Apple and Net Neutrality – Relevant?

In recent months the legal and ethical debate over net neutrality and its implications for freedom of expression has drawn quite a bit of attention. Net neutrality is of utmost cultural, societal, and legal significance. Net neutrality regulation is one of the most important decisions the world’s lawmakers will have to make in the upcoming years. A prominent example can be found in Apple, the company famous for its computers, mp3 players, and most recently the iPhone. The quarrel over the submission and review policy for publishing an application on the Apple App Store has become highly controversial. Now, the actual review policy is too long to include in this blog but the gist is explained quite well in Apple’s official summary:

‘The app approval process is in place to ensure that applications are reliable, perform as expected, and are free of explicit and offensive material. We review every app on the App Store based on a set of technical, content, and design criteria…’

As part of the on-going evaluation of Apps on the App Store, it’s also possible for your App to be reported and subsequently removed from the App Store even after it has already passed the initial review. In the case of a denial, you can still bring the matter before the “App Review Board.”

Many critics advocating free speech and net neutrality have decried that this system amounts to arbitrary censorship and even violates the First Amendment rights enshrined in the US Constitution.

Mr. Craig Parshall, an outspoken critic and lobbyist in the “internet revolution” and the general counsel for National Religious Broadcasters (NRB). Mr. Parshall contends that Apple’s policy violates the protections against censure in the First Amendment.

However, Apple is a private company, and the Bill of Rights only protects against abuses by the government. In order for the First Amendment to apply, the restriction must be made, enforced, or otherwise intrinsically related to governmental action. For instance:

1. Under federal law a protestor could not be ejected from a public square simply because of the message they wish to spread, since the public square is government property and therefore any ejection would be intrinsically related to a governmental action.
2. Under the same federal law, a shop owner could eject or deny admission to his property with no warning and for no reason simply because it is private property (as long as he does so lawfully).

Lacking any State action, Apple can legally subject Apps to its review policy as long as it abides by the rules it has set itself (and complies with the relevant regulatory and civil laws governing discrimination).

However, Mr. Parshall, being a lawyer familiar with legal doctrine, counters that the App Store should satisfy the State Action Doctrine because it only “…provides a technological platform (for a fee) that enables American citizens to exercise their free speech rights. Beyond that (Apple) utilize[s] the universal, public communications resource of the Internet to provide [its] services.”

His argument boils down to the App store being an integral part of the internet, a public good funded and regulated by the government, and as such it should be subject to the First Amendment restrictions on censorship.

Going further still, Mr. Parshall would liken the iOS to a new “media platform” (referring to iOS) to the printing press. He likely does this because in the US the printing press is protected by the First Amendment as a fundamental and necessary means of spreading opinions, ideas, and speech. The government cannot subject the use of the printing press to previous censure.

However, I would contend that Mr. Parshall severely misunderstands the fundamentals of what the App Store and iOS are. Neither the App Store nor iOS are platforms for the exercise and dissemination of opinions, ideas, and speech (like the printing press). The App Store is a private application distribution platform located on an Apple server, basically the digital equivalent of a brick-and-mortar application store. And iOS is not a media platform either, it is the software that manages a computer’s hardware and provides the basic framework to run other software applications.

The flaw is found in Mr. Parshall’s use of analogies in the “public resource” example he uses. Imagine an actual brick-and-mortar bookstore that sells books. Just because the store uses the public road system to provide its services (that is the sale of books) does not mean that the local citizen can walk up to the owner and demand the bookstore sell or even give away his book. The First Amendment does not require the private storeowner to facilitate another private citizen’s right to free speech just because he utilizes the road or sidewalk to provide his service. Why should the law provide a different outcome when the store is digital (serviced via the internet) instead of brick-and-mortar?

Furthermore, with recent updates in web development languages such as HTML 5, Java, Adobe Flash, and many others, developers can now produce nearly all of the same applications run natively on iOS and other mobile devices through web applications not subject to Apple’s review policy. There significantly weakens any argument based on the exclusivity or uniqueness of applications published via the App Store for disseminating free speech on mobile devices.

This is the mistake of mistaking the bookstore with the printing press and the App Store with the internet. The Internet itself is Mr. Parshall’s new printing press, a free public platform for the dissemination of information, communication, and services. It is the physical and technological infrastructure that, among other things, allows the various users throughout the world to access Apple’s servers, and consequentially, their App Store.

With unrestricted access to the internet the NRB can open its own digital store and disseminate the information itself via the Internet. That is the beauty in the freedom of expression the Internet provides. It is why there must be a distinction between a private legal limitation on freedom of choice, where Apple decides what to associate with its App Store and brand, and the need for net neutrality, where the access to and use of the internet must be protected against arbitrary restrictions.

Some people may argue that small distinctions such as these are unimportant and meaningless to the ordinary user. Perhaps, but legally these distinctions are the very heart of the matter. If the differences and nuances of these technologies are not taken into account when debating net neutrality -such as the crucial difference between the App Store and the Internet- , the laws can be struck down for vagueness or distored and abused to deprive citizens of rights.

The chance to create effective laws is diminished if legal commentators don’t understand the technology being regulated first. This is especially true if individuals (and particularly lobbyists) are purposefully or accidently spreading misinformation. . Lawmakers have to tackle more complex and important issues, such as portal censorship and data discrimination by ISPs.

It is vital that those regulating and law making fully understand the complexities, distinctions and nuances of the technology being debated- especially before attempting to ‘fit’ new issues into existing legal frameworks, whether you are fighting for free speech or defending net neutrality. If all those critics of Apple’s policies succeeded in preventing its review practices today, they may win a small battle for freedom of expression, but they’d likely take a step towards losing the war for real net neutrality.

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