When NARAL Pro-Choice America
applied to Verizon
Wireless for a code so it could send text messages to Verizon subscribers
who wanted to receive them, the organization never expected that the wireless
provider would deny its request. AT&T, T-Mobile and Sprint, which share
almost the entire U.S. market with Verizon, had shown no hesitation signing
NARAL up for the five-digit "short code."
Unexpectedly, though, Verizon rejected NARAL's application. In its response,
the company said its decision was in accordance with its policy to refuse messages
it deemed "controversial or unsavory to any of our users."
Following a New
York Times article and a public outcry, Verizon rescinded
its rejection. But the fact that Verizon can reject or block politically controversial
messages, whether or not it does, left many people feeling outraged.
On October 17, New York State Assemblymember Richard
Brodsky convened a hearing to get the facts from NARAL and Verizon and to
consider the issue of net neutrality, which would prevent Verizon and other
service providers from withholding service based on the content of messages.
neutrality is the principle of non-discrimination on communications networks,
especially the Internet, but also phone or mobile wireless networks. Proponents
of net neutrality say the networks, no matter who owns them, should carry our
messages regardless of their content or who is providing that content. Current
law permits Internet and mobile wireless service providers to decide what content
they carry, the way a cable television provider chooses which channels it can
offer. This applies not only to the kind of short message code for which NARAL
applied, but also to Web sites and even e-mails.
Phone companies like Verizon want the law to stay this way so they can charge
a toll for some Web sites or messages to get through first -- or to get through
at all. The current situation also grants them the power to censor political
messages or to block content provided by their competitors: Because it is a
private network, constitutional protections like free speech do not apply. This
is why net neutrality is sometimes called the first amendment of the Internet.
Brodsky has introduced a bill, the Omnibus
Telecommunications Reform Act of 2007, that would completely overhaul the
way the state's telecommunications systems are regulated, promote the development
of more high-speed Internet infrastructure and foster net neutrality. The hearing
of the Assembly's Committee on Corporations, Authorities and Commissions, held
in a pleasant but windowless hearing room at 250 Broadway, was an opportunity
to consider additional strategies for net neutrality and to hold Verizon to
account for its censorship of NARAL.
Provider as Censor
"Those of us at NARAL were stunned, frightened and appalled to discover
that current law would permit such an offensive and ominous incident to happen,"
Kelli Conlin, president of NARAL Pro-Choice New York, told the State Assembly.
Verizon's defense was that it had made a mistake. Since then, the company says
it has updated its policy to be "content neutral" so that something
similar will not happen again. Representatives promised that the company does
not block content.
But the committee members were skeptical.
Brodsky pointed to language in Verizon's own Acceptable
Use Policy for Internet service, in which the company reserves the right
to terminate service if a person's use of it is "objectionable for any
reason." Verizon also puts restrictions on speech that it deems indecent
or racist -- speech that in other settings would be constitutionally protected.
Assemblymember Daniel O'Donnell wondered who at Verizon made the decision to
censor NARAL. Company representatives deflected the question, but O'Donnell
persisted, making clear that without net neutrality or some application of the
first amendment to the company's networks, an anonymous person at Verizon becomes
the arbiter of free speech.
Verizon representatives conceded they would continue to put limits on communication.
Assemblymember Brian Kavanagh wondered what the company would do if another
applicant for a short code was so unpopular with Verizon customers that granting
it access would hurt the bottom line. In that situation, Monica Azare, a Verizon
New York senior vice president, said, "We have an obligation to do what
is most prudent and in the best interest of all of the shareholders. And we
do have an obligation to be a good corporate citizen as well, but we do not
have to be the moral compass of the world in making a decision like that."
Assemblymember Linda Rosenthal asked the Verizon representatives what they
would do if she used her Verizon phone to urge people to boycott Verizon. "I
think the suits would go into a room again and huddle," Azare said.
Ultimately, Verizon attorney Keith Clemens assured Rosenthal they would not
block her messages. "That is your right to free speech," he said.
The point of the hearing, however, was that constitutional protections on speech
do not extend to communication over privately owned networks. What's more, Verizon's
use policy specifically says, "You may NOT use the Service... to damage
the name or reputation of Verizon, its parent, affiliates and subsidiaries,
or any third parties." (Verizon has reportedly
in cutting this type of language from its policy, but it was still there one
week after the hearing.)
I was at the hearing to testify
along with representatives of Free
Press and Consumers
Union. We argued that vital communication services such as e-mail, Web sites
and text messaging are the platform for political speech today and that free
speech is too important to leave to the discretion of private corporations.
Wielding Political Power
Telecommunications companies have a huge amount of political influence. Verizon
spent nearly $10 million on lobbying in 2006. AT&T spent
nearly $20 million -- well over that amount if you add in BellSouth, with
which it merged
in that year. The US Telecom Association,
of which AT&T and Verizon are both members, spent another $20 million, according
to the Center
for Responsive Politics. And that does not include the tax-free money spent
on industry-funded nonprofits posing as grassroots organizations.
Given that kind of lobbying, it is surprising to see any legislators, let alone
a whole dais of them, take on the phone companies. They gave Howard Simons,
the representative from the Cable
Telecommunications Association of New York, a similar treatment. Still,
it's hard to move big bills like Brodsky's through Albany when the governor
and the leader of the State Senate are not on speaking terms.
The Committee on Corporations is pondering more incremental legislation to
enforce or encourage net neutrality. It is a complicated task: Because the networks
cross state lines, regulating them is generally a federal issue. However, Congress
has stalled in its consideration of net neutrality measures, putting pressure
on state and local governments to act.
Maine recently became the first state to pass a resolution
endorsing net neutrality. New York City Council Member Gale Brewer, who testified
to the State Assembly, has introduced a hearing
similar resolution in the New York City Council. She told the Assembly she
would consider a separate resolution urging the city's Department
of Information Technology and Telecommunications to include net neutrality
provisions in its negotiations with Verizon, Cablevision
and Time Warner for
franchises to provide cable television service to New York City.
Beyond symbolic resolutions, state or local governments can place restrictions
on procurement, purchasing telecommunications services only from providers that
agree to net neutrality.
State governments also have consumer protection authority, so they could require
service providers to display more prominently the parts of their terms of service
where they reserve the right to block content or cancel service to a customer
who says something they don't like.
The hearing made clear that, as we move more and more of our political speech
and civic engagement onto the Internet and other telecommunications networks,
there is a pressing need to extend first amendment protections to those arenas.
Otherwise, free speech could be nothing more than a premium feature on your
Verizon Wireless calling plan.
Joshua Breitbart is policy director for People's
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