What is Status of Internet Free Speech?

Ideas and content we find objectionable often are the basis for tests of freedom of speech and press in the United States, and that has not failed to be the case, so far in the internet era.

Among the early First Amendment cases to address internet app freedom, broadcast-style  restrictions on “indecent” communications were part of the Telecommunications Act of 1996. As often is the case, freedom of speech often involves speech (ideas, content) we do not agree with, or are otherwise troublesome.

In the case of  Reno v. ACLU, in 1997, the U.S. Supreme Court held that the Telecom Act restrictions on both the “display” and “transmission” of indecent communications online violate the First Amendment.

“Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox,” the court said. “Through the use of Web pages, mail exploders and newsgroups, the same individual can become a pamphleteer.”

There is “no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

So far, other cases have dealt with protections for child pornography, again illustrating the principle that tests of freedom of speech often come in troublesome ways apparently unrelated to the arguably central principles of freedom of political speech.

In Ashcroft v. Free Speech Coalition (2002), the Court struck down a federal ban on “virtual” child pornography in the 1996 Child Pornography Prevention Act (CPPA). That case found that a prohibition of images that “appear to be a child” engaging in sexual conduct where no actual children were involved prohibited a substantial amount of protected expression and violated the First Amendment.

In Ashcroft v. ACLU (2002), the Supreme Court reversed a decision of the 3rd U.S. Circuit Court of Appeals to enjoin enforcement of the Child Online Protection Act (COPA), successor to the Communications Decency Act.

Once again, obscenity was the direct issue at hand, not political speech.  

The Supreme Court ruled in June 2003 that a law requiring libraries to filter pornographic internet content was lawful. In the United States v. American Library Association case, the Supreme Court ruled that filtering software does not violate the First Amendment, even though it blocks some lawful web sites.

There are other potential examples of unappetizing areas where “free speech” rights will be hard to evaluate and protect. Do terrorist organizations have such rights?

U.S. network neutrality rules recently came into play, as some might argue regulators used common carrier regulation to take away First Amendment free speech rights. All things internet traditionally have been unregulated data services, not a highly-regulated industry using the common carrier framework.

Utility regulation provides far-less freedom than do laws regulating broadcast TV and radio, cable TV, newspapers, magazines and internet media.

Also, much network neutrality arguments premised on promoting freedom actually do not have much--if anything-- to do with actual blocking of content, and quite a lot to do with the business models of various participants in the internet value chain. Nor is it ever easy to separate the permissible management of congestion on communication networks (lawful) and the separate business practices relating to how networks price and package their access services.

The new wave of threats actually do not come from the government restricting freedom of speech, but in other ways. In other words, it arguably is no longer enough to insist that the government be barred from restricting speech.

In many cases, other actors (universities or public schools) ban speech to protect the sensitivities of people who do not wish to hear ideas they disagree with. That is the problem, some might argue, with “hate speech” codes. In another context, “hate speech” often is political speech, and cannot be blocked by the government, though often such speech is blocked by non-government actors.

That might be the big new development: the First Amendment prevents the government from infringing freedom. The First Amendment does not protect freedom when other actors (firms, people, organizations) are the sources of restrictions.

Is Facebook Media? If So, What Changes?

Is Facebook a media company, even as it remains a technology company? The answer now matters, as regulators may weigh a range of measures to protect privacy and content on the site.

To the extent Facebook operates as a media company, then First Amendment protections of its free speech rights will apply, as they do to every other media entity.

It does not matter that Facebook’s dominant business model is advertising, made possible by its creation of audiences based on content consumption (though other revenue models might well emerge as significant, over time). Other media companies rely on subscriptions.

And even some other companies (such as e-commerce providers such as Amazon, streaming services such as Netflix, or search providers such as Google) also operate, in part, as media outlets.

In some ways, media regulation, though relatively unobtrusive, potentially will be more extensive than has been the case in the past, as “data services” have been completely unregulated, in terms of content.

But much depends on which media model is used. Most free are media covered by newspaper and magazine rules. Internet media likely will tend to fall in this bucket.

More regulated are other electronic forms of communication using public spectrum, such as TV and radio broadcasters. Cable TV firms have tended to fall under the “broadcast” rules, with less freedom than newspapers, but more freedom than common carriers.

What that has tended to mean is that a few areas, such as “obscene content,” programming for children and balance or diversity have sometimes been requirements in broadcast media, obligations newspapers or magazines, for example, are not subject to.

“Obscenity” long has been an issue for regulators, in the context of protecting freedom of speech by individuals and companies and organizations including radio, TV, newspapers, magazines and other media.

We can now add “bullying” and “hate speech ” to that list of troublesome issues, especially in a new media context, where it is not easy to determine who the “speaker” is, and therefore whose rights have to be respected, even when some “time, place or manner” restrictions are conceivable.

Figuring out who the “speaker” is has been an issue in the past, and shows no signs of becoming less troublesome. Speakers can include citizens and individuals, owners of printing presses and TV channels or programming networks, publishers of magazines and now internet media.

Internet media eventually will lead to new elaboration of First Amendment law, as it is not so clear who the “speaker with a free speech right” is on a social network or other platform where third parties create the actual content, not the entity providing the platform.

Traditionally, media outlets (content providers) have exercised editorial control, so it was the outlet that had the free speech right. That likely will eventually be held to be the case for Facebook and others as well. Even when content is “user generated,” Facebook will be found to exercise editorial control, and therefore it will be Facebook that has the free speech rights, not Facebook’s end users.

That will require some new thinking in the area of First Amendment law, as there are not obvious and well-attested prior examples.  The bottom line is that the platform--Facebook and others--are likely to emerge as the entities with free speech rights, not people who use the platforms and create content for the sites.

On the other hand, First Amendment law has been enlarged over time. Where it once was directly political speech “the King or president is an idiot”) that was protected, over time, other cultural and artistic endeavors have been deemed to represent potential political expression, and have been protected as well.

At the same time, with the rise of electronic media, the “rights holders” have changed. Yes, programmers have free speech rights. But in some instances, so do “listeners” or “viewers,” to some extent. Requirements to provide childrens’ programming, local programming or diversity of voices and balance in the broadcast TV and radio area are the best examples.

In other words, “rights” are always, at least potentially, in conflict. And that might apply especially to entities such as Facebook. Is the free speech applicable to the platform (is Facebook the speaker?) or to the individual contributors? And to the extent both have some rights, what are those rights and whose rights are paramount in which instances?

And though it seems esoteric, even ascertaining what “speech” is, has been troublesome.

You might find it odd that there has been any serious debate on the nature of speech. Originally, “speech” meant “political speech,” and the concern was to protect ideas and their expression as they related directly to politics and government.

Over time, jurists concluded that, at least sometimes, art, culture, music and other expressions in a variety of media also can have political implications and content, and so deserve freedom of expression. Also, over time, the right of expression became a more-established right of organizations (political or not) as well.

Who Has "Freedom of Speech?"

Facebook's latest issues with privacy and transparency obviously raise key questions about the role of trust in social networks or any other apps funded by advertising. 

Less obvious are other questions about ad-supported technology companies in general, especially as the advertising revenue model virtually requires creation and delivery of content, information or communication capabilities. 

Media includes "communication channels through which news, entertainment, education, data, or promotional messages are disseminated." That includes every broadcasting and narrowcasting medium such as newspapers, magazines, TV, radio, billboards, direct mail, telephone, fax, and internet. 

That means Facebook--despite its traditional assertions, meets current definitions of media, in addition to being a technology company. That also implies--perhaps demands--that Facebook's content be treated as "media.

One phrase traditionally expressing such freedoms is freedom of the press, especially in the context of U.S. law. The U.S. Constitution guarantees the freedom of the press (among other core freedoms) in its First Amendment. 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

To be sure, different media have different degrees of First Amendment protection. Traditionally, newspapers and magazines (print media) and arguably internet forms of such media have had the greatest degree of protection. Broadcasting (radio and TV) have had more regulation and obligations (children's programming, content restrictions and "diversity" or "balance" requirements). 

Since data services of all types (computing, storage, transmission) have been non-regulated, new internet apps such as Facebook have been in a category akin to newspapers and magazines. 

Linear video (modeled originally on cable TV) has had regulation similar to broadcasting in some ways. 

Former utilities such as telcos once were not considered media, but regulated as monopoly common carriers. All that makes no sense these days, as telcos and cable companies are in a number of businesses, ranging from internet access to communications to media. 

Some of us would argue that Facebook and other ad-supported apps that rely on content delivery and advertising as the business model, as well as Netflix and other streaming services, have First Amendment free speech protections. 

What that means is a new issue. Though it is not always understood, there are rival "free speech" issues always at stake. The original thinking was that the right of free speech belonged to the speaker (person or entity). 

As a practical matter, that meant people (citizens) as well as "owners of printing presses" and their customers. In other words, the "right of free speech" or "freedom of the press" (both separately protected, as well as the free exercise of religion) belonged to the "speaker," not the "listener." 

In other words, one way to explain the right is that it protects the right of a speaker, not the rights of the listener or hearer or reader. 

Over time, it got more difficult, as broadcasting medium regulation added some "listener" rights, such as "diversity of voices" or "fairness" or "mandated programming for children" and also some restrictions on content (language, nudity). 

By definition, that means we always have conflicting rights at play. Whose rights are to be protected, those of speakers or those of listeners? And to the extent there is conflict, where must the fundamental rights be protected? 

There is no simple answer, though some would likely note that, on balance, it is speaker rights, not "listener" rights, that have to be protected, when there is a clash.

That also is a current issue, given the seeming willingness of university administrations in the United States to seemingly favor "listener" rights as opposed to "speaker" rights. 

"Free speech" becomes almost meaningless if it is abridged by rules seemingly catering to "listener rights" not to hear messages with which they disagree. 

This might seem abstract. It is not, and will be obvious as our "regulation" of services such as Facebook is considered. There are opportunities to protect and enhance freedom, or to restrict freedom. A fundamental issue will be "whose rights are protected." 

This is not a new issue, though it remains a profoundly important issue. And there is no simple, easy, clear cut answer. 

Vertical Integration Might be Necessary Now

The news that Google is considering getting into the business of in-flight internet access illustrates one important aspect of the internet ecosystem, namely that growth opportunities have participants looking at different roles within the value chain.

To be sure, vertical integration has high value for consumer-facing participants: platform, access or app.  

To be sure, internet access as a product has value only as internet applications exist, just as app providers depend on widespread internet access adoption to create their own revenue models, while platforms depend on the ubiquity of both access and apps.

That has key implications for notions of proper antitrust and vertical integration efforts. If business strategy--and in some cases survival itself--hinges on either vertical integration or movement into new parts of the value chain, then it does not make sense to take antitrust action “too soon.”

By blocking expansion moves (vertical integration or across the value chain), regulators could choke off growth needed to offset declines or maturation of existing roles within the ecosystem.

That is most clear for internet access, voice, messaging and mobility suppliers, which face declining or mature markets in all those core areas.

source: A Saghaeian

source: Strategy+Business

When Measuring Metrics Change, Watch Out

One has to be careful when analysts start using new and non-standard metrics for measuring market gains. So when a new metric of locations “passed or addressed” starts to be heard, one has to remain cautious about using any such figures in comparison to the traditional ways of measuring “homes or locations passed.”

Such non-standard terms have in the past been used when markets are changing fast, but also where financial meaning and sustainability are unclear. One good example was the concept of "voice grade equivalents" (VGEs) used in the turn of the century competitive telecom industry.

That concept was used in an effort to show account growth when bandwidth, rather than voice circuits, began to become the important revenue driver. The problem was that a voice" circuit and a "bandwidth" service had quite different revenue implications. One no longer hears the term "VGE" used.

So it is useful to recall such precedents when using terms such as "locations addressed."

The term "location passed" has a specific meaning: a location has the ability to buy products from a service provider because the network already is built. That is important because it places a limit on the number of potential customers. A service provider, in other words, can fulfill a new service request at a location because the network actually exists to serve that location.

The notion of “premises addressed” is different. That term refers, according to a new report, as a location “located within x number of meters of a network.” That is different from the notion of a location “passed.”

Such “addressed” locations might be feasibly connected to the network, but are not actually “passed.” That concept likely grows from the competitive business services business, where the business model includes both “passed” locations and additional locations that can be profitably connected from existing facilities, but are not directly passed.

A new report by the Independent Networks Cooperative Association (INCA) and Point Topic suggests non-traditional service providers of “superfast internet access” (not telcos or cable TV operators) in the United Kingdom get about 21 percent take rates in areas where they can actively market their services.

“Superfast” is defined as downstream speeds of 30 Mbps or more.

The report does not count satellite, 4G, white space or leased line infrastructure accounts as part of the total subscriptions.

It is unclear whether the surveyed service providers are mostly the third or second provider of internet access services in their markets. A take rate of 20 percent would be notable even in a two-leading-supplier market (BT plus the “altnet”), but would be even more significant in a three-provider market  (service is available from suppliers using the BT network--retail or wholesale--and Virgin Media and a third facilities-based supplier).

source: INCA

The point is that caution is called for, whenever new metrics are introduced.

Facebook Now Says it is "Responsible" for Content on its Site

Facebook and Google often have claimed they are not media companies and do not exercise editorial control over content their users post. Now Mark Zuckerberg, Facebook CEO says the firm is responsible for user content, and therefore Facebook is a media company.

That is a change, and a change that will change the way Google and Facebook have to operate in the future, as both firms will likely have to spend more time and money exercising editorial control.

There are lots of issues here, including the thorny issue of how to ensure that neither platform is acting as a content censor of lawful and protected speech, even as both might act to better police language or content that is not protected speech.

Up to this point, none of the ad-supported platforms with scale (Google, Facebook, Twitter) have done an outstanding job promoting protected speech, while acting more directly to ensure some semblance of fairness and accuracy.

Ironically, as technology services and apps traditionally have been virtually always unregulated, a shift to “media” regulation, though carrying new responsibilities still will allow Facebook and others to claim the same editorial freedoms as do newspapers, magazines, radio and TV stations or other content networks.

Those who want to apply heavy-handed regulations on Facebook and others now will have to contend with the fact of First Amendment protection. That might carry with it responsibilities greater than Facebook and others have faced as providers of data services (no regulation), but also protects Facebook from more-intrusive forms of content regulation.

That does not mean Facebook and others cannot implement community standards, in the same way that broadcast TV voluntary complies with some standards relating to speech and other restraints on content.

This a matter quite separate from other calls to apply antitrust to such firms as Facebook, Google, Apple or Amazon.

Calix Seeks Faster App Development with Infosys Deal

Fixed network access platform provider Calix has partnered with Infosys to increase its ability to develop new custom apps for the AXOS system.

The deal allows Infosys to develop and deliver new software modules for the AXOS platform, without service provider customers necessarily having to wait for the internal Calix developer team to do so. Such abstraction and virtualization is among the touted benefits of network functions virtualization.

Though much will hinge on what service provider customers ask for, it might be reasonable to suggest that end user apps are not going to be top of mind. Instead, service providers probably will look to create new apps designed to help them run their businesses more effectively.

The reason is simply that few--if any--telco-created consumer apps have gained traction and scale. Video entertainment might be one area where this remains possible, but in few other areas have telcos gotten scale where it comes to consumer apps.  

source: S. Saravanan  

Many believed mobile operators had platform advantages where it came to mobile app stores, for example. That has largely proven not to be the case. And the overall trend is growing revenue for third party over-the-top app providers.

source: World Economic Forum