Should Cellphone Companies Be Able to Censor the Messages We Send? The Verizon/NARAL Controversy

By ANITA RAMASASTRY

Thursday, Oct. 11, 2007

Recently, Verizon -- one of the largest wireless carriers in the US and one of the country's two largest cellphone companies -- stopped the pro-choice group NARAL from sending text messages over its cellular network to Verizon subscribers who had signed up to receive messages from NARAL. By contrast, other cellphone companies allow NARAL to use their networks.

As its purported justification, Verizon initially said it does not accept programs from any group "that seeks to promote an agenda or distribute content that, in [Verizon's] discretion, may be seen as controversial or unsavory to any of our users." However, after public outcry, Verizon revised its position just a few days later, and is reviewing its policy. Yet it has stood firm on its claim that it had a right to decide what content could be transmitted over its wireless network.

Technically, this is true. Verizon can write and enforce its contract as it chooses on this matter for, as of now, no federal law applies. The laws that forbid common carriers from interfering with voice transmissions on ordinary phone lines do not apply to text messages.

Under current law, then, Verizon has the freedom to do what it has done. Yet, as a matter of policy, Verizon's decision is unwise.

In this column, I will argue that Verizon and other cellphone companies should maintain a position of neutrality with respect to the communications that are sent over their networks - just as their regular telephone competitors do.

Moreover, Congress should reexamine existing communications laws to consider mandating a position of neutrality for cellphone companies. Otherwise, Verizon and other companies' exercise of their discretionary right to block text messaging may impede public discourse and the free exchange of ideas.

Whether the message is pro-life or pro-choice, about gun control or about the right to bear arms, Americans should be able to send emails and text messages just as freely over cellphones as over their regular telephone network.


What Verizon Did, and Why it is Legal

Text-messaging is becoming a popular advocacy tool in the United States. Many political candidates, as well as nonprofit advocacy groups, are using it to reach the public and potential voters or supporters.

Text-messaging programs which rely on five- or six-digit "short codes" are a popular way for mobile phone users to receive alerts from candidates or action-oriented messages from nonprofit groups. The Republican National Committee, Amnesty International and Save Darfur are some of the organizations that use text messaging to reach their supporters.

NARAL's texting program allows people to sign up for its text messages by sending a message to a particular short code. As a result, NARAL messages are only received by persons who have requested them; there is no spam issue here

NARAL's messages are plainly political. One read, "End Bush's global gag rule against birth control for world's poorest women! Call Congress. (202) 224-3121. Naral Text4Choice."

Initially, Verizon said NARAL's messages violated its policy not to accept issue-oriented text programs. Verizon noted it would accept only basic, general campaign-related programs focused on candidates (for example, Mitt Romney and Hillary Clinton), rather than issues. Yet after the New York Times ran a story on the censorship and there was open public opposition, a Verizon spokesperson called that "an incorrect interpretation of a dusty internal policy" that "was designed to ward against communications such as anonymous hate messaging and adult materials sent to children."

Still, as noted above, the company maintained that it had the power to decide which messages cellphone subscribers receive. Should it continue to have that option?

Why A Federal Law Should Guarantee Cellphone Companies' Message-Neutrality

Of course, since the First Amendment restricts government actions, not that of private companies, Verizon currently is free to take the position it is taking. However, I believe it is high time for federal lawmakers to reexamine and update relevant laws and regulations. Common carriers, by law, must make their services available to all people and organizations - irrespective of the content of their messages. Why not cellphone companies, too?

Some scholars have argued that a law ensuring neutrality is unnecessary. Rather, they argue that market competition alone is sufficient to ensure robust political debate: Some cellphone companies could win subscribers by marketing themselves as pro-free speech. Unfortunately, however, since there are only a handful of major cell phone providers, market competition may not be as efficient or effective as scholars hope.

Over time, the Federal Communications Commission (FCC) has embraced an increasingly-free market approach. Common-carrier neutrality laws - originally passed in part to counter political censorship by historical carriers such as Western Union -- now exclude Internet traffic, cellphone, text messaging, and any service offered over DSL and cable. Now, companies claim they will wisely use their discretion, but discretion is a vague term and it is hard to know what will be considered offensive. Moreover, instances like Verizon's show the free-market approach is not working. What is needed is to amend the common-carrier law to sweep in the industries that are now excluded, ensuring that our modes of communication remain free of content- and viewpoint-discrimination.

Finally, while the cellphone text-messaging dispute is important, even more important is the dispute over "net neutrality" -- that is, over whether Internet Service Providers (ISPs) should be able to censor or limit the content they convey. That battle is very much still raging.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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