2 Content-producer access

Sociologists should be concerned not only with inequality in access to the Internet, but with inequality in access to the attention of those who use the Internet [5,p. 313].

The nature of the Internet implies a blurred distinction between a user and a content-producer. Inarguably, a user is merely passive, whereas a producer actively generates information. However, and again by its nature, the Internet is interactive: the relationship between a server and a client operated by a human person generates communication, with feedback mechanisms; the act of browsing through hyperlinks necessarily generates data. Likewise, even the moving off of a particular web page indicates something; usually, statistical data indicating usage trends, at the very least [12]. These arguably constitute information. This serves to highlight the necessity of considering any individual user as a potential producer, not just traditional media entities.

Without doubt, any user has the capability to generate content. And the public sphere requires the totality of the population to be a user in potential. The implication is that there must be some mechanism to allow any individual to access the Internet and thereby fulfill his potential as a political player. Turning things around, this same individual must have the possibility of having his content accessed by any other individual, and so forth. It is a circular flow, meaning that free individual access is the principal requirement for the existence of a public sphere on the Internet.

3 Government control

In this section I argue that Internet access is indeed a government interest; I present precedential evidence to that effect in the realm of jurisprudence, and other compelling arguments in sociology, and computer science. Based on the previous section, I analyze possible First Amendment issues that might arise; I then propose a specific implementation addressing such arguments.

3.1 Substantial government interest

The case of public access television supports the regulation of Internet access; at the very least, it demonstrates that the government is willing to regulate media access. Indeed, the Cable Communications Act of 1984⁴ put in effect compelled financial support, a form of compelled speech that falls under the First Amendment shield, on cable companies. The argument here is that such government action is a content-neutral time/place/manner (TPM) regulation. Therefore, 47 U.S.C. § 521 evidences that regulating access by compelled speech can indeed be linked to a substantial government interest. If so, then the proposed regulatory implementation will be tested on First Amendment intermediate scrutiny. Ironically, turning things around, the government interest such regulation purports to advance could, theoretically, be argued for as compelling, on grounds of strict scrutiny, as it relates to a time/place/manner restriction that is not content-neutral⁵. The Supreme Court "has steadily developed an understanding that decentralization of information production is a policy that serves values central to the First Amendment" [2,p. 565]. Not only is public free individual Internet access in the government's best interest, it is also shielded by the First Amendment itself. Note that I don't propose a form of media access law of the kind that has already been rejected by the Supreme Court⁶: the proposed regulation would not attempt to ensure "responsible press performance", an obvious editorial role, nor would it abridge any kind of speech, but merely enhance it. The crucial difference is in the government interest, which is substantial in the case of the creation and maintenance of a public sphere, but almost none in individual rights-of-reply. In any case, as [2] pointed out, "We have the imperious tone of Miami Herald to sooth us into believing that it, rather than these aberrant cases, is the norm adopted by the First Amendment, and they are the deviant" (p. 566), the implication being that 418 U.S. § 241 itself was the aberrant case.

There are sociological implications to the Internet, as well. These are well documented in [5], where five distinct domains are presented:

inequality, or the already mentioned "digital divide",
community and social capital, also mentioned before,
political participation, clearly a part of the public sphere,
organizations and other economic institutions, and
cultural participation and cultural diversity

Although the authors recognize the potential of the Internet in achieving a "renewed public sphere" (p. 319), [5] put this in perspective with current research, explaining that such potential is not necessarily translated into participation. However, they remark that the "ultimate social implications of this new technology depend on economic, legal, and policy decisions that are shaping the Internet as it becomes institutionalized" (p. 307), stressing the need for additional research on the subject. I disagree: as in public access television, it is not the commitment to the public sphere at the individual level that matters; instead, it is what [8] defined as essential: free access to a platform for the generation of some form of a public opinion. This I take to mean the potential to do so, even if a majority of the public is uninterested.

3.2 First Amendment intermediate scrutiny

There is obvious government action involved in regulating Internet access. I have argued that the government action in question may constitute compelled speech, perhaps through a form of compelled financial support, even though this much is not clear. It therefore can be argued that it indeed impedes an activity, presumably on the part of Internet Service Providers (ISPs), but perhaps also of web hosts, or domain registrars, that is predominantly expressive. This is not necessarily the case, but lets assume such arguments would be brought to charge against the proposed regulating policy.⁷ Such speech would most definitely not be classified as unprotected. Since this action would constitute a content-neutral time/place/manner regulation, the applicable prong would be intermediate scrutiny: so, it remains to be asked, does the argument presented above constitute a valid case in favor of regulating Internet access being a substantial government interest? I contend that it does. Notwithstanding, there is precedence to such regulation, as I've shown. And any aberrant cases decided against by the Supreme Court are fundamentally different from this one. The final test is: does the regulation leave open ample alternative channels for communication of the message? I don't see how an ISP could possibly make its case based on such argument, as it hardly applies. In fact, this supports the conclusion that, most likely, there is not a First Amendment issue here. It all depends on the specific implementation of the regulation, which should obviously be neither too broad or too vague.

3.3 Implementation

Non-discriminatory content availability The main parameter in Internet access has to do with the underlying method for transporting data, to date the Internet Protocol (IP). Again, [9] is supportive of my own: "The openness of the data communications marketplace, anchored by the Internet Protocol, has driven the growth of this incredible medium" (p. 26). Its key feature is anonymity, or non-discriminatory capability. While it is understandable that an ISP should be able to discern among users, it should not be allowed to discriminate content. Thus one problem of Internet access, related to service differentiation based on different network protocols, is eliminated. This merely requires that current protocols remain as the essential mechanism of communication between network devices. This requirement is neither too broad or vague; it merely enforces the continuation of presently systemic technology.

Individual public access Standard commercial practice points to different users having different conditions of access, depending on a number of factors, namely subscription type. This is acceptable, in fact, desirable, in that it fosters economic growth, which has been undoubtedly fundamental to the development of the Internet. However, this practice places an economic value system in charge of the key factor in the new public sphere. Another mechanism is therefore essential for the prosecution of our goal. What is needed is a public system of access to the Internet that is not constrained by an economic value system, and therefore financed by the government. The public library system is certainly analogous to what I have in mind. In fact, in many, if not all, cases, the public library already serves such purposes, albeit at the individual level only. What remains, then, is a mechanism similar in nature, but inherently anonymous, and applicable to general content-producers. This implies the creation of a larger infrastructure, perhaps based on the public library system, with anonymous access capabilities (to impede discriminatory access conditions) and sufficient technology to access the totality of the Web's content.

Content-producer non-preferential access There still remains one condition: to regulate discriminatory content-based access. This is not resolvable at the user level at all. Instead, it should be addressed at the domain level. That is, both web hosts, domain registrars, and ISPs should refrain from applying discriminatory technologies to different domains: in other words, it should be no more difficult for an individual user to access domain a than domain b. It is irrelevant whether any particular domain generates more or less traffic, for example. Such domains certainly have contractually defined the terms of their presence on the Internet with their particular web hosts and ISPs.

4 Recommendation

I believe a triangulation of regulatory measures will be effective in preserving an Internet access that is consistent with Habermas's public sphere. To summarize:

The focus of this regulatory policy is on:
- Internet service providers
- Web hosts
- Domain registrars
The main concern is:
- Non-discriminatory content availability
- Individual public access
- Content-producer non-preferential access
Content availability should conform with the following:
- The underlying mechanism for data transportation is non-discriminatory of its content
- Domain-specific information is available systemically
Individual public access should have the following characteristics:
- There are provisions for a public access system, analogous to the public library system, ideally similar to public access television, although this can't be enforced, and therefore is not required
- Individual access has technological conditions that permit consulting the totality of the Web's public content
- Access is anonymous

A note on enforcement I have mentioned before that there might not be a case of compelled speech, in the case of ISPs having to provide equal content-neutral access. Indeed, were they to restrict the ability of their users to freely access any kind of lawful content, it could be argued that they would be in breach of the First Amendment. In fact, they would have to demonstrate a compelling government interest in such discriminatory action, because it undoubtedly falls within strict scrutiny. As such, I believe no specific enforcement mechanism is needed. An example of such natural enforcement can be found in the Madison River Communications case, where this company blocked their customers from using a voice-over-ip service. After FCC's intervention, the case was settled before going to court, so that it does not constitute an actual precedent. However, it does show that the FCC is willing to enforce a kind of informal net neutrality policy. And if or when it is not, one expects such case to eventually reach the Supreme Court and set precedent for all other First Amendment breaches to come.

References

[1]: F. Bar, S. Cohen, P. Cowhey, B. DeLong, M. Kleeman, and J. Zysman. Access and innovation policy for the third-generation internet. Telecommunications Policy, 24(6):489-518, 2000.
[2]: Y. Benkler. From consumers to users: Shifting the deeper structures of regulation toward sustainable commons and user access. Federal Communications Law Journal, 52(3):561-579, 2000.
[3]: M.S. Blumenthal and D.D. Clark. Rethinking the design of the internet: The end-to-end arguments vs. the brave new world. ACM Transactions on Internet Technology, 1(1):70-109, 2001.
[4]: Jean K. Chalaby. American cultural primacy in a new media order: A european perspective. International Communications Gazette, 68(1):33-51, 2006.
[5]: P. DiMaggio, E. Hargittai, W.R. Neuman, and J.P. Robinson. Social implications of the internet. Annual Review of Sociology, 27:307-336, 2001.
[6]: Phillip Elliot. Intellectuals, the 'information society' and the disappearance of the public sphere. In P. Schlesinger and C. Sparks, editors, Media, culture and society, volume 4, pages 244-6. Academic Press, London, 1982.
[7]: Nicholas Garnham. The media and the public sphere. In P. Golding, G. Murdock, and P. Schlesinger, editors, Communicating politics, pages 45-53. Leicester University Press, 1986.
[8]: Jurgen Habermas, Sarah Lennox, and Frank Lennox. The public sphere: An encyclopedia article. New German Critique, (3):49-55, Autumn 1974.
[9]: J. Oxman. The fcc and the unregulation of the internet. Office of Plans and Policy, 1999.
[10]: Herbert I. Schiller. The international commercialization of broadcasting, pages 94-103. Beacon Press, Boston MA, 1971.
[11]: Pedro Silva. Regulation, self-regulation, market regulation, and the public sphere. Unpublished, November 2006.
[12]: M. Tremayne and S. Dunwoody. Interactivity, information processing, and learning on the World Wide Web. Science Communication, 23(2):111-134, 2001.

Footnotes:

¹Broadcast and Electronic Arts Department, San Francisco State University

²My emphasis.

³Free as in speech, not gratis.

⁴47 U.S.C. § 521 (amending the Communications Act of 1934, 47 U.S.C. § 151 et seq.).

⁵I am thinking specifically of discriminatory Internet access technology, as has been hinted by some media companies, and even implemented by others such as AOL and Madison River Communications.

⁶Miami Herald Publishing Co., Division of Knight Newspapers, Inc. V. Tornillo, 418 U.S. § 241.

⁷One may argue: What form of speech would ISPs seek to protect? By nature, the Internet is fundamentally different from, say, a newspaper. An ISP is hardly comparable to a publisher. In fact, a fairer analogy could be drawn with a transportation department, or a postal service.

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On 24 Apr 2007, 23:49.