I've gone into the precident of 5 doctrines that were established to provide for free expression, and which have been reassessed and applied to new telecommunication mediums until the Internet.
I'm going to offer a few specific examples just to demonstrate that the principles of common carriage et al. are not voluntarily adhered to without government regulation. As Nunziato writes, "Broadband providers have the incentive to cater to the interests of the majority of their subscribers, who may disfavor certain types of unpopular—yet constitutionally-protected—expression"1 This pooling is a bit Google-heavy at the moment, and I apologize for that, (sorry Google!) but I have followed some of the notes from Virtual Freedom and there is more documentation on Google than its competitors or ISPs. I will continue to look around and get a broader cross-section.
(A few examples of) censorship by ISPs, email clients, ads, search engines, news aggregators :
"Verizon—one of the nation's two largest wireless carriers—rejected the request from NARAL Pro-Choice America to allow Verizon cell phone customers voluntarily receive the organization's text messages.Asserting it's authority to block messages from any group that seeks to "distribute content that, in [Verizon's] discretion, may be seen as controversial or unsavory to any of our users."2
A well documented case of ISP censorship is Comcast's blockng of peer-to-peer filesharing via BitTorrent, Vuze, and other clients. "Comcast does this by hacking into its own network and using a clandestine "Man in the Middle" tactic whereby each party is sent a communication RST (reset) message which falsely tells the other party to shut down the connection… each afected user's computer received a message invisible to the user that looked like it came from another computer instructing it to stop communicating. The message, however, actualy originated with Comcast."3
Google News:
Their official "How it Works: Stories on News homepage" statement is, "Our headlines are selected entirely by computer algorithms, based on factors like how often and where a story appears online. Google News has no human editors selecting stories or deciding which ones deserve top placement. This is very much in the tradition of Google Web Search, which relies on the collective judgment of online publishers to determine which sites offer the most valuable and relevant information. Similarly, Google News relies on the collective judgment of online news organizations to determine which stories are most deserving of prominence on the News homepage."4
And yet, Google News was taken to task by NYC nonprofit Inner City Press: "Google, after being publicly questioned at the UN about not signing on to the human rights and anti-censorship principles of the Global Compact, responded… by moving to de-list from its Google News service the media organization which raised the question. More than two years after Inner City Press was included into Google News, in a February 8 message referring to the receipt of a complaint, Google said it would be removing Inner City Press from the news database."5
"Subj: Google NewsDate: 2/8/2008 8:32:24 PM Eastern Standard TimeFrom: The Google TeamTo: Inner City Press
We periodically review news sources, particularly following user complaints, to ensure Google News offers a high quality experience for our users. When we reviewed your site we've found that we can no longer include it in Google News."6
Google News + Comcast Email censorship posted by the conservative Christian news source NewsWithViews:
"As reported by NewsBusters, the most recent widespread occurrence of [news aggregators censoring media sources] was when Frank Salvato, proprietor of The New Media Journal, realized that his content that day hadn't been disseminated at Google News as it had been on a daily basis since he reached an agreement with the search engine in September 2005… After sending the Google Help Desk a query concerning the matter, Salvato was informed that there had been complaints of "hate speech" at his website, and as a result, The New Media Journal would no longer be part of Google News. As evidence of his offense, the Google Team supplied Salvato with links to three recent op-eds published by his contributing writers, all coincidentally about radical Islam and its relation to terrorism."7
"News with Views columnist Diana Springolareported in November 2006 that she had not received any email from News with Views for the past year and a half… At first, Comcast told her it did not block any emails and that such blocking must be caused by her email program. However, when Springola went to Comcast's site directly and sought to access email using Comcast's email service, she was also prevented from accessing NewsWithViews' email newsletters and alerts."8
Advertising / Sponsored Links(marketplace expression for those who can pay)
'Highlights' of Google's ad policies, as reported by the SF Chronicle in 2004:
"-- Google gives special scrutiny to ads promoting the Church of Scientology. Workers are told to make sure the ads clearly disclose their affiliation to the church, presumably so that users know exactly what they're clicking on. If the ads don't, workers should reject them. No other religions are mentioned.
-- Ads for abortion services are acceptable. However, such ads are prohibited if they make reference to religion, and they cannot run on a query of the word "abortion."9
Nunziato makes it clear that Google takes a firm middle-of-the-road policy, prohibiting both left and right political content that it finds touchy from its sponsored links:
"W. Frederick Zimmerman, who maintains a political website called Zimmerblog, sought to advertise his book Basic Documents About the Detainees at Guantanamo and Abu Ghraib, which contained the full text of several key court opinions... as well as various Geneva Convention documents. Once Google became aware of the material Zimmerman was linking to via his sponsored link, it suspended Zimmerman's account, informing him that "Google policy does not permit the advertisement of websites that contain 'sensitive issues.'"12
____________________
The Chronicle article broadens the issue by questioning whether a private media company shouldn't have the power of editorial discretion. Kopytoff writes: "That Google has an ad policy isn't unusual. Television, radio and newspaper companies -- including The Chronicle -- require ads to meet certain standards"10 Is transparency/inconsistency the issue? Or is it really that Google is so huge that our alternatives within that medium (the Internet) are very limited. One of the determining questions courts have used in First Amendment hearings, to decide whether the Public Forum Doctrine applies: Are there reasonable alternatives to convey your message to your intended audience?11 Union members who had been forbidden from picketing outside of a shopping mall won their case when it was determined that there were no reasonable alternatives to reach their audience (their audience being the customers of that mall). Again, courts in NJ ruled in favor of a group of high schoolers handing out leaflets at a shopping mall: "The court found that shopping centers today are the functional equivalent of downtown areas and indeed in some towns have completely replaced (government-owned) downtown areas as places of public gathering."13
This invokes the State Action Doctrine, as the actor in question is performing functions traditionally/exclusively performed by the gov't. The privatization of the Internet has created a situation wherein the state has become involved/authorized private, unconstitutional conduct:
"In the late 1990s, the U.S. government undertook measures to turn over many aspects of the Internet to private entities. First, in its passage of the Communications Decency Act of 1996, Congress advanced this end by explicitly encouraging Internet service providers to restrict their subscribers' speech—and subscribers access to speech—even where the speech so restricted would be protected by the first amendment if the government were to regulate it. In effect, Congress (among other things) encouraged private actors to do what it could not constitutionally do itself… Because the U.S. government sought to pass the mantle for regulation of this public forum for expression to private entities, courts should scrutinize carefully whether to subject such private entities' speech-regarding decisions to First Amendment scrutiny."14
One thing I have not factored in that begs attention is that corporations like Google are international. Every nation-state has its own complex legal system to fit new technologies into. A multinational corporation must navigate multiple legal systems (hence: "Google prohibits Scientology from targeting ads specifically to Germany. That nation has had significant legal conflicts with the church over whether it is a religion or a business"14) and not every nation has provisions for speech equivalent to our First Amendment (many, for instance, have clauses about hate speech or stiffer libel laws). It is safer and easier for a corporation to default to the most restrictive rules, rather than attempt to impose the U.S.'s open speech structures upon nations that do not support it, and suffer the legal consequences in those nations (and they have). Therefore, Nunziato's arguments, from the perspective of international corporations or citizens, are decidedly bordered. But this is a new post entirely, soon to come.
1 Nunziato, Dawn Virtual Freedom; Net Neutrality and Free Speech in the Internet Stanford: Stanford University Press, 2009. 104-5
2 8
3 10
4 < http://www.google.com/support/news/bin/answer.py?answer=40213&topic=8851 >
5 Jon Newton, New Google Censorship Accusation, p2pnet, Feb. 19, 2008 < http://www.p2pnet.net/story/15027 >
6 Matthew Russell Lee, "Google, Asked About Censorship at the UN, Moved to Censor the Questioner, Sources Say, Blaming UNDP" Feb. 14, 2008 < http://www.innercitypress.com/un1google021408.html >
7 Jim Kouri, Internet Providers Censoring Conservative News Email, NewsWithViews, < http://www.newswithviews.com/NWVexclusive/exclusive114.htm >
8 Nunziato 161
9 Verne Kopytoff. "Google's ad rules complex, controversial / Documents reveal details about what popular search engine accepts, rejects"; San Francisco Chronicle. San Francisco, Calif.: Aug 9, 2004. p. F.1
10 Ibid.
11 Nunziato 89
12 15
13 95
13 95
14 99-100
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