Close Up the Internet and Repeal the First Amendment

You know elections are upon us when politicians start talking about wanting to “close up” the Internet, or censor Twitter and Facebook.  Throw in a couple terrorist attacks and you have the perfect storm for loss of cherished First Amendment rights.

Donald Trump’s suggestion that America should consider “closing up the Internet in some way to fight Islamic State terrorists in cyberspace” illustrates the danger lurking around the corner for any disfavored speech.  In the early days of the Internet, the U.S. government took the lead in attempting to censor ‘indecent’ online communications, by passing the “Communications Decency Act (“CDA”).” Deemed the “Great Internet Sex Panic of 1995,” politicians in that time saw adult websites as a threat to the foundations of society, so they attempted to “close up” that part of the Internet.  What remains of the CDA is now often cited as a protection of free speech (i.e., “Section 230”), but the bulk of the legislation, which prohibited indecent Internet content, was struck down by a unanimous Supreme Court in 1997.  The Court could spot that blatant censorship attempt a mile away.

Now the Senate is considering legislation that would force social media companies to monitor posts, and report any “terrorist activity” to the government.  Sen. Diane Feinstein did some investigating and found that while sites like Facebook, YouTube, and Twitter take down content in response to valid abuse reports, they do not proactively monitor their networks, or report suspected violations to the government. “I think they should,” she said at a recent Judiciary Committee hearing.  Of course, the entire legal premise on which most online service providers operate is that they are not required to monitor the content of third party posts, or scour their networks for references to potentially unlawful activity.  Imposing that kind of burden could easily bring Internet traffic to a screeching halt, given the manpower, expense, and legal risks associated with operating an online service under those conditions.

However, the government has been busy laying the groundwork for imposing the burden of monitoring and censoring online speech in numerous ways; beginning with the startling life sentence handed down against the operator of SilkRoad.com, the passage of the SAVE Act, the criminal prosecution of escort advertising networks, and the intimidation of credit card processors associated with Backpage.com (later found to be unconstitutional). Each of these actions represents an attempt to hold an online service provider responsible for third party posts or advertisements.

Some of those calling for the proverbial heads of social network operators for permitting uncensored use of their networks rely on a provision of the USA Patriot Act, which prohibits anyone from providing “material support” to a terrorist organization.  If this action is prohibited, how can Twitter get away with providing a network for distribution of jihadist propaganda? Or so the argument goes. Despite Supreme Court Justices expressing some “grave concerns” with the constitutionality of that prohibition under the First Amendment, the law was upheld in 2010.  Thus began the gradual chipping away at what used to be a clear prohibition on criminalizing political speech.

Others who are upset with an open marketplace of ideas cite to legal obligations imposed on Internet service providers to remove and report child pornography, or take down reportedly infringing material under the DMCA, as evidence the government already has the tools it needs to create a valid, online censorship regime. Each of these instances can be distinguished from the wholesale prohibition of online communications envisioned by those desperate to find a quick fix for the complicated threat of terrorism facing today’s world populace.  Child pornography falls into one of the rare, historically unprotected categories of speech, given its unique, horrific nature – and the fact that it records the criminal act of child abuse.  DMCA takedowns do not involve censoring speech by the government, but the civil enforcement of intellectual property rights by copyright holders.  The targeted material may still be protected by the First Amendment, but owned by someone with superior rights to control its distribution. Mixing all these potential ‘options’ into a big, convoluted soup encourages the talking heads and politicians to conclude that there “must be a way” to close up the Internet, and keep us safe.

Renowned enemy of the First Amendment, Eric Posner, uses the threat posed by ISIS to promote “new thinking about the limits on freedom of speech.”  His latest attack on one of civilization’s most sacred values proposes a law that would criminalize access to websites that glorify or provide encouragement for ISIS.  Aside from the fact that true jihadists would likely use encrypted communications to evade detection, and investigators would lose the ability to monitor and track threatening communications, censorship never works and often backfires.  Typically such laws call more attention to the censored speech or inadvertently silence opposition views as well. History proves that the cure for bad speech is more speech, not censorship.  While recent calls to clamp down on free speech rights have been effectively mocked by civil libertarians, the proposals are becoming too frequent for comfort. Should one of these proposals gain traction, be prepared for a demand to block some type of erotic speech that a legislator decides is too extreme for his or her tastes. That’s exactly what happened when Iraq started blocking terrorist’s speech earlier this year – the ban on pornography soon followed.

In any other time, the author would conclude this article with a calming observation that the First Amendment protects offensive and even hateful speech, and that would be the end of it. The calls for censorship would eventually be quelled by cooler heads that were well-grounded in constitutional restraint on governmental power.  But we live in a time when Yale University students are perfectly willing to sign a petition to repeal their First Amendment rights (including the right to petition). We also exist in a world of trigger warnings, safe spaces, and abundant micro-aggressions, where university professors call for some “muscle” to kick journalists out of public protests.

The First Amendment was once held sacred – particularly when it came to online communications.  The Internet was everyone’s soap box, where the speaker didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights. However, in a time when 34% of poll respondents say the First Amendment goes too far, and the same percentage have no idea what rights the First Amendment protects, the bedrock principles that have formed the basic protections for online speech are on shaky ground.  Let’s hope they survive another election cycle.

The War on Porn Rebranded as the War on Sex Trafficking

On October 8, 2014, ThinkProgress.com declared the end to the War on Porn. The censors had lost and erotic media would live on.  One sign that the war had been lost was the fact that annual contributions to the well-known anti-erotica group, Morality in Media, had dwindled from over $1 million dollars in 2001 to just over $20,000 in 2005. By 2006, the group terminated its lobbying registration entirely. A few years later, Attorney General Eric Holder completely disbanded the Obscenity Task Force, which was formerly responsible for bringing federal obscenity prosecutions.  The Unit’s most recent misadventure, the case against John Stagliano, ended in disaster for the government, with all charges being dismissed by the court.  It seems the end has indeed come for the War on Porn. So is there cause for celebration?

Yes and no.  Certainly, the apparent end to active obscenity prosecutions is a victory for the First Amendment. This uncertain legal risk that plagued adult industry operators for years seems to have subsided.  But censors never change their stripes. Sex panic still sells, politically; it just needed a 21^st Century face lift.  Thus “The War on Human Sex Trafficking” was born.  Who can turn their backs on helpless women and children sold into a life of servitude?  As it turns out, this is one of the few bipartisan issues left in Congress.

The War on Trafficking has become a legislative juggernaut, with numerous bills introduced this Session having some connection with trafficking.  The two most important bills are now pending in the Senate, and are designated S. 572 (the SAVE Act) and S. 178 (the Justice for Victims of Trafficking Act).  The main sponsor of the SAVE Act, Senator Kirk (R-Ill), recently introduced this bill as an amendment to S. 178, so they are presently combined.  While the SAVE Act purports to add just a few words to 18 U.S.C. s. 1591, its impact could be dramatic.  If passed, the bill would criminalize the advertising of any sexual act involving minors or coerced adults, and result in mandatory 10-15 year jail terms.  One problem: How does an online advertising network tell if an advertisement violates these prohibitions?  In the absence of face to face interaction with advertisers, is it realistic to require a website to know the age, much less the state of mind, of its advertisers?  A large part of this effort has been directed at Backpage.com, and its escort advertising activity.  If this bill is adopted, escort advertising sites will supposedly be required to identify and block any ad posted by a minor or a coerced adult.

While a last minute dispute between Republicans and Democrats, regarding a provision of the bill restricting payment for abortions, prevented the bill from near adoption in March, 2015, the bill still enjoys widespread bipartisan support. An identical House version of the SAVE Act, HR. 285, already passed that Congressional body. Should this legislation be passed into law, it could represent the biggest threat to the adult entertainment industry in modern times.

Naturally, the bill’s sponsors hope that escort advertising sites will conclude that the risk of prosecution is too high, and simply shut down.  This is an exceedingly short-sighted approach to the problem of identifying sex traffickers. Closing sites like Backpage.com will actually hurt trafficking victims. Currently, these sites represent the most significant, reliable source for law enforcement investigations into trafficking cases.  Clearwater Police Chief, Anthony Holloway, recently stated in an interview with Reason.com, that sites like Backpage.com are a valuable investigative tool for trafficking, and that if shut down, the traffickers would just go to other sites. Such “other sites” may well be located offshore, and outside of U.S. jurisdiction, yet be able to display the same ads to the same audience as U.S. based sites.  So the only real impact of forcing these sites out of business will be the loss of a quick, reliable source of information about sex traffickers.

Beyond the loss of an important investigative resource, the SAVE Act will negatively impact online innovation.  As noted by the Center for Democracy and Technology, criminalizing online advertising runs counter to the First Amendment, and the strong protections afforded to interactive computer services under Section 230 of the Communications Decency Act. Forcing network operators to screen ads and advertisers for potential trafficking activities will slow this Internet traffic to a screeching halt, for those who continue to operate in the space.  Other entrepreneurs will simply conclude that the risks are too great and avoid developing new technology and business models that would otherwise contribute to the online marketplace.

The other bill pending in Congress, S. 178, is a mammoth piece of legislation that incorporates the so-called HERO’s Act, which will funnel money into the investigation and prosecution of sex-trafficking cases at all levels.  Essentially, local prosecutors will be able to get their hands on federal money if they find sex trafficking cases to pursue.  While this may help some trafficking victims, the incentive to generate questionable investigations with the promise of a large federal dollar payoff is problematic.  It will only be a matter of time before some enterprising prosecutor will decide to test the boundaries of the First Amendment, and charge some advertising network with trafficking because a user-uploaded escort ad involved a “coerced” adult.  The problem doesn’t stop with escort advertising.  Any sex act is potentially covered under the pending legislation, such as those which routinely occur on live web cam sites.  If the web cam model happens to be performing under duress, new trafficking laws could kick in and result in mandatory 10 year prison sentences for those who advertised the services.  The same result could occur with ads for gentlemen’s clubs, if the performer engaged in a sex act and turned out to be trafficked.  The room for uncertainty is substantial.  The potential for self-censorship is massive.

Sex trafficking is one of our nation’s problems, but the size of the problem is highly debatable.  An oft-quoted statistic from a 2011 study states that over 300,000 children are “at risk” of being trafficked every year.  But that number relates to the potential victims of trafficking, not actual trafficking victims. And most “trafficking” involves forced labor, not sexual slavery.  It is also frequently argued that the Internet has become the #1 platform for advertising prostitution.  That’s hardly shocking, given that the Internet has become the #1 platform for just about all goods and services in modern times.  That’s certainly not a reason to pass laws designed to criminalize passive interactive computer services.

While the scope of the trafficking problem is difficult to identify, the powers pushing the War on Trafficking can be found with ease.  Perhaps not surprisingly, Evangelical Christians have embraced the movement, and have essentially hijacked it from its feminist roots. It has become a virtual cause célèbre in the Evangelical movement. There’s a “Shine a Light on Slavery Day” (Feb. 27, if you’re interested), prayer weekends, movies, even lipstick sold to “kiss slavery goodbye.” One Christian trafficking activist and megachurch pastor, David Platt, even tried to connect trafficking to porn, writing in his book; “Every time someone views pornography, they’re contributing to the cycle of sex slavery.”

Perhaps the most telling sign that the War on Porn has been rebranded as the War on Trafficking: Morality in Media recently announced that it was changing its name to the “National Center on Sexual Exploitation.” Maybe those donations will start rolling in again.

More of the Same from Polk County’s Thought Police

Sheriff Grady Judd and his crew is at it again. Now they’ve turned their sites on some hapless gas station owner in Dundee, Florida, for allegedly selling some girly videos. Little did she know that the all powerful local government knew better than her what kind of entertainment the delicate citizenry of Polk County could tolerate. So now Minakashiben Patel sits in jail, apparently on a no-bond status, facing charges of obscenity. This isn’t the first time that this Central Florida jurisdiction has tried to enforce its version of “decency” on its citizens. The following article gives a pretty good history of Sheriff Judd’s efforts to promote Christian values in Polk County government: http://orlandoweekly.com/news/church-and-state-1.1109454. The First Amendment never stopped a skilled politician like Grady Judd, however.  He takes pandering to a new level, and destroys lives in the process. Fortunately, the First Amendment protects the New York Times the same way as a small gas station owner, when it comes to dissemination of free speech. We shall see how this case plays out, but their random obscenity prosecutions are certainly a threat to civil liberty, and the whole effort demonstrates a fundamental misunderstanding of the changing societal mores in this country. Just look at how fast 50 Shades of Grey flew off the shelves. In year 2013, I think we can tolerate the sale of a few adult films sold in a local gas station.

2012 in Review: Internet Censorship & the Acronyms We Love to Hate

With the new year upon us, two things become painfully apparent in concluding 2012 sans post-apocalyptic bedlam: 1) the Mayans seem to have preferred tequila breaks over finishing their calendaring duties, and 2) there are no more excuses justifying willful blindness to any of the damage done during the last twelve months.  No, we’re not talking about the 10 lbs. you packed on since Thanksgiving, but more along the lines of extremist legislative proposals by lawmakers across the globe, particularly in the area of Internet regulation.

Recently, the United Nations’ International Telecommunications Union (“ITU”) culminated its World Conference on International Telecommunications (“WCIT”) in Dubai.  The WCIT, comprised of almost 200 nations, was called for sole purpose of ratifying the ITU’s Telecommunications Regulations, which were drafted in 1988 to address interconnection between international telephone/telegraph networks.  This year’s update, however, went off the rails a bit when some world leaders viewed the conference as an opportunity to gain government control over Internet operations.  Countries like China, Russia and Middle Eastern nations lobbied for proposals that would allow member countries to regulate a broad range of Internet governance options that are currently under the authority of international third party NGO’s.  One proposal went so far as to call for all signatory governments to have “equal rights to manage the Internet,” ranging from technical operations to actual content review.  The U.S., along with Canada and the U.K., argued that greater government involvement in overseeing the Web would inevitably act as a gateway for countries already censoring the Internet within their respective borders to justify even more restrictions and invasive monitoring.  Standing firm against the WCIT’s potential chilling effect on the world’s largest communication medium, the U.S. and its backers staged a walkout during the final vote on the WCIT’s revised Internet treaty.

Almost 90 countries signed the newly ratified regulation which, among other things, gives participants the unilateral and unrestrained ability to access private telecommunications services and block allegedly harmful commercial communication transmissions.  Those countries that refused to sign the revised treaty are under no obligation to abide by it, and will only be bound by the language of the original 1988 agreement.  As you can see, the situation still fosters a global epidemic of confusion, as about half the countries involved in the summit are now playing by an entirely new set of self-serving regulations with a colossal potential for abuse.

Whether or not we have a digital Cold War ahead of us remains to be seen.  That said, before we start congratulating each other on the staunch free speech principles of our esteemed U.S. ambassadors in Dubai, we might want to make sure those ideologies still hold true in our own backyards.  The U.S.’s rejection of the ITU telecom proposal was a critical step in the right direction.  However, that effort doesn’t negate, or even lessen, the blow felt from similar regulations proposed by U.S. lawmakers just a few short months ago.

Under the guises of such noble causes as consumer protection, reducing unemployment and even battling terrorism, the U.S. government allowed censorship to rear its ugly head in 2012 with the likes of SOPA, PIPA, CISPA, and ACTA.  SOPA, the bill thought to have had the most momentum out of the lot, would have given the U.S. government almost total control in blocking access to foreign websites – sans due process – exhibiting the slightest hint of infringing activity.  Fortunately, the public fought back with a world-wide Internet blackout campaign, wherein hundreds of service providers – ranging from Google to Wikipedia – went dark or posted “CENSORED” messages on their sites.  After January’s historic public backlash, SOPA (and its sister bill, PIPA) were removed from the House and Senate calendars indefinitely, but hopefully for good.  This prior attempt at overzealous domestic regulation doesn’t quite resolve with the U.S.’s current position as the WCIT’s problem child.  Such contradictory actions beg the question: How is the U.S. government any different from the countries it chastised at the WCIT?  And even more so: How can we as Americans look at Chinese officials with disgust or Russian citizens with pity, when the U.S. Legislature ambushed its people with similar Draconian directives on domestic soil?

So often we hear the war-cry of grass roots movements, reminding us that all citizens have a voice; activism starts at home.  The unfortunate reality is that although it’s true that activism starts at home, so does sanctimonious complacency.  Given the series of disturbing events in the U.S. over the last few months, we’re seeing the relatively ‘kumbaya’ American disposition that often appears in the wake of national tragedies and natural disasters.  As important as solidarity is in times of tribulation, it’s easy to forget that the legislative machine doesn’t stop rolling.  If anything, such devastating events act as the shiny objects diverting citizens from yesterday’s cause.  In today’s over-stimulated Information Age, the inadvertent label of ‘old news’ would be the kiss of death for any anti-censorship movement.  If the ‘out of sight, out of mind’ adage has proven true with anything, it’s with the American people and the activity of their lawmakers.  Legislative Internet censorship is a very real concept; a concept, that if dismissed by citizens, will undoubtedly find itself buried within the folds of yet another massive bill aimed at pulling on heart strings – whether in the form of protecting children, or giving hope to the unemployed via economically-friendly rhetoric.

Earlier this year anti-censorship activists rallied in an exhibition of civil unrest, the likes of which never seen by the so called “Internet Generation.”  One would think that with the U.S. drawing a line in the sand on a global scale, additional censorship regulations disguised by muddying acronyms in the coming year would be highly unlikely.  One would think…  That said, the WCIT is just one battle in the constant war between government regulation and the free exchange of ideas.  The U.S. has taken a significant global position on Internet freedom, but before our free speech piety gets the best of us, let’s make sure our government maintains that position in leading its own people first.

The Politics of Porn – 2012

By the close of 2011, the Republican presidential hopefuls had their work cut out for them. It was starting to look like the people had gotten their fill of Michele Bachmann’s eccentricities. Such a sentiment was confirmed at the Iowa Caucuses, when the Tea Party Chair, receiving only 5% of the votes, placed sixth among the other candidates, ultimately resulting in Bachmann’s withdrawal on January 4, 2012. Despite consistent double-digit polling numbers since early fall, January claimed another candidate in former Utah Governor, Jon Huntsman. Withdrawing from the race on January 16, the former ambassador pledged to ”stay relevant” in the race, and has kept that promise by actively supporting Mitt Romney. Then, of course, there’s Herman Cain – once his luck ran out with the ladies, the voters soon followed. Despite suspending his candidacy back in December amidst allegations of sexual misconduct, Cain has done his best to remain in the spotlight, still lobbying for his 9-9-9 Plan and has yet to formally endorse one of his former competitors. And we can’t forget 2012’s latest casualty, Texas Governor, Rick Perry. After his promises to end “Obama’s war on religion” evolved into concerns of Perry’s War on the Establishment Clause, steam behind Team Perry was waning towards the end of 2011, and finally came to an end on January 19.

At this point, it’s almost mid-February and oh how the tides have turned. Deemed a misfit for most of his political career, Ron Paul has ridden the ‘rebel, nonconformist’ wave all the way to its peak. With that success, comes mainstream popularity and partial loss of Paul’s famous underdog status. Struggling to reconcile the Congressman’s political identities, voter support seems to be reaching a plateau, although not necessarily declining. The likely result: Paul is applauded for his valiant effort, but ultimately directed by the GOP powers-that-be to graciously keep the rebel rousing within the confines of the Texas state line.

Former Speaker of the House, Newt Gingrich, was thought to be down and out this past summer after a series of questionable spending excursions and the infamous mass exodus of several high-ranking campaign officials. But ever the true politician, Newt has overcome the instability of his early campaign and gained enough momentum to be considered a genuine presidential hopeful.

Probably the biggest candidate surprise of the campaign thus far is former Pennsylvania Senator, Rick Santorum. Battling disheartening numbers since the day he threw his hat into the ring only to surge ahead in 2012 by winning four of the eight presidential primaries thus far, Santorum is the very definition of a ”comeback kid.” Making no apologies for his socially conservative politics, Santorum ready and willing to squeeze out the very last bit of libertarian influence that might be left in the GOP, and based on recent numbers, he might just be able to do that.

The one constant since the beginning of the campaign trail is Mitt Romney’s title as the election’s front-runner. Romney is currently blowing everyone out of the water with ninety-five pledged delegates; that’s more than the other three candidates combined. Maybe the American people think a business consultant as President is the only way to completely pull out of this economic tailspin, or maybe we all harbor deep-seeded respect for Mormon’s with good politician hair – either way, Mitt Romney isn’t going anywhere any time soon.

So what do the Republican Presidential candidates have to say about adult entertainment issues? Not that the Obama Administration has been the champion of personal freedoms that was originally hoped for, but at least the DOJ’s decision to focus on child pornography instead of filing any new obscenity cases allowed the industry a bit of momentary relief. However, it’s safe to say that if a Republican takes over the presidential seat, it’s going to be a different ballgame all together.

According to Morality in Media’s (“MIM”) President, and former DOJ official, Patrick Trueman, “Vigorous prosecution of those who violate our nation’s obscenity laws is critical now. Our nation is suffering a pandemic of harm from pornography that is readily available – even to children on the Internet and in other venues.” Trueman has targeted Santorum, Romney and Gingrich for months, requesting that the candidates take a public stand in favor of his anti-porn efforts.

Heading straight for the newbie, Trueman successfully got Santorum to sign the Family Leader Pledge (made famous by former candidate Bachmann’s ”ban on porn”) all the way back in July of 2011. The pledge requires Santorum to uphold, among other things, the “Humane protection of women and the innocent fruit of conjugal intimacy — our next generation of American children — from human trafficking, sexual slavery, seduction into promiscuity, and all forms of pornography and prostitution, infanticide, abortion and other types of coercion or stolen innocence.”

Nothing if not persistent, Trueman continued MIM’s crusade this past October by demanding that the 2012 presidential candidates publicly disclose “their respective views on the enforcement of obscenity laws.” MIM officials eventually obtained statements by all three of the frontrunners after calling on MIM followers to continue the crusade through emails, calls, and meetings with the candidates urging them to respond to MIM’s request for disclosure.

In his response to MIM, Santorum wrote: “Federal obscenity laws should be vigorously enforced. If elected President, I will appoint an Attorney General who will do so.”

In a one-on-one interview with MIM staffers, Gingrich was asked if he will enforce existing laws that make distribution of hard-core adult pornography illegal, he responded:”Yes, I will appoint an Attorney General who will enforce these laws.”

The only candidate to reference online content in his written reply to the MIM demand, Romney stated: “It is imperative that we cultivate the promotion of fundamental family values. This can be accomplished with increased parental involvement and enhanced supervision of our children. It includes strict enforcement of our nation’s obscenity laws, as well as the promotion of parental software controls that guard our children from Internet pornography.” Although, Mitt’s status as one of MIM’s golden boys of piety may have hit some rough terrain as it was revealed that everyone’s favorite squeaky-clean Mormon accepted a maximum amount campaign donation from Daniel Staton, chairman of the board of the company that owns Penthouse. While this may not be tantamount to accepting a donation from Max Hardcore or Extreme Associates, this minor campaign faux pas is going to raise more than a few eyebrows.

With MIM sparking GOP discussions of a resurrection of strict enforcement of obscenity laws, notions of MIM President’s Trueman staging a re-entry into politics seem unsettlingly attainable. So is the country in imminent danger of the DOJ turning into the “Trueman Show” come January, 2013? Hopefully not, but with polling data saying one thing, schizophrenic primary numbers saying another, and public opinion exhibiting an extreme of the two on any given day, it truly is anyone’s race. The stakes are high for the country and our Constitutional freedoms. And with the top three presidential candidates pledging to reinvigorate the ‘War on Porn,’ one can’t help but hope that the adult industry won’t be one of the losers in 2012.