Government-Provided Internet Access: Terms of Service as Speech Rules

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. …