Jason Koebler, ICE Is Using a University Building as a Deportation Office and the University Says It Can’t Do Anything About It, 404 Media (Oct. 28, 2025):
A university in Milwaukee is stuck with Immigration and Customs Enforcement (ICE) as its tenant after the agency refused to leave a building the university intended to renovate into an architectural and civil engineering classroom building. Instead, the building is being used as an office for ICE’s Enforcement and Removal Operations, the main part of ICE performing Donald Trump’s mass deportation campaign. …
In 2023, an alum of the Milwaukee School of Engineering (MSOE) sold a building at 310 E. Knapp St. to the school for a massive discount, with the intention of the building being renovated and turned into an academic facility. At the time, ICE was a tenant of the building but was in the process of building a new office elsewhere in Milwaukee. Its lease was set to expire in April, but ICE, through the General Services Administration (GSA) which handles real estate for the federal government, unilaterally extended the lease through April of next year and has the option to remain in the building through 2028, the university says. The university says there is nothing it can legally do to evict ICE.
This is bad. It is bad because so much of what ICE is doing is cruel and immoral, and its continued occupation of the space enables it to do more cruel and immoral things. It is also bad for MSOE, which can’t renovate the building into classroom sapce as it wanted to.
I don’t think it’s the case, however, that it is bad because it makes the university complicit in ICE’s cruelty:
Concerned students say the situation is untenable and immoral—the university is now collecting rent directly from the government, and ICE is processing undocumented immigrants from the office.
“Can you see how it might look like MSOE is helping facilitate their mass deportation effort?” a student asked university administrators at a meeting about the building last week, according to audio obtained by 404 Media. “It feels like the federal government’s goals and objectives of mass deportation right now outweigh the academic use of that building for MSOE,” another said.
Moral complicity is usually described in terms of the actions you take, or sometimes fail to take, that contribute to another’s wrongdoing. If the university voluntarily agreed to lease the space to ICE today, that might make it complicit in ICE’s kidnappings and deportations. But buying the building was not complicity, because ICE had a lease to stay through April, and it could stay there regardless of who owned it. Buying the building or not buying it made no difference to any of ICE’s activities. The same goes for the lease extension. This is something forced on MSOE, not something the university chose to do.
Instead, I think the first student is articulating something closer to a theory of complicity as contagion. On this view, ICE is an evil presence that pollutes everything it touches. If you fail to remove the pollution, you also become unclean, and capable of polluting others. ICE’s presence in a university-owned building, and payment of rent to the university, makes MSOE unclean, so that students also have to be concerned about their potential pollution from being enrolled there.
To be clear, I think this view is wrong. But I also think it is highly prevalent today. You can see something like it in the radiating circles of attempted boycotts around Israel: the government, companies that do business there, companies that provide services to companies that do business there, institutions whose executives work for companies that provide services to companies that do business there, and so on. You can also see something similar in religious-exemption arguments: objectors frequently have to strain to explain why baking a cake is a matter of deep conscience, or why filing a form objecting to contraceptive coverage constitutes an endorsement of contraception. These examples, and many others, become much easier to understand if you think of the thing they object to as a polluting force, rather than a source of moral reasons for actions.
We had a family discussion last night and decided to cancel our subscription to Disney+ and Hulu. It was an easy choice, because it was such a clear-cut case. Jimmy Kimmel’s supposedly awful comments were civil and mild; there is no plausible theory of the First Amendment on which they are not core protected speech. The governmental coercion was blatant and thuggish; Brendan Carr’s threats against ABC were themselves a First Amendment violation. And Disney’s capitulation was so staightforwardly cowardly and greedy that there is nothing much more to be said.
The people running America’s institutions, from Bob Iger and Brad Karp and Claire Shipman on down, act and talk like they don’t have a choice. The government has such power, and we have so much to lose, they say. If we fought, we might win a few rounds, but the revenge would be fearsome. Some of our customers, or clients, or donors agree with the demands, and who are we to tell them no? Thousands of people work here, and many more depend on us. And is the ask really so onerous? What’s one talk-show host compared to an $8 billion merger? Our hands were tied.
But they had a choice. They always had a choice. They had a choice, and they chose tyranny.
And we have a choice too. We always have a choice. We have a choice, and we chose to walk away from Disney.
For some reason, this passage reminded me of how Internet companies think about user consent:
“There are certain things black shamans can do—and certain things people trained by them can do. You’ve seen a sample already. There are worse things: transport into the false worlds, into the dream borders, binding forever in places which exist within the mind and have virtually no exits to the outside world. But to do any of these things, the shaman believes that his ritual demands consent. Listen to me, Marianne.”
“I’m listening. You said the ritual demands consent.”
“Remember it. The shamans believe the ritual is necessary to the effect, and they believe that consent is necessary to the ritual. The shaman says to his victim, ‘Will you have some tea?’ And the victim says, ‘Yes, thank you.’ That is consent. In my own library, your brother said to you, ‘Come, let me introduce you to …’ and you nodded yes. That was consent. So she then struck at you.”
“Did the people who went riding consent? If so, to what?”
“More likely, Madame went down to the stables before going to bed last night, taking a few lumps of sugar with her. ‘Here, old boy, have a lump of sugar,’ and the horse nods his head, taking the sugar. He has consented then, and they can use him. So also with dogs, with birds, with anything they can get to take food from their hands. The true victim was to be the horse, whatever horse you might be riding or anyone else might be riding. They are not over scrupulous.”
— Sheri S. Tepper, Marianne, the Magus, and the Manticore
[Traditional, with adaptations.]
In a certain village there lived a rabbi, famed for the time he had spent studying Talmud. One day, two villagers came to see him about a dispute. The rabbi agreed to hear them out and decide the matter for them, and a small crowd gathered around.
Chaim went first. “Moshe’s chickens have been running into my yard,” he explained, describing how they were eating from his stores and harassing his children. “Moshe needs to build a fence to keep them in.”
The rabbi frowned sadly and spread his arms in empathy. “I’m afraid that you are wrong,” he began. For fifteen minutes he spoke, quoting Torah and Talmud, explaining why Moshe and his chickens had violated none of the Law. By the end of his learned explanation, the crowd was nodding and murmuring in agreement.
Now it was Moshe’s turn. “My chickens are well-behaved and I look after them carefully,” he said. It was rare that even one chicken got out, and it never went far. “I have done all I can. If Chaim is so concerned, well then he should build a fence to keep them out.”
Again the rabbi frowned, a wistful look on his face. “I’m afraid that you too are wrong,” he said. For another fifteen minutes he spoke, quoting Torah and Talmud, explaining why Moshe had failed in his obligations towards his wayward chickens. Once again, the crowd of villagers was nodding along with him—all except one.
“They can’t both be wrong!” Herschel shouted. “First you told us that Chaim was wrong, and then you told us that Moshe was wrong. Which is it? It has to be one or the other.”
The rabbi nodded sadly. “Alas, my son, I’m afraid that you are wrong as well.”
Can you identify all of the following?
Thomas Nashe’s 1594 novel The Unfortunate Traveller (Wikipedia, original text, modern-spelling text) is a strange and grisly piece of work, equal parts The Spanish Tragedy, Inglourious Basterds, and The Dying Earth. It follows Jack Wilton, an Englishman who is half scoundrel and half philosopher, on a picaresque journey through mid 16th-century Europe. (“I was at Pontius Pilate’s house, and pissed against it.”)
One passage in particular has stuck with me. Earlier in the novel, Jack and his companion Diamante encounter an Italian named Bartol and a Spaniard named Esdras, who have been raping, robbing, and murdering their way through Rome, taking advantage of an outbreak of plague to prey on rich, defenseless women. In their raid on the house where Jack is staying (with rape, robbery, and murder described in lurid detail), Bartol abducts Diamante. Esdras lusts after her, so he picks a fight with Bartol, mortally wounding him.
At the end of the novel, Jack and Diamante, reunited, come across an execution. The condemned man is Cutwolf, Bartol’s brother. In a long speech, Cutwolf explains that he that swore revenge on Esdras and spent twenty months chasing him across Italy, begging rather than break off the pursuit to go back for money.
Cutwolf finally locates and corners Esdras in Bologna, saying, “I have promised the devil thy soul within this hour; break my word I will not; in thy breast I intend to bury a bullet.” Esdras pleads for his life piteously and at great length. He offers Cutwolf riches, he asks Cutwolf only to maim him, and he finishes by imploring Cutwolf to consider his own soul’s fate:
Spare me, spare me, I beseech thee; by thy own soul’s salvation I desire thee, seek not my soul’s utter perdition; in destroying me, thou destroyest thyself and me.
Cutwolf is unmoved. “There is no heaven but revenge.”
Esdras tries again, offering to carry out whatever horrific and humilating demands Cutwolf makes of him:
Command me to cut all my kindred’s throats, to burn men, women and children in their beds in millions by firing their cities at midnight. Be it pope, emperor or Turk that displeaseth thee, he shall not breathe on the earth. For thy sake will I swear and forswear, renounce my baptism, and all the interest I have in any other sacrament. Only let me live how miserable soever, be it in a dungeon amongst toads, serpents and adders, or set up to the neck in dung. No pains I will refuse, howsoever prorogued, to have a little respite to purify my spirit; oh, hear me, hear me, & thou canst not be hardened against me.
At this, Cutwolf has an idea. Esdras, he says, must do three things to live:
First and foremost he should renounce God and his laws, and utterly disclaim the whole title or interest he had in any covenant of salvation. Next, he should curse him to his face, as Job was willed by his wife, and write an absolute firm obligation of his soul to the devil, without condition or exception. Thirdly and lastly (having done this), he should pray to God fervently never to have mercy upon him, or pardon him.
Esdras complies, blaspheming with such fervor that Cutwolf is amazed the earth doesn’t open up and swallow the two of them on the spot. And when Esdras is done, Cutwolf completes his plan:
These fearful ceremonies brought to an end, I bade him ope his mouth and gape wide. He did so (as what will not slaves do for fear?); therewith made I no more ado, but shot him full into the throat with my pistol; no more spake he after; so did I shoot him that he might never speak after or repent him. His body being dead looked as black as a toad; the devil presently branded it for his own.
And that is it. Cutwolf has had his revenge—not just on Esdras’s body, but on his soul.
I learned about The Unfortunate Traveler in college, in a course on Shakespeare. Hamlet’s reluctance to kill Claudius while he is praying echoes Cutwolf. As always with Shakespeare, you can have what may well be the source material right there in front of you (Hamlet probably dates to somewhere between 1599 and 1601) and still be amazed at how differently a line like “that his heels may kick at heaven” lands.
For some reason, I have been reminded of Esdras’s fate the last few days. Sometimes, it is good to think about what you are and are not willing to do when there is a man with a gun to your head.
I am pleased to announce the public release of my freely available intellectual property textbook, Information Property. I have been working it since 2012. In that time, it has evolved from a collection of supplementary problems, to a coursepack, to a casebook, to a textbook. The result reflects how I think an IP survey course should be taught, because it is how I teach my own IP survey course. Here are a few highlights of what I have done, and why:
First, this is a textbook, not a casebook. Although it contains a few edited cases, most of it consists of my own explantions of IP doctrines and how they fit together. The point is to put in one place everything that a beginning IP student should know, clearly explained, and vividly illustrated. It contains hundreds of images: patent drawings, copyright works-in-suit, infringing products, and much much more.
Second, the book presents a systematic exposition of IP concepts. I have broken every IP field down into the same seven basic topics: subject matter, ownership, procedures, similarity, prohibited conduct, secondary liability, and defenses. It brings out the ways in which different fields are alike, and the ways in which they diverge. I find that this approach helps enormously in bringing order to what can seem like a riotous diversity of forms of IP.
Third, the book has unusually broad coverage of IP fields. In addition to the standard topics (patent, copyright, trademark, and sometimes trade secret), it also covers undeveloped ideas, false advertising, geographic indications, right of publicity, design patent—and a unique chapter on trademark-like issues in identifier registries.
Fourth, the book is freely available. I have released it under a Creative Commons Attribution license, and it is available from my website as a free PDF download. In addition, I sell at-cost paperback (black-and-white) and hardbound (full-color) versions through Lulu.
I am grateful to the many students and colleagues who have read previous versions of Information Property and given me useful suggestions on how to improve future ones. I plan to revise and extend it in the years to come, and your comments are warmly welcomed.
Universities exist to promote the discovery, preservation, and transmission of knowledge. While they can help make to make a society virtuous, prosperous, and free, they do so by pursing their mission, which is truth. They can offer their service to government, but it is not their purpose to serve it. If the civil power makes demands of them that are incompatible with their commitment to the freedom of thought, they are bound in conscience to refuse.
In pursuit of its political goals, the Trump administration has attempted to intimidate and extort numerous universities. It has threatened them with with severe consequences, including the loss of federal funding, termination of accreditation, and denial of the ability to enroll foreign students. Some have resisted, filing lawsuits against these unlawful threats. Others have capitulated, including most recently Columbia University.
Columbia’s agreement with the federal government includes a $200 million fine, restrictions on its admissions and hiring processes, modified disciplinary processes, mandatory faculty appointments, and changes to its curriculum and educational programs. No court has held that these changes are required by law, and many of them are seriously inconsistent with Columbia’s purported commitments to institutional autonomy, academic freedom, and a campus environment that is welcoming to all.
Columbia’s actions are immoral, unwise, and dangerous. In the name of compromise with the administration, it has compromised the core values to which universities are dedicated. Worse, it has done so in the face of a widespread authoritarian crackdown not just on higher education, but on all the civic instutitions of a free society: the legal profession, the news media, nonprofit organizations, and many more. Columbia’s failure to defend its own freedoms threatens those freedoms for all. It gives aid and comfort to tyrants, and exposes others to the same kind of extortionate threats.
Universities have institutional moral standing because they stand apart from private profit and public power. The knowledge they produce and maintain is not reducible to the coin of the realm, and so they can legitimately call upon the generosity of others to sustain their mission. The alumni donor who writes a check and the outside reviewer who writes a tenure letter are participating in a gift economy built on payment forward rather than on payment in return. They give purely so that knowledge may grow and continue—or at least that is what the university should be able tell them with a straight face when it calls upon their aid.
Columbia can do so no longer. Along with the $200 million and the laundry list of promises, Columbia has traded away its soul. How can a university that lets the government illegally dictate who it admits and hires tell its faculty and students that they are truly free to think for themselves and say what they believe? It cannot. How can a university that pays Dane-geld promise donors that their geld will not go straight to the Dane? It cannot. How can a university that grovels in the face of demands for ideological control assure speakers that they are contributing to learning and not just the accumulation of power? It cannot.
Or so it seems to me. As an academic, I have committed myself to the mission of the university, to the pursuit of knowledge, to the continuation of the three-thousand-year tradition we have inherited. And unlike the cowards, quislings, and fools who run Columbia, I remember why we do what we do—and what we must not do.
I pledge that I will not provide any service to Columbia University. I will not speak at conferences held at or organized by Columbia. I will not publish with Columbia publications or provide peer reviews for them. I will not provide outside tenure evaluations for Columbia departments. I will not contribute in any way to the institution until everyone who is responsible for this week’s shameful decision has resigned, retired, or been fired, and until Columbia repudiates their catastrophic choice.
Although it may seem like a thin distinction, this is not a boycott of Columbia’s faculty and students. I have many Columbia-affiliated friends and colleagues who are in no way responsible for this week’s debacle—indeed, many of them made heroic efforts to prevent it. They are committed to knowledge and freedom, even if their university is not. I will continue to work with Columbia scholars and speak with Columbia students, as I always have. That too is part of the mission of the university; the community of scholars knows no borders and answers to no authority. It is Columbia the institution that has gone wrong, and it is from Columbia the institution that I withhold my aid.
I have a choice of where I will put my efforts in my limited time on this earth. There are many good causes, both within the academy and beyond. There is no shortage of work to be done, now more than ever. I will do what I have always done, which is what I can. It just won’t be for Columbia.
North, east, south, and west are the four cardinal directions. The term derives from the Latin cardo, which can mean “hinge” or “pivot,” and thus figuratively a turning point or pole. It also had a derived meaning of “something on which something else depends”—because a door de-pends (i.e. hangs) on its hinges and turns about them—and thus also could mean “principal thing.” Many modern word senses of “cardinal” derive from this idea. For example, a high Catholic official was an episcopus cardinalis (i.e. “principal bishop”), and thus ultimately just a “cardinal.” The red bird was named after the red robes worn by cardinals, and the baseball and football teams are named after the bird. (Of course, they have red uniforms and logos.) The association with the compass points, however, is an ancient one that has endured. A north-south street was a cardo, and the four principal directions were quattuor cardines orbis terrarum (“the four pivots of the world”).
What should we call the four intermediate directions: northeast, southeast, southwest, and northwest? Two names with perfectly respectable Latinate justifications would be semi-cardinal (cf. “semi-annual” or “semicircle”) or intercardinal (cf. “interpolation” or “interregnum”) directions. But some sources, including Wikipedia, refer to them as the ordinal directions, a usage that is close enough to right to sound plausible if you don’t think too closely about it.
The English “ordinal” comes from the Latin ordo, which means “order,” “line,” or “regular arrangement.” Thus, a ordo could be a course of stones in a wall, a line of soldiers, a class of citizens, or anything else arranged correctly in its place. One sense that has endured in several meanings of “order” is that of a linear series, so that the adjective ordinalis described things arranged by order of succession: first in line, second in line, third in line, and so on.
And this, it appears, is how “cardinal” and “ordinal” collided. A cardinal number is a counting number: 1, 2, 3, and so on. They are so-called because they are the principal numbers; other senses in which numbers are used depend on this one. An ordinal number describes something’s place in an order: first, second, third, and so on. They are so called because they describe the order in which things are arranged. For finite numbers, cardinals and ordinals correspond exactly. You use a cardinal number to describe how many things there are in a group, but use an ordinal number if you want to pick out where one of those things falls within the group. (Mathematicians would say that the two senses diverge for infinite numbers; infinite cardinals have very different properties than infinite ordinals.) And thus, generations of students have been taught to think of “cardinal” and “ordinal” as closely related, with “cardinal” being the primary use and “ordinal” being secondary to it.
At this point, you can probably guess what happened. One finds occasional pre-1970 references to “ordinal directions” in a Google Books search, but most of them appear to be by people who have mistaken “ordinal” for “cardinal” when they meant to refer to the principal directions. It’s in 1972, as noted by Redditor phalp, that we find an attested use of “ordinal” in this sense:
… classics, though as intervening routes were made the cardinal and ordinal directions were gradually used up and so arrived at South-West by West.
I think this is simply wrong, but as with all matters of language use, it will become right if enough people use it that way over time. And if Wikipedia is any guide, we are well along that road already.
Sources:
I have a new article draft, Generative Misinterpretation, with Ben Sobel and David Stein, forthcoming in the Harvard Journal on Legislation. We argue against recent proposals to use LLMs in the judicial process. We combine an empirical critique, showing that experimental results in using LLMs to perform interpretation are brittle and arbitrary, with a jurisprudential critique, explaining why commonly offered justifications for using LLMs don’t work in the context of judging. Here is the abstract:
In a series of provocative experiments, a loose group of scholars, lawyers, and judges has endorsed generative interpretation: asking large language models (LLMs) like ChatGPT and Claude to resolve interpretive issues from actual cases. With varying degrees of confidence, they argue that LLMs are (or will soon be) able to assist—–or even replace—–judges in performing interpretive tasks like determining the meaning of a term in a contract or statute. A few go even further and argue for using LLMs to decide entire cases and to generate opinions supporting those decisions.
We respectfully dissent. In this Article, we show that LLMs are not yet fit for purpose for use in judicial chambers. Generative interpretation, like all empirical methods, must bridge two gaps to be useful and legitimate. The first is a reliability gap: are its methods consistent and reproducible enough to be trusted in high-stakes, real-world settings? Unfortunately, as we show, LLM proponents’ experimental results are brittle and frequently arbitrary. The second is an epistemic gap: do these methods measure what they purport to? Here, LLM proponents have pointed to (1) LLMs’ training processes on large datasets, (2) empirical measures of LLM outputs, (3) the rhetorical persuasiveness of those outputs, and (4) the assumed predictability of algorithmic methods. We show, however, that all of these justifications rest on unstated and faulty premises about the nature of LLMs and the nature of judging.
The superficial fluency of LLM-generated text conceals fundamental gaps between what these models are currently capable of and what legal interpretation requires to be methodologically and socially legitimate. Put simply, any human or computer can put words on a page, but it takes something more to turn those words into a legitimate act of legal interpretation. LLM proponents do not yet have a plausible story of what that “something more” comprises.
Comments welcome!
I live in New Jersey, where the campaign for Governor is unusually active. There are six candidates in the Democratic primary, and most of them are in serious contention. We have been inundated with flyers, often multiple identical copies of the same one. Although many of the candidates hold similar positions on many issues, they have attempted to distinguish themselves from each other in a heated race.
On May 1, I received an email from a site called The Jersey Dispatch, linking to and including an article titled “Sherrill’s Affordability Policies Look Suspiciously Similar to Gottheimer’s”. Here are the opening paragraphs, which are representative of the whole:
As New Jersey voters count down the remaining weeks to the June 10th gubernatorial primary, Rep. Mikie Sherrill (D-NJ) is facing increasing criticism over her lack of policy plans and detail – and how closely her sparse platform mirrors plans that fellow Democrat and declared gubernatorial candidate, Rep. Josh Gottheimer (D-NJ), released months ago.
Since announcing his candidacy last year, Gottheimer has led the field of six candidates on affordability–voter’s biggest issue at the polls. He has embraced the slogan of “Lower Taxes, Lower Costs” and promised to cut property taxes by nearly 15 percent for homeowners and small businesses across New Jersey.
Early this year, Gottheimer released a comprehensive tax cut plan and lower costs plan that tackled everything from property tax relief to the cost of childcare and utility bills. Late last month, Sherrill rolled out a strikingly similar platform, drawing criticism for what some call a lack of original vision and detail.
Although the article is mostly written in the bland institutional tone of professional journalism, something about it felt off to me. My curiosity was additionally piqued by the fact that the Jersey Dispatch reached out to me. I had never heard of it until the “Sherrill’s Affordability Policies” email hit my inbox.
When I clicked through to the Jersey Dispatch site, I was struck that multiple articles there were similarly pro-Gottheimer or anti-Sherrill. Examples include “Steve Sweeney Criticizes Mikie Sherrill Over Votes Against First Responder Protections”, “Josh Gottheimer Unveils ‘Lower Costs Plan for Jersey’ to Combat Rising Expenses”, and “Gottheimer Joins International Association of Firefighters to Advocate for First Responders”. These political pieces were interspersed with more prosaic local news, like “Southern Ocean Medical Center Nurses Vote to Authorize Strike Over Staffing, Contract Demands”.
When I looked more closely, my sense that the Jersey Dispatch is not a typical local news site grew. Here are a few of the things I noticed about it:
Making matters even stranger, the Gottheimer campaign has quoted the Jersey Dispatch in its own campaign literature. One flyer that I have seen attributes the words “His plan is not only feasible but backed by a very specific strategy to get it done” to a February 3 article, “Gottheimer Leading Dems on Lower Costs and Lower Taxes”. Interestingly, while the article overall is positive on Gottheimer’s plan, it’s not as positive as the flyer makes it sound. In context, the full sentence is, “Unlike vague campaign promises, Gottheimer asserts that his plan is not only feasible but backed by a very specific strategy to get it done.” That is, the words Gottheimer attributes to the Jersey Dispatch are a summary of his own statements, not an independent endorsement.
All of these oddities lead me to wonder what the Jersey Dispatch actually is. One possibility is that it is an astroturfing operation: partisan political content presented to make it seem as though it comes from an objective and disinterested news source. Another is that it is the work of a sincere Josh Gottheimer fan who has intentionally or negligently blurred the line between personal opinion-writing and journalism. It might be something else entirely. But for the reasons above, I am skeptical that it is now a bona fide news outlet, if it ever was.
I reached out to the the Jersey Dispatch, the Gmail account, the Gottheimer campaign, and the Sherrill campaign. The Jersey Dispatch, the Gmail account, and the Gottheimer campaign did not respond to requests for comment. The Sherrill campaign acknowledged the inquiry but did not provide a statement for publication. I will update this post if I receive a response from any of them.
I have posted a new draft essay, Listeners’ Choices Online. It is a sequel to my 2017 essay Listeners’ Choices, and like that piece it was written for a symposium on listeners’ interests. This one was hosted by the Southern California Law Review in November, and the final version will come out in the SCLR later this year. Here is the abstract:
The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal regulatory regime is the one that gives listeners the most effective control over the speech that they receive.
In particular, we should distinguish four distinct functions that intermediaries can play. Broadcast, such as radio and television, transmits speech from one speaker to a large and undifferentiated group of listeners, who receive the speech automatically. Delivery, such as telephone, email, and broadband Internet, transmits speech from a single speaker to a single listener of the speaker’s choosing. Hosting, such as YouTube and Medium, allows an individual speaker to make their speech available to any listeners who seek it out. And selection, including search engines and feed recommendation algorithms, gives listeners suggestions about speech they might want to receive. Broadcast is relevant mostly as a (poor) historical analogue, but delivery, hosting, and selection are all fundamental on the Internet.
On the one hand, delivery and hosting intermediaries can sometimes be subject to access rules designed to give speakers the ability to use their platforms to reach listeners, because doing so gives listeners more choices among speech. On the other hand, access rules are somewhere between counterproductive and nonsensical when applied to selection intermediaries, because listeners rely on them precisely to make distinctions among competing speakers. Because speakers can use delivery media to target unwilling listeners, they can be subject to filtering rules designed to allow listeners to avoid unwanted speech. Hosting media, however mostly do not face the same problem, because listeners are already able to decide which content to request. Selection media, for their part, are what enable listeners to make these filtering decisions about speech for themselves.
Comments welcome!
Let me see if I have this right.
By my reckoning, the FCC has treated broadband Internet as an information service, then a telecommunications service, then an information service again, then a telecommunications service again, and is now poised to treat it as an information service for a third time. At various times, federal appellate courts have held that the Telecommunications Act can be read to treat broadband Internet as a telecommunications service, must be read to treat broadband Internet as an telecommunications service, can be read to treat broadband Internet as an information service, and must be read to treat broadband Internet as an information service.
Is this any way to run an information superhighway?
Update, January 2: Corrected the description of the FCC’s 1998 report (I had it backwards) and added a better link.
