If there's one thing public officials have learned from activists over the past few years it's this: Do Not Anger the Internet. Online organizing has taken down multibillion dollar campaigns such as SOPA and PIPA, brought a national spotlight to injustices in small towns such as Trayvon Martin's, and helped allow political candidates to raise significant funds in small dollars from large numbers of donors, as was on stark display during the last presidential election.
As the FCC once again picks up the controversial issue of net neutrality, there are signs that the same forces that emerged during the SOPA and PIPA debate are mobilizing again. This time, the Internet community is rallying to protect the very rules that have allowed it to become the powerful voice that it is. Net neutrality rules—also known as open Internet—guarantee that Internet Service Providers (ISPs), such as Comcast or Verizon, will not improperly discriminate among or block lawful content providers. This is the principle that the Internet has always been governed under, ensuring a level playing field for all voices online.
Ironically, the president who benefitted so much from online organizing, and promised during his campaign to "take a backseat to no one" in his commitment to net neutrality, appointed an FCC Chair, Tom Wheeler, who reportedly may be considering abandoning meaningful protections for the much weaker tea of "case-by-case" enforcement. For the first time ever, the FCC is proposing rules that would allow ISPs to charge large content providers more for that "fast lane," which will hamper free speech online by reducing the number of voices, and raise barriers for access to information. Massive online protests and an encampment at the FCC have sprung up to fight the new proposal.
First, some background.
In January of this year the D.C. Circuit court struck down two key provisions of the FCC's most recent attempt to protect net neutrality: rules banning ISPs from "discriminating" against or "blocking" lawful content. To be clear, the court did not say the FCC is powerless to implement no discrimination or blocking, but held that the current legal framework under which the rules have been implemented runs counter to black letter law. The court laid out two paths the FCC could take to regulate broadband.
- The FCC could reclassify broadband from a Title I "information service" to a Title II "common carrier." As the D.C. Circuit court explained, common carrier regulations have traditionally applied to industries that serve the public, like transportation and communications industries, and require that the service is available to the public in a non-discriminatory fashion and at a reasonable cost. If the FCC reclassified broadband to Title II, it would have the full authority to put in place anti-discrimination and anti-blocking rules.
- The FCC could continue to classify broadband as an information service and regulate it using the limited authority imparted by section 706 of the Telecommunications Act. The intent of this section was originally to encourage the spread of broadband by motivating ISPs to invest in under-served regions by promoting competition, but while 706 may allow for some regulation, it would not allow for strong anti-discrimination or blocking rules. If governed under 706, ISPs would be able to discriminate against competing services and charge large content providers more to deliver their content faster to consumers, leaving those without significant funds in an Internet "slow lane." Alarmingly, the Chairman selected this option.
What does it mean for our free speech rights?
The Internet is the greatest medium for communication, expression, and organization the world has ever seen. The openness and equality protected by net neutrality rules have allowed the Internet to thrive, becoming a global "free market" of ideas. Among other things, open Internet rules have provided a platform that allows minority voices to be heard in an increasingly mainstream media environment, musicians to be heard without the support of expensive record labels, lesser-known candidates to compete in elections without the support of massive donors, and allows political activists to more effectively mobilize. Without net neutrality protections, these voices could be slowed or buried.
Net neutrality also has serious implications for Americans' ability to access news and information. In most markets, consumers have very few options for legitimate high-speed broadband service, of the quality and speed we increasingly need to access the most innovative and important content online. If one of those providers starts degrading service or charging for a fast lane, consumers cannot vote with their feet and discipline anti-competitive behavior. And manipulations of online content are not always easily detectable; content could be delayed or distorted in important but subtle ways. This lack of competition gives these high-speed gatekeepers an uncomfortable amount of control over Americans' access to news and information. They increasingly have the ability to influence the public debate and weaken our democracy through the manipulation of internet traffic.
Fortunately, Internet activists are organizing and their voices are being heard. Just two weeks after the court struck down the rules, the ACLU and a broad coalition of over 85 groups—including Free Press, Reddit, MoveOn, the Sierra Club, and the Council on American-Islamic Relations—delivered a petition with over a million signatures to the FCC calling for reclassification. On May 7, the same day the encampment set up shop at the FCC's doorstep, the other two Democratic FCC Commissioners (the Commission is split along party lines, two Democratic and two Republican commissioners, with a chairman from the president's party) issued statements expressing their concern over the chair's proposed rules. And over the weekend a small web hosting company, NeoCities, slowed traffic to the FCC's website, showing them what an Internet "slow lane" might feel like.
It's not only activists who are up in arms over net neutrality; internet content providers are also speaking out. Over 100 companies sent a letter to the FCC saying rules that would allow discrimination represent a "grave threat to the internet." These companies understand that net neutrality allows small startups to get their products out and compete with established companies. Facebook would have likely never made it out of Mark Zuckerberg's dorm room if faced with steep fees for distribution. Platforms like Etsy would face daunting challenges.
The FCC and members of Congress are feeling the pressure. The leaders of the Congressional Progressive Caucus, Representatives Raul Grijalva (D-AZ) and Keith Ellison (D-MN), have been collecting signatures on a letter to Chairman Wheeler arguing that classifying communications providers as "common carriers under the law is common sense."
The Internet has become a vital tool for our democracy. Modern activists no longer rely just on physical protests; they mobilize and spread their message online, and must be able to do so without undue interference from government or the private sector. It is crucial that the FCC move now to protect free speech online and Americans' access to information or our online marketplace of ideas is going to become a much smaller and less interesting place.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.