Government-Provided Internet Access: Terms of Service as Speech Rules
36 Pages Posted: 22 Jun 2014 Last revised: 16 Sep 2014
Date Written: June 20, 2014
Government-provided Internet access takes a range of forms. One approach is a purely public utility model, i.e., government owned-and-operated, mostly city-wide “municipal broadband” networks built out and managed by cities themselves. Another is the increasingly more common public-private partnership such as Harlem WiFi, where a private ISP provides Internet access via HotSpot in a particular public space such as a neighborhood, business district, park, town hall, or transportation hub, in cooperation with a municipality or its administrative subsidiary, at low or no cost to the user. All of these projects are undertaken for manifestly public purposes, from education to economic development. In addition, an underlying motivation on the part of policymakers is likely the fear of being left behind. Businesses, residents, and visitors are increasingly expecting high-speed Internet connections in public spaces, and city leaders seem to believe that if they don’t build it, those businesses, residents, and visitors will not come.
Concurrent with these efforts is the growing debate over direct federal provision of high-speed Internet service. Advocates of fiber-to-the-home for all Americans have called for additional public investment of nearly one hundred billion dollars in federal funding, much of which would go to government-owned and operated networks. To those advocates, the Federal Communications Commission’s seeming abdication of its commitment to network neutrality in April 2014 has highlighted to an even greater degree the need to expand municipal-level, utility-run networks, and the FCC itself seems ready to exercise its federal preemption authority to protect municipal broadband efforts from state-wide laws that have inhibited municipal broadband networks in several states. For those who believe a subsidy approach has not succeeded in ensuring high-speed Internet access to all Americans, direct government provision of fiber-based Internet service seems the only solution.
This fundamental makeover of public places raises the question whether the management of these networks is subject to the restraints of the Constitution, and if so, what limitations the First Amendment would place on interferences with speech carried by those networks. The answers to these questions have important implications for public safety, free expression, and digital development in our urban spaces. This Article argues that if a municipality provides high-speed Internet service to members of the public in the municipality’s own name, and the municipality has pointed to important public purposes in delegating authority to the service-provider-in-fact, then the Constitution’s demands should apply to that service.
Keywords: First Amendment; Constitutional Law; Federal Communications Commission; Net Neutrality
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