Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 “Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21^st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub

In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18^th and 19^th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligence…The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.