Do ISPs have First Amendment rights? Net neutrality vs. VoIP connectivity

Your set-top box as a phone

The second major development this week that could spin the whole net neutrality debate 720 degrees on its ear, comes from an unexpected source: Broadcom. This morning, the maker of systems-on-a-chip (SoC) for handsets and set-top boxes (STB) announced the development of a multimedia SoC designed for use in STBs, that integrates not only VoIP telephony but also interfaces for applications that could utilize IP connectivity.

Specifically, a future set-top box from a cable provider such as Comcast or Time Warner could include Broadcom's BCM11211 chip, the first element of what Broadcom calls its "Persona" platform. That would make it possible for the STB to be the phone -- a capability we're already seeing in other STBs. But this one would add applications such as remote energy monitoring, remote DVR programming, on-demand video conferencing, GPS relaying between subscribers ("Where is my husband today?"), and Web browsing. These would be applications offered by cable services, which are also ISPs.

Net neutrality regulations as they are currently being proposed would not prevent these technologies from being fully deployed. But they could prevent them from being offered at competitive rates, since all of these services are bandwidth-intensive. If all Internet services are to be offered under an "all things being equal" regulatory framework, justifiable rates for ordinary PC-based Web browsing might become uncompetitive when applied to the theoretical bandwidth consumption of a family of videoconferencing, game-playing, DVR-sharing, HD-video dependents.

"Whole-home connectivity," to use Broadcom's phrase for it, could be the "killer app" that compels consumers to make the switch from traditional phone to cable communications. But that's assuming the cable industry is able to offer it at "killer rates."

If the cable industry is forced, as NCTA chief McSlarrow argues, into providing only a specified set of services -- one which may exclude many of the applications that Broadcom's Persona enables -- then that may be an infringement of First Amendment rights. In rebutting that point, the savetheinternet.com coalition cites case law in pointing out that the First Amendment applies only to individuals, not companies.

"You can force the speech of corporations, not humans, regularly. We 'force' corporations to 'speak' and disclose 'material information' to investors," wrote Prof. Marvin Ammori, in a Coalition blog post last Friday. "We can force corporations to disclose the side effects of prescription drugs or the trans-fats in potato chips. We can force them to print Surgeon General's warnings. On top of that, we can 'force' cable companies to carry local broadcast stations...In turning to the forced speech cases the cable industry didn't lose, you see how offensive McSlarrow's argument really is."

Prof. Ammori went on to cite the Supreme Court ruling in favor of Jehovah's Witnesses' right not to salute the American flag -- a principal case of individuals' rights to abstain from forced speech. By effectively taking a stand in favor of forced speech, he concluded, the cable industry is siding against religious freedom.

"They don't want to express their deep personal or religious convictions. They want to block and control speech. They want to determine winners and losers on the Internet. They want to break the Internet. They want to break your Internet, not theirs. And, to do so, they're raising a First Amendment argument based on protections for forced speech and freedom of conscience."

A few weeks earlier, Prof. Ammori argued that should the government begin siding with the cable industry on Internet governance issues, including the ability to set competitive rates for services enabled by Persona, it could endanger US foreign policy, including American resolve in the War in Afghanistan.

"Eliminating net neutrality would not only be anti-speech and anti-innovation, it would also be terrible foreign policy," Ammori wrote on November 25. "Our foreign policy depends on our moral authority -- leaders as different as President Obama and former President Bush agree on that point...Americans deserve to have the same liberties at home that our leaders preach abroad. The fight for Internet freedom -- and thus, 21st-century democracy -- is a fight that the world is watching, and ultimately, a fight that requires the resolve of the American people and our leaders to win."