Jack Balkin argues that contemporary First Amendment doctrine is irrelevant in the face of 21st century free speech issues.  The modern day battle, as he sees it, is framed in the following way:

New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

This dynamic certainly implicates free speech.  But the way I see it, this is a problem that is blind to the First Amendment itself – which prevents the government from abridging speech.  All of this implicates private parties in the private sphere.  Without a complete re-articulation of what the First Amendment is designed to guard against, it would seem that the Constitution is inapplicable here, right?

I recently came across a paper that makes an interesting argument.  The author argues that network neutrality legislation would likely trigger intermediate scrutiny by the courts, but might not survive it.  This is because network neutrality is akin to “must-carry” provisions that the Supreme Court has addressed in other contexts – namely in Turner v. FCC.  In order for the court to justify “must carry” provisions, which the author analogizes to network neutrality legislation, the government must demonstrate, with substantial evidence, that a real harm exists and that regulation will alleviate the harm.  Because the author thinks that the Court might find the harms surrounding network neutrality “conjectural,” legislation will not survive the inquiry.  In the face of this, the author essentially calls for a new First Amendment that recognizes the multi-speaker environment of the Internet.

I have two responses to this argument.  First, the paper seems to have been published prior to the Comcast/BitTorrent fiasco which put a very real face on the network neutrality debate.  If the harms of discriminatory policies implemented by ISPs were conjectural before the Comcast example, it certainly can’t be considered such in the wake of it.  So, if the author’s doctrinal rubric is the one that prevails in the courts, net neutrality legislation might survive a challenge.  That is, of course, if such legislation is ever passed.  The FTC is apparently warming up to enforcing such policies, but I feel like we’ve been hearing this for years.

Second, it seems that we should keep the First Amendment out of this debate.  If network neutrality is justified, it should be because policy makers on the ground see the regulatory merits in mandating non-discriminatory access to Internet content, notwithstanding the economic interests of the ISPs.  It seems unnecessary and unwise to create first amendment rights enforceable against private entities.

Some sites, like Twine and hakia, will try to personalize searches, separating out results you would find interesting, based on your Web use. Others, like Searchme, offer iTunes-like interfaces that let users shuffle through photos and images instead of the standard list of hyperlinks. Kosmix bundles information by type — from Twitter, from Facebook, from blogs, from the government — to make it easier to consume.

Imagine these new companies actually obtained a significant amount of market share.  Imagine further that Google and Yahoo, threatened by this new competition, could pay Internet Service Providers for traffic priority.  The ISPs accomplish this by significantly slowing down the traffic to these alternative search engines.  Users, frustrated by a perceived slower service, return to Google and Yahoo, thereby restoring the online order.

Those of us who are satisfied with Google search may not find this problematic.  But the problem is that this cuts against the merit system of the marketplace.  We want new companies and new technologies to either fail or succeed based upon their value to society.  And we want Internet users to determine this value without undue interference from more powerful market incumbents.  While competition certainly drives innovation, unfair competition without a doubt suppresses it.

This hypothetical might be somewhat unrealistic since Google has been a powerful voice for network neutrality.  We probably don’t expect this kind of conduct from a company whose slogan is “Don’t do evil.”  However, the marketplace is very often amoral and Google’s policies may abruptly change if they ever found themselves under the gun.  But even if not, there are many other contexts in which we can imagine something like this taking place, including online video sharing (YouTube), social networking (Facebook), or VoIP (Skype).

Insofar as network neutrality prevents this from occurring, it sure seems like desirable public policy.

This reluctance to accept government funding shows that major ISPs realize that acceptance of stimulus funds puts them squarely under the FCC Network Neutrality principles.   These principles could bleed into the other networks—such as Verizon’s FiOS TV or AT&T’s U-Verse—that these large Internet players own.   Meaning this policy would be the camel’s nose under the tent.

Putting aside whether this is good for the public or not, I can’t really blame them.  They need neither the money nor the headache that the stimulus funds carry with them.

The books starts out by explaining how turkeys use the “chirp” sound of their young to know where they are and when to feed them.  In the first experiment, a researcher inserted a natural predator of the turkey, some sort of stuffed polecat (I think), and the turkey attacked it and recognized it as a predator.  In a follow up experiment, a recording of the “chirp” noise was placed inside the same stuffed predator.  With the added “chirp” noise, the turkey’s reaction was completely different.  It did not attack the stuffed predator like before, but instead gathered the predator underneath her and seemed to think it was its offspring.  What does all this have to do with anything?  Well, as humans we also have automatic reactions much like the turkey does above to the chirp.  We use all sorts of shortcuts like the chirp to help us in life because there is just too much information to take in when making a decision, and these automatic reactions help us save a lot of time.  We use these shortcuts many times without even thinking about them because they are so ingrained in ourselves.

Enter the “flog” (fake blog) and Acai berries/colon cleanse marketing technique.  These a fake blogs that marketers create to push products onto unsuspecting consumers.  These flogs are both brilliant in terms of marketing, but also evil because they take advantage of the shortcuts that Influence talks about.  In case you haven’t seen these ads, here is an example of one:   (image taken from shoemoney blog)

In six chapters of the book, Influence describes our natural shortcuts that we use to make decisions.  These shortcuts and how the marketer is using them above in the blog above to get us to purchase the product are:

Reciprication – Not really used on this page, however the “free trial” when you click through to order the product makes you feel bad about cancelling the subscription.  They have sent you a free trial, and how can you tell after 10 days if it’s working or not?  Reciprocation is when you feel a debt to somebody when that party does something for you.  Think of those free mailing labels you receive from various charities….  You feel like you need to reciprocate their free offer of nice mailing labels by giving them a donation.  This works very well.

Commitment and consistancy – This advertisements became popular during Jan and Feb months, where many folks make a commitment to losing weight.  Presented to them here is the perfect solution, by and independent person, with actual evidence that it works. Never mind that the image is a stock photo, and that the image is then  photo shopped to make the person look slimmer.

Social Proof – You can’t see it on this screenshot, however below in the “comments” section of the blog are many comments left by others who have used the product and “think it’s great” and have lost “all sorts of weight” and are “feeling great”.  I am pretty sure 99% of the comments are fake, but the average person thinks everybody else is using these products, losing weight, and now sharing their weight loss stories on this blog.  The product must be working if regular people are commenting…

Liking – We like this person because she is just like the target market.  She is a busy mother who is “struggling to lose weight”.  Thanks to a special piece of software code, she even happens to live in our city – so we like her even more.  She eats the same foods just like us, gained weight after her pregnancy just like us,  and is now sharing this amazing secret of how she lost weight with these two products.  We like and trust people who are just like us.  Of course the person behind this flog is probably a mid 20′s male buying a new sports car with the money he is making .

Authority – If you look on the right, you will see Dr. Oz and Oprah.  Again, these two celebrities give proof that the product actually works and that they recommend it.  Usually Rachael Ray and some other TV logos are shown as well to give even more proof.  If it’s on Oprah and Dr. Oz recommends it, we really don’t need to investigate the product that much further – they have done all of the work for us and are telling  (Dr. OZ) us to use it.  Of course none of these people have actually recommended this exact product.  I don’t know for sure, but I imagine at some point Acai berries were mentioned on these shows saying they were good for you…. However  I would not be surprised if they were not mentioned in context of eating these berries will actually make you lose weight.

Scarcity – Once you click through the link to actually purchase the product, you are taken to a page with a countdown timer and are told there are only 50 or so free samples left.  This makes the product more valuable because it must be good if other people are ordering them and there is only a limited supply.  Scarcity also creates value because we may lose out on this “one time” offer to get this amazing product that will help us lose weight.  We are scared of losing the opportunity of not ordering this product right now, before either the timer runs out or there are no more shipments available.

What is also interesting is that this is a very basic site – no fancy graphics or coding.  This makes it more believable that it really is “Becky” telling us about her “weight loss” story.  The first person who created this type of advertisement was both brilliant and evil. Of course like anything else, this winning “flog” format has been copied to lots of other products including skin care, “government grants”, and teeth whitening.

The problem the author of Influence has (and I tend to agree) with this type of advertising is that once people realize that the product does not work, (it’s hard for me to imagine eating berries and giving yourself colon cleanses will make you lose weight) they will stop trusting their internal shortcuts and be skeptical of everything.  The author recommends boycotting any products that use these types of tricks to get us to buy something by using fake influences and shortcuts to affect our decisions.  The key is to recognize what is going on before taking the automatic action.

Another note :  Besides the false marketing and unclear benefits to losing weight, the issue with these products I am hearing is that you can’t cancel your free trial.  Usually on the 15th day of the free trial, your credit card is automatically billed for the month and I have heard its pretty much impossible to get through on the 800# to cancel.  The FTC should be cracking down on the company that is not allowing folks to cancel because this is outright fraud.  Also, it should be very clear what the terms and conditions of the free trial is and not have it hidden somewhere in small writing.

Also, I hear the FTC is going to start cracking down on these types of “Flog” advertisements.  On the issue of these fake blogs, I am really not sure how the FTC should handle it.  I would imagine telling people that this is not a real person and results are not typical would kill the power of this selling machine.  Also, the “Flogs” are owned by different people than the companies that actually take the credit card info, so the companies can always say they are not doing anything wrong  - because the flog is an independent contractor.   This presents all sorts of issues which I am not sure how they will be handled.

What do you think?

The 2005 network neutrality principles outlined by the FCC are the heart of the hook attached to the stimulus bill.  These principles include four declarations that, on the their own, seem rather toothless.  According to the FCC, consumers are entitled to: (1) access the lawful content of their choice; (2) run applications and services of their choice, subject to the needs of law enforcement; (3) connect to their choice of legal devices that do not harm the network; and (4) competition among network providers, application and service providers, and content providers.  However, last year’s FCC decision in the Comcast dispute may end up demonstrating that these principles, and the FCC as a whole, do have some teeth.  Whether the FCC exceeded its authority in ruling against Comcast is still an issue on appeal and may eventually become the next landmark cyber/telecommunications law decision handed down by the Supreme Court.

What’s interesting about the fourth FCC principle outlined above is that it seems to cut in favor of those against network neutrality.  For instance, Christopher Yoo argues that leaving the issue to the market will lead to the emergence of providers that specialize in particularly high or low bandwidth traffic.  Thus, VoIP, online gaming, and video streaming might be provided by separate BSPs than those that simply provide access to traditional email and websites.  The higher bandwidth services may simply cease to exist under an aggressive form of net neutrality because providers would be unable to allocate the bandwidth necessary to effectively run the programs.

Perhaps what this demonstrates is that the FCC recognizes that articulating proper network neutrality rules is, much like anything, an exercise in balance.  As Timothy Wu points out, there is good and bad discrimination.  Good discrimination is allocating higher bandwidth applications the muscle they need to effectively exist.  Bad discrimination is blocking users’ ability to connect to lawful applications of their choice on the basis that such applications are competitors of another facet of a BSPs enterprise.  The former protects the market for these applications and incentivizes innovation in future technologies.  The latter does the exact opposite by giving BSPs such as Comcast monopolistic powers that serve only their own interests.

Another issue this raises is the FCC’s unclear ancillary jurisdiction.  After the Supreme Court decided National Cable & Telecommunications Association v. Brand X, the FCC was free to label cable internet as an “information service” rather than a “telecommunications service.”  This meant that cable internet providers were not subject to the more invasive regulatory schemes of the 1934 Telecommunications Act and gave the FCC a little more wiggle room under its ancillary jurisdiciton.  But do the strings attached to the broadband stimulus funds make those funds a little less appealing if you’re a BSP?  Would you take the bait if you were a BSP and subject yourself to uncertain future regulation?  The answer will surface in the weeks and months ahead.

Network neutrality proponents are likely feeling confident these days.  The FCC, both houses of Congress, and the President are currently all on their side and we seem to be heading toward a significant policy of net neutrality in the coming months and years.  If we do have neutrality rules, it seems best for them to stem from the FCC and not from Congress.  Technical decisions such as these are better suited for policy makers on the ground.  Yet the Internet’s fate may depend upon the future net neutrality rules that the FCC adopts.  The challenge is to balance the delicate interests and incentives that exist in the marketplace in order to ensure that BSPs, content providers, and end-users all obtain enough of what they want to keep the system running.