Rep. Issa Pretends Net Neutrality Means The End Of Porn Online

from the because-that's-not-even-remotely-true dept

I’m not sure what it is about net neutrality that brings out absolutely insane arguments that make no sense, but it certainly seems to happen with annoying frequency. The latest is Rep. Darrell Issa taking a few words from a statement by leading net neutrality advocate, professor Tim Wu, and claiming that it means net neutrality could end porn online.

Issa has carved out a position for himself at times as a defender of the internet and innovation on the Republican side of the aisle. He was a key player in stopping SOPA, and has also been quite important in pushing back against USTR secrecy in questionable trade deals and in making sure you can actually rip your DVDs. He was also among those trying to dig into the ridiculous prosecution of Aaron Swartz. That said, he’s also made some serious missteps when it comes to tech policy. He supported an Elsevier-backed bill that would have cut off open access policies. He’s been a bit wishy-washy on NSA stuff as well, though more recently has generally sided more with protecting privacy.

Many of those positions have been ones that don’t have a particularly partisan bent (sometimes going against the prevailing view in the party). But, when it comes to net neutrality, he’s toeing the standard partisan line. As we’ve noted all too often, about a decade ago, net neutrality suddenly became a “partisan” issue with Republicans against it and Democrats for it — and since then it’s been almost impossible to have a real policy debate about it that doesn’t immediately descend into partisan talking points that have little basis in reality. Unfortunately, it appears that rather than actually dig into the issues here, as he’s done in the past on other issues, Issa chose to take the easy grandstanding way out on this one. Last week, the House Judiciary Committee held a hearing asking if antitrust law would be more effective in protecting consumers and innovation online. Now I’ve already gone on record in arguing that the FTC may be a good place to look to protect net neutrality, but less from the antitrust angle than the “actually delivering what you sold customers” angle.

The hearing itself was weighted with three anti-net neutrality folks against Tim Wu (who used to work at the FTC, and who has long been a strong advocate of antitrust policy — something I disagreed strongly with him about in the past). So it wasn’t entirely a fair fight. But when it came time for Issa to go after Wu, the whole hearing just became a joke.

Issa: Professor Wu. I really appreciate your being here. I think you’ve given us the appropriate characterization of the true reason for net neutrality. You said it was ‘social media police, speech policy, political policy.’ You used words including ‘control.’ All of that, you did voluntarily here, right?

Wu: *Silence* (I assume he nods)

Issa: So, what you’re saying, in effect, is, if the FCC gets ahold of this, we can go back to the Leave it to Beaver times. Times in which two married adults had to be in twin beds in order to get passed the social norms of the day. Times in which, even today, Bill Maher, who I often disagree with, can’t be on broadcast because the FCC won’t let him on because he uses the F-bomb too often. Times in which complaints are being considered today, and in the last year, against Two and A Half Men, because they’re too sexually explicit. This is the FCC’s role. They’re a regulatory policy entity that actually does limit free speech, carefully question moral norms and the like. Do you have any way to tell me that’s not true after your opening statement?

Wu: What I’m trying to suggest…

Issa: Please answer the question. Then you can get to your suggestion.

Wu: I’m suggesting that if the antitrust agencies overtake the…

Issa: No, no. You were telling me the good reasons for the FCC to have this kind of control. And I have countered with, you’re absolutely right. Everything you said about social policy, speech, political. These are things the FCC has controlled over the airwaves for my entire life.

From there he turns to a former FCC commissioner and asks a leading (and misleading) question about FCC regulations on speech.

So, here’s the thing: Issa is correct in pointing out that the FCC has a mandate in regulating “indecency” over broadcast spectrum. Many people — including us — have been quite critical of the FCC’s attempts to “fight indecency” on broadcast TV, and have been happy when the courts have curtailed its ability to do so. However, that issue has absolutely nothing whatsoever to do with net neutrality. The FCC has this (already questionable) mandate over regulating indecency solely on broadcast (not cable or satellite) TV under the theory that the spectrum used for broadcast TV is scarce and owned by the US government who then gave it out to the networks (for free) in exchange for promising to use it to broadcast good, wholesome content.

None of that says anything about what’s happening on the internet, which is not broadcast TV in any way, shape or form. Even more ridiculous is that it’s quite clear that if you actually read Tim Wu’s opening statement, he’s saying the exact opposite of what Issa implies he’s saying. Issa simply cherry picked a few words, completely out of context, and did this grandstanding show of pretending Wu said the FCC would be regulating speech. Wu, instead, pointed out that the FCC has a role here in making sure the internet stays open for the purpose of keeping open the marketplace of ideas.

There is, in our times, an intimate relationship between Internet policy, free speech and the political process. At the risk of stating the obvious, the Internet now serves as an incredibly important platform for both political and non-political speech of every possible description. In this respect, it probably comes closer than any other speech technology to creating Oliver Wendell Holmes’ vision of a marketplace of ideas. The Internet has also served as the launching pad for numerous political movements and campaigns, and has tended to provide a place for outsider parties and candidates to challenge the establishment.

When we understand the Internet as a speech and political platform, it is clear that protecting the open Internet – dealing with matters like discrimination as between competing forms of content – has obvious implications for both free speech and the political process. You might say that to protect the open Internet is much the same thing as protecting the United States as an open society.

So Wu is making the point that by not allowing discrimination and favoritism online, we better guarantee a marketplace of ideas and open and free communications online. And Issa took a few words out of that, and pretends that it means the FCC would suddenly, magically, get the power to not just regulate speech online, but to try to censor the internet to not just get rid of porn, but bring us back to the Leave it to Beaver days? Issa, later in the talk tries to argue that given that the FCC has the power to regulate speech on broadcast TV it will obviously, automatically, seek to expand that power to new realms. This, despite absolutely no evidence that the FCC has any interest in doing that. Yes, when (Republican) Kevin Martin was in charge of the FCC, he suddenly was much more interested in enforcing the indecency stuff, but no one has realistically sought to expand the FCC’s charge over indecency beyond over the air broadcast TV, and there’s nothing in the discussion of net neutrality even close to suggesting that anyone will move in that direction. Again, if anything, guaranteeing net neutrality would do the exact opposite in making it clear that no one can regulate what content has access and what does not.

Admittedly, Wu did not handle himself very well. Right after Issa tells him not to suggest something, to immediately repeat that phrase was a bad idea — and later on he makes the cardinal sin in a Congressional hearing of trying to interrupt Issa and speak when no question was asked of him. I understand why he did it, but that’s generally considered a huge faux pas in Congressional hearings. Issa then slaps him down for trampling on his “time” which is kind of amusing, since he was just bitching about how the government shouldn’t get involved in stifling speech, but then actively seeks to not let Wu talk.

Anyway, Issa tries to drive home his suggestion that the FCC might try to ban porn online, with a massively convoluted question that is both wrong and misleading:

Issa: In my 14 years, the one thing that I have noticed is that we like to “harmonize” things. So, Commissioner Wright and Commissioner McDowell, do you have any question that if the FCC takes full net neutrality authority, if you will, that the FCC, by definition, will tend to want to harmonize other spectrum such as broadcast, and its limited cable role, with the internet. In other words, the rules of the road for broadcast, that have given us not having things on broadcast inevitably would be applied, at least in some part, to the internet. Maybe similarly to how we regulate cable to only go so far. So I’m just going to give you a simple question: You can’t put what some people consider pornography on broadcast television, can you?

McDowell: No.

Issa: And it’s extremely limited as to what can be on cable? It cannot be a free for all.

McDowell: It can’t be obscene. It’s a different constitutional standard.

Issa: Right. But, on the internet today, it is limited only to criminal acts? Is that correct? You can put anything you want on the internet, so long as it’s not a crime. Is that correct?

McDowell: Correct.

Issa: And if it is a crime, then law enforcement regulates it?

McDowell: Correct.

Except, no, not correct. At least not the implication here. The FCC has the (yes, questionable) mandate that lets it fight against indecency on broadcast TV. The claims about its role concerning cable TV are quite limited to almost non-existent. When McDowell points out that things on cable can’t be obscene, that’s also the existing standard for the internet as well. That is, when Issa says it can’t be “criminal” and that “law enforcement” will take care of criminal issues, that’s the same thing as talking about “obscene” content on cable TV, which the FCC has no real mandate over. The Supreme Court has long ruled that obscenity isn’t protected speech — and whether or not you agree with that, that’s the rule. And that applies equally on cable TV and the internet. Yes, there are a few specific parts of the law that specifically call out subscription TV for not being able to show obscene material, but it’s still based on the basic laws around obscenity.

And, nothing in any of the net neutrality stuff has anything to do with any of that. At all. Which McDowell could have explained, and sort of hinted at with his “different constitutional standard,” but it goes beyond that. Because there is nothing in the debate that has anything to do with the FCC trying to keep anything offline. In fact, throughout all of this, it’s been abundantly clear that the focus is on trying to make sure that there are no restrictions on content, rather than adding restrictions. The problem is that people (led by the telcos) are deliberately trying to conflate regulating the infrastructure layer with the content layer, in a sad and desperate attempt to block these rules that would serve only to stop broadband companies from trying to set up extra toll booths online.

Also, note the ridiculousness of the (mis)leading line of questions. Issa appears to set up a question about the likelihood of the FCC expanding or “harmonizing” efforts to censor content, even asking that specific question but never letting anyone answer it, and then completing the very same question with a much more mild question about whether or not you can put porn on broadcast TV. It’s a pretty standard political trick. You start out by asking the question you really want to imply, but never let anyone answer it. You follow up instead with an easy “yes/no” question, thereby implying to the public that the answer to the first question was also an easy “yes.”

Issa then turns back to Wu, though again fails to let him talk:

Issa: Okay, Professor Wu, I’ll give you the last word. Do you see any inconsistency with exactly that? Because you’re talking about — in your statement — about speech policy, social policy, control. Isn’t that part of the concern that the American people should have, that much of what they see on the internet could be regulated out of existence?

Wu: No, I disagree. Net neutrality prevents the exact opposite. Net neutrality protects the…

Issa: Net neutrality doesn’t exist! Net neutrality is a concept, isn’t it?

Wu: Net neutrality protects the internet as a platform for an incredible diversity of speech. We’ve had net neutrality rules, de facto, for the past 20 years. We’ve had an incredible outpouring of speech from all across the political spectrum. And I’m suggesting that if we maintain…

Issa: Professor! Professor, your own words indict you.

Issa then moves on to a different question about defining the relevant market in antitrust for competition, leading Rep. Hank Johnson to jump in and ask if he could let Tim Wu actually answer the original question. Issa claims that Wu went off topic and thus the time goes back to being Issa’s. He also suggests that Wu failed to be “succinct” in answering his questions, though as far as I can tell, at no point does Wu even get 3 full sentences in any where without Issa interrupting or talking over him.

Look, I’m just as concerned about the FCC overregulating speech with things around “indecency” on broadcast channels. And I have my concerns about the Supreme Court’s rulings on “obscenity” and how regulating against it is not a First Amendment issue. But none of that has anything to do with net neutrality. And nothing in this debate even remotely touches on the question of the FCC suddenly taking porn off the internet or making it like Leave it to Beaver. As Issa’s colleague, Rep. Jared Polis noted a few years back in a hearing on SOPA (at which Issa was also present,) the internet is for porn (placing the lyrics to the classic Avenue Q in the Congressional record). And that’s not going to change any time soon.

In fact, it could reasonably be argued that without more explicit recognition for net neutrality, the big broadband providers are more likely to try to cordon off internet porn into “premium” parts of the internet. Thus, if Issa is really fighting for more porn on the internet, he might want to listen more closely to what Wu is actually saying, rather than trotting out a highly misleading attack on Wu.

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Comments on “Rep. Issa Pretends Net Neutrality Means The End Of Porn Online”

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46 Comments
John Fenderson (profile) says:

Re: Re:

” It is blatant censorship that is in violation of the first amendment. Period.”

While I think that the censorship is objectionable, it isn’t a first amendment violation when applied to the public airwaves. That’s because the people own the airwaves and license their use out to broadcasters. We can attach any conditions — even decency requirements — onto that license that we wish. It’s no different than the fact that the owner of a website can dictate what can or cannot be published on it.

Cable TV, the internet, etc., are a different kettle of fish because those are private networks, not public airwaves. The public does not own them and has (and should have) limited say about what is sent over them.

Anonymous Coward says:

Re: Re: Re:

Sure it is. Obscenity by definition is a subjective call and and like beauty, it’s antithesis, is in the eye of the beholder. I get that the bandwidth spectrum is limited which necessitates that only some may be granted license to use the it. However, this should not be a factor under consideration for whether the government should or should not grant a license.

John Fenderson (profile) says:

Re: Re: Re:6 Re:

I do not define what is obscene and what isn’t. Courts have used the (obviously very imperfect) rule of following what the prevalent standards of the affected community are.

“why is that a valid unwritten exception to “Congress shall make no law”?”

It isn’t. There is no law saying that you can’t engage in obscene speech. There is a contractual agreement that you won’t engage in it over the airwaves that you’re leasing.

Anonymous Coward says:

Re: Re: Re:7 Re:

My question is what specifically is that “rule” based on?

The first amendment says “Congress shall make no law…” I don’t recall it saying anything about “except if it is obscene”. Since clearly obscenity here in the laws that allow the FCC to regulate the airwaves, the first amendment must clearly have and unwritten exception that allows the federal government to make laws that restrict speech based on obscenity when it comes to public airwaves.

Anonymous Coward says:

Re: Re: Re:7 Re:

I didn’t me “you” as in you personally. I meant what criteria is used to define what is and is not obscene and what is that based on? When you break it down, it is based on a things that are considered offensive to some based on a subjective moral opinion. The first amendment specifically prohibits laws that restrict speech based on morality in an attempt to guarantee a non-existent right to not be offended by something that doesn’t conform to your personal moral viewpoint. When SCOTUS determined that obscenity laws didn’t violate the 1st amendment, SCOTUS got that wrong.

Anonymous Coward says:

Re: Re: Re:2 Re:

And my point was the fact that it is a private resource rather than a public resource is no justification. Cable networks were built with subsidies from public funds as was the Internet. By your logic, since it was constructed at least partially with public funding, then the government could have a say in how that network is used. Obscenity laws are merely a means to perform and end around of the 1st amendment. I agree that the government has the right to regulate how it is used. They just don’t have the right to regulate content base on subjective moral judgements.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

“By your logic, since it was constructed at least partially with public funding, then the government could have a say in how that network is used”

That doesn’t follow my logic at all. I never said anything close to that. I’m talking about a limited natural resource that is wholly owned by the US, not something that they helped to fund.

Anonymous Coward says:

Re: Re: Re:4 Re:

It’s not a resource owned by the government. It’s a resource owned by the public. Because it is limited we let the government regulate it, the idea being that the authority given to the government by the people would help ensure that use of it is fair and good for the public. Still there should be moral judgements made on the part of the government as a basis for why one person is granted use of it over another. That is not a valid reason for any government decision as it is a direct affront to the 1st amendment and the separation of church and state.

Bengie says:

Re: Re:

OTA is considered a public resource, kind of like trying to have sex in a public park, you’ll get in trouble.

Real cable channels that are not OTA can have some pretty raunchy stuff. But the really extreme porn is less of what most people at home using PPV want to watch.

Most people in the really extreme stuff just go to the Internet.

Anonymous Coward says:

Re: Re:

Honestly, in a few more years, I could start to confuse the two myself. What’s the difference really between OTA broadcast and internet multicast traffic at the end user’s perspective? Is your cable modem supplying IPTV?
Really, the only way to tell now a days would probably be through the FCC regulations and the lack of an antenna.

amoshias (profile) says:

Why are you so surprised?

I mean, have you never heard of Darrell Issa before today? “Rep Issa manipulates hearing to suit his political goals” is a dog bites man story. Tell me about a hearing he DOESN’T manipulate and I’ll be impressed. Yes, he’s occasionally wound up on the right side of things, but 99% of the time he’s exactly what people despise when they think of Congress.

Anonymous Coward says:

just like the ‘to stop terrorism’ is used for anything possible so law enforcement dont need a judge to dotheir dirty deeds, so is porn being used as the excuse for internet censorship! because people are now wise to the stupidity of the way the entertainment industries have done and still do wrap politicians who are willing to gain the neverending flow of ‘campaign contributions’ around their fingers, they censorship happens with no warning and no judicial oversight. wait until these same industries have the control they seek and nothing will be allowed to happen unless ajudge says so!! two -faced assholes!!

John Thacker (profile) says:

Of course, if Rep. Issa said that “allowing the FCC to approve applications for transatlantic cables will allow the NSA to tap all our communications,” you’d probably call that silly too. You’d be wrong, though.

Negotiating leverage has come from a seemingly mundane government power: the authority of the Federal Communications Commission to approve cable licenses. In deals involving a foreign company, say people familiar with the process, the FCC has held up approval for many months while the squadron of lawyers dubbed Team Telecom developed security agreements that went beyond what?s required by the laws governing electronic eavesdropping.

The FCC has historically had an interest in regulating indecency. It has only had the power to do so over broadcast spectrum. It’s not crazy to suggest that an FCC granted additional powers over the Internet (and cable TV, since much of the interesting aspects of Net Neutrality have to do with ISPs that are cable TV operators perhaps wanting to cripple competing Internet streaming video) could seek to use them.

You’re being pretty naive if you think that granting an agency such as the FCC additional powers means that it will never use them in ways that you dislike (but many other busybodies would call for.)

John Fenderson (profile) says:

Re: Re:

Not buying it. Using the FCC as leverage is only a matter of convenience. If the FCC had no authority at all, the NSA would tap the cables to exactly the same extent.

“You’re being pretty naive if you think that granting an agency such as the FCC additional powers means that it will never use them in ways that you dislike”

I doubt that anyone thinks that. But, on the flip side, at least it gives us some degree of say about how the powers are used.

The porn argument is stupid, though. I have a very hard time seeing how anyone can stop the porn, regardless of how hard they try. Right now, there are a number of US states where the majority of internet porn is against the law. Those states tend to have a higher than average amount of porn viewing.

That One Guy (profile) says:

Re: Re:

Wait, they might be on to something here…

Get rid of net neutrality, and you can regulate or even abolish porn…

Too much porn causes people to go blind(according to some accurate and totally unbiased fundamentalists)…

Therefor getting rid of porn would save people from going blind!

See, they really are looking out for people when they’re trying to claim that net neutrality is a bad thing that should be gotten rid of!

Whatever says:

going

Where Issa is going with this is the simple question: If the FCC becomes involved in regulated the Internet, are they required to treat it like any other public broadcast medium and impose restrictions on the content that can be viewed by all?

See, the FCC regulates OTA TV with very strict laws, because there is no way to decide if someone is of legal age or not. Shows can be watched by 10 year olds without restriction.

They don’t regulate cable networks (such as HBO) in the same manner, as you must be an adult to sign up for the service, and thus, that person is “in control” of who sees it. The result is crime dramas on broadcast TV, and Game of Thrones tits’n’gore on HBO.

Now which model would the internet be under? Free Wi-Fi? Hmmm. Sounds like there is potential for children to have access to the signals for free.

Issa is being a real chicken little here, but the position does have a small amount of basis in fact.

Zonker says:

Issa goes off topic bringing broadcast TV censorship into a discussion on net neutrality and rambles on about it and that’s OK, but Wu tries to bring the discussion back to net neutrality protecting free speech for three sentences and that won’t be allowed because it’s “off topic” and “fails to be succinct”?

Methinks Issa had a few too many Pan Galactic Gargle Blasters before attending that House Judiciary Committee hearing.

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