Government-provided Internet access: terms of service as speech rules.

• Author: Armijo, Enrique
• Position: Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities

Introduction I. A Taxonomy of Government-Provided Digital Speech Spaces II. Forum Doctrine: Not the Answer III. First Amendment Rules for Government-Provided Internet Access A. The First Amendment Interest in Nondiscriminatory Speech Carriage B. A Workable Nondiscrimination Principle for Digital Speech Carriage IV. Public-Private Internet Access Partnerships and State Action V. Terms of Service as Speech Rules and the Unconstitutional Conditions Doctrine Conclusion INTRODUCTION

On December 10, 2013, then-Mayor Michael Bloomberg of New York City announced the largest continuous free outdoor public WiFi network in the United States. (1) The network, covering most of the Harlem neighborhood, will extend 95 city blocks and reach nearly 80,000 residents, including 13,000 public housing occupants, as well as businesses in and visitors to the area. (2) The project is a joint initiative of the City's Department of Information Technology and Telecommunications, its Technology Development Corporation, and the private Internet Service Provider Sky-Packets, which will provide access to and manage traffic over the network on the City's behalf. (3) In announcing the project, former Mayor Bloomberg noted that the project would provide "24/7 access to everything from education materials for kids, to information about Harlem's rich history and attractions, to everyday needs like paying bills [and] checking library hours." (4)

The Harlem WiFi project, while notable in its scope, is consistent with a growing trend: government-provided access to high-speed Internet service is on the rise in cities of all sizes. Citizens are coming to expect "robust and ubiquitous wireless connectivity." (5) This is due in large part, of course, to the explosion in demand for faster mobile wireless access through smartphones--ownership of which increased from 16% of Americans in 2009 to 56% in 2013, a trend roughly consistent with the introduction and rising popularity of the iPhone. (6)

These offerings are taking a range of forms. One approach is a purely public utility model, i.e., government owned-and-operated, mostly city-wide "municipal broadband" networks built out and managed by cities themselves, such as Chattanooga, Tennessee and Lafayette, Louisiana. (7) Another is the increasingly common public-private partnership, such as Harlem WiFi, where a private Internet Service Provider (ISP) provides Internet access via Hotspot in a particular public space such as a neighborhood, business district, park, town hall, or transportation hub, thereby aggregating smaller service areas within their city limits, (8) in cooperation with a municipality or its administrative subsidiary, at low or no cost to the user. (9) As Mayor Bloomberg noted with respect to Harlem WiFi, all of these projects are undertaken for manifestly public purposes, from education to economic development. (10) In addition, an underlying motivation on the part of policymakers is likely the fear of being left behind. Businesses, residents, and visitors are increasingly expecting high-speed Internet connections in public spaces, and city leaders seem to believe that if they don't build it, those businesses, residents, and visitors will not come.

Concurrent with these efforts is the growing debate over direct governmental provision of high-speed Internet service, due in part to the lack of incentives for private ISPs to finance network build-outs and improve capacity in rural areas. (11) Advocates of "fiber-to-the-home" (i.e., direct high-speed residential Internet connections provided via fiber optic cable) for all Americans have called for additional public investment of nearly one hundred billion dollars in federal funding, much of which would go to government-owned and operated networks. (12) To those advocates, the Federal Communications Commission ("FCC")'s seeming abdication of its commitment to network neutrality in April 2014 (13) has highlighted to an even greater degree the need to expand municipal-level, utility-run networks. In addition, the FCC itself seems ready to exercise its federal preemption authority to protect municipal broadband efforts from statewide laws that have inhibited municipal broadband networks in several states (14)--a proposal that the U.S. Council of Mayors has recently endorsed. (15) For those who believe a subsidy approach has not succeeded in ensuring high-speed Internet access to all Americans, direct government provision of fiber-based service seems to be the only solution. (16)

This "fundamental makeover" of public places from exclusively physical spaces to mixed spaces with both physical and online aspects is "altering] the nature, character, and democratic functions of public places and public expression," in a range of ways that are not yet apparent. (17) More practically, it also raises the question whether the management of these networks is subject to the restraints of the Constitution, and if so, what limitations the First Amendment would place on interferences with speech carried by those networks. After all, at their most basic, the networks are speech spaces, provided either in name or in fact by the State; they are publicly owned property over which citizen expression travels. Though the constitutional questions would seem to logically follow from that premise, we seem reluctant thus far to ask them.

Considering the Constitution's applications to these new speech spaces also raises a host of subsidiary questions, all of which are, to this point, unresolved. For example:

* Are government-provided Internet networks public fora?

* Where a private ISP is the service-provider-in-fact for a nominally "public" Internet access point, is the ISP a state actor for that purpose?

* If so, does the First Amendment limit the ISP's capacity for content-based interferences with traffic over its network, even if the interference is intended to prevent lawless conduct by users or others?

* And if users must accede to the prospect of such interferences ex ante in exchange for access pursuant to the municipality's and/or the network's terms of service, are the doctrines of unconstitutional conditions and prior restraint implicated thereby?

The answers to these questions--and to forecast a bit, this Article's answers to all but the first are "yes"--have important implications for public safety, free expression, and digital development in our urban spaces. Both network managers and users need to understand these issues so as to shape their conduct in these twenty-first century speech spaces accordingly. In the rush to embrace dynamic communications technologies that enable us to leave behind temporal and spatial limitations on speech, we risk losing sight of the Constitution's commands. If we do so, and accept these State-provided digital speech spaces as part of our communications infrastructure without thinking through the relevant First Amendment questions, we will sacrifice historical protection and respect for freedom of speech from governmental interference at the altar of the new.

Part I of this Article provides, by way of background, a taxonomy of the arrangements that municipalities are using to provide free WiFi access to their citizens. Part II examines whether these networks are public fora, and thus whether the special First Amendment rules imposed by the public forum doctrine apply to them. Part III sketches out some rules for network administrators to apply in order to comply with the First Amendment. Part IV considers the state action doctrine with respect to public-private networks, and concludes the obligations set out in Part III would apply to both the "municipal broadband" networks owned and operated by municipalities and, more controversially, to private ISPs offering free Internet access on behalf of local governments. Finally, Part V contemplates the interaction between contract and constitutional law that is raised by terms of service between government Internet access providers and members of the public.

1. A TAXONOMY OF GOVERNMENT-PROVIDED DIGITAL SPEECH SPACES

   As noted above, broadband deployment has been a federal priority for many years. More recently, however, an increasing number of local governments have begun their own initiatives. Back in 2003, Sharon Gillett and her MIT colleagues classified these efforts on the local level into four categories based on the "role[] of government vis a vis broadband: as user, rulemaker, financier, and infrastructure provider." (18) The role of "infrastructure provider" included not simply the local government's "management of the] design, funding, and construction" of broadband access for its citizens, but also operation of the network--i.e., the broadband network owner and service provider. (19) More recently, the New America Foundation's Open Technology Institute, which advocates for public broadband adoption, classified public broadband similarly, noting models "ranging] from a centrally coordinated government initiative to a shared partnership between a private entity and a local government." (20)

   With respect to the "infrastructure provider" category, both Gillett et al.'s and the Open Technology Institute's research noted a familiar split between those municipalities that provided direct broadband service and those that did not. The majority of the former were smaller communities that were underserved or unserved by the private ISP market because of their size and/or geography; there, "the public sector probably provides broadband ... because no one else does." (21) Twenty years ago, supermajorities of voters in rural municipalities underserved by private ISPs approved bonds to finance public broadband networks in their communities that would be operated and administered by the public utilities serving their communities. (22) By contrast, larger communities that were better served by commercial providers were taking less active coordination-and-facilitation roles...