Dianne Feinstein Worries That Net Neutrality Will Block ISPs From Censoring 'Terrorist' Content She Doesn't Like

from the that's-not-how-any-of-this-works dept

Dianne Feinstein has this weird obsession with book burning and violating the First Amendment. Just a few months ago, we wrote about her ridiculous rant about how the First Amendment doesn’t cover The Anarchist Cookbook and that it should be banned from the internet:

I am particularly struck that the alleged bombers made use of online bombmaking guides like the Anarchist Cookbook and Inspire Magazine. These documents are not, in my view, protected by the First Amendment and should be removed from the Internet.

This was in response to yet another of the FBI’s homemade terrorist plots, in which an undercover FBI informant gave some clueless individuals both The Anarchist Cookbook and Inspire Magazine and told them to read it. Feinstein, apparently not understanding that these documents came from the FBI, seemed to think the publications should be banned and that the First Amendment doesn’t apply to them. She’s wrong. And, worse, she knows she’s wrong, because 18 years ago the Justice Department told her she was wrong:

The Department of Justice agrees that it would be appropriate and beneficial to adopt further legislation to address this problem directly, if that can be accomplished in a manner that does not impermissibly restrict the wholly legitimate publication and teaching of such information, or otherwise violate the First Amendment.

The First Amendment would impose substantial constraints on any attempt to proscribe indiscriminately the dissemination of bombmaking information. The government generally may not, except in rare circumstances, punish persons either for advocating lawless action or for disseminating truthful information — including information that would be dangerous if used — that such persons have obtained lawfully.

But, no matter, Feinstein continues to insist that these publications are illegal and should be wiped from the internet. And, now, suddenly, she’s afraid that net neutrality will block her from getting her wish of unconstitutionally banning books from the internet. Which makes her wrong on multiple levels. Back in February (a couple of months before her nonsensical public rant), she sent FCC boss Tom Wheeler a letter, asking him to make sure that net neutrality wouldn’t get in the way of her unconstitutional censorious desires:

As you consider your proposed Order for an open Internet, I urge you to again include provisions that will preserve the ability of Internet service providers to block access to material that endangers public safety, violates intellectual property protections, or threatens national security.

As you may know, terrorists are actively using the Internet to recruit disgruntled youth, and to encourage them to commit acts of terrorism. Pirate websites use the Internet to steal millions of dollars of intellectual property from American creators and businesses. Predators use the Internet to lure and traffic in children, among other crimes. It is therefore essential that Internet service providers (ISPs) have the ability to impede access to sites and services that facilitate these activities.

Wheeler responded to Feinstein in April (right after her public rant), in which he pointed out that net neutrality wouldn’t actually stop an ISP from blocking “illegal” content, so she shouldn’t worry about it:

As you stated, it is essential that ISPs still have the ability to prevent access to sites and services that facilitate illegal and criminal activities. The Open Internet rules are not intended to expand or contract broadband providers’ rights or obligations with respect to other laws or safety and security considerations, including the needs of emergency communications and law enforcement, public safety, and national security authorities. Similarly, the Open Internet rules protect only lawfal content and are not intended to impede efforts by broadband providers to address unlawful transfers of content or transfers of unlawful content.

You’ll note, of course, the little sidestep by Wheeler, that ISPs can block “illegal” content, which leaves aside the fact that The Anarchist Cookbook and Inspire are legal content protected by the First Amendment.

And, apparently, that wasn’t good enough for Dianne Feinstein and her desire to censor the internet. As Eric Geller at the Daily Dot pointed out last week, back in May, Feinstein wrote to Wheeler once again, this time focusing much more specifically on Inspire magazine, rather than her original, more general “material that endangers public safety”:

Unfortunately, it has recently come to my attention that some broadband providers are suggesting, including through discussions with my staff on the Senate Select Committee on Intelligence, that the FCC order may prevent them from blocking the posting of information that inspires and aids terrorist activity such as Inspire magazine, an online publication produced by al-Qa’ida in the Arabian Peninsula (AQAP).

I write today to urge the Commission to clarify that the Open Internet order does not protect content like Inspire magazine, which seeks to encourage and assist individuals in carrying out acts of terrorism.

She goes on with a rather long description of Inspire magazine and some of its articles and claims that “there is no reason to publish this information for reasons other than to assist readers in carrying out terrorist attacks.” Then there’s fearmongering about how various terrorirst wannabes read Inspire (she leaves out the parts about the FBI giving it to some of them… I wonder why?) and ridiculously suggests that without Inspire, Dzhokhar Tsarnaev might not have bombed the Boston Marathon.

And then she gets back to the point. She’s apparently been pressuring ISPs to start blocking that publication, and at least one pushed back on her pointing to net neutrality rules:

The FCC’s Open Internet order does not appear to prevent a broadband provider or other type of company from taking reasonable steps to block such material for at least two reasons. First, in many cases, distribution of Inspire would violate federal criminal laws, such as Section 842(p) of Title 18 of the United States Code, or laws criminalizing material support to terrorists or terrorist organizations. Thus, companies can take reasonable steps to combat the distribution of such content.

Moreover, the Open Internet order clearly states that it does not alter a provider’s rights or obligations with respect to “safety and security considerations” or the needs of public safety and national security authorities. Therefore, a broadband provider clearly is permitted to take public safety or national security into account by taking action against such content.

Nonetheless, there is apparently confusion among at least some broadband providers on whether they may take such actions in order to promote national security and law enforcement purposes. I therefore ask that you promptly confirm that they may do so, consistent with your Open Internet order and any other applicable FCC order. I look forward to your response and appreciate very much your attention to this important issue.

All of this is ridiculous, of course. Whichever ISP pointed to net neutrality as a reason why it won’t censor the internet was doing one of two things: (1) trying to get this Senator to leave them alone and stop bugging them about censoring completely legal content online, or (2) seeing an opportunity to get a Democratic Senator (who has mostly been supportive of net neutrality) on their side to fight against it. And she fell for it.

Either way, despite Feinstein’s quixotic desire to censor the internet of content she doesn’t like, it’s worth noting that the First Amendment doesn’t allow her to censor content, and she’s been told this for many years — and yet apparently she’s directly applying pressure to ISPs to censor the internet. That seems quite questionable. Separately, net neutrality and the open internet rules from the FCC have absolutely nothing to do with this, and Feinstein’s weird letters to the FCC about the matter are just her falling for some ISP playing games with her to get her on their side against net neutrality.

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Comments on “Dianne Feinstein Worries That Net Neutrality Will Block ISPs From Censoring 'Terrorist' Content She Doesn't Like”

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That One Guy (profile) says:

"Let's just skip these steps shall we?"

If some content is illegal, than go to court, present your case, get a ruling from a judge in your favor, and take that to the ISP. Really not that hard, unless

…it’s not illegal, you have no case, you’d be hard pressed to find a judge that would agree with you in a manner that the ruling would stand up in another court, the ISP believes in free speech more than you do, and is willing to fight back.

Not hard to see why she’s going straight to the ISP’s, she knows her arguments would never survive in any court with even a sliver of respect for the first amendment and/or the principle of free speech in general.

Anonymous Coward says:

Letter to Dianne Feinstein

the best way to reduce terrorism is to stop imposing your politics and morality on other people. Further, given your religion and its experiences, I would have though that you were very aware of the dangers of politicians imposing their views on those of a different persuasion.
everybody in the world with a different viewpoint on politics and morality.

Anonymous Coward says:

Re: Re: Letter to Dianne Feinstein

If you know anything about Jewish history you would realize that I was referring to the many occasions where the Jews were persecuted, not just the most infamous one. Another famous period where one set of people tried to impose their view on other was the Spanish Inquisition, whose initial targets were Jews and Muslims in Spain. There were others throughout history, which is why the Jews as a people are so widely dispersed throughout the world.

Mason Wheeler (profile) says:

Re: Re: Re: Letter to Dianne Feinstein

…do you even know what the Spanish Inquisition did?

You know, the guys who pioneered the concept of the presumption of innocence (“innocent until proven guilty”) and the defendant’s right of access to legal council? The people who effectively put an end to witch trials in Spain a century before the rest of Europe, by the simple expedient of requiring proof of the accused working black magic in order to convict? The guys who were one of the biggest civilizing forces of their day, and for that get remembered today as villains?

Apparently nobody respects the Spanish Inquisition.

Uriel-238 (profile) says:

Re: Re: Re:2 Innocence until proven guilty is not getting a good endorsement by the Spanish Inquisition

…which was still persecuting jews for being jews. The Spanish Inquisition was better than the Holy Inquisition in its degree of deliberateness, but it still prosecuted minorities and it still indulged in a bit o’ the old cold-blooded torture.

And it still serves as an example of overreach and abuse when heinous programs go without valid oversight.

Bet you’re wishin’ that we would go away,
But the Inquisition’s here and it’s here to stay!

Uriel-238 (profile) says:

Re: Re: Let's play the moral panic card instead.

I’m personally fond of applied Godwinism, given the United States, Israel and, oh heck, everyone is fond of Good thing it could never happen here.

But let’s look at it another way: We are crap for telling what media (speech) is dangerous, and can’t tell bomb-making instructions from terror-inciting propaganda from satanic rituals from neo-pagan rituals from rock-and-roll and role-playing games.

Our current web filtering databases still accept anti-gay rhetoric that uses the language identical to antisemitic or white-pride rhetoric.

At the point we freaked out over playing Stairway To Heaven backwards, society proved it doesn’t deserve the privilege of deciding what is or isn’t dangerous.

Doxing in the meantime, crosses incitement and privacy lines. There should be a way to single it out as criminal or at least very bad form.

Sheogorath (profile) says:

This was in response to yet another of the FBI’s homemade terrorist plots, in which an undercover FBI informant gave some clueless individuals both The Anarchist Cookbook and Inspire Magazine and told them to read it.
Dianne Feinstein must be truly clueless to not realise that if you make anything out of The Anarchist Cookbook, you’re extremely likely to blow yourself up before you get the chance to blow anybody or anything else up, which totally destroys the point of using it for FBI-goaded ‘terrorists’.

mcinsand@gmail.com says:

Re: Re: one exception

IF I remember correctly, there was a discussion in the Anarchist Cookbook section on hand-to-hand combat that sounded like good advice. It had to do with knife fighting and the recommendation was that, if you’re not trained to fight with a knife, then your best defense is to run as hard as you can.

Again, that is IF I remember the correct book. It’s been decades since I’ve read anything in the book, and someone swiped my copy.

Anonymous Coward says:

Re: Re:

That reminds me of Burnie from Rooster Teeth’s adventures with the Anarchist’s Cookbook in which he decided to make napalm. Step 1: boil gasoline. Which he did on the kitchen stove. His mother was not particularly pleased. I think it’s mentioned in one of the animated adventures clips.

Anonymous Coward says:

Re: Re:

if you make anything out of The Anarchist Cookbook, you’re extremely likely to blow yourself up before you get the chance to blow anybody or anything else up

In other words a good anarchistic solution to the problem of those who would use force to impose their politics on other people, teach them how to blow themselves up.

tqk (profile) says:

Re: Re: Re:

if you make anything out of The Anarchist Cookbook, you’re extremely likely to blow yourself up …

In other words a good anarchistic solution to the problem …

Perhaps, but it is a rather new thing for the FBI to be in the business of encouraging/facilitating potential perps to Darwin Award themselves. How are they going to rack up convictions and keep the prison population up when the fibbies are teaching them to pre-emptively off themselves instead?

Sheogorath (profile) says:

Re: Re: Anybody remember...

In the section of the Loompanics article entitled Market Position, Wikipedia states the following: According to Gia Cosindas, Amazon.com, eBay, and Google refused to allow Loompanics to advertise on their sites, since some of the books’ content violates their editorial guidelines. Specifically, Google wrote, “At this time, Google policy does not permit the advertisement of websites that contain ‘the promotion of violence [and] drugs or drug paraphernalia.'” That’s not a First Amendment violation, granted, but it is still censorship.

Sheogorath (profile) says:

Re: Re: Re:2 Anybody remember...

Yes, it’s still censorship, but it’s not government censorship.
Can you point to where I said it was? In fact, I distinctly recall saying that such censorship wasn’t a First Amendment violation.
As large as Amazon, eBay, and Google are, they should still be allowed to choose whether or not to do business with homosexual people. I don’t really see a problem with that.
The problem is when they decided not to allow Loompanics’ entire library to be sold on their platforms just because they had issues with the content in a few of their books. This is similar to denying an Internet connection to somebody just because they’re in a romantic partnership with someone of the same gender, as pointed out by my paraphrasing of your statement above.

Anonymous Coward says:

Re: Re: Re:3 Anybody remember...

Can you point to where I said it was?
Never said you did. If anything, I was just expanding on your point as a lead-in to my next statement.

This is similar to denying an Internet connection to somebody just because they’re in a romantic partnership with someone of the same gender, as pointed out by my paraphrasing of your statement above.
No, they aren’t similar at all. Refusing to do business with you because I don’t like your product(s) is completely different from refusing to do business with you because of your sexual orientation. Now, if it ever happens that “type of content” gets the same legal protections as “sexual orientation” your argument might hold water, but for now I don’t think so.

That said, I do see where you were going with your analogy, and I agree with you to a point. It would have made more sense to only refuse those books with which Amazon/eBay/Google took issue instead of dropping the entire catalog. However, I do think that the companies should be allowed to make that choice – even if it’s a bad one.

Anonymous Coward says:

Re: Re: Re: That's it

Speaking of watch-lists, back in 88 or 89, I subscribed to the Loompanics catalog, which was informative all by itself (it had articles, etc). Not long after, I received a call from a woman purporting to represent the “FBI”, wanting to do a survey about the public’s perceptions of the FBI. Anyone else remember getting a call like that?

Anonymous Coward says:

Re: Anybody remember...

Here’s the thing I don’t understand. Are we supposed to ignore all dangerous substances because they could be used as a weapon? Sulfuric acid and sugar combine to create carbon and water, a simple experiment which probably every chem teacher has demonstrated could possibly be bomb material. Then kids being kids discover other wonderful household goods which are even better. Perhaps the wonderful brake fluid and chlorine chemical reaction which will explode. Link Scientific explanation, because Sen. Feinstein probably can’t understand it. Basically, there’s a shit ton of bomb making materials you can probably come across everyday, and sadly these might be the same kids that come across the newest drug that stops the progression of nervous cell degeneration that Alzheimer’s disease produces. Chemistry is a bit of WTF, a bit of OMG, and as well the bloody future of medicine. I say she’s basically promoting US ignorance, because the little mad scientist in another country will probably learn more or possibly die sooner through valid scientific process, but in the end, someone will still learn more over there.

Uriel-238 (profile) says:

Re: Re: Re:3 I think the point is...

Whenever someone advocates there should be a law! it raises the question of defining what to criminalize without overreach (banning lots of benevolent stuff that qualifies) and underreach (making the law easy to circumvent).

Right now, for example, the Anti-Circumvention Clause of the DMCA criminalizes plenty of activities that would be beneficial to society, as well as infringing on the personal rights of end-users, just in the name of preventing piracy.

That said, that would be the beginning of the conversation of how to implement a law. And in the meantime, most transgressors are outside the United States.

Technically, the internet itself is outside the jurisdiction of US law, much to the chagrin of legacy IP industries.

tqk (profile) says:

Re: Re:

“Save the children, stop the illegal pirates, and stop the bad people”.

Yes, and most importantly for her, she fails (or actively avoids) to see that she’s one of the worst sorts of “bad people.” Introspection can be fatal for them.

Damn the torpedos; full speed ahead; don’t question the agenda! That way could lead to a path out of chaos, and how could she matter to anything then? She’d be exposed as the wisp of pointlessness she really is. There’s no power to be had in that course.

Ken Mitchell (profile) says:

Isn't TechDirt BASED in San Francisco?

Isn’t TechDirt BASED in San Francisco? Then you, or your employees, probably VOTED for this harridan multiple times; when she was at City Hall, when she ran for Mayor, and now for an interminably-long time, in the Senate. Between SF and LA, there are enough low-information city voters to keep electing these two witches of the West, Feinstein and Boxer. There aren’t enough of us Sacramento and mountain folks to retire that bint and send her treasonous butt home.

Whatever lunacy Feinstein is promoting now, it’s just same-old, same-old for the idiocy she’s been peddling for 30 years.

Gary Mont (profile) says:

Re: Isn't TechDirt BASED in San Francisco?

Silly poster.

Votings are for Fantasizers.

Your system of elections was long ago replaced by a far more precise system of corporate selections.

Before the Modern Era, when not all the candidates were corporate shills, it became necessary to devise a number of methods to control the vote results to insure that only those trusted few had any chance of holding office – any office.

Now the rulers have electronic voting and have over the years mastered numerous ways and means of altering the vote count so that they can be sure who will be at the head of the table.

They have also perfected the Hollywood Pre-Election Performance Process to redirect the vote towards their Chosen One through massive pre-election public exposure to all the clown-candidates that were fielded to fail spectacularly, on purpose.

Take the current vote for POTUS coming up – Americans have not yet been introduced to the winner, as she is still hanging back in the wings, while the (tried and true) Candidate Circus Performers – Clinton, Bush, Trump, etc., dance around the ring, stunning the public with their separate and combined idiocy and insuring that nobody in their right minds will vote for anyone but the Ringer, once she is introduced – in about 250-300 days or so.

Once again it will be a Republican in a Democrat Hat, although in reality, neither label actually exists any more, except as public misdirection.

In truth, she will be a fascist-trained, good-looking, smooth-talking con-artist, (likely a lady, as the black card will not work twice to fool people into thinking the Ringer is a Democrat), who will do whatever she is told to do, and say whatever she is told to say, by those who selected and groomed her for the position of American Figure Head.

If the ruse goes as well as it did with Drones O-Bomber, they wont even need to electronically fix the vote tally to match their desired numbers. Voters will simply vote for the only (apparently) sane choice.

Admit it. Deep down, you already knew all of this. 🙂

Gary Mont (profile) says:

Re: Re: Isn't TechDirt BASED in San Francisco?

PS – Hillary is being continuously touted as the shoe-in candidate, even in the face of serious security scandals, because it is her job to make the Public accustomed to the idea of a female president, so that when the Ringer is finally introduced, she will automatically replace the obviously corrupt – but best possible choice among the clowns – Clinton, as the new Shoe-In Candidate and the public will have already gotten used to the idea of a woman POTUS.

In this way, even if the public does not actually cast their vote for the Ringer, it will be easy to convince everyone that they DID vote for the Ringer, just like the fixed numbers show, because there really was no other choice available.

Secret ballots are a 2 edged sword. 🙂

Anonymous Coward says:

Sen. Spystein appears to be a firm believer that if governments controlled the internet, then they could thwart ISIS/ISIL/IS recruitment efforts. It’s an absurd way of thinking.

If sending the US military into Iraq and toppling Saddam Insane didn’t crush ISIS, I doubt death gripping the internet is going to be more effective in crushing ISIS’ cause.

What Sen. Spystein should really be asking herself is what caused ISIS’ rise to power in the first place? The obvious answer is American intervention in the Middle East caused it.

Now she wants to intervene more by controlling the internet. We saw how well controlling the Middle East turned out. Trying to control the internet will end in similar disaster.

Some people refuse to learn from the past. Such individuals are doomed to repeat history.

c9870 says:

told a friend this and he retorted:
“it doesn’t matter what they say, if they want to censor the internet they will.”

also (a summary of what he said)
‘they just need one person to sign off on a censorship, and they will have to, because they are regulated now by the government.’
‘it doesn’t matter what is in the law, they will just come up later and go around it’

some people are so dense and anti-regulation, even over an industry that is in very much in need of it. (see next article about comcast doing data cap to try to raise even more money (link just in case: https://www.techdirt.com/articles/20150814/12144431948/comcast-admits-broadband-usage-caps-are-cash-grab-not-engineering-necessity.shtml))

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