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Old September 8 2012, 06:45 AM   #84
Alidar Jarok
Everything in moderation but moderation
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Location: Norfolk, VA
Re: Why isn't Internet free for everyone yet?

RB_Kandy wrote: View Post
Alidar Jarok wrote:
Actually, there's a couple flaws with that argument.

First, if the government controlled it, the First Amendment would apply.
Well, that is an argument, however, freedom of speech only applies to an act of congress, no other branch of government. Example: The FCC is certainly government, and their job is primarily shutting down people who speak the wrong things (mostly nudity, gore, profanity).
Actually, no. The first amendment absolutely applies to executive action. Although I'm trying to remember a case specifically, I think New York Times v. United States is at least relevant. The justification for the FCC power isn't that the first amendment doesn't apply to the executive but that, because broadcast airwaves are a limited resource, the government can regulate it more in the name of the public interest. This was decided in the Pacifica case in 1978, but there's been talk of reconsidering it in light of recent changes. Either way, the FCC can only regulate broadcast television and only for indecency (as opposed to the normal first amendment standard of obscenity outlined in Miller v. California.

Alidar Jarok wrote:
Internet Service Providers are free to block sites of rival companies
Nope, we have net neutrality. If the phone and cable companies have over turned it recently, I would appreciate a link.
Actually, while phone companies are common carriers and are bound to carry communications fairly, internet service providers are not. There's been no Supreme Court case to declare this, but the Brand X from the 9th Cicuit did squarely hold this. While there have been calls for net neutrality laws, there is no current net neutrality.

Link regarding yahoo censoring emails

Alidar Jarok wrote:
Second, there are obscenity laws that apply to the internet.
There are no obscenity laws governing the internet. Many politicians and protest groups have tried, only one of those bills were ever passed, called CIPA (Children's Internet Protection Act). This applies to schools and libraries only, and is not "enforced" but "encouraged" through a funding project called E-rate funding. Here is the official FCC government link

If there is some other obscenity law that has gotten passed, I would appreciate a link.
Well, there's the general 18 U.S.C. 1465, which prohibits distribution of obscene materials for the purpose of sale. Otherwise, there's no specific law covering obscenity on the internet, but they have the power to do so under first amendment jurisprudence (Reno v. ACLU covered indecency, not obscenity and was properly struck down). It's also valid for state laws to ban pornography on the internet and I'm not about to check all 51 jurisdictions to see if there's one on the books.

Can you show me a current example of ISP censorship?
The example I have an internet link for is for email service. I can cite a book for an example of comcast censoring in its capacity as ISP, but you would have to acquire the book to confirm my information.

The government can already monitor your emails, and web surfing habits, just like phone tapping. And like phone tapping, they only do this as an official police investigation or if homeland security believes you have terrorist links. If they controlled it directly they wouldn't even need warrants, and their ability to really reach down deep into your system retrieving and planting data would be extremely easy.
No. This is factually wrong. The Fourth amendment applies to government searches. Under the USA PATRIOT Act, they can only search your emails if a substantial purpose is foreign intelligence (not just terrorism and generally not terrorism). However, under Title III of the Omnibus Crime Control and Safe Streets Act, phone tapping can be done for any criminal investigation. Either way, they need probable cause to believe a crime is being committed and approval in advance of a magistrate (or FISA court judge). DHS is actually not involved, since wiretaps are under the purview of the Attorney General.

Internet searches fall under the same principle. There might even be stronger protections because it's analogous to mail cases, but this hasn't been fully hashed out. Generally, the contents are protected, though, without legal justification. This is the same whether or not the government owns the service. For example, the post office can't open your mail without legal cause.
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