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The FCC Stumbles Into Internet Filtering

Wendy Seltzer

What could be bad about free wireless Internet access? How about censorship by federally mandated filters that make it no longer "Internet." That's the effect of the FCC's proposed service rules for Advanced Wireless Service spectrum in the 2155-2180 MHz band, as set out in a July 20 Notice of Proposed Rulemaking [DOC].

Acting on a request of M2Z Networks, which wants to provide "free, family-friendly wireless broadband," the FCC proposes to require licensees of this spectrum band to offer free two-way wireless broadband Internet service to the public, with least 25% of their network capacity. So far so good, but on the next page, the agency guts the meaning of "broadband Internet" with a content filtering requirement. Licensees must keep their users from accessing porn:


§ 27.1193 Content Network Filtering Requirement.
(a) The licensee of the 2155-2188 MH band (AWS-3 licensee) must provide as part of its free broadband service a network-based mechanism:

(1) That filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age;

(2) That must be active at all times on any type of free broadband service offered to customers or consumers through an AWS-3 network.  In complying with this requirement, the AWS-3 licensee must use viewpoint-neutral means in instituting the filtering mechanism and must otherwise subject its own content — including carrier-generated advertising — to the filtering mechanism.

(b) The AWS-3 licensee must:

(1) inform new customers that the filtering is in place and must otherwise provide on-screen notice to users. It may also choose additional means to keep the public informed of the filtering, such as storefront or website notices;

(2) use best efforts to employ filtering to protect children from exposure to inappropriate material as defined in paragraph (a)(1). Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content as defined in paragraph (a)(1) not be accessible as part of the service.

There are clear First Amendment problems with government-mandated filtering of lawful speech. The Supreme Court reminded us that a decade ago, striking the Communications Decency Act, the first unconstitutional effort to censor the Net. It's still lawful for adults to view and share non-obscene pornography, and still unlawful for the government to restrict adults from doing so. But this rule digs deeper architectural problems too.

Like or hate lawful pornography, we should be disturbed by the narrow vision of "Internet" the filtering rule presupposes, because you can't filter "Internet," you can only filter "Internet-as-content-carriage." This filtering requirement constrains "Internet" to a limited subset of known, filterable applications, ruining the platform's general-purpose generativity. No Skype or Joost or Slingbox; no room for individual users to set up their own services and servers; no way for engineers and entrepreneurs to develop new, unanticipated uses.

Why? To block naked pictures among the 1s and 0s of Internet data, you need first to know that a given 11010110 is part of a picture, not a voice conversation or text document. So to have any hope of filtering effectively, you have to constrain network traffic to protocols you know, and know how to filter. Web browsing OK, peer-to-peer browsing out. You'd have to block anything you didn't understand: new protocols, encrypted traffic, even texts in other languages. (The kids might learn French to read "L'Histoire d'O," quelle horreur!) "Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content ... not be accessible as part of the service."

The Internet isn't just cable television with a few more channels. It's a platform where anyone can be a broadcaster — or a game developer, entrepreneur, activist, purchaser and seller, or inventor of the next killer app. Mandated filtering is the antithesis of dumb-pipe Internet, forcing design choices that limit our inventive and communicative opportunity.

Edit M2Z's prepared text to just say no to filterband.

See also Scott Bradner, David Weinberger, Persephone Miel.

By Wendy Seltzer, Law professor. More blog posts from Wendy Seltzer can also be read here.

Related topics: Access Providers, Censorship, Net Neutrality, Policy & Regulation, Telecom, Wireless

 
   

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