Frank Pasquale – Search, Speech, and Secrecy:
Corporate Strategies for Inverting the Network Neutrality Debate

CITP Luncheon Series

Date: Thursday, October 7, 2010
Time: 12:30-1:30 pm
Location: 306 Sherrerd Hall
Food and discussion begins at 12:30 pm. Everyone invited.

Internet innovators have promoted network neutrality for economic reasons, and activists have focused on free speech and privacy rationales for nondiscrimination by ISPs. Academics like Dawn Nunziato have demonstrated that non-neutral networks can impede users’ free speech (witness the Verizon/NARAL and AT&T/PearlJam incidents). Deep packet inspection could also undermine user privacy. After briefly recapping these developments, my talk will propose that network neutrality’s opponents are in the process of inverting the debate by asserting their own rights to “free speech” and a form of corporate privacy–trade secrecy.

While Christopher Yoo’s theory of “architectural censorship” has not yet vindicated ISPs’ claims to expansive First Amendment rights, their business alliances with search engines and other internet companies may make their decisions sufficiently “speech-like” to attract protection from the current Supreme Court. Classifying network management decisions as “trade secrets” could also hamper public scrutiny and regulatory attention to ISPs’ actions. Increasingly, corporate trade secrecy privileges will make it difficult or impossible for consumers to determine if their privacy rights have been violated. Corporate First Amendment protections will render suspect lawsuits (and even some regulation) designed to promote the public interest in fair, open, and neutral ordering of data flows online.

Admittedly, legal argument may stop this “future of the internet”–First Amendment and trade secrecy doctrine are vague here. But given Google’s success in advancing such defenses, the recent collaboration of Google and Verizon in developing a “legislative framework” for network neutrality, and the present composition of the US judiciary, consumer advocates who care about individuals’ rights to privacy and free expression should start developing more transparent and open alternatives to increasingly unregulable networks of dominant online intermediaries.


Frank A. Pasquale is a professor of law at Seton Hall Law School and an affiliate fellow of Yale Law School’s Information Society Project. He has been a visiting professor at Yale and Cardozo Law Schools. He received his BA (summa cum laude) from Harvard, attended Oxford on a Marshall Scholarship, and received his JD from Yale. He has written several articles on internet law and intellectual property. In 2008, he testified before the Task Force on Competition Policy and Antitrust Laws of the House Committee on the Judiciary, appearing with the General Counsels of Google, Microsoft, and Yahoo. Pasquale is particularly concerned with opaque decision making at large intermediaries, including insurers, search engines, internet service providers, and financial institutions. He is writing a book on the topic tentatively titled “The Black Box Society.”

Frank Pasquale