Every once and awhile it’s worth taking a step back and looking at the long view of how Internet policy developments have unfolded and consider where they might be heading next.  We’ve reached such a moment as it pertains to efforts to police the Internet for copyright piracy, objectionable online content, privacy violations, and cybersecurity.  We’re at an interesting crossroads in this regard since the prospects for successful cracking down on copyright piracy and pornography appear grim.  Seemingly every effort that has been tried has failed.  The Net is awash in online porn and pirated content.  I am not expressing a normative position on this, rather, I’m just stating what now seems to be commonly accepted fact.

In the meantime, the United States is in the process of creating new information control regimes and this time its access to personal information and cybersecurity that are the focus of regulatory efforts.  The goal of the privacy-related regulatory efforts is to help Netizens better protect their privacy in online environments and stop the “arms race” of escalating technological capabilities.  The goal of cybersecurity efforts is to make digital networks and systems more secure or, more profoundly as we see in the Wikileaks case, it is to bottle up state secrets.

These efforts are also likely to fail.  Simply stated, it’s a nightmare to bottle-up information once it’s out there.  It doesn’t make a difference if that information we are seeking to control is copyrighted content, hate speech, dirty pictures, defamatory speech, secret diplomatic cables, or personal information.  Information is the blood that runs through the veins of the Internet and once it’s out it is pretty much Game Over. Commenting on the recent Wikileaks debacle over the release of diplomatic cables, Wall Street Journal columnist Daniel Henninger noted that “There is one certain fix for the WikiLeaks problem: Blow up the Internet. Short of that, there is no obvious answer.”  The same thing is increasingly true for these other types of information flows.

Now That’s A Lot of Information

As I pointed out in my recent essay, “Privacy as an Information Control Regime,” efforts to control information today are greatly complicated by problems associated with (1) convergence, (2) scale, (3) volume, and (4) unprecedented individual empowerment / user-generation of content.  It’s the volume problem that I want to spend a bit of time on here today.

As I noted in that previous essay, the sheer volume of media and communications activity taking place today greatly complicates regulatory efforts. In simple terms, there is just too much stuff for policymakers to police today relative to the past.

Let’s put some hard numbers on this problem.  IDC’s 2009 report, “The Digital Universe Ahead — Are You Ready?” provides the following snapshot of the data deluge:

• Last year, despite the global recession, the Digital Universe set a record.  It grew by 62% to nearly 800,000 petabytes.  A petabyte is a million gigabytes.  Picture a stack of DVDs reaching from the earth to the moon and back.
• This year, the Digital Universe will grow almost as fast to 1.2 million petabytes, or 1.2 zettabytes.
• This explosive growth means that by 2020, our Digital Universe will be 44 TIMES AS BIG as it was in 2009.  Our stack of DVDs would now reach halfway to Mars.

And here’s a little something from the Global Information Industry Center’s report on “How Much Information?”:

In 2008, Americans consumed information for about 1.3 trillion hours, an average of almost 12 hours per day. Consumption totaled 3.6 zettabytes and 10,845 trillion words, corresponding to 100,500 words and 34 gigabytes for an average person on an average day. A zettabyte is 10 to the 21st power bytes, a million million gigabytes. These estimates are from an analysis of more than 20 different sources of information, from very old (newspapers and books) to very new (portable computer games, satellite radio, and Internet video). Information at work is not included.

(How about that caveat: information at work is not included!!)

To put all these petabytes and zettabytes in some context, here’s a chart that appeared in an Economist essay back in February entitled, “All Too Much: Monstrous Amounts of Data“:

These are mind-boggling numbers.  As the Economist chart suggests, it’s hard to even fathom what “yottabytes” entails, but that’s what’s next.

Anyway, let’s return to the privacy wars and think about the volume problem in that context. Today we’re hearing proposals to regulate online services (advertising networks) or software (web browsers) to clamp down on the flow of information.  The so-called “Do Not Track” mechanism is one potential solution that has been floated in the regard.

This reminds me of the illusive search for a “simple fix” or silver-bullet solution to online pornography.  The PICS /ICRA experience is instructive in this regard. That would be the W3C’s Platform for Internet Content Selection and Internet Content Rating Association.  For a time, there was hope that voluntary metadata tagging and content labeling could be used to screen objectionable content on the Internet.  But the sheer volume of material to be dealt with made that task almost impossible.  The effort has been abandoned now.  Of course, it’s true that effort didn’t have a government mandate behind it to encourage more widespread adoption, but even if it would have, does anyone really think all porn or other objectionable content would have been labeled and screened?

Similar problems await information control efforts in the privacy realm, even if a mandated Do Not Track mechanism required the re-engineering of web browser architecture.  Those who think Do Not Track would slow the “arms race” in this arena are kidding themselves.  If anything, a Do Not Track mandate will speed up that arms race.  Take a look at how well The CAN SPAM Act worked in practice if you want another example.

Selective Morality

Now, let’s pretend for a moment that I am wrong about all this in the privacy space and that the FTC and Congress somehow find a workable mechanism to control flows of personal information and can clamp down accordingly.   Again, I don’t believe it will happen, but if it did, doesn’t that mean it’s equally likely that the same mechanism would be used to crack down on speech, expression, copyrighted content, state information flows, or whatever else?

Perhaps that’s not a bad thing from your perspective, but what I find entertaining about this debate is how the folks who support an aggressive information control regime for privacy purposes generally also oppose  information control efforts as it pertains to speech, expression, copyright, or state secrets.  There’s a bit of selective morality at play here.  When it comes to personal information, the attitude seems to be that we must ‘pay any price, bear any burden,’ even going so far as to property-tize personal information flows.  In every other case, however, the attitude seems to be: Let information flow.

Regardless of one’s disposition on these matters, my point here is more simple: the information will flow.  Indeed, I think it is safe to say that there is a strong and growing negative correlation between the aggregate volume of data flowing across digital networks and the ability of policymakers to control those information flows. The recent Wikileaks release has made that new fact of life more evident to the world, but the ongoing IP wars might also hold some lessons for us in this regard.

Consider the thoughts of Sydney-based consultant Mark Pesce, who compares the two experiences.  He writes:

We’ve been here before.  This is 1999, the company is Napster, and the angry party is the recording industry.  It took them a while to strangle the beast, but they did finally manage to choke all the life out of it – for all the good it did them.  Within days after the death of Napster, Gnutella came around, and righted all the wrongs of Napster: decentralized where Napster was centralized; pervasive and increasingly invisible.  Gnutella created the ‘darknet’ for filesharing which has permanently crippled the recording and film industries.  The failure of Napster was the blueprint for Gnutella. In exactly the same way – note for note – the failures of Wikileaks provide the blueprint for the systems which will follow it, and which will permanently leave the state and its actors neutered.

And it is likely a blueprint for what will happen in the privacy arena as well.

Conclusion

Again, I want to be clear that the point of this essay has not been to endorse or celebrate copyright piracy, widespread porn, privacy violations, release of state secrets, etc.  We’ll all have differences of opinions on these matters.  But there’s simply no getting around the fact that all these problems are all likely here to stay and, barring extreme crackdowns, it’s very hard for me to imagine how government might reverse that tide.

In the extreme, I suppose we could follow the Chinese mode and firewall off digital networks, effectively nationalize ISPs, and then pay citizens to inform on each other about various transgressions.  Or, we could impose punishing forms of liability on digital intermediaries — effectively deputizing online middlemen and making them servants of the State.  But such extreme solutions would have nightmarish ramifications for the future of the Internet and digital communications networks.  We have to ask ourselves how far we want to go to control information flows.

Rep. Bart Stupak, (D-MI) recently introduced the ‘‘Online Age Verification and Child Safety Act’’ (H.R. 4059), which would require mandatory online age verification for “any pornographic website accessible by any computer located within the United States to display any pornographic material, including free content that may be available prior to the purchase of a subscription or product.”  The measure does not specify how such verification is to be administered, saying only that “any website or online service” must “establish and maintain a system of internal policies, procedures and controls to ensure that no such material is displayed to any user attempting to access their site without first verifying that the user is 18 years or older.”

In essence, the Stupak bill is the “Son of COPA,” or the Child Online Protection Act of 1998, a law that has been constitutionally tested and come up short during an epic, decade-long legal battle in which it was made clear that mandatory age verification is unwise, unworkable, and unconstitutional under the First Amendment.

COPA sought to make it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. COPA was immediately challenge, however, and a 10-year court battle ensued.  The law was blocked by lower courts because it was too sweeping in effect and because courts held that there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

COPA’s decade-long legal battle finally concluded in January 2009 when the U.S. Supreme Court refused to revisit the law.  COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal in January, lower court rulings stood and COPA remained unconstitutional and unenforceable. The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

Many, many times here before I have documented my serious ongoing reservations about mandatory age verification.  [In particular, see this lengthy white paper and this event transcript for all the details.]  Moreover, as I pointed out in a recent PFF white paper (“Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer“), every major online safety task force that has studied the possibility of mandatory age verification for the Internet has come to the same conclusion: It won’t work, it’s unconstitutional, and it raises serious privacy concerns. Down below the fold I have pulled some of the relevant language from the five online safety task forces that have met since 2000 and considered this issue.  Some of the very best minds in academia, industry, government, and the child safety community sat on these task forces.  And, taken together, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety.

I would hope that Mr. Stupak and other lawmakers would heed the warnings about mandatory age verification that these task forces issued.  Read on for brief look at what the experts had to say. And as you do, remember that every dollar spent litigating another misguided attempt to mandate online age verification is another dollar that could be spent on education and empowerment solutions or other law enforcement strategies, all of which could be put in place immediately to make our kids safer online.

2000 – Commission on Online Child Protection (“COPA Commission”)

[Age verification] imposes moderate costs on users, who must get an I.D. It imposes high costs on content sources that must install systems and might pay to verify I.D.s. The adverse effect on privacy could be high. It may be lower than for credit card verification if I.D.s are separated from personally-identifiable information. Uncertainty about the application of a harmful to minors standard increases the costs incurred by harmful to minors sites in connection with such systems.  An adverse impact on First Amendment values arises from the costs imposed on content providers, and because requiring identification has a chilling effect on access. Central collection of credit card numbers coupled with the “embarrassment effect” of reporting fraud and the risk that a market for I.D.s would be created may have adverse effect on law enforcement.[1]

2002 – Youth, Pornography, and the Internet (“Thornburgh Commission”)

In an online environment, age verification is much more difficult because a pervasive nationally available infrastructure for this purpose is not available. […] Note that each of these [age verification] methods imposes a cost in convenience of use, and the magnitude of this cost rises as the confidence in age verification increases.[2]

2008 – Safer Children in a Digital World (“Byron Review”)

[N]o existing approach to age verification is without its limitations, so it is important that we do not fixate on age verification as a potential ‘silver bullet’.[3]

2009 – Internet Safety Technical Task Force (ISTTF)

Age verification and identity authentication technologies are appealing in concept but challenged in terms of effectiveness.  Any system that relies on remote verification of information has potential for inaccuracies.  For example, on the user side, it is never certain that the person attempting to verify an identity is using their own actual identity or someone else’s.  Any system that relies on public records has a better likelihood of accurately verifying an adult than a minor due to extant records.  Any system that focuses on third-party in-person verification would require significant political backing and social acceptance.  Additionally, any central repository of this type of personal information would raise significant privacy concerns and security issues.[4]

2009 – “Point Smart. Click Safe.” Blue Ribbon Working Group

The task force acknowledges that the issues of identity authentication and age verification remain substantial challenges for the Internet community due to a variety of concerns including privacy, accuracy, and the need for better technology in these areas.[5]

[2] Computer Science and Telecommunications Board, National Research Council, Youth, Pornography and the Internet (Washington, DC: National Academy Press, 2002), at 63-4, www.nap.edu/html/youth_internet/

[3] Safer Children in a Digital World: The Report of the Byron Review, March 27, 2008, at 99.  www.dcsf.gov.uk/byronreview

[4] Internet Safety Technical Task Force, Enhancing Child Safety & Online Technologies: Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States, Dec. 31, 2008, at 10, http://cyber.law.harvard.edu/pubrelease/isttf.

[5] www.pointsmartclicksafe.org/report

[NOTE: Follow H.R. 4059 and comment on it over at Washington Watch.]

ATTACHMENT: Final Statement of Adam D. Thierer on Age Verification to the Internet Safety Technical Task Force

ISTTF Thierer Closing Statement http://d1.scribdassets.com/ScribdViewer.swf?document_id=10275410&access_key=key-2arwch33v27rw4obom5&page=1&version=1&viewMode=list

I really enjoyed my Second Life appearance on “Government’s Place in Virtual Worlds and Online Communities,” which was hosted by Metanomics.  You can watch the entire segment on the Metanomics site.  But the folks at Metanomics have also posted 6 clips from the show at YouTube that highlight some of the topics we discussed.  Here’s the list of clips and the videos:

Part 1: Are the Feds about to Regulate Second Life & Virtual Worlds?

Part 2: Global Communities, Local Values, Internet Governance & The Dangers of “Harmonization”

Part 3:  Virtual Child Pornography & Our Virtual Reality Future

Part 4: Why Speech Controls & Privacy Regulations are Two Sides of the Same Coin

Part 5: Privacy, Advertising, User Empowerment, and the “Free” Internet

Part 6: Virtual World Self-Governance and a “Utopia of Utopias”

Finally, here’s some of the background material I referenced during the show:

• “Parental Controls and Online Child Protection: A Survey of Tools & Methods [VERSION 4.0]“
• “Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics’“, Inside ALEC, July 2009.
• “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” PFF Progress on Point 16.13, July 8, 2009
• “Cyberbullying Legislation:  Why Education is Preferable to Regulation,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.12, June 19, 2009
• “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.11, May 21, 2009
• Web 2.0, Section 230, and Nozick’s “Utopia of Utopias”, Jan. 13, 2009, Tech Liberation Front

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.

On heels of Adam’s piece last year, controversialist Chris Soghoian suggested one answer: Given its status as a sacred cow, we cannot expect any politician pay heed to calls to overhaul NCMEC or subject it to oversight. However, what we can do, is call for the nationalization of the National Center for Missing and Exploited Children.

Think of it this way: We have a drug czar, a war czar, a copyright czar, and will likely have a cybersecurity czar and car czar under the next administration. Why not throw a child porn czar into the mix? Nationalize NCMEC, make all of its workers federal employees, with good health care and job security, and perhaps even expand its budget–after all, it does good work, right? NCMEC’s job is simply too important to be entrusted to a nonprofit group–such a task can only be performed by a fully trained and funded law enforcement agency (one, which conveniently enough, is subject to the Freedom of Information Act, congressional oversight, and constitutional requirements for due process.)

Despite my differences with Chris, he’s often right and may be here, too. He’s certainly right that Congress is unlikely to address the problem of NCMEC’s accountability given the sensitivity of the issue of child protection.

But, fortunately, we live in a republic, not a pure democracy: Our third branch of government, the courts, exists to enforce the rule of law; being somewhat insulated from political pressure, the courts provide a final check on the authority even of the almighty NCMEC. So while Chris’s nationalization proposal might well be the ideal solution, it hasn’t happened yet—nine months later to the day, and it’s probably not high on the Obama administration’s list of czarist reforms.

But simply by ordering NCMEC to comply with FOIA, the Lazaridis court could, with the stroke of a pen, bring accountability to NCMEC’s law enforcement functions. The legal question is simple: Does NCMEC qualify as an “agency,” which FOIA defines as an “authority of the Government of the United States?”

If so, NCMEC must not only respond to requests for certain of its “records,” but it must also follow a rule-making process akin to that required of federal agencies when they make policy decisions, offering the public appropriate notice and the opportunity to comment on proposed regulations—instead of, say, threatening Internet companies behind closed doors (sometimes the same companies that later make generous donations to NCMEC) or cutting deals with state attorneys general.

It turns out that this is not a new issue. Federal courts have had to decide whether a number of quasi-governmental entities qualify as “agencies” over the years, especially given the trend towards privatization over the last three decades. Some organizations, like the Smithsonian Institution, have decided to comply with FOIA even though courts have held that they’re not required to do so. NCMEC could have allayed all these concerns years ago by doing the same thing, but absent a change in management at the organization, it seems only a court order will force the organization to open its “black box” of decision-making to public inquiry.

In a number of other circumstances, courts have required nominally private organizations to comply with the federal FOIA or its state equivalents. A thorough (if dated) treatment of this issue can be found in the 1999 law review article, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities Under Federal Law by Craig Feiser, Florida’s deputy solicitor general and an adjunct at FSU Law. Feiser explains:

When Congress amended FOIA in 1974, it added section 552(f)(1) and broadened the definition of “agency” to include entities not explicitly mentioned under the APA, but which “perform governmental functions and control information of interest to the public.”

In deciding whether a private organization qualifies as an agency subject to FOIA, courts have considered two factors.

One factor asks whether the entity has substantial independent authority in performing a function of the government, making it the functional equivalent of the government. The other factor asks whether the government substantially controls the entity’s day-to-day operations or organizational framework. In using either factor, the court is essentially asking to what degree the entity is performing a government function. In one case, the government is pulling nearly all of the strings; in the other case, the entity is making decisions independently for the government.

Financially, NCMEC is largely a creature of government: 70% of NCMEC’s $42 million budget in 2007 came from the government. But as Feiser notes, funding does not always mean control. Government control over NCMEC’s internal decisions is unclear. Indeed, the very lack of government control over an organization essentially regulating the Internet and imposing criminal sanctions that could follow convicted “sex offenders” for life would by itself be an enormous problem.

But given what NCMEC actually does, it obviously qualifies as an “agency” subject to FOIA under the “functional equivalence factor,” which as Feiser explains,

basically represents the opposite situation from the control factor. Here, the entity is functioning independently, but making decisions for the government, as opposed to having its decisions made by the government. In effect, it is the functional equivalent of the federal government, and, therefore, it should be an “agency” under the FOIA.

I’ll be watching the Lazaridis case closely, hoping that the court sees NCMEC for what it is: a private organization tasked with implementing not just any government function, but the enforcement of laws against the most vulnerable victims in society. Absent such a recognition, NCMEC will continue to grow into an unaccountable regulator for the Internet.

Today, the only public oversight of NCMEC required by law is the requirement that NCMEC (like any non-profit with federal tax-exempt 501(c)(3) non-profit status) file a Form 990 each year disclosing basic information about its finances. That report does not list NCMEC’s donors, because donors have a First Amendment right to remain anonymous, but a more transparent organization would, like my own think tank, at least identify its major donors. The 2006 and 2007 Form 990s do reveal a few interesting things, though, about what NCMEC does with its budget (70% of which comes from the taxpayer):

• NCMEC’s CEO, Ernie Allen, was paid $359,191 plus $411,636 in benefits in 2006 (PDF p. 46) and $409,821 plus $426,540 in benefits in 2007 (PDF p. 19), for a total of $1.6 million in two years (roughly $800,000/year);
• Not counting Allen, NCMEC spent $778,564 on its top five highest-paid employees in 2006 ($155,713/employee), and $875,657 in 2007 ($175,131/employee) (PDF p. 10 in both);
• 31% of NCMEC’s 2006 revenues and 35% of its 2007 revenues went to salaries (PDF pp. 1 & 2 in both); and
• NCMEC had 104 employees paid over $50,000 in 2006 (PDF p. 10) and 116 in 2007 (PDF p. 10).

I’d be reluctant to suggest that anyone at NCMEC was more interested in money than in protecting children, but if given the choice, we’d all prefer to do well while doing good. So if Allen were smart, he’d realize that a court order subjecting NCMEC to FOIA might be the best of all possible worlds: Requiring real accountability would neutralize calls for nationalizing NCMEC, allowing the organization to continue operating as a non-profit that can pay quite a bit better than the Federal civil service. Even the Senior Executive Service, for agency heads, maxes out at a measly $177,000/year.

Of course, if NCMEC’s records and decisions to regulate the Internet were subject to FOIA, the organization might not be able to… “convince” the Internet companies it essentially regulates to write large checks to NCMEC. But even this tax-hating libertarian would be hard-pressed to argue against funding the enforcement of laws against child pornography, abduction and exploitation with taxpayer dollars.

As the grandson of an FBI agent, whose framed credentials hang in a place of pride in my office (stamped “RETIRED” after his 25 years of loyal service), I can’t help but wonder how many more agents the FBI could employ to combat child porn with an extra $1.6 million/year in funding (the salary of Allen and NCMEC’s top-five highest paid employees). It seems that FBI agents today make roughly $48,000-87,000/year. Let’s call it an average of $67,500 and throw in 20% for overhead. That works out to $81,000/year—or:

• 20 new agents for what NCMEC is paying its top six employees; or
• 368 new agents for the $29.82 million NCMEC received in government support in 2007.

I’m sure the solution is far more complicated than simply hiring more FBI agents, and that NCMEC does much good work in the service of a noble cause. But until NCMEC is either nationalized as a direct arm of law enforcement or made significantly more accountable as a private organization, we won’t really have any way of knowing whether the money being spent on NCMEC is being spent in the most effective manner possible to deal with the problems of child pornography, abduction and exploitation. We also won’t know whether draconian alternatives to direct enforcement ( e.g., hiring more FBI agents) like network-level filtering mandates are truly necessary, despite their unintended consequences for the free speech and privacy rights of law-abiding Internet users.

The first meeting of the Online Safety Technology Working Group (OSTWG) took place today and I just wanted to provide interested parties with relevant info and links in case they want to keep track of the task force’s work.  As I mentioned back in late April, this new task force was established by the “Protecting Children in the 21st Century Act,” (part of the ‘‘Broadband Data Improvement Act’,’ Pub. L. No. 110-385) and it will report to the Assistant Secretary of Commerce for Communications and Information at the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA).

I’m happy to be serving on this new working group and I am particularly honored to be serving as the chairman of 1 of the 4 subcommittees. The four subcommittees will address: data retention, child pornography, educational efforts, and parental controls technologies. I am chairing that last subcommittee on parental controls.  The task force has about 35 members and we have a year to conduct our research and report back to Congress.  Here are some relevant links from the NTIA website that provide additional details about this task force:

• Online Safety and Technology Working Group Background
• Meeting Webcast Archive (RealMedia)
• June 4, 2009, Public Meeting Agenda

Of course, this is certainly not the first task force to explore online safety issues.  There was the COPA Commission (2000), the “Thornburgh Commission” report (2002), the U.K. “Byron Commission” report (2008), the Harvard Berkman Center’s Internet Safety Technical Task Force (2008), and the NCTA-iKeepSafe-CommonSenseMedia “Point Smart, Click Safe” working group, which is due to issue its final report shortly.  [Full disclosure: I was a member of that last two task forces as well.]  I’m currently working on a short paper that attempts to summarize the remarkably similar findings of these important child safety working groups.  Generally speaking, they all concluded that education and empowerment, not regulation, were the real keys to moving forward and making our kids safer online.

… could be illegal under a proposed Massachusetts (per Boing Boing) law that would make it a crime to “photograph with ‘lascivious intent’ a person over the age of 60 or a person with a disability who has been declared mentally incompetent.”  Like the recent prosections of teens for sending nude pictures of themselves on Myspace under child pornography laws, the Massachusetts proposal would criminalize the sharing of “lascivious” photos regardless of the consent of the person being photographed.

Arthur would be turning in her (recently-dug) grave.  Dorothy Zbornak (her most famous character) might not have been much of a libertarian—it seems safe to assume she, like most progressive Catholics (however fictional) voted for Mondale—but one can easily imagine how her withering sarcasm would lay bare (no pun intended) the noxious paternalism underlying this proposal:  It’s bad enough that the government treats adults like children, assuming we’re all not smart enough to make good decisions for ourselves, but must the State really draw a line in the sand beyond which age (60, in this case) Americans officially lose their status as adults and revert to a second childhood in the eyes of the law?

Dorothy and the other Golden Girls would never stand for it.  One can only imagine the rage of  aging beauty Blanche Devereaux at the crimp this law would have put in her (previously thriving) sex life.

Those who don’t get the title’s reference to the 1994 classic Airheads, or who just plain don’t care for the Golden Girls’ geriatric charms, might nonetheless be crestfallen to realize that the bill could also deny the world naughty pics of  developmentally disabled sex kittens like Susan Boyle, the surprise star of Britain’s “Got Talent” (essentially American Idol with worse teeth).  (Of course, the bill would apply only if Susan were declared mentally incompetent).

Ah, Susan, be still my beating heart!

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.”

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!

As Bill Carter of the New York Times reported in a 2004 article, “Many Who Voted for ‘Values’ Still Like Their Television Sin,” Nielsen ratings data shows that in many Republican-leaning “red state” markets, such programs garner higher ratings than in many Democratic-leaning “blue states.” For example, in the counties that constitute the greater Atlanta television market, ABC’s dramatic comedy “Desperate Housewives” was the top-rated show even though nearly 58 percent of voters in those counties voted for President Bush.  Similarly, in the traditionally conservative Salt Lake City market, where President Bush captured over 72 percent of the vote, the top four shows were “C.S.I.,” “C.S.I. Miami,” “E.R.,” and “Desperate Housewives.”

Likewise, in a 2004 column about “The Great Indecency Hoax,”  NY Times columnist Frank Rich noted that the same trend holds in conservative Oklahoma City, where “Desperate Housewives” is more popular than it is in Los Angeles, as well as Kansas City where the show is bigger than it is in New York City.  Rich quoted sociologist Herbert Gans who explained the phenomenon as follows: “For some people it’s a case of ‘I am moral therefore I can watch the most immoral show.'”

Such findings call into question the logic of traditional “community standards”-based regulatory efforts. Indeed, it is unclear how lawmakers can determine the relevant “community standard” for purposes of speech and content regulation when some of the most conservative communities in America are downloading as much porn as Edelman’s study finds, or when conservatives are watching smutty TV in greater numbers than liberals do.

The better approach, as I’ve argued here before, is to replace “community standards” with “household standards.”  That is, it would be optimal if public policy decisions regarding content took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.  That’s especially the case in light of the fact that less than 32% of U.S. households have any children in them, and those homes that do have children have plenty of tools and methods at their disposal to control objectionable content. Let’s empower parents to make decisions for themselves and their families so that Uncle Sam doesn’t need to play the role of national nanny for all of us.

• Edelman’s mention of porn consumption in Utah reminded me of this passage from Jeff Rosen’s 2004 essay on “The End of Obscenity” (which I discussed in greater detail here):

  three years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view: in an age of nationally distributed hotel pornography, there was little difference between the consumption habits of hotel guests in Salt Lake City or Las Vegas. Pornography is everywhere, suggesting that there is no national consensus against it and no vast disparity from one locale to another.

  Seems that those Utah residents are a horny bunch!  Maybe their new motto should be, “What happens in Utah, stays in Utah.”

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.

As a constitutional matter, the courts have rejected network-level filtering mandates because user-installed filtering tools are a “‘less restrictive” alternative.   In comments filed on this proposal in July, a broad coalition of free speech groups (including my PFF colleague Adam Thierer) explained why Martin’s proposal violated the First Amendment–and why even allowing users to opt-out of the required filtering would not make the proposal constitutional:

First, … [the] filtering mandate is so sweeping in its scope that it would violate the rights of older minors to receive content to which they have a constitutional right to access (but which arguably might be “harmful” to a five-year old).  Second, the stigma of having to sign up for a central, nationwide list of – effectively – “people who want access to adult content” would be a chilling and unconstitutional burden on adults’ right to access lawful content.  Under the First Amendment, the government cannot force people to “sign up” in order to receive lawful speech…  This is especially true because of the broad sweep of content blocked by [the proposal] and the availability of highly effective and less restrictive alternatives in the form of client-side filtering tools. Third and finally, wholly apart from the constitutional rights of those accessing the Internet through the AWS-3 network, the proposed filtering mandate would also violate the constitutional rights of speakers and content providers on the Internet who want to speak to the broadest audience possible.  It would be flatly unconstitutional for the government to select and anoint one, or even a limited number of, filtering “blacklists” of content that must be blocked – even if a private party (the AWS-3 licensee) does the selection under an FCC mandate.  Unless the filtering “blacklist” only contained sites that had been adjudicated to be illegal for minors (on a nationwide basis, presumably), the filtering mandate would be precisely the sort of unconstitutional prior restraint squarely rejected by the Supreme Court in Bantam Books, Inc. v. Sullivan.

But as a political matter, it may turn out that this kind of free broadband proposal just won’t fly without network-level filtering requirements (and an opt-out)–however unconstitutional that might be.  While the courts and any reasonable person might recognize that client-side filtering (installed by users) offers  parents highly effective controls over what their children can access, the truly Puritanical element in America probably won’t care–at least on the level of political rhetoric.  One can easily imagine the opposition from “social conservatives” to the idea of using the public airwaves to make “smut” available to minors.  Coming from the Obama Administration, such a proposal could easily be lampooned as a “Porn Bailout.”   Republicans–who so often seem to prefer fighting the “culture wars” over trying to promote something as arcane as, say, constitutionally limited government–might try to cast any public broadband utility without network-level filtering as a “liberal” plot to corrupt America’s children (think Jocelyn Elders’ endorsement of masturbation as Surgeon General).  After all, why should I have to pay for your porn–let alone your kid’s porn?

Even if Obama and Congressional Democrats have the votes to override such opposition, would they have the political nerve (or think it worth the political capital) to ram through a free broadband scheme that relies on parents to do their own filtering–and that could thus be attacked (however unfairly) as making porn available to kids?  Or would they conclude (probably correctly) that existing broadband subsidies could be significantly expanded without facing such a strong political push to impose filtering mandates as a condition of public support–and choose this “safer” course?  The problem, of course, is that unless broadband is completely free, some people still wouldn’t pay for it and even if it were free, others still wouldn’t use it.

Or perhaps Kevin Martin could continue his crusade to free the world from content he (and the traditionalist Republican base he’s been cultivating) finds objectionable by insisting that subsidies should only go to broadband providers that offer censored Internet packages (essentially opt-in for filtering).  This is, of course, essentially what he has done throughout his time as Chairman in his relentless “war on cable”–looking for every opportunity to coerce cable providers into “voluntary” agreements to provide cable programming on an a la carte basis.  What better way for Martin to revive his political career?  Though Martin’s native North Carolina is trending Democratic, its socially “conservative” voters might hail well Martin’s ostentatious commitment to “protecting the children.”

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.

Another chapter in the seemingly never-ending saga of the Child Online Protection Act (COPA) of 1998 was written this week when the Third Circuit Court of Appeals upheld a lower court ruling striking down COPA, which would require Web operators to restrict access to large amounts of online speech and expression. [The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here].

The DOJ will likely appeal the decision, yet again, to the Supreme Court. I can’t be certain, but I know of no other free speech-related law that has made THREE trips to the Supreme Court for review. (If readers know of any laws that can match that record, please let me know). It really is quite amazing, and even a little outrageous, when you think about it. After all, just think of all the time, energy and money that has gone into this 10-year legal fiasco. I know it is the DOJ’s job to defend congressional enactments before the courts, but how might we have spent that time and money if all this litigating wasn’t going on?? Regulation always has opportunity costs and in this case those costs have been 10 years of wrangling among lawyers. Those resources could have been used to educate parents and kids about online safety; to create and disseminate more and better private screening tools; and so on. Alas, we instead have mounds of paper piling up in the courts and millions being spent with nothing to show for it. Anyway, Declan has an excellent summary of the 3rd Circuit’s ruling here, and my friends at CDT have a statement here. But Susan Crawford has the best analysis of the decision in her essay on “Understanding COPA’s Journey.” She begins by summarizing the key findings:

The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM [“harm to minors”] definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?). The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring. But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.

So, what will the Supreme Court say about that argument when COPA makes its unprecedented 3rd appearance before the judges? Susan says:

This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical framework adopted by the Third Circuit follows what Justice Kennedy said then – that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA. The point, Justice Kennedy said, is to is ‘‘to ensure that speech is restricted no further than necessary,’’ not to consider ‘‘whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes.’’ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be ‘‘whether the challenged regulation is the least restrictive means among available, effective alternatives.’’ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them – that’s the parents’ choice. Filters are available. The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see). Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (‘‘The presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech. Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice Kennedy’s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice O’Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (”what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.

So, it remains to be seen whether the third time is the charm for the DOJ and they are able to finally convince the Supreme Court to enforce COPA. And Susan is right in noting that all eyes will be on the decision in Fox v. FCC since that will be the next major free speech case before the Court.

As Susan rightly concludes: “This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech…. Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.”

Indeed.

Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction:  a free, nationwide wireless service that would serve public safety users as well as consumers.  It’s attached down below or the PDF can be found here.

What’s Worse Than Rigged Auctions & Internet Censorship? How About Both in One Package!

a PFF Progress Snapshot Release 4.12 June 2008

by Adam Thierer and Berin Szoka

The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:

You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use. Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.

The declared goal of the new plan is to provide “free” broadband to the masses while also satisfying public safety spectrum needs (though little is understood about how the propose service will support public safety). Supporting legislation introduced by Rep. Anna Eshoo (D-CA), H.R. 5846, the “Wireless Internet Nationwide for Families Act of 2008,” would require the winning bidder to:

offer, at a minimum, always-on wireless broadband services within 2 years from the date of receipt of the license, and complete the construction of such wireless network with a signal covering at least 95 percent of the population of the United States and its territories within 10 years from the initial operation of the network; [and] a data service that is faster than 200 kilobits per second one way for free to consumers and authorized public safety users without subscription, airtime, usage, or other charges.

Good luck getting anyone to bid much on that plan! It’s not really clear why anyone would think that a 200 kbps public utility service–even at zero cost–will have all that much appeal to the masses. Today, through server-side data compression, any of us can already squeeze 300 kbps out of our old dial-up lines–a service now free from companies like NetZero and generally costing less than $10/month. Even most existing wireless data plans today provide greater bandwidth. How many people are really going to want to use a “free” wireless network that pumps out far less? After all, you’re not going to be able to download many videos or big files or do anything very data-intensive on the proposed network. While a certain segment of basic smart phone users might be satisfied with such sluggish speeds for rudimentary web uses such as email, blog-reading, calendars and basic locational searches, existing equipment would not be able to connect to the proposed network because of the bands used. So, while such PDA users might seize the opportunity to use slow-but-free municipal wi-fi networks, they could not use the proposed network: an entirely new generation of wireless technologies would have to be equipped to support yet another wireless standard.

So why would any company pony up serious money at an auction to win the right to provide such a lackluster service to a minimum of 95% of the nation, including costly-to-serve low density areas, within two years? You don’t need to be a Harvard Business School grad to see why that plan doesn’t make much sense for most investors. (Never mind the fact that the auction of this much valuable spectrum with so many regulatory encumbrances will yield far less at auction to the U.S. Treasury.)

Of course, the winning bidder will likely have the right to “up-sell” customers to a higher-speed paid service. But we have no idea how well that plan will work out and, even if it did, it would call into question the logic of rigging this auction in the first place: Is the purpose truly to provide free universal broadband access, or just to hand someone a chunk of somewhat cheaper spectrum to let them up-sell customers to higher-speed, paid plans? If it’s the latter, the plan seems a little unfair to the private carriers who are already aggressively competing in the market today, having paid top-dollar for their spectrum and invested heavily in wireless data networks.

Or will the lucky auction winner be expected to rely in part on advertising revenues to pay for the up-front costs of winning the auction, building out the network and providing service–much as M2Z originally planned to do? If so, the provider would doubtless prefer to offer more profitable behaviorally targeted advertising customized for each user. The Federal Trade Commission has wisely chosen not to regulate such advertising, given its complexities and ongoing evolution, and to rely instead on enforcement of existing unfair and deceptive trade laws, while issuing voluntary guidelines for industry. But of course, the FCC would have jurisdiction over the proposed service and would likely face enormous political pressure to include its own regulatory regime for online behavioral advertising while drafting service rules. The controversy over such rules could delay the deployment of the proposed service, while any FCC regulations would inject the FCC into the ongoing debate over how to govern a practice that provides the revenue stream necessary to support a variety of content and services.

But this new spectrum-rigging plan is troubling for an entirely different reason: It demands Internet censorship. The original M2Z plan included a promise to sanitize this little patch of spectrum to make sure it was “kid-friendly.” What better way to win a spot in the heart of legislators and regulators than to promise network-wide Net filtering! After all, many lawmakers have long considered this the Holy Grail of Internet policy. Eshoo’s bill would mandate such filtering by requiring that the licensee “offer such free data service with a technology protection measure or measures that protect underage users from accessing obscene or indecent material through such service.”

It’s surprising that so few people are discussing the dangers of this portion of the proposal. After all, what we are talking about here is a blueprint for widespread, government-mandated censorship of the Internet. Many folks, including the Wall Street Journal in today’s editorial, seem to be under the impression that the mandate is strictly directed at “pornography”–and nothing more. But Rep. Eshoo’s bill clearly requires filtering of “obscene or indecent material.” Defining obscenity is difficult enough. But including “indecent” content will open up a Pandora’s Box of regulatory shenanigans. One need do nothing more than read a few pages of broadcast regulatory history to appreciate the practical challenge that awaits both providers and regulators as they attempt to monitor the network to ensure that everything is “decent” for the masses. (Moreover, is that really what the Internet that the masses want?)

Regardless, the important question is not what will be censored, but how it will be censored–a critical detail that neither Chairman Martin nor Rep. Eshoo have spelled out. But, in all likelihood, we’re talking about something more that just downloadable filters for consumers to install themselves if they so chose–leaving the decision to individuals and parents, where it belongs in a free society. Instead, it seems clear that we are talking about server-side, network-wide filtering that will essentially be forced on all users of the network. Such a technological solution will greatly slow down the already primitive network being proposed under this plan. But, more importantly, we have to wonder what sort of precedent is being established here for other broadband networks and the rest of the Net.

Of course, policymakers will respond by saying that the plan is simply another regulatory quid pro quo: We rig the auctions to drive down the cost, and you, the winning carrier, clean up the Net for us. That’s all easier said than done, and it raises a host of constitutional issues in the process. There are many better ways to protect kids, and there are certainly better ways to run a spectrum auction.