Once upon a time, the law governed what telephone companies could and couldn't do to affect the content of telephone calls sent over the network. The answer, basically, was nothing. The Communications Act provided that it would be “unlawful” for carriers to “subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”
Over time, the Federal Communications Commission (FCC) has whittled away the protections consumers had from the discrimination the law was supposed to prevent by changing the definitions of the types of calls or uses to which the law applies. Now, Internet traffic is excluded. Cellphone traffic excluded. Text messaging excluded. Any service offered over Digital Subscriber Line, fiber lines or cable were moved out from under the law that allowed consumers to be secure that they could use their telephones, or other devices, in any legal way they chose.
What has replaced a well-known legal standard is the much more amorphous, and much less public, rule of discretion. That is, the carriers do what they want and there's nothing anyone can do about it.
This morning brought the latest example, when the New York Times reported that Verizon turned down the application of NARAL Pro Choice to be set up so that it could send text messages to their members who requested the service. This could not be more clear. This is not spam. NARAL, as other activist and political organizations have done, wanted an effective way of communicating quickly with their members who voluntarily signed up to receive text messages informing them of events or asking them to take some sort of action.
PK's reaction to the Times story is here
The explanation NARAL's vendor, Mobile Commons, first received, was that “VZW (Verizon Wireless) legal does not accept issue-oriented (abortion, war etc.) programs – only basic, general politican-related campaigns (Mitt Romney, Hillary Clinton, etc.)” After further inquiry, NARAL got a fuller explanation: “For now VZW will not accept programs that are issue oriented from lobbyist [sic], PACs or any organization that seeks to promote an agenda or distribute content that, in its discretion, may be seen as controversial or unsavory to any of our users. General informational campaigns about candidates are acceptable that the content involved is, in VZW's sole discretion, not issue-oriented or controversial in nature.”
Note that word, “discretion.” Instead of a legal standard that could be applied by a regulatory body or a court in a public proceeding, we have the vaguest of terms applied by a private company in public.
Activist group that the are, NARAL didn't take it sitting down. They went to the New York Times, which ran the story. By mid-morning, Verizon discovered what had transpired was “an incorrect interpretation of a dusty internal policy,” and NARAL's application to send messages to its members was approved.
That's all well and good. But what if NARAL hadn't complained, or if the Times hadn't run a story? Would Verizon be reviewing its policy, as it has stated it now is? As NARAL's president, Nancy Keenan, pointed out in a letter to Verizon, there is nothing illegal about discussing issues like the war or abortion. While many Americans might disagree on those topics, she wrote, most Americans would probably agree that Verizon didn't have the right to keep people, at its discretion, from discussing them or from voluntarily receiving information. She's right, of course, but neither NARAL nor most of the American public, nor the public's representatives, are aware of how those rights have been chipped away, or if they are aware, they aren't going to do anything about it.
Even if Verizon decides to change its policy, who will know what the policy will be, or whether they can change it again as circumstances suit, or what recourse consumers have if they are for some reason deprived of what they think are their rights?
If this scenario appears familiar, it is. Not long ago, the Washington Post ran a story about Comcast cutting off the Internet accounts of customers who downloaded too much material. What standard does Comcast use? Its at their discretion. There are no published standards, no means of measuring, no way a customer can know if he or she is going to get cut off. It's at the discretion of the company.
If that scenario appears familiar, it is. Not long ago, AT&T was webcasting a Pearl Jam concert, and somehow some political lyrics by singer Eddie Vedder didn't make it through the series of tubes. Another misapplied company policy was apparently the culprit.
At some point, responsible leadership is going to have to wake up and realize that a private company's discretion is no substitute for public standards. It might be a good idea for the FCC to spell out what rights they think consumers still have, and for Congress to make its own judgments. Discretion has its limits.