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.