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Supreme Court Nominee Brett Kavanaugh Opposes Net Neutrality (arstechnica.com)
Beardydog writes: An article currently on Ars Technica examines comments about net neutrality issues by recent Supreme Court nominee Brett Kavanaugh. Kavanaugh not only rejects the FCC's reclassification of ISPs under Title II, but seems to also support a broad First Amendment right to "editorial control," allowing ISPs to selectively block, filter, or modify transmitted data.
Kavanaugh compares ISPs to cable TV operators, rather than phone companies. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Here's what Ars Technica had to say about Kavanaugh's argument, which did not address the business differences between cable TV and internet service: "Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major internet providers don't offer a set package of websites -- they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to 'transmit' them, but ISPs have argued that they should be able to demand fees from websites."
The report also mentions Kavanaugh's support of NSA surveillance: "In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that '[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment.' Even if this form of surveillance constituted a search, it wouldn't be an 'unreasonable' search and therefore it would be legal, Kavanaugh also wrote."
Kavanaugh compares ISPs to cable TV operators, rather than phone companies. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Here's what Ars Technica had to say about Kavanaugh's argument, which did not address the business differences between cable TV and internet service: "Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major internet providers don't offer a set package of websites -- they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to 'transmit' them, but ISPs have argued that they should be able to demand fees from websites."
The report also mentions Kavanaugh's support of NSA surveillance: "In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that '[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment.' Even if this form of surveillance constituted a search, it wouldn't be an 'unreasonable' search and therefore it would be legal, Kavanaugh also wrote."
+1 naive
How is dragnet record requests from ISPs and telecom carriers not unreasonable?? Sorry, but I disagree with you. Stupid interpretation can be bad for the freedoms and laws we have enshrined. Because of our stupid two party system, we may not always have the right political climate to fix what was once done. The 4th would never fly if it were being proposed today. Too many blue lives / law and order types who don't see the value of privacy, and can't imagine their freedoms being taken away because "governments never persecute good Christians".
The real problem is that there are only one or two internet providers in many places, and network neutrality is only one symptom of that problem. You also have price gouging, slow speeds, etc. The solution is to allow competition, and there are places in America where internet is perfectly fine, but not in Silicon Valley.
"First they came for the slanderers and i said nothing."
saying so let's them off the hook. They know exactly what they're doing. I just wish the voters would stop calling them names and start calling them out on their pro-corporate, anti-consumer and anti-worker agenda. There just comes a time to call a spade a spade...
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This is exactly what you are seeing here. A judge interpreting what the law (constitution) tries to say about a distributor (ISP). In this case, the judge appears to see the distributor of Internet content to be the one who chooses how that Internet content should appear if consumed through their network. That is a perfectly valid if not disastrously incompatible interpretation of "Internet" as is currently understood by Internet users. We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Note that supreme court judges are different from regular judges in how their interpretations are made and how they are applied. For one, AFAIK, they do not hear experts, they are the experts.
``OK, so ten out of ten for style, but minus several million for good thinking, yeah?''
/. has a lot of older folks on it, many of them have done quite well for themselves and many are right wing. Many voted for Trump (few seem to want to admit it).
/. has lots of older folks who depend on both those things). His tax cut is causing the treasure to raise interest rates to keep inflation in check driving up prices for things like houses, cars and schools. This supreme court nominee is probably going to overturn Roe v Wade, and let's not forget why we legalized abortion in America. And let's not forget the whole separating kids of asylum seekers thing or the fact that the money trail for all those detention centers leads back to him and his friends. I could go on, and on...
Trump opposed Net Neutrality, supports TPP, has rolled back none of Obama's executive orders on H1-B visas (he could have stopped spouses from working in this country with the stroke of a pen on day 1). He let Carrier and Harley Davidson get away with sending jobs overseas after they both got fat checks from the government for keeping them here. He's cut back the VA and is attacking pre-existing condition coverage (again,
His administration did just allow 3D printed guns. I'll give you that.
I guess what I'm saying is, I get it, he's not Hilary. But Hilary's gone, and Trump's poll numbers don't budge. I know Trump supporters are out there on this forum. I also know they mostly keep to themselves on political issue. But if any are out there willing to raise their voices I want to ask: what, if anything, will make you stop supporting him?
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Because you as the user have chosen to give away that data to the carrier...
They are not searching data you hold, they are searching data the carrier holds which you have given to them.
So it's not placing an unreasonable burden on you, as the end user.
Wether it's unreasonable for the carrier is another matter.
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The headline could instead read "Supreme Court nominee supports broad interpretation of First Amendment rights, non-interference in the private sector" and nobody would be upset about it and it would be an equally true headline. It's all in the phrasing. So a conservative-leaning judge supports free markets and broad application of the First Amendment. This surprises people...why, exactly?
In the end they will lay their freedom at our feet and say to us, Make us your slaves, but feed us. - Fyodor Dostoyevsky
+ firm supporter of the 2nd amendment, without which all other amendments become moot
-1: Naive idiot.
Information is power.
Small arms are *not* power.
Most definitely not true in the case of the US supreme court, which is wildly corrupt, making interpretation of law based upon what they believed,
That was partly true with Kennedy as a swing vote.
Your argument falls apart completely with Kavanaugh who is a real stickler when it comes to judging based on what the law says. He has sided for and against the government in many cases where each time he was making a ruling based on law, now on what he might "believe".
Between Gorsuch and Kavanaugh it really is the case that the laws that are written will matter and not just be tossed aside at the drop of a hat because an SC justice has the feels.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
"unreasonable burden" isn't the issue here. The question is whether you have an expectation of privacy, having given that data to a company. Personally, I expect my phone company to keep my phone records private.
Since phones are effectively required for life in the USA, you don't have a choice about giving that data, only a choice of which company you give the data to.
The real "Libtards" are the Libertarians!
If the reason for saying net neutrality is unconstitutional is the ISPs' first amendment right to make editorial decisions on what they carry, does that mean that they can also be sued or prosecuted over illegal content that they carry?
The real "Libtards" are the Libertarians!
you oppose standing armies, right? Because that was a large part of why the 2nd amendment exists ya know?
Sorry, I know it's off topic, but it seems a silly thing to hang everything on. Even a well armed citizenry is no match for a modern military. Hell, it's been like that for centuries. The only reason America won it's revolution is the British were too busy with the French and the French were actively helping us to oppose Britain. Heck, we got beat by the Canadian army for Pete's sake...
Also, are you really sure he's going to defer to the authors of the Constitution and not his corporate buddies? Don't forget the media feeding you all this information is owned lock stock and barrel by mega corps who would very much like you to think that.
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Certainly the constitution doesn't care about granting the government the right of telling a company what to do, that would be serious overreach. It's really just an interpretation of what it means that the constitution *doesn't* tell us how to think of the Internet.
Does that mean that the Internet is something that only exists as whatever comes out of your end of the cable when you buy a service with a local Internet provider? If so, it makes sense to think of the Internet as a product that is generated by your local ISP, and therefore, they have the full right to decide what it looks like.
But this is not how people today think of the Internet. If you ask people today what the Internet is, they imagine it as a unitary thing that is available to people world-wide, and it looks the same to all people everywhere. The Internet is a space of freedom of access, freedom of information and freedom of expression. It's extremely important to understand that this Internet of freedoms is completely incompatible with the Internet as a service idea. You cannot have a free Internet and at the same time an Internet that is a commercially-selected subset of Internet that works best in the business context of your local cable company.
An Internet-as-a-service is an Internet where the ISP is the socialist government, dictating for you, what the cyber world gets to look like. This is the consequential Kavanaugh Internet: you may think of it as an Internet born from constitutional freedoms, but an Internet born from freedoms is decidedly un-free.
Once we realize that, it's up to us to decide what we want to do. Do we want to throw our hands in the air and see what kind of Internet market forces will create for us (note: it will be different depending on what state you live in)? Or do we want an Internet that mirrors our current perception of an Internet of freedoms? If we want the latter, the only way to get an Internet of freedoms is by writing it into law. Regulation that states exactly what those freedoms are, and tells the gatekeepers that they need to provide us with at-minimum a version of Internet where those freedoms are respected.
A lot of people think it makes no sense that regulation creates freedom, and a lack of regulation creates oppression. But this is precisely how things work in the real world. You cannot be free without legislation that tells you what your freedoms are. What do you think the constitution is? It is the supreme regulation of your personal freedoms. What you need is a constitution of the Internet. This is net neutrality.
Net neutrality is the constitution of the free Internet. And it doesn't exist (and neither do your freedoms) unless we create it.
``OK, so ten out of ten for style, but minus several million for good thinking, yeah?''
The proper course of action is to vote with your wallet and take your business elsewhere. Don't act like you can't; it's a rare case these days where you have no choice of ISP's.
While most of your post is just deranged gibbering, this is actually an outright lie. The vast majority of US homes do not have a choice of ISPs. Of course, it's no surprise that someone whose sig contains whining about "offended feelings" has no interest in facts or reality.
Certainly SCOTUS needs to look at the words on the page, not what they think SHOULD have been in Constitution.
That said, the following exchange just happened at my house:
Person1: You need to eat.
Person2: You need to yourself.
What would an appropriate response be? "You need to eat yourself" could have two meanings, but we know what the person meant when they said it. The intended meaning guides our interpretation.
When we read the newspaper headline "Children make nutritious snacks", we know the author means children are cooking, not that they are snacks. We interpret it bases on what the writer meant.
Unfortunately, the authors of the Constitution occasionally uses words that mean something different today than they did 200 years ago, words that aren't 100 crystal clear, and in at least one case, words that seem to contradict each other. What meaning should be ascribed to those words? Fortunately, the founders also wrote hundreds of pages telling us exactly what they meant by those words, and why they said what they said. It seems clear to me that is something to consider to selecting which meaning to use - the meaning the writer intended.
not much anyway. Patriotism is waning here quite a bit. But Americans are very, very conservative. Not right wing (which is what most people think of when they hear the word) but actually conservative. We're terrified of change. Wages have been falling for 40 years we've got multiple wars going on and if you're under 50 odds are you're worse off than your parents (I know I am). Change has been bad for most of us. So the last thing we want is anyone mucking about with the document that defines our basic government.
And we've got good reason to be afraid. I know the Koch brothers were trying to take over the state legislatures so they could call a Constitutional convention. They fell just short of the votes to do it too (they lost a few special elections due to some really, really bad candidates. Like literal Nazi grade bad). I can't imagine they had anything good in store if they had been able to call a convention.
Keep in mind that as a country we can't even get everybody to agree that everyone deserves healthcare. We're kind of at each other's throats over here....
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We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services.
If ISPs are common carriers then Title II applies and network neutrality is valid based on existing law. The internet, at its heart is take a packet from arbitrary source to arbitrary definition. That sounds like a common carrier to me. Title II has been around since 1964.
Ultimately it would be nice if the congress people would do their fucking jobs and officially classify it as title II so there is no room for interpretation, but they have not, since they foolishly believe that trusting corporations to do the right thing if we just give them unfettered power works. It doesn't.
Also ISPs have a ton of benefit from public easements and infrastructure to build their crap. That changes the game considerably. You can't blatantly use a public resource purely for enrichment with no consideration for the public good. This also isn't a chance where free market fairy dust fixes everything. A lot of places only have one hard line isp, and many still have none. Here is a link showing it. link.
An estimated 34.4 million people don't have access to broadband in America.
The interesting thing is conservatives tend to have flexible ethics. He says he is a strict follower of the law, but it takes a tortured interpretation to have our packet delivery network to not be a common carrier.
Now you could argue that if they ban net neutrality and such and ISPs run amuck making the internet their private toll roads, well maybe it will no longer be a common carrier, but that would be no different than saying only Walmart can use semi trucks on the highway. The original intent of the internet was as a common carrier. Interpretation of statutes should be based on that original intent, and not the intent of people wanting to make even more money by setting up more toll booths.
That's along the lines of what Judge Kavanaugh said in his dissent. He wrote that the rules would have been okay if the applied to ISPs with significant market share in a particular area. The government has a legitimate interest in regulating a monopoly or duopoly or monopoly, sufficient to override the rights of businesses and customers to decide they want a "kid friendly" Internet service or whatever. As written, the rules applied to ALL ISPs, no matter what market power they had, so it was illegal to operate a kid friendly service. Fixing that would have saved the Net Neutrality rules from a 1st amendment challenge, he thought.
The other issue he pointed out is that Congress, who has the sole power to write laws, gave the FCC authority to implement a specific law covering the phone company. The FCC was to handle the details of enforcing the law that Congress wrote. Nowhere did Congress give the FCC authority to unilaterally create net neutrality.
According to Kavanaugh, here's how the Constitution provides for laws, including those related to net neutrality, to be passed:
Congress passes a law saying which principles of net neutrality should be legally required.
Congress identifies which agency they are empowering to enforce that law (FTC? FCC?).
Laws and regulations balance your rights with government interests. More burdensome regulations can be applied to ISPs with over 25% of given market or whatever.
This balances your first amendment right to provide a low-cost service designed for text rather than video, or a kid-safe service, or whatever with the government's interest in regulating businesses that aren't effectively regulated by the free market.
I'm freaking out over Trump because he's attacking Obamacare. I have a type-I diabetic friend (born with it, symptom's started in his pre-teens) who is alive today because the Medicare expansion covered his insulin. Until then he was fighting with our local state government to get enough meds to live. The affect of the disease means he can't work, he spends 2-3 months out of the year just down and out. He's smart enough (smarter than me) but nobody's going to hire you if you randomly disappear 3 months out of the year and good luck starting your on business. He almost died of a heart attack once... in his 30s.
I've got other family members with medical conditions that will be screwed in the pre-existing coverage protections go away. Trump's allowing a lawsuit against those protections to go unchallenged. And I'm 40, so I've got my own problems too....
I'm not anti-Trump because he says mean things. We could do with less civility in this country. I'm so fucking tired of people stabbing me in the gut, twisting the knife and people telling me it's OK because the guy with the knife is _smilling_ while he kills me and mine...
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Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services. You can't, because it doesn't exist.
It's right after the line that says corporate entities are people and have the same rights. And that great clause about money being speech.
ISPs have near monopoly status and receive taxpayer subsidies for a service considered as essential as electric and telephone. You, and this judge, have some psychotic view of corporate personhood where they can still remain exempt from additional regulations that other companies don't have to abide by, and that's bullshit. This has nothing to do with the Constitution.
And take your business elsewhere to who ffs? You think the local cable/DSL duopoly is competition? That LTE counts? That a 3rd provider is actually widespread? There is effectively no competition and you're either shockingly ignorant for a Slashdot poster, or more likely as is typically the case among conservatives who aren't otherwise fools, flagrantly intellectually dishonest.
I really dislike that whole argument of "find that in the Constitution", as if a document written over 200 years ago has every future technology, invention, social change, etc written in it. I've heard the same argument about the EPA, Department of Education, the IRS, etc. By that logic, we should disband the Air Force and the Marines, since the Constitution only mentions the Army and Navy. It doesn't mention electricity at all, or have any comprehension of ideas like nuclear weapons, so therefor the government shouldn't regulate those either, right? We should just return to an 18th century agrarian society, abandon any law having anything to do with anything not specifically listed in the Constitution. If one State doesn't like another State dumping toxic waste into a river right on their border, I suppose they should just call up their State militia and fight it out. States should be able to enact tariffs and embargoes between each other, succeed from the Union without federal interference, determine their own voting laws for any political positions inside their own State, etc. If it's not specifically in the Constitution, it's good to go!
This seems like it is at the central concern for why Trump chose Kavanaugh in particular, and they haven't denied that they considered Kavanaugh's opinion that the President should be protected from legal inquiry of various kinds. The policy issues around him, including net neutrality, may serve to polarize opinion and political support and opposition, but this seems to be a major overriding issue beyond those given the reality that Trump is the subject of a federal criminal investigation by the special prosecutor, and the questions as to his powers to resist or even eliminate the probe are ripening.
For example, the question as to whether Trump can refuse to answer a subpoena have been regularly raised, including by his own lawyers, which seemed like they would be settled law given that Nixon was forced to relinquish his incriminating tapes under a subpoena. However, a different SCOTUS could overturn such precedent if they so fancy, they have done so before (including recently) despite the invocation of principles such as stare decisis. This is also why the reply that this law review article is advocating congressional action to protect the president is not as convincing as it may seem, since it taking the standpoint of what should be done in response to the law as it existed. When in the position of a justice of the supreme court with a little bit of the so called "judicial activism", the law could be revised if Kavanaugh could find enough like minded fellows to go along with him.
Or more likely, they could make precedent in the unexplored and unsettled areas of law that have a maximalist view of presidential powers, which seems likely given Kavanaugh's background. Ironic given Kavanaugh's role in the Starr investigation and report that led to the impeachment of Bill Clinton.
Here is a study (skip to page 11) that estimates that over 50% of US households have 2 or more choices for 25mbps+ landline service.
Typical Republican mindset: "I've got mine, too damn bad if you didn't get yours."
Selfish people with no empathy are ruining this country. Nobody should have to move just to have a choice of broadband provider. Certainly not half of the country.
---
DRM is like antifreeze, to the MPAA/RIAA it's sweet, to the consumers it's poison.
Please don't be obtuse. Nixon resigned because he was about to be impeached and convicted, and he knew it. The articles of impeachment passed out of the judiciary committee with clear majorities, in a couple of weeks he was gone.
If Nixon was protected from criminal investigation, and if United States v. Nixon wasn't a unanimous ruling against Nixon's demands for unrestricted Presidential immunity from the judicial process but instead went the other way as Kavanaugh would prefer, then Nixon would have been in a far safer position to defend against his removal.
If a president is immune from investigation and scrutiny, then it is far more difficult for anyone to contain a criminal president, impeachment is an impotent check if must be carried out in the dark. And well, if what you really want is an unconstrained criminal president (such as Nixon was at his very worst), then I have no patience for you.
This is quite silly. The Constitution undoubtedly gives Congress the right to regulate ISPs that are engaging in interstate commerce. Congress could pass a law mandating Net Neutrality and directing an appropriate agency (likely the FCC) to draft rules to enforce it. Congress could also pass a law specifically saying that no agency has the authority to create such a rule.
Guess what. Congress did fucking neither. That's all we needed, a simple up or down from the one body that has final goddamned authority. Instead, they remained silent and so we have to parse the content of laws from previous decades instead of having a clear and concise national policy from a legislative body that's suppose to make policy.
The anger at judges and lawyers and agencies is valid but misplaced. The one body that could resolve the issue has gone out to lunch.
Another Anonymous Coward incredulously demanded:
50%?!? You are telling me it is too difficult and not enough to go around to provide more than 1 out of every 2 individuals a second ISP... in the US?!?
Actually, that's pretty much exactly the case. There are still a fair number of U.S. residents who live out in the boonies, where the cost-per-mile for pole space is high and the customer density is low.
At some point, it doesn't pencil out, so you take advantage of government handouts and subsidies to expand your network and then pocket the money and stop building out your network, and folks who live beyond the edge are reduced to crap like satellite internet or cellular data for broadband.
FTFY
No one cares what your captcha was
Houston TX, USA
Except this guy is claiming isp's have a constitutional right to limit traffic, thus making any law that might get enacted to be void on constitutional grounds.
Worse than that, he's claimed that ISPs have a constitutional right to limit and censor their customer's access to the Internet because he thinks the Internet is exactly the same thing as TV.
Fanatically anti-fanatical
How is this any different than Facebook deciding what sort of comments they are going to allow? They claim the right to decide that 90% of religious groups are 'hate speech' and ban them constantly while managing to do very little about FBLive live streams of gang rapes and beheadings. Or Youtube's decision to de-monitize every single gun-related channel, even if that content is merely about target shooting, safety, or even proper care and cleaning; despite it being completely legal and constitutionally protected. If Facebook is legally allowed to decide, for themselves, what sort of 'dialog' they want to allow in their GroupThink project, or Youtube decides who they want to punish for not fitting into their views; What right do you have telling another company (ie ATT) what they can or cannot restrict? Maybe we need to expand the 14th amendment, that guarantees equal treatment, to more than just race and gender.
This is the paramount problem with 'Net Neutrality'. They used the word Neutrality but its total bullshit. The net result is they forced carriers to absorb the cost of companies like Netflix. It is literally another example of government setting up a billion dollar empire. They use far-fetched examples of ATT blocking access to Netflix because it competes with HBO. But all they did was allow Netflix to exploit this and reduce their operating costs and saddle that burden on the carriers. There is nothing Neutral about it. If you want real neutrality then everyone gets a bandwidth meter and they pay by the byte, just like electricity. Nobody said it had to be prohibitively expensive, just uniformly metered to every occupant. Any world where ATT is told they cannot restrict the flow of data, or block the flow of data, should apply EQUALLY to content providers of Social Media. Instead of congress telling FB they need to do a better job policing they users, maybe FB needs to say 'you tell ME which users to sanction based on a system of Due Process' to congress and claim Neutrality otherwise. After all, should it not be the courts the decide when and if someone's 1st amendment rights can and should be censored? You can't have a bias'd and untrained bunch of tech flunkies like FB deciding for themselves, without true system of legal court system appeals, who is and who is not entitled to their constitutionally protected rights. Not so long as you believe your right to bandwidth and accessing the internet is beyond the rights of those paying to maintain and provide it to you.
If you want Neutrality then you best be ready to fuck over the content providers equally as much as you fuck over those just delivering said content.
Hey you, you seem frustrated. You also seem to be railing against something you clearly take issue with but wasn't in the comment you replied to.
I think you're frustrated with people hijacking the term "net neutrality" as whatever regulation is necessary to protect their own world-view. Did I get that right?
Net neutrality is not about leftist or rightist values. It is not about feminism, porn, fake news, or hate speech.
Net neutrality is nothing more than "my internet is the same internet as your internet".
The idea that the Internet is a domain of its own, and any gatekeeper that provides access to the Internet should treat it as-it-is, and not try to change what the Internet looks like to fit their personal beliefs or commercial interests. Whether that Internet has things on it that I like or dislike does not matter. What matters is that it's the same and stays the same. The ISP should be neutral, not biased. The ISP should show the picture as-is, not color it blue or red, censor it or favor it.
And here's the crux: for an ISP to treat the internet as neutral, you need regulation. If there is no regulation, every ISP will treat the Internet as biassed. Leftist ISPs will treat it leftist, rightist ISPs will treat it rightist and all ISPs will treat it in whatever way makes them more money. If you want your Internet to be the same as my Internet, your Internet speech to be unadulterated and free, you need to tell ISPs everywhere that they are not allowed to censor your speech, they are not allowed to change your Internet to look or act different.
``OK, so ten out of ten for style, but minus several million for good thinking, yeah?''
Facebook is not an ISP. Sure, they can control what's on Facebook. But Verizon should not be allowed to control whether you can access Facebook. Is it really so hard to understand that distinction?
Posted from my Android phone. Oh, I can change this? There, that's better...
People think of websites as expressive media; you don't visit a website just to talk with the other users, but to communicate with the website itself (which happens to include some inputs from some other people). And Facebook does express itself. You'll see their logo, their ads, etc all over that shit. It's formatted however they want it formatted, not however your Usenet newsreader happens to format it.
People think of ISPs and phones as networks where the service is nearly invisible and non-expressive. From this point of view, only the users express themselves; the network is not expressing anything and therefore doesn't have the kinds of rights the 1st Amendment tries to protect. (Additionally, the phone network was uneconomical to build without government help, and has always been connected to government and regulated.)
People might be wrong, about one or both of these things. Or more likely "wrong," in that this is more something the decide/define, rather than discover. It's an ok thing to disagree about and debate, but I hope we all get back onto the same page before too much damage is done. (And everyone used to be on the same page, so this shouldn't be too hard.)
Some of it is historical. Websites, even "web 2.0" with its comments, are seen as their own expressive entities because they always acted like that. Similarly, phones and IP networks are seen as non-expressive carriers because people always experienced them that way. Not only do you expect your phone call to not be edited, but your great grandfather did too, and so did everyone in between! For whatever reason, putting ads in the middle of your phone call wasn't something people thought of in the 1920s. If someone had, we might have a different view of communications networks these days.
But it didn't happen, so it's very rare to hear the opinion that networks could have the right to free expression -- that network traffic is somehow speech for the person delivering it. It hasn't ever been true, has it? A message in a bottle is something the ocean is saying? The US Post is saying the things in your letters or has the right to edit them? Nobody has that interpretation of free speech. Indeed, the public even knows the words "common carrier" without having to understand everything that means. The idea is that mainstream.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.