Voluntary Nature of ISP Agreements with AG Questioned

Other recent instances include pacts between Facebook, MySpace and 49 state attorneys general leading to creation of the Internet Safety Task Force, which has expanded to include many different Internet companies. As the New York agreement does, the Facebook and MySpace arrangements followed intense law enforcement pressure on the sites to crack down on alleged predation against children. Among the AGs cited as leaning hardest on the sites was North Carolina’s Roy Cooper. He, as many colleagues elsewhere, threatened the social networking sites with such cudgels as imposition of myriad age verification requirements that would have made it difficult to register new users. MySpace entered into a collective agreement with the AGs in January. Facebook followed suit last month. The agreements are completely voluntary, say all the parties involved.

The meaning of “voluntary” is a different matter, the Progress and Freedom Foundation’s Adam Thierer said: “Voluntary agreements between industry and law enforcement officials or government have always raised questions” as to their enforceability and constitutionality, he said. Such arrangements comprise “an ambiguous legal issue,” he said, noting that none has undergone the test of court challenge.

The agreements may be unconstitutional if coerced, said John Morris, Chief Counsel for the Center for Democracy & Technology. Morris, lead attorney on the landmark Reno v. ACLU case, has specific concerns about the decision by Verizon and Sprint to stop carrying only the alt.* hierarchy of groups. That hierarchy includes thousands of discussion groups whose topics range from motorcycle maintenance to Late Night with David Letterman. The ISPs left other hierarchies untouched. Such selective blocking of content would be unconstitutional if done by law, but the agreement’s voluntary nature leaves the question of who would have standing to challenge it unclear, Morris said. This unique standing issue puts the agreements in uncharted territory, Thierer said. Both sides may stress the deals’ voluntary nature, but they may not be legally enforceable, he said.

The agreement’s true “enforcement” lies in the implied threat of regulation “above and beyond” what the agreements stipulate, Thierer said. That threat is a mandate that the sites engage in age verification, which he called the “sword of Damocles” over social networking services’ necks. And an age verification scheme raises even tougher questions, since it would involve minors entering personal data to be checked against a database, he said. Such records would be especially useful to identity thieves, since most children have clean credit records, Thierer said.

The constitutional test lies in the agreements’ context, Morris said. “Are they agreements that these providers voluntarily entered into?” he asked. In the New York case, he suggested, if the pacts result from “government coercion,” they're most likely unconstitutional. “The government cannot require ISPs to block access to newsgroups that carry lawful content.” A 2004 Philadelphia U.S. District Court decision voided a Pennsylvania law requiring ISPs to “remove or disable access to child pornography items ‘residing on or accessible through its service’ after notification by the Pennsylvania Attorney General.”

The agreements may be better than the alternative of government regulation, Thierer said. “I know these AG’s, for example, have been very hungry to go much, much further, and impose some comprehensive regulatory scheme on the entire Internet,” he said. “It’s sort of a lesser of two evils question, right?” Some of the provisions, he said, are “quite laudable” in their ultimate goal of protecting children.

Some might call the agreements a form of regulatory or economic “blackmail,” Morris and Thierer agreed. In effect the states have declared that “if you don’t agree with what we want you to agree to, we're going to criticize you in the marketplace,” Morris said. Not judging the constitutional arguments, Morris acknowledged the power of the AGs’ bully pulpit: “It is effective with mass-market companies.”

The trend toward “voluntary” agreements isn’t new, said former FCC Commissioner Harold Furchtgott-Roth. He recalled many instances in which the commission pressured companies into “voluntary” actions before the commission would grant a license transfer or approve a merger. The specifics obviously differ, but the concern is similar -- a situation in which a governmental agency “with a wide range of enormous powers” exerts pressure on a company to achieve a regulatory goal, he said. That is an acceptable goal when attempting to bring a company into compliance with an existing law or regulation, but the New York AG scenario “sounds pretty awful,” Furchtgott-Roth said. He contrasted it with similar situations during his tenure at the FCC, “a regulatory agency which has to provide some kind of privilege” in exchange for obtaining adherence to a condition. Crossing the FCC might not grab national headlines, but crossing a state AG and being dragged into the headlines is a “game of chicken” many businesses would rather avoid, he said. - Andrew Feinberg