EFF – Blocking UseNets Alt Hierarchy Would Violate First Amendment

It’s been widely reported that American ISPs are being pressured to drop their UseNet service by the New York Attorney General.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Since ISPs are “voluntarily” bowing to political pressure, the EFF suggests that this effort is circumventing the first amendment.

By now, most American ISPs have dropped their UseNet services. These services typical come free when customers pay for internet access. The first ISPs to fold in the wake of political pressure from New York Attorney General Andrew Cuomo were Verizon, Sprint and Time Warner Cable. More recently, another two ISPs, AOL and AT&T, also bowed to political pressure. This leaves very few ISPs that carry UseNet for free left in the US.

The EFF recently wrote a commentary on the subject noting that many UseNet groups, even in the Alt.* hierarchy, contains legitimate and legal conversation. In fact, a study suggested that Child Porn on UseNet was the tiny exception (0.5%), not the rule. Still, the moves are heralded as an effort to eliminating child pornography from the internet. From the EFF:

Congress and the courts have struggled for more than 10 years to address the issue of “objectionable” Internet content, without a constitutionally permissible result. Two well-known attempts by Congress were the passage of the 1996 Communications Decency Act and the 1998 Child Online Protection Act. Both attempted to punish individuals who transmitted indecent material that was harmful to minors. The U.S. Supreme Court has ruled these provisions unconstitutional because they block speech that would be protected by the First Amendment in contexts outside of the Internet. States have also attempted to preemptively censor material. In 2002, the Pennsylvania legislature attempted to hold ISPs criminally liable for child pornography available on the Internet. The Pennsylvania Attorney General was able to unilaterally and secretly order ISPs to block access to IP addresses suspected of containing child pornography, resulting in the blocking of many innocent sites (particularly when the same IP address was used to host a variety of websites). A state court soon struck down that law as unconstitutional for violating both due process and prior restraint of speech.

The censorship demanded by NY Attorney General Cuomo arbitrarily filters an entire electronic neighborhood due to the activities of a few of its residents. Measures already existed to take down objectionable material from Usenet. The kind of responsive enforcement that has been previously used balances free speech and the need to stop the dissemination of child pornography much better than the arbitrary, blanket ban to which the ISPs have agreed. Even so, the tactic will not stop committed child pornographers. ISPs are only blocking their own internal Usenet servers, access to Usenet groups on remote websites remains unblocked. As a result, these actions will do little to stop the threat they are intended to prevent.

(extra citation)

The EFF notes that since this is all a “voluntary” effort, a court challenge to protect the first amendment is unlikely.

Some may point out that UseNet, namely the Alt.* hierarchy, has been also used for downloading content. This is true and it may be the real reason why ISPs are dropping their UseNet services in the first place – because it costs money to maintain such servers. the New york Attorney General’s pressure may be simply be a great excuse for ISPs to cut costs and drop their UseNet services altogether.

Yet, in the mean time, Comcast is being drug over the regulatory coal bed over throttling BitTorrent. Many ISPs say that protocols like BitTorrent have overburdened their networks, thus creating a need to throttle BitTorrent in the first place. It’s been a well-known fact that the UseNet service is an internal service from the ISP whereas something like BitTorrent is a service not really offered by the ISP. UseNet would, obviously, save large amounts of overhead bandwidth. With these facts alone, ISPs across America are very likely shooting themselves in the foot by eliminating UseNet if they are remotely concerned about something that has been dubbed “network congestion”

People who download content, and not necessarily text messages, through UseNet aren’t going to simply go away – they’ll be finding other sources of content and it’s only going to add to bandwidth overhead at the ISP level. Some have suggested that since ISPs are dumping UseNet, premium UseNet providers will simply bring in a large amount of new revenue from users seeking to get their UseNet service back. To suggest that users will be primarily migrating to sites like GigaNews to pay a monthly fee is simply misleading – though a nice thought to those who already pay for UseNet access.

When users are use to getting UseNet for free through their ISP, it’s hard to imagine that they’ll be mostly going to pay services if they get cut off. What users use to getting content for free will do is simply find other free sources first – sources which are abundant on the internet today. Some may simply rely more heavily on private BitTorrent sites, or even public BitTorrent sites. Others might jump onto more well known P2P clients. Some might give things known as ‘Sharity’ blogs a try (blogs that post download links to content – one example being Rapid Share blogs) or possibly a search engine that searches upload sites. It’s highly unlikely that all the free sources would be exhausted any time soon and until that time comes, premium UseNet services will be competing against these free sources.

Drew Wilson on Twitter: @icecube85 and Google+.

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