LONDON—Core principles of network neutrality hold that Internet service providers will not block content, discriminate among various forms of content, or discriminate among users. But are network neutrality principles entirely good for America?
Never mind that in much of the world many forms of content are deemed unlawful. In China, many American websites are blocked. In Germany, much Nazi-related content is unlawful. Poland recently passed a law banning content suggestive of Polish complicity in the Holocaust. In Europe, the EU recently instructed technology companies to block a wide range of content, particularly terrorist-related content, within one hour. In authoritarian countries, blocking content and discriminating among content and among users are the norm rather than the exception.
America with network neutrality would be a different and much better place, or so Senate Democrats hold. They are considering requesting a vote through the Congressional Review Act to overturn last year’s decision of the Federal Communications Commission that ended 18 months of network neutrality rules. Some observers see the Senate Democrats’ position as part of a widely-held view among Americans in support of network neutrality.
Ask most Americans whether they like neutrality, any form of neutrality, and they are likely to say “yes.” But the politics of blocking Internet content, discriminating among different forms of content, and discriminating among different Internet users, often work against network neutrality.
Consider that the House of Representatives on February 27 passed the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (FOSTA) by 388 to 25, supported by the vast majority of House Democrats, including Nancy Pelosi. The bill, sponsored by Rep. Ann Wagner (R-MO) with 174 cosponsors, militates against network neutrality principles. Only 14 Republicans and 11 Democrats voted against the bill.
Blocking content and discriminating among content and users are at the core of the bill. FOSTA would provide federal and state prosecutors, including states’ Attorneys General, a powerful weapon to prosecute those entities that use various Internet facilities to promote or to facilitate prostitution.
Part of the underbelly of the Internet harbors websites and other businesses where prostitution rings thrive. The Internet did not invent prostitution, but the Internet certainly has facilitated prostitution and all of the evils associated with it. You might ask why law enforcement has not shut down every prostitution web site and facilitator in America. No doubt, Representative Ann Wagner of Missouri and her cosponsors wondered why prostitution flourishes on the Internet.. The answer, at least in part, is Section 230(c) of the Communications Act.
Under Section 230(c), “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That has meant that Internet service providers, web sites, and content aggregators cannot be held liable for content posted by others. Some of those protections with respect to prostitution would disappear if FOSTA becomes law.
The language of Section 230(c) is extraordinarily broad in giving Internet companies protection from prosecution. FOSTA turns the tables and gives prosecutors extraordinary latitude to go after Internet companies that not only promote but knowingly or intentionally “facilitate” pornography.
Exactly what does “facilitate” mean in this context? The bill is vague on the meaning of this term. But it does not take much imagination to see how a determined prosecutor could take the language of FOSTA to bring any number of Internet-related companies to court.
The clearest path for Internet-related companies to avoid liability under FOSTA would be to engage in many practices that might otherwise violate network neutrality principles. They could block content from websites related to prostitution, they could discriminate among content that is related to prostitution, and they could seek to protect certain classes of users from prostitution-related material. All good tools to have.
Internet service providers might have an affirmative defense if they actively used Section 230(d) of the Communications Act. Under that provision, providers “shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.” But Section 230(d) is rarely employed.
Without fanfare, the House of Representatives faced a choice between unalloyed network neutrality principles and fighting Internet prostitution. The House chose to fight.