Dawn Nunziato's Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

Dawn Nunziato, a law prof at George Washington University Law School, has written a helpful and interesting new book, entitled Virtual Freedom: Net Neutrality and Free Speech in the Internet Age.

Her focus in “Virtual Freedom” is — as the subtitle suggests — free speech on the net, framed primarily for the current net neutrality debate.  She compares two distinct conceptions of the First Amendment, one affirmative and the other negative.  She argues forcefully for the affirmative approach to the First Amendment.  In making out her argument, she recalls John Stuart Mill and Oliver Wendell Holmes (on the marketplace of ideas conception), through to Cass Sunstein (whose views get a great deal of airtime in the book) and Owen Fiss, among others.  Along the way, she takes up, fairly extensively, the core relevant doctrines: the state action doctrine, the public forum doctrine, the fairness doctrine, must carry, and common carriage.  She also spends a good deal of time in the caselaw, carefully reviewing also the matters one might expect to see, many of which predate today’s Internet: Marsh v. Alabama, Pruneyard, and other state action doctrine/shopping mall-type cases; the AP decision of 1945; Red Lion; Turner; Brand X; Carlin; AT&T v. the City of Portland; and so forth.  She takes up several Internet-specific matters as well (such as Intel v. Hamidi, CDT v. Pappert, and the ICANN debates) and sets them in context.

Her bottom line is that Congress should pass a law (or require the FCC) to prohibit broadband providers from blocking legal content or applications and from engaging in various forms of discrimination and prioritization of packets.  She argues, too, in favor of greater transparency by broadband providers when they do engage in selective passage of packets.  She says maybe we should regulate powerful search engines, such as Google, too.

Nunziato’s book made me think of two other books I’ve re-read in the past few weeks.  The first is Newton Minow and Craig LaMay’s Abandoned in the Vast Wasteland: Children, Television, and the First Amendment (1996), which takes up similar issues related to various conceptions of the First Amendment, though from the angle of protecting and supporting children.  The other is Jonathan Zittrain’s free-for-the downloading Future of the Internet — and How to Stop it (2008), especially in chapters 7 through 9, in which JZ takes up many of the same issues (changes in the public/private online and how we should think about “regulation” of online behaviors).

I enjoyed this book: it’s well-written and, just as important, I think Nunziato is, by and large, right as to her normative view.  Virtual Freedom: Net Neutrality and Free Speech in the Internet Age belongs on the bookshelf (virtual or otherwise!) of anyone working on broadband regulation, net neutrality, online censorship, and the like.

Apple Loses In Latest Round with Does

The Court of Appeal in California (Sixth Appellate District) has ruled in favor of Jason O’Grady in his dispute with Apple Computer. It’s a pretty resounding opinion (linked here (PDF)), covering a lot of ground, including trade secret, the Stored Communications Act, and various other issues related to whether a corporation can stop a publisher for disclosing information related to an intended product launch.

The Court held: “Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.”

An interesting passage, about the public interest in this case: “Apple first contends that there is and can be no public interest in the disclosures here because ‘the public has no right to know a company’s trade secrets.’ Surely this statement cannot stand as a categorical proposition. As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector, or community. Labeling such matters ‘confidential’ and ‘proprietary’ cannot drain them of compelling public interest. Timely disclosure might avert the infliction of unmeasured harm on many thousands of individuals, following in the noblest traditions, and serving the highest functions, of a free and vigilant press. It therefore cannot be declared that publication of ‘trade secrets’ is ipso facto outside the sphere of matters appropriately deemed of ‘great public importance.'”

The NYT has more. As do Dave and Denise and Dan.