Rarely is there a network completely open to its customers, or where the distinction between the provider and the user is absolute. We cannot use the roads, for example, without certification of competence (a driver’s license) by the controlling authority (the government). And we are penalized for abuse of the established rules. Of all our networks, the Internet may be the most uncontrolled, though regulations implemented through such things as the Digital Millennium Copyright Act and the much stricter controls placed by other countries (such as China) attempt to bring even it under regulatory control. Many of the controls on networks guaranteeing access are justified, in part, by the essential nature of the services they provide and because of the requirements of unfettered access in emergency situations.
Control of all substantial networks in common use exists at three levels: through the individual user (sepf-censorship), through the managing authority (be it private or public), and through government regulation. The differences in these are significant to any understanding of networks—and have existed for centuries. They can even be illustrated by an article written and published by Benjamin Franklin in his The Pennsylvania Gazette on June 10, 1731. This article, “Apology for Printers,” is often mistaken as dealing with content, but that is secondary. The primary focus is the role of the printer in the network of information dissemination in the American colonies.
Franklin had got himself into a bit of trouble by printing a poster, an announcement calling for passengers and freight for a ship leaving for the Caribbean. It contained the line “no Sea Hens nor Black Gowns will be admitted on any Terms.” People were offended, and not just the prostitutes and Anglican clergy mentioned.
The uproar was enough to lead Franklin to respond with his “Apology for Printers.” In it, he made points, and provided a contradiction, that remain relevant to understanding networks today, though the technologies and extent of networks have changed greatly from the time when the written and printed word were at the base of almost all extensive communication networks.
Franklin, as both a printer and a writer, was keenly aware of the distinction between the network of dissemination and the material disseminated. In the article, his first four points address the dilemma this distinction raises for the network (represented, in this case, by printers): opinions are various; the business of the network has to do with opinions; therefore, simply by providing its service, the network is going to offend someone; and it is unreasonable to expect otherwise. He follows these with a key statement: printers believe all sides should be able to be heard and that it’s not the particular opinion that matters to them, but payment. The next four points build on this: printers, as people of business, are unconcerned with the right or wrong of what they print; printers cannot be expected to approve everything they print; if they only printed what they approved, little would see print; and it is the people (both the writers and their willing audiences), not the printers, who are ultimately responsible for what is printed.
The tenth point is the most problematic, possibly even contradictory. Here, point five notwithstanding, Franklin asserts that printers “do continually discourage the Printing of great Numbers of bad things.” These include, he says, things that “might do real Injury to any Person.” This, of course, is an understanding of the limits of free speech that would be reflected 188 years later in the watershed free speech case of Schenk v. United States where Justice Oliver Wendell Holmes, Jr. wrote “"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
In Franklin’s eye, it comes down to this: individual users can expect unencumbered use of the network (as long as they can pay) as long as they don’t make use of the network for injury. The role of the network controller over content—and even usage—extends only to questions of injury and ability to pay. Government oversight (not relevant to Franklin in the particular case of his “Apology,” but certainly relevant to us) only involves ensuring that the controller takes that responsibility but does not overstep it, restricting the network. Since the time of Franklin, this has become a basic tenet of all of our regulation of networks by governments—not to mention of the interactions between users and the networks.
But our attitudes towards networks (and their legal reflection) is much more complex than that. Our basic expectations of any network prohit, for example, limiation only a part of the network once full access had been established. Imagine Franklin telling his customer that he would print the handbill, but he would only put it up in one part of town—because, let’s say, he was having a dispute with a printer in another neighborhood, he would not block distribution there. That would not have crossed his mind, of course. Not only would he not tell a customer what to say (within the limit of injury), but he would never limit who they could say it to. Philosophically speaking, he always wanted to see greater access, not limits.
In some cases, network access is a safety issues (blocking roads, for example, can delay emergency vehicles with deadly results), but is mostly a matter of convenience and expectation. Let’s posit for a moment, that EZPass, the system that allows people to drive through toll gates quickly, were to find itself involved in a dispute with the state of New Jersey (this would never happen: the states are the controlling authorities—but we are imagining things here for the purpose of example). EZPass could not, to force the matter to resolution, suddenly block access to New Jersey via EZPass lanes. Just think of the uproar! It would have to find another avenue, one that did not impede access to any part of the network. Once any network is established, it is considered improper to limit use of any of its parts. This is an unstated, but crucial, aspect of our general assumption of just what a network is.
In fact, this, as much as safety, is behind much of our regulation of networks, from handbill distribution to the electric grid. Franklin, once he had established that he served all of Philadelphia, could not easily limit distribution to one part (certainly not on a selective basis)—though his customer, the user of the network, could. This holds even more true to our regulated utility networks. Even insurance carriers find it difficult to pull out of areas where they have established a service network.
Now, just what has this to do with Cingular (AT&T)?
On March 10th, I tried to join an ePluribus Media conference call through freeconference.com, using my Cingular cell phone. I could not connect to the number. A recording told me it had been blocked and that I should contact Cingular if I wanted more information. I did, and was told that a “business decision” had been made, blocking that number. As American carrying the assumptions about networks I’ve described here, I reacted to that “explanation” in a particularly negative fashion. I was further outraged when told that it was Cingular’s “right” to block the number under the service agreement I had signed. It reads like this:
We may block access to certain categories of numbers (e.g. 976, 900 and certain international destinations) or certain web sites if, in our sole discretion, we are experiencing excessive billing, collection, fraud problems or other misuse of our network.To me, a number in a legitimate place-associated area code (unlike 800 numbers, for example) does not constitute a “category,” even if all of the numbers blocked were associated with a particular type of business (teleconferencing, in this case). To extend “category” in this way, it seemed (and seems) to me, is an abuse of authority over the network. So I have written Cingular (now AT&T) in complaint, sending copies to my state Attorney General and to the Federal Communication Commission.
I’m not the only one who has been bothered by this. Bloggers (including this one) have begun to complain. PennPIRG has also taken this up. Freeconference.com itself says this about the situation:
We believe that AT&T/Cingular, Sprint and Qwest are violating the public trust as well as abusing their market power. AT&T and Qwest have recently filed different suits against some rural telephone companies and businesses that bring you a variety of services, including affordable conferencing services. FreeConference.com is not a defendant in any of these suits. These suits basically claim that services similar to ours operate within a “loophole” in the fee structure that has been set up by the FCC and Congress to ensure all carriers are compensated for outside use of their networks. This fee structure is not a “loophole”—it is the system by which all carriers compensate each other for sharing their capacity. Without this system, communication would breakdown, since not every carrier would be connected to every person. These major carriers don’t want to change this part of this system—but instead want to change a part of the system that forces them to pay for using someone else’s equipment.The dispute, then, that is blocking access has nothing to do with users. Our access to the full network is being limited by considerations so far removed from us that it does become something like a situation where EZPass, in my fictional example, blocks quick access to New Jersey to resolve a dispute that had nothing to do with the customers. In both cases, our assumed rights to the network are being abridged.
The underlying assumptions of network usage, from the time of Franklin on, are based on the idea that the network, once established, will not be limited without sufficient reason--and that the reason should concern the user, not simply conflict between networks or parts of networks. Franklin does not even consider that he could limit his “network” because of a dispute with another printer. The only limits are those of pricing and potential injury.
That Cingular (AT&T), Qwest, and Sprint have decided that they can use access to networks as leverage in a business dispute is scary—not because we are helpless and unable to find alternatives, but because their mindset could be applied to other networks, completely undermining the confidence we have developed in the system of networks that underlies not only this nation but the world.
It is going to be up to individual Americans to stop this, even those who have never used freeconferencing.com. The FCC may try, but only people will really be able to enforce the concept that use of a network, once the price of entry has been paid, should never be maleable to the whim of the networks controller. We don’t want Cingular (AT&T) controlling any aspect of our lives—for fear that it will soon want to control more.
If we succeed—and we will—the ghost of Ben Franklin (and of our other Founding Fathers) will smile in approval. Freedom from unreasonable limitation, after all, was what they struggled for.