I posted a rant here over the weekend about those who were engaging in what I believed was excessive whining about Apple’s moves to restrict pornographic content in the Apple Apps Store. (see: “Apple’s App Store, Porn & ‘Censorship‘”) It received a surprising number of comments and featured a back and forth between me and our old TLF blogging colleague Tim Lee. Tim has continued the discussion over on his personal blog and argued that:
[T]he key thing to focus on isn’t the abstract question of whether porn on iPhones is good or bad. The key thing to recognize is how fundamentally broken the process itself is. “Overtly sexual content” is a concept that seems clear in the abstract but gets leaky once you have to actually classify tens of thousands of applications. Apple is going to make mistakes, and when they do hapless developers are going to find their apps blocked, often with little explanation or recourse. Also, Apple is going to change its mind periodically, and when they do the affected developers are going to find their hard-earned apps rendered worthless overnight. This is no way to run a technology platform. It’s unfair to developers and it doesn’t scale. And this is precisely why it would be better for everyone if Apple could come up with an application distribution scheme that didn’t require so much central planning.
I followed up with a comment over there, but just thought I would repost it here, in which I argue that Tim is underestimating how difficult this task of defining acceptable content is and that he is also downplaying Apple’s legitimate editorial discretion to establish standards for the community platform they provide. I’m also uncomfortable with Tim’s constant use of “central planning” rhetoric to describe almost any private, proprietary model of institutional governance or platform development he doesn’t seem to agree with, but I have not elaborated on that point here. Anyway, here’s how I responded over on his blog: Continue reading →
Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!
Yesterday, Emmanuel Lazaridis commented on that post:
Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).
Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.
This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?
When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance. Continue reading →
Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?” Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.” He also finds that:
In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service. Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”
Even more interesting is the fact that, on a state-by-state basis, Utah* residents topped all other Americans in terms of subscriptions to online adult entertainment websites. Finally, Edelman concludes:
On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.
But it’s not just Internet porn where we see this trend at work. As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!
Continue reading →
Chairman Mao–er… Martin–has canceled (WSJ) the FCC’s December 18 meeting, when the Commission was set to vote on Martin’s proposal to rig an auction to give away a valuable piece of spectrum (“AWS-3″) to M2Z networks. In exchange for a sweetheart deal on the spectrum, the company would have been required to use a quarter of it to provide a free (but very slow) wireless broadband service. Martin had initially proposed to require that the service be made porn-free, but eventually suggested that users over 18 would be able to opt-out of network-level filtering.
Two weeks ago, when it became clear that Martin would attempt to ram this proposal through while he still could, I asked how the ascendant Left would respond:
Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?
I’m glad to see that the deathblow to this unconstitutional proposal did indeed come from the political Left–specifically, from Sen. John Rockefeller, (D-W.Va.) and Rep. Henry Waxman, (D-Calif.), who will be responsible for overseeing the FCC in the new Congress. (The Bush administration had already opposed the proposal, as with so many of Martin’s abuses, had failed to stop it.)
With President-elect Obama having declared that, “Here in the country that invented the Internet, every child should have the chance to get online,” it seems almost certain that the Administration will press ahead with some kind of universal broadband proposal of its own. But what would such a proposal look like? If it’s another public broadband utility, would it include network-level filtration like Martin’s proposal? If so, will the Democratic opponents of government censorship stick by their principles and fight that, too?
I suspect we may find that what’s constitutional is politically impossible (unfiltered free Internet) and what’s politically possible (filtered free Internet) is unconstitutional. Continue reading →
I was about post something more regarding why Kevin Martin’s AWS-3 spectrum filtering plan will fail, but I can’t say it any better than Steve Schultze does here:
Martin also recently leaked the fact that he is proposing that adults can verify their identity to avoid the porn filter initially mandated for all users of of the no-fee service. I helped author some comments to the FCC explaining why this filter was a bad idea, so an opt-out mechanism could theoretically be a good development… if age verification were viable, and if you thought that adults were eager to identify themselves as possible porn-lovers, and if we assumed that all adults had credit cards. In short, filtering is not a great option even with those caveats.
Exactly. Also, don’t forget about that little thing called the First Amendment! This plan would almost certainly be challenged on 1A grounds. (Also, here’s a filing I signed on to that critiques the filtering plan).
Back in June, Adam Thierer and I denounced (PDF) Kevin Martin’s plans to create broadband utility to provide censored (and very slow) broadband for free to all Americans. The WSJ reports that this scheme is now at the top of Martin’s December agenda:
The proposal to allow a no-smut, free wireless Internet service is part of a proposal to auction off a chunk of airwaves. The winning bidder would be required to set aside a quarter of the airwaves for a free Internet service. The winner could establish a paid service that would have a fast wireless Internet connection. The free service could be slower and would be required to filter out pornography and other material not suitable for children. The FCC’s proposal mirrors a plan offered by M2Z Networks Inc., a start-up backed by Kleiner Perkins Caufield & Byers partner John Doerr.
Adam’s August follow-up piece is also well worth reading.
One could speculate as to how big an impact this service would really have. Having just spent two weeks “wardriving” around Paris, Abu Dhabi and Dubai (looking for open wi-fi hotspots to try to get Internet access on my otherwise non-functional smart phone), I could certainly imagine scenarios in which some people might well use even a slow wireless service at least as a supplement to another provider–if their devices supported it. But however useful the service might be to some people, and whether any company would actually want to build such a system in the first place if they have to give away such service, I think it’s a safe bet that if this is actually implemented, it will represent a victory for government censorship over content some people don’t like.
If this idea is still alive and kicking when the Obama administration has security escort Martin out of FCC headquarters in January–to hearty applause from nearly all quarters in Washington, no doubt–it will be interesting to see which impulse prevails on the Left, both within the new Administration and in the policy community. Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?
Hope springs eternal.
In-flight Internet access is finally starting to be rolled out by some carriers, and as they do so the inevitable question of what to do about objectionable material is already being debated. Surprisingly, many airlines have decided to not filter in-flight Internet access but instead rely on “peer pressure and the presence of flight attendants,” according to Tim Maxwell, Vice President of Marketing for Aircell, the company providing American’s broadband service.
But others are wondering if that’ll be enough. I share that concern. I can only imagine how ugly things will get on a flight once somebody starts streaming porn from their aisle seat. Flight attendants are going to become “fight” attendants once that happens. And you better believe that somebody in Congress is already cooking up legislation with some snappy title like “The Family Friendly Flights Act” to impose a regulatory solution. (Oh wait, a bill with that title was already introduced last year!! I wrote about it here. But that bill was just for violent movies, not Net access. So expect another measure soon mandating in-flight Net censorship).
Before things get ugly and bills start flying up on the Hill, the airlines need to think about crafting some constructive solutions to this problem. Here are three possibilities:
Continue reading →
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Posted in: First Amendment, Free Speech & Online Child Safety 
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
