Abstract: Providers of high-speed Internet access, including Verizon and the cable industry, are arguing that limitations on their activities raise serious constitutional concerns under the First Amendment. The providers, however, are selling the modern- day version of general-purpose two-way telephone services, economic regulation of which has never been thought in the past to raise constitutional concerns. Today, the providers' arguments would likely fail given Supreme Court precedent. But given the absence of either competition or oversight in this market, providers are poised to have the market power to “edit” digital communications seen by users and to force interconnecting networks and content providers to pay tribute, thus becoming more “like” The New York Times for speech purposes. This is a critical time for courts and the FCC to carefully and deliberately explain why the carriers are wrong.
Biography: Susan Crawford is the John A. Reilly Visiting Professor in Intellectual Property at the Harvard Law School (2014). She is a professor at the Benjamin N. Cardozo School of Law, a fellow at the Roosevelt Institute, and a co-director of the Berkman Center. She is the author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age, and a contributor to Bloomberg View and Wired. She served as Special Assistant to the President for Science, Technology, and Innovation Policy (2009) and co-led the FCC transition team between the Bush and Obama administrations. She also served as a member of Mayor Michael Bloomberg’s Advisory Council on Technology and Innovation. Ms. Crawford was formerly a (Visiting) Stanton Professor of the First Amendment at Harvard’s Kennedy School, a Visiting Professor at Harvard Law School, and a Professor at the University of Michigan Law School (2008-2010). As an academic, she teaches Internet law and communications law. She was a member of the board of directors of ICANN from 2005-2008 and is the founder of OneWebDay, a global Earth Day for the internet that takes place each Sept. 22. One of Fast Company’s Most Influential Women in Technology (2009); IP3 Awardee (2010); one of Prospect Magazine’s Top Ten Brains of the Digital Future (2011); and one of TIME Magazine’s Tech 40: The Most Influential Minds in Tech (2013).
Ms. Crawford received her B.A. and J.D. from Yale University. She served as a clerk for Judge Raymond J. Dearie of the U.S. District Court for the Eastern District of New York, and was a partner at Wilmer, Cutler & Pickering (now WilmerHale) (Washington, D.C.) until the end of 2002, when she left that firm to enter the legal academy. Susan, a violist, lives in New York City.