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
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.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:
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.
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.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 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.
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).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.
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.
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.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.
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.
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.