Far Beyond Filtering: Is The GOP Looking To Shut Down Porn Producers?

Overhype

from the if-we're-going-to-have-any-morality-around-here,-we've-got-to-ditch-a-fe dept

We recently discussed the GOP’s decision to sabotage its new “internet freedom” platform by including some unfortunate anti-porn provisions. Romney declared that, if elected president, every new computer would have an anti-porn filter installed. At the very least, this filtering would be redundant. As Mike pointed out, porn filters already exist and are easily available. If this is being done “for the children,” perhaps the application of a porn filter should be left to the parents, rather than made mandatory via legislation.

That handles the user end of the experience. I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK. Whether or not an opt-in Known Perverts option will be available is still open to speculation. Most likely, once the rhetoric clears, it will simply be a matter of computer manufacturers offering filtering software right out of the box. This will fulfill the requirement without needing much more than some cursory compliance checks, and everyone involved will feel proud to have “done something” to keep porn out of kids’ eyeballs. This will also be a boon for developers of filtering software, who will be jockeying for lucrative OEM contracts.

Romney hasn’t really specified what he means by “computer,” meaning that the spread of pre-installed filterware could envelop any device that connects with the internet, including tablets and smartphones. There is also no information on how “mandatory” these filters will be or what issues computer/device manufacturers will face should they fail to comply.

It’s a vague concept that hardly anyone will argue against for fear of appearing to be siding with pornographers, or worse, child pornographers (thanks to always-handy conflation). Perhaps more unsettling than the feel-good, do-nothing “filtering” promise is another sentence lurking in the platform: “Current laws on all forms of pornography and obscenity need to be vigorously enforced.” Eugene Volokh tackles the troubling implications of this phrase, putting together a set of tactics the government could implement in an effort to enforce standing obscenity laws.

First off, Volokh tries to determine the endgame? Is the intent to shut down as many US pornographers as possible? If so, supply from other sources will fill the demand:

[E]ven if every single U.S. producer is shut down, wouldn’t foreign sites happily take up the slack? It’s not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world’s #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

This is an interesting conjecture. Removing the producers from the equation opens up the possibility that foreign producers would simply do the math and up their profits by reselling product they didn’t create. Having the US government eliminate their competition is an added bonus. It seems unlikely that the government would act on the behalf of porn companies it’s legislated or prosecuted out of existence. But would it tolerate abuse of American IP, no matter how abhorrent the subject? Probably. The porn industry isn’t known for its lobbying efforts.

Moving on, Volokh speculates on three possible outcomes of enforcing existing laws on pornography and obscenity.

The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before.

This tactic sounds like it would work as well as current IP enforcement measures. As it stands now, ICE is better known for its RIAA/MPAA lapdog status than for producing credible results. Sites get taken down, sat on and returned to their owners with no charges brought or apologies offered. Drawing a bead on targets like porn producers makes for some rah-rah press but will have little effect on the amount of porn available. 

As ineffective as these actions would be, the greater issue is that increased enforcement will do absolutely nothing to change people’s perception of porn:

Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

This falls right in line with the perception of file sharing as a “moral” issue. It’s all well and good to claim the high road in the fight against infringement, but if the general public doesn’t share your beliefs then the battle is not winnable. Legislation and prosecution aren’t going to change anyone’s mindset. It just makes the punishment seem ridiculous or unduly harsh.

There are more echoes of the ongoing anti-piracy efforts. Volokh’s next scenario involves going after foreign producers:

The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

This goes far beyond simply requiring pre-installed filtering software. Instituting any sort of a blacklist combines the futility of whack-a-mole with the “we don’t have time to follow procedures/respect rights” urgency of “doing something” to make the internet a “safer” place. As these actions prove futile, enforcement will move to cutting off the money supply, targeting credit card transactions, pressuring foreign governments to play by the US'’s rules, etc.

The third option, and probably the least palatable to politicians? Going after end users:

Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you’d also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g.,United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case).

Politicians may state that they think porn should be outlawed or controlled, and some are even willing to trample on some rights to put that in motion. But it’s hard for most to jump from taking down the supply side to attacking the demand. If your aim is to make the internet “safer,” it’s fairly easy to see that removing users has no effect on “safety.” But while this logic leap is hard, it is by no means impossible. The War on Drugs has locked up thousands of users by making possession a crime. “Possession with the intent to distribute” is simply a matter of going above an arbitrary quantity. Possession laws assume the only reason a person would be carrying [x] amount of drugs is because they're selling to others. Would a person with more than [x] megabytes of porn on their hard drive be considered a distributor, thus opening up the possibility of additional charges? I don’t see why not, given the attitude surrounding the issues.

There’s plenty of food for thought in Volokh’s post, especially considering the faint echoes of SOPA/PIPA present in the discussion of enforcing morality. Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists. Ultimately, the question isn’t about whether or not porn is “bad” for citizens, but rather, how can these laws possibly be enforced without descending quickly into “draconian measures”?

How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?

The answer is: it can’t. But these concerns aren’t being considered, at least not during an election run. Post-election, if anyone gets around to fighting this unwinnable battle, the concerns likely won’t be considered at that point, either. It’s usually not until the public gets noisy enough to jeopardize politicians’ careers that any sort of consideration is given to the rights of the people affected. Even more disturbing is the fact that pursuing this end effects both sides of the creative effort: the producers and the consumers. Considering the resemblance these actions have to past overreaching legislative efforts crafted to “protect” certain industries, it’s rather disconcerting to see the possibility of these same actions being used to destroy a creative industry simply because certain people don’t care for the product.

Filed Under: gop, mitt romney, platform, porn