Chapter 4: Freedom of Speech

4.1: Introduction

The right of people to express their opinions and ideas is valued by many cultures and established in the legal systems of many countries worldwide. Generally, the freedom of speech is intended to protect an individual's ability to espouse ideas, opinions, and beliefs which may be unpopular or even offensive to others. In the United States, for example, this idea is tied closely to the freedom to criticize the government, as the founders of the country criticized British colonial rule and were often punished for it.

Certainly there is a strong history of support for freedom of speech in U.S. history and law. Difficulties have arisen over time as to what constitutes speech in a digital age and whose values are represented in determining the legality of speech. Internationally, the value of citizens' free expression is seen and prioritized differently, with some countries putting great effort into limiting what their citizens can say and especially the digital mediums over which they can communicate. 

The Internet is full of intermediary entities which can either facilitate or limit free speech, such as Internet service providers, web hosts, search engines, and domain name systems. All of these entities can either encourage or discourage free speech, and may face pressure from governments to limit the speech of their users. Because so many of these intermediaries are privately owned with their own values and priorities, speech on the Internet is often limited by these organizations in ways that, within the U.S., would be impossible for the government.

This kind of facilitation or limitation of speech is especially important when individuals challenge those in power or reveal misdeeds that are being kept secret. It is often the response of those in power to silence their detractors and punish those who reveal information that was intended to be kept secret. While it is not expected that any government or organization will appreciate criticism of its methods or revealing of its secrets, it is the belief of many people that citizens must be informed about wrong-doings rather than having them kept hidden.

The structure of the internet itself was originally designed to not privilege the voices of one group over another, though this goal has had varying levels of success through history. However, we must examine what about the structure of the Internet facilitates this equality of speech and consider if and how we can preserve it.

One important consideration with this freedom to speak out, however, is that it is open to everyone and others' reactions to one's speech are equally protected. For instance, when a celebrity makes a controversial statement, this is an exercise of their free speech. However, the outcry from members of the public is also an exercise of free speech. It is important for individuals to recognize that freedom of speech does not mean freedom from disagreement, nor does it mean freedom from offense. While we are always free to try to change the opinions and beliefs of others persuasively, we cannot expect our speech to be held higher than any other's or for people not to react when we espouse an unpopular idea.

4.2: First Amendment & Censorship

In the United States, both citizens and the press are protected from government limitations on their speech by the First Amendment to the Constitution. These protections apply at all levels of government. The First Amendment protects spoken and written words, works of art, pictures, and other forms of symbolic expression such as performances or acts of protest. As with the other amendments to the Constitution, it does not stop individuals, employers, or other private entities from limiting a citizen's speech. This sometimes causes conflicts in which an individual's speech may be permitted legally, but they cannot find the space, publishing tools, or materials needed to express it fully. However, an individual cannot be punished by the government for exercising their free speech and there cannot be laws written to limit speech or publication by the press, overall.

Several guidelines have emerged from various Supreme Court cases regarding the First Amendment, which are used in lower courts when making decisions. They include:

• Courts must separate speech from the actions described by that speech.
• Laws cannot reduce the expressiveness citizens can use when speaking about an idea that would otherwise be legal to speak about.
• Adults cannot be limited to only material that would be appropriate for children.
• Laws should use the least restrictive means possible to achieve their goals and solve social problems.

These protections, though, are not without their own limitations. Individuals can face criminal offenses for several categories of speech, such as slander, libel threats, incitement to imminent criminal action and obscenity. Slander is an untrue verbal statement about a person which would harm their reputation, such as claiming a person's professional credentials are fake when they are real or telling people that a person is cheating on their spouse when they are not. Libel is any untrue and harmful statement that is written or printed. In other words libel is printed slander. Any threat which states a clear intent to commit an illegal act, especially violence or harm to others, is likewise not protected under the First Amendment and can be criminally punishable. It is important to note that it is legal to discuss criminal acts in the abstract, such as discussing the ways in which one can steal from banks, but a statement encouraging others to rob specific banks would constitute incitement to imminent criminal action and could lead to the speaker being prosecuted criminally. Finally, obscenity refers in a legal sense to any depiction of illegal sexual acts in a manner that is purely meant to offend or arouse. The Supreme Court determined standards by which material can be determined to be obscene or not in the case Miller v. California. A work is legally considered obscenity if:

• The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
  
• The work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law.
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

With the spread in popularity of the Internet, however, the application of these principles was tested, as well as how far the government can go to prevent obscene content from being made available to children. Several laws were put in place by Congress to limit obscenity on the Internet and to protect children from being exposed to material deemed inappropriate. In 1996, the Communications Decency Act made it illegal to make available to children any obscene or indecent communication. The Supreme Court found it to be unconstitutional because it defined the illegal material too broadly and did not use the least restrictive means available. It also raised questions about what it meant to make such material available to children. Because Internet content providers do not get information on the people connecting to their services and do not typically approve each connection, then it is difficult to claim a criminal act has been committed when children seek out and access this content. On the other hand, actively encouraging minors to access obscene content and sending it to them directly would have been illegal under existing law.

The Child Online Protection Act of 1998 attempted to apply community standards in determining whether online material that was made available to children was obscenity, making such acts a federal crime. However, the Supreme Court deemed the law to be unconstitutional because this would restrict the entire Internet to the standards of the most conservative community. A person could travel to the community with the most restrictive community standards, access the web site in question there, and then report the incident to federal agents to arrest the site's creator.

A law which was upheld by the Supreme Court was the Children's Internet Protection Act of 2000, which primarily required schools and libraries to use Internet filtering software in order to keep federal funding. This law used a less restrictive means: namely requiring content filters, as opposed to criminal charges against content creators. It only impacted organizations which received federal funds, which is well within the federal government's rights.

4.3: Free Speech Online

(Original text from EFF, edited by Sofia Lemons)

Speech on the Internet requires a series of intermediaries to reach its audience. Each intermediary is vulnerable to some degree to pressure from those who want to silence the speaker. Even though the Internet is decentralized and distributed, "weak links" in this chain can operate as choke points to accomplish widespread censorship.

The Internet has delivered on its promise of low-cost, distributed, and potentially anonymous speech. Reporters file reports instantly, citizens tweet their insights from the ground, bloggers publish to millions for free, and revolutions are organized on social networks. But the same systems that make all of this possible are dangerously vulnerable to chokeholds that are just as cheap, efficient, and effective, and that are growing in popularity. To protect the vibrant ecosystem of the Internet, it's crucial to understand how weaknesses in the chain of intermediaries between you and your audience can threaten speech.

Web Hosting Services

4.4: Leaking & Whistle-blowing

(Original text from Open Government Guide, edited by Sofia Lemons.)

Often individuals choose to speak out and share information that was otherwise kept secret or private. The general practice of releasing previously secret information, documents, images, or other data is referred to as leaking. The motives behind leaks can range widely, from revenge to profit to political gain. Whistleblowing is the act of leaking in order to reveal practices within an organization that may be illegal, unethical, or corrupt. For instance, when celebrity photos are posted online or information about a new movie is prematurely released, these are leaks. When documents proving misconduct of a CEO or government official are reported within organizational channels or given to the media, these are whistleblowing.

Those working in or with an organisation are often the first to see misconduct, dishonest or illegal activity or a serious risk to the public interest in areas ranging from consumer safety and environmental damage, professional misconduct and child abuse, to financial embezzlement and corruption. However they can be discouraged from reporting their concerns by fear of reprisals and by the perceived lack of follow-up to address such warnings.

Responsible organisations should encourage those working for them to communicate actual or potential problems. Yet too many individuals face retaliation if they report their concern, this can include threats to their physical well-being as well as detriments in the workplace such as harassment, lack of promotion, demotion or dismissal. When lines of communication within organisations are blocked or not trusted, or the organisation itself is involved in the wrongdoing or its cover-up, it is vital that individuals can safely report such concerns to a competent external authority or more widely, where necessary.

Alerting organisations, external competent authorities or the public about risk, misconduct, dishonest or illegal activity, or matters of important public interest is termed whistleblowing. Whistleblowing covers the spectrum of such communications.  It is a democratic right closely linked to freedom of speech and the right to petition; a public interest safety net which supports openness in government and democratic accountability.

Whistleblower protection is relatively new to the open government agenda, and while laws are becoming increasingly popular, it is crucial that they can be enforced.  If the rights they offer are only symbolic this puts workers and others at greater risk; as they invite individuals to make disclosures while offering no genuine protection or any commitment to any appropriate follow-up of the issue raised.

Governments have a responsibility to facilitate whistleblowing and in so doing protect public interest whistleblowers.  Laws which recognise the right of those who act in the public interest not to suffer harm or threats of harm and which build on the democratic principles of free speech and freedom of information are critical. They provide individuals a safe alternative to the silence that allows negligence and wrongdoing to take root.  Whistleblower protection also offers an important alternative to anonymous leaks – a form of self-preservation which can compromise both the public interest and the whistleblower.

While it is incumbent on governments to facilitate safe and effective channels for whistleblowing and to protect whistleblowers, civil society has a complementary role in advocating for the protection of those who come forward to safeguard the public interest, particularly when it challenges government authority.  An engaged civil society can ensure that the legal and practical responses to whistleblowing are effective and appropriately applied over the long term.

4.5: Net Neutrality

(Original text from The Internet Society, edited by Sofia Lemons.)

Demand for Internet connections with greater bandwidth is high and unlikely to subside. Even now, some network operators must use congestion-management and traffic-shaping techniques to keep their networks running smoothly when demand is higher than their systems might be able to handle. As a result, some commentators worry that network operators might use traffic-management practices to give preferred treatment to certain data streams. Others are concerned that practices meant to increase revenues might block competing content or give unfair advantage to some content over others. They see these practices as problematic, especially when the practices intentionally discriminate against certain kinds of content delivery to the detriment of end users. This has led to larger public concerns that these kinds of practices jeopardize the open and transparent principles of the Internet.

Network neutrality or “net neutrality” is often used as a broad label in public policy and regulatory discussions concerning these issues. Net neutrality, however, is a wide-ranging term that can mean different things depending on one’s point of view. Discussions about net neutrally, for example, often touch on concerns about freedom of expression, competition of service and user choice, impact on innovation, nondiscriminatory traffic management practices, pricing, and overall business models. From this net neutrality dialog, some believe that policy and regulatory measures are necessary to preserve the open Internet and ensure that it remains an engine for innovation, free expression, and economic growth. The Internet Society believes that focusing on the outcome of network management practices rather than the technical or policy measures employed to deliver that outcome will facilitate necessary flexibility in network operations.

Key Considerations

A key element of Internet architecture is that user data is relayed throughout the Internet in the form of standardized packets of information without regard for their content, senders, or receivers. This nondiscriminatory approach to Internet traffic is a central premise of the Internet’s operation. It allows data to easily move across networks without being impeded by the nature of the data itself. Fundamentally, this open internetworking approach is one of the underpinnings that have made the Internet successful.

In actual practice, however, data packets are sometimes treated differently to address network congestion, resource constraints, business arrangements, and other practical considerations of network functioning. Some network providers argue that current bandwidth and infrastructure resources are congested and require more significant network-management intervention to address the problem and provide good quality of service to customers. These network management practices promote debate as to whether or not they constitute fair and impartial treatment of data when they travel across the Internet. There are also questions as to what extent network management activities become discriminatory practices, potentially restrict access to content, and limit Internet users’ free expression.

From an operational network perspective, many network neutrality concerns are the result of an important design idea behind the Internet: the “best effort” approach to moving data across networks. This approach means that all data is afforded the system’s best-effort capabilities for delivery to their destination depending on the network’s operating resources. This approach does not however offer prioritization or preferential treatment of one data stream over another. Rather it strives to treat all data in a neutral, nondiscriminatory way.

In day-to-day operations, however, network operators manage data traffic across networks while responding to events like security issues, network outages, and unforeseen network congestion. While data management practices are necessary for normal operation of the Internet, some people are concerned that any manipulations of network data flow might give prejudicial treatment to certain data and content. They suggest that data-management practices potentially lead to anticompetitive business practices or other socially harmful consequences.

Challenges

As noted, there are differences in opinion about which network-management practices constitute routine and acceptable network-management activities and which are overreaching and may result in harmful discrimination to both users and content providers. Following are five specific challenges commonly discussed in net-neutrality dialogue:

1 Blocking and filtering. Blocking or filtering of content is a practice in which end users are denied access to certain online content based on regulatory controls or the business objectives of Internet service providers (ISPs) or network infrastructure operators to favor their own content. Some see selective filtering of Internet content as contrary to the Internet principles of free and open access, particularly when it favors an ISP’s services. Others view blocking and filtering as necessary ways to protect minors from objectionable content or limit the proliferation of illegal online content.

2 Internet fast lanes. The term Internet fast lanes refers to the practice of giving preferential network treatment to certain data streams based on business agreements among Internet operators. For example, specific video content might be provided with faster delivery across a network in accordance with business agreements between network operators. Some view these agreements as an unacceptable discriminatory practice by giving preferred treatment to some data on the network and potentially degrading the performance of other data. Others, however, view “fast lanes” as an effective way to deliver content to users with improved quality of service.

3 Throttling. The term throttling refers to certain business practices that reduce the data throughput rates of delivered content to end users. Throttling can include techniques like specifically limiting the user upload or download rates of certain types of data streams, as might be the case with peer-to-peer traffic management practices. Some view throttling as a necessary means to avoid congestion and poor network performance. Others find these practices controversial when the practice is not fully disclosed or when operators unfairly discriminate against certain data streams.

4 Zero-rated services. The term zero-rated services describes a general business practice whereby certain Internet content is delivered to an end user at a substantially reduced cost or for free. In this scenario, the provider of the Internet service typically subsidizes the cost of the Internet access in exchange for tangible or intangible market advantages. These market advantages might come in the form of an increased base of subscribers, preferential access rights to provide Internet services, or the ability to monetize data collected about service subscribers. There is debate about whether these services discriminate against the data streams that aren’t provided under a zero-rated service. Similarly, it is unclear whether providing only a subset of full Internet access under a zero-rated service to those who would otherwise have no Internet access is better or worse than the potential harm incurred from limited access to the Internet. This debate is particularly prominent in developing countries where concerns have been raised about the potential downsides and unintended consequences of zero-rated services.

5 Market competition. Healthy market competition is a frequent component of net neutrality discussions. In markets where users have limited affordable Internet service options, those users are potentially more vulnerable to having their access to available content restricted or to experiencing poorer network performance. Competition in the marketplace for ISPs is helpful in that it offers consumers a choice and encourages innovation among service providers. In addition, ensuring a competitive market for Internet access provision supports overall user choice in services and online experiences.

FCC Regulations & History

Over time, the Federal Communications Commission (FCC) has had to respond to many different individual issues related to net neutrality. They did not take an overall stance on policies that would impact all providers, but rather handled individual complaints about companies blocking, slowing down, or offering "fast lane" services. In 2005, a local ISP named Madison River Communication was reported to the FCC for blocking Voice Over IP (VoIP) services, such as Vonage or Skype, on their network. Madison River offered its own internet phone services, which other VoIP providers competed with for lower cost or no cost. The FCC ordered Madison River to stop blocking VoIP services and to pay $15,000 in fines. Later in 2005, the FCC issued a statement which promoted some of the values of net neutrality, but which did not mandate behavior of ISPs broadly.

Skype requested the FCC issue an order to mobile internet providers like the one issued to Madison River. Many wireless carriers blocked applications for VoIP services on their smartphone devices, to avoid users reducing their phone plans and placing their phone calls on their mobile device over the Internet. Most providers also only allowed certain smartphones on their networks, so users could not simply buy devices that had VoIP applications on them to use on the wireless network. A year later, in 2008, the FCC disissed the request from Skype because Verizon (the main carrier Skype's complaint centered around) had begun to allow third party devices and applications, including Skype.

Also in 2007, Comcast users started noticing slowed traffic on downloads and uploads when using the Bittorrent file sharing protocol. Comcast issued statements that they were not blocking or delaying Bittorrent traffic, only slowing down users who exceeded a certain upload or download limits established in their user agreements. However, the Electronic Frontier Foundation (EFF) and the Associated Press (AP) tested and learned that even very small files transferred over Bittorrent would result in a slow-down for Comcast users. The FCC began investigating early in 2008, and later in the year ordered Comcast to treat Bittorrent traffic like any other traffic on their network.

In an attempt to clarify its position on Internet structure and the values it saw for the internet, the FCC issued the Open Internet Order in 2010. Much like the 2005 statement, it spoke to the rights of Internet users and the importance of keeping the Internet an open and equal tool for all. Criticisms arose from net neutrality advocates, however, because the Open Internet Order lacked details and did not offer many mandates or rules for ISPs. This order, for instance, prevented cable providers such as Comcast from blocking competing services like Netflix on their networks, but it left open room for deals like the one in 2014 in which Netflix paid an undisclosed amount to Comcast for higher priority on their network.

The FCC began hearings to develop new guidelines for the Internet in terms of net neutrality in 2014. ISPs worked hard to lobby for the options to exercise their own judgment on these issues, such as blocking some traffic or creating "fast lanes." Net neutrality advocates argued that ISPs should be classified as common carriers, much like telephone providers. This would mean that Internet providers would be treated as public utilities and forbidden from showing preference to any subscriber. Previous court rulings had called into question the FCC's right to closely regulate any providers not designated as common carriers, such as cable television. Ultimately, the FCC designated cable Internet providers as common carriers and issued the Open Internet Rules in 2015, which established several key principles for net neutrality:

• Providers cannot offer paid prioritization (or "fast lanes"), which allow content providers to pay to have content delivered at a higher priority level than other content.
• Providers cannot block any content unless it is known to be illegal.
• Providers cannot slow down any content unless it is known to be illegal.

Legislation was proposed in the House of Representatives in 2015 that would establish some of the principles of net neutrality in law (rather than just policy), but would remove the FCC's authority over some net neutrality provisions. This legislation passed the House in 2016, but was not heard before the Senate as of the time of this writing. For this reason, net neutrality is still an important topic which is up for debate and could have great impact if these aspects of the open Internet are changed.