April 16, 2014 | by guest columnist
New threats to LGBT free speech rights
FCC, businessman, laptop, gay news, Washington Blade

Absent strong government response, a cocktail of two repressive policy changes could push controversial sites off the Internet.

By SEAN HOWELL & PETER IAN CUMMINGS

Few could argue that the Internet hasn’t revolutionized gay life. A generation came out on the web, with freedom to launch a website based solely on popularity. We both did that, creating the social networks XY and Hornet. (In fact, equal Internet access may be how you found The Blade.)

That open culture could end soon, unless the Federal Trade Commission and Obama administration strongly defend free speech—not just by words, but by actions. Otherwise, independent voices on the Internet could be replaced by corporate websites or wealthy subsidiaries of Comcast, Google, AOL, and Facebook; or silenced altogether.

Absent strong government response, a cocktail of two repressive policy changes could push controversial sites off the Internet. The first is the loss of net neutrality.

In January the Circuit Court of Appeals for D.C., in Verizon v. FCC, struck down FCC’s Open Internet Order, which had required Internet Service Providers (ISPs) to carry all traffic, at the same speed, without extra charge to providers. For example, under the stricken rule, Washingtonblade.com streams at the same speed as a mainstream site like AOL’s Huffington Post.

But now, each ISP could make deals with sites willing to pay, or excommunicate controversial sites it dislikes. Or ISPs might mirror chain stores that replace brand names with in-store brands. For example, Comcast could replace gay newspapers and sites with ComcastGay.com, collecting advertising revenue from such generic sites.

Now, perhaps some ISPs won’t take advantage of their new powers to charge powerful media companies for speed. But many will—for profit, political reasons or both.

One might expect aggressive FCC and White House action protecting free speech. Think again. The administration is pushing the semisecret Trans-Pacific Partnership (TPP), a new globalization treaty requiring ISPs here and around the Pacific to read (a.k.a. deep-monitor) the Internet and report violations to international law enforcement. That puts enormous regulatory and compliance requirements on social and news websites, making it even harder for us to compete with Facebook, Huffington and Comcast.

Of course, FCC brought these problems on itself—as noted in the D.C. Circuit decision—by classifying the Internet as an “information service” rather than a “common carrier” (like the telephone), where carriage discrimination is always barred.

So why hasn’t FCC simply reclassified the Internet as a common carrier—instantly reinstating net neutrality? Follow communications companies’ lobbyists and campaign contributions, says Matt Wood, policy director of Freepress, the D.C. nonprofit fighting for net neutrality. “Remember the ISPs have lobbyists on both sides of the aisle,” Wood says. “This is something of a bipartisan mistake.”

In a January editorial, Wired stated it more strongly: “The problem isn’t the ISPs, it’s the FCC.”

Absent the stricken rule or common-carrier reclassification, warns New America Foundation’s Marvin Ammori, “AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason—whim, envy, ignorance, competition, vengeance, whatever. Or no reason at all.”

Worse, the proposed TPP globalization treaty requires ISPs to deep-monitor all email and websites for “copyright infringement” — to scan everyone’s email and all web pages, then set up a strict enforcement regime. Under TPP, ISPs must enact a “six strikes” procedure canceling websites and email addresses after six so-called “infringements.”

With net neutrality stricken and the surveillance requirements in place, ISPs have both the means and reasons to control controversial speech (and perhaps hand the data to the NSA). Our experience in many countries across several decades shows that, given such power, LGBT content is often first to fall. There are many examples: Facebook treats gay content unequally right now, South Korean ISPs routinely ban gay content, and even the UK’s British Telecom blocked LGBT social networks in the early 1990s, putting several out of business.

Why should we think ISPs across the TPP’s 11 countries wouldn’t use these intrusive systems to bankrupt or silence inconvenient speech?

The administration should know better. FCC should reclassify the Internet as a common-carrier communications service, and Congress should deny the administration fast-track authority to pass the TPP. If the United States stands for anything, it stands for free speech.

Sean Howell is founder and CEO of the gay social network HornetPeter Ian Cummings, publisher of B magazine, also published XY Magazine. 

5 Comments
  • No doubt the puritanical and calvinistic strains that permeate all USA politics and all decisions on what one can post,view, pay for or even subscribe to the Internet will play a major role in the increasingly monopolizing of all American industries in a country fast becoming an oligarchy ruled by the super rich and the corporations they control. Enforced censorship by the Federal or even state and local governments on Internet content (esp. LGBT sites, porn sites, music sites, political sites, etc.) is what the far right political and religious authorities would force on any site with which it disagrees. If not careful, these promoters of "family wholesomeness" and narrow political views will take over.

  • We need to establish a new internet trunk, independent of corporate trunks. Then let us see who abandons the controlled internet.

  • "Why should we think ISPs [Internet service providers] across the TPP’s 11 countries wouldn’t use these intrusive systems to bankrupt or silence inconvenient speech?" asks Sean Howell and Peter Ian Cummings.

    A good question. But there's one country where ISPs would have to think twice before silencing "inconvenient" speech online — the United States. The proposed Trans-Pacific Partnership (TPP), a new globalization treaty requiring ISPs here and around the Pacific to monitor the Internet and report violations to international law enforcement, would so deeply infringe on constitutionally-protected free speech online that its legality can and should be challenged in U.S. courts under the First Amendment if it is ever ratified by the Senate.

    Remember that treaties, once ratified by the Senate, have the full force of law under Article VI of the Constitution. But the Constitution itself is the Supreme Law of this country — and the First Amendment of the Supreme Law of this country explicitly bars Congress from passing any law that abridges the freedom of speech or of the press.

    Moreover, the Supreme Court ruled — in Reid v. Covert (1957) — that the Constitution supersedes international treaties ratified by the Senate. According to the decision, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."

    International treaties cannot trump the U.S. Constitution if their provisions run contrary to the rights and privileges that the Constitution guarantees.

  • Please, please continue posting on this issue. I want to learn more. This is disturbing and forces us back into the shadows . . . thanks.

  • Im not sure but I think Comcast is censoring emails to my us senators etc here in me. Both. Comcast. And racist fox news. Are. Running. Subliminals

    Roger aisles fox new

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