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Wednesday, October 31, 2007

Questions Raised by Municipal Control of Wi-Fi

by: Jason Miller, Associate Editor, MTTLR

Politicians in Oakland County, Michigan, a wealthy suburb of Detroit, are currently implementing a plan to cover 910 square miles with free Wi-Fi.1   San Francisco Mayor Gavin Newsom has been trying to promote free public Wi-Fi and, though the plan has run into serious problems, a non-binding public vote will be held in this November’s municipal election ballot.2   Dozens of city governments have put together municipal Wi-Fi programs,3   though these programs often turn out to be more hype than substance.4   The economics behind municipal Wi-Fi are also troubling. As voters and elected officials consider expanding local government’s role in providing or contracting for Internet, there are some other unique questions worth asking.


Libraries often face disputes over content. From banned books to border-line pornography to filtering the Internet, libraries are often subject to political decision making. Should your mayor to be in a position to filter Internet content? Angry parent groups could take their gripes to city council meetings, and private providers contracting for an exclusive deal may tailor their offerings to win support from activist groups.

Michigan’s Republican Senate Majority Leader blocked access among all senate employees to a liberal blogger’s website earlier this year, though he later relented.5   Is it safe to trust politicians with power when it comes to the Internet?

Hate groups

Internet providers often prohibit certain uses in their terms of service. When Earthlink decides it doesn’t want the KKK to use Earthlink’s servers for a website, there are no First Amendment implications. But what about Earthlink doing so as the exclusive provider, or almost exclusive provider, in a town? Or if a local government provides and markets the service itself? Will racist and other unpopular groups be able to bring First Amendment claims to post their views?


The federal government and the PATRIOT ACT are responsible for many electronic privacy concerns. However, local government’s providing or contracting Wi-Fi services should also raise privacy concerns. If your email is housed on servers within a county building, what steps will the sheriff’s department have to go through to get it? Will providers operating under lucrative government contracts be too willing to turn over personal information?

1  Wireless Oakland Frequently Asked Questions, http://www.oakgov.com/wireless/faq/ (last visited Oct. 31, 2007).
2  Posting of Miguel Helft to Bits, http://bits.blogs.nytimes.com/2007/08/31/san-franciscos-wi-fi-fog/ (Aug. 31, 2007, 15:47EST).
3  Anthony Sciarra, Note, Municipal Broad Band: The Rush to Legislate, 17 Alb. L.J. Sci. & Tech. 233, 235 (2007).
4  Sharon E. Gillett, Municipal Wireless Broadband: Hype or Hope?, 79 S. Cal. L. Rev. 561 (2006).
5  ZDNet Government, http://government.zdnet.com/?p=3351 (Aug. 7, 2007, 16:18EST).

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Anonymous Anonymous said...

The author makes some interesting points. Most notable of which concerns the potential for the government to use the mere fact that they provide this "benefit" as an excuse to control the content provided. Where do we draw the line. One may argue that it makes sense for the government to prevent children from accessing pornography, but how is this accomplished? By preventing everyone from accessing it? A filtered "free" version of the internet would essentially cut off access to certian forms and types of communication.

November 2, 2007 at 11:32 AM  
Blogger Kurt Hunt said...

The "excuse to control the content provided" theory pops up in other areas of communications law.

Prof. Thomas Hazlett argues that the early regulation of broadcast spectrum--seemingly justified by the scarcity of bandwidth and the potential for interference--was actually a way for Congress to serve certain special interests. "Interference was not the problem," he wrote, "interference was the opportunity."

This theory becomes more credible when you look at statements of politicians of the time. Senator Dill, for example, stated that the government "must always retain complete and absolute control of the right to use the air."

The analogy to wi-fi is pretty clear. The problem being addressed seems to be lack of universal wi-fi service, but as Hazlett might say, maybe the lack of universal service is the opportunity rather than the problem.

November 2, 2007 at 11:57 AM  
Anonymous Anonymous said...

The opportunity Mr. Hunt references is obviously enlarged when the marketplace shifts in response to free service and eliminates for-pay service providers.

However, I was under impression that in other counties/states where area wide wi-fi has been made available, that the speed was exasperatingly slow. This allowed other providers to stay in the market by offering a "premium" product.

This certainly doesn't eliminate the problems posed by the author. But, it does afford some level of competitive pressure on the county to provide service with comparable controls.

November 4, 2007 at 9:41 AM  
Blogger Kurt Hunt said...

That's an interesting point. I hadn't thought about the likely speeds of the municipal wi-fi, but I'm not surprised it's not lightning-fast. The continued competition would definitely keep some level of pressure on the city/county/whatever.

If speeds are very slow, however, it may mean that the only citizens who bother to use the public wi-fi are those who can't afford the "premium" product (thus lessening the impact of competition). As you say, problems remain (although I'd like to think political controls would keep the worst of them in check).

I'd like to say we wouldn't find a censored free service acceptable just because an uncensored "premium" service exists, but that's pretty much what the television market is like.

Somewhat related to your point about painfully slow municipal wi-fi, Cardozo Law Professor (and ICANN board member) Susan Crawford has a working paper titled The Radio and the Internet. The paper addresses spectrum policy reform, and suggests that the FCC focus "on enabling unlicensed uses of the airwaves that can assist the nation with online access."

November 4, 2007 at 12:06 PM  
Anonymous Anonymous said...

You might be interested in this law review article on municipal wireless as well. Companies Positioned in the Middle: Municipal Wireless and Its Impact on Privacy and Free Speech, 41 U.S.F. L. Rev. 635 (2007).

Available online at http://www.aclunc.org/issues/technology/asset_upload_file77_6023.pdf

And this symposium recently hosted by NYU Law School on municipal wireless. http://www.law.nyu.edu/journals/legislation/symposium/fall2007.html

December 3, 2007 at 3:40 PM  

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