The Senate Commerce Committee held a hearing this week on the Future of the Internet, dealing principally with the issue of net neutrality – whether Internet Service Providers treat all content carried through their facilities equally.  This issue principally involves questions of whether ISPs can charge big bandwidth users for their content to be transmitted through the ISPs facilities, or to be transmitted at preferred speeds.  The testimony of Chairman Martin at the hearing raised several issues – issues both about what he said and what some reports perceived him to say.  Some reports had him saying that the FCC did not need to regulate indecency on the Internet – though I never heard that question asked. But he did say that he did not have trouble with ISPs blocking illegal content such as child pornography and illegal file-sharing, which raises the question of whether some might look to ISPs to become copyright police – blocking access to material that does not have copyright clearances.  And, with the hearing being held on the same day as a media company purchased a company that can identify copyrighted material by reviewing that content when transmitted on the Internet – is that possibility coming closer to being a reality?

In recent weeks, there have been several trade press reports about government regulation of indecency on the Internet.  I’ve seen at least two trade press reports on Chairman Martin’s testimony before the Commerce Committee, claiming that he said that no government regulation of indecency on the Internet was necessary.  I did not hear any reference to indecency regulation in his testimony (a written version of his statement is available here, and you can watch the entire testimony, here).  Instead, that testimony was about whether Congress needed to pass laws to allow the Commission to enforce its net neutrality principles.  Nonetheless, the press seems to believe that Internet indecency is an issue which might be targeted by regulation.  A recent study finding that the majority of Americans think that FCC regulation of indecency should be extended to the Internet has also been cited in several reports.  However, despite the seeming interest in regulation of the Internet, there are serious constitutional concerns about any such regulation.  In fact, as we wrote here, numerous attempts to regulate indecency on the Internet have been overturned by the Courts on constitutional grounds, as the government could make no showing that the regulations were the least restrictive means for restricting access to adult content.

The only reference to improper content that I found in the Chairman’s statement dealt with the possibility of blocking child pornography, which he mentioned together with illegal file sharing.  The issue at the hearing was whether Internet Service Providers could block access to content that they deliver – for commercial purposes or otherwise. For instance, can a service provider decide to block access to iTunes if Apple refuses to pay the ISP for delivery of their content, and instead deliver Amazon content when a user types in the iTunes URL.  The Chairman reiterated the Commission’s principles that essentially say that consumers should have access to the content of their choice, subject to certain network management techniques that might include limits on access to material that would harm the network or its performance.  The Chairman thought that the FCC could enforce these principles without any further legislative authority.  In discussing the Commission’s neutrality principles, the Chairman also stated that he did not see any concerns with an ISP blocking access to child pornography.  That kind of content is illegal, unlike indecency which is legal content (but access to that content can be restricted in certain instances e.g. in a broadcast context where it is easily accessible to children and where blocking is usually impractical). 

Similarly, the Chairman stated that he did not perceive it to be a violation of the net neutrality principles if an ISP blocked content that infringed on copyrights.  In dealing with the blocking of content, such as copyright infringement and pornography, one wonders how the ISP can block access to such content without also blocking legal content.  How does the ISP distinguish between pornography and indecency – or for that matter from medical videos or family photos?  There has been some talk about content "sniffing" techniques for determining what content can be blocked – particularly copyrighted content that has unique characteristics that can be identified.  In fact, with this week’s announcement that Sony has purchased Gracenote (a system that can identify copyrighted music transmitted over the Internet), one wonders if that technology could be used by copyright holders to identify copyrighted content for which no royalties or clearances have been obtained.  Yet, even there, issues arise as to whether ISPs should be put in the position of having to adopt such systems to play copyright cop.  Moreover, how can such systems distinguish between legal and illegal uses.  Could a system identify sources of copyrighted content, like Internet radio, that pays royalties pursuant to a statutory license rather than any specific grant of rights?  Could it identify "fair use" where copyrighted content is used in the context of a parody or criticism? 

These issues were not specifically discussed at this week’s hearing, but they have been kicked around in legal circles for some time.  And they will no doubt continue to be debated for some time to come.