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