Porn Hampers “Minority Miracle” – Part Three

by DORRISSA D. GRIFFIN, ESQ.

Broadband Adoption Effected by Pornography

More customer complaints can be expected with 56 percent of broadband Internet users and 65 percent of non-users strongly agreeing that there is too much pornography and offensive material on the Internet, according to a 2010 FCC study.  Some involved in the study may hesitate to adopt broadband because of fear unwanted pornography exposure.  These hesitations can impede broadband adoption.  This article asserts that through an opt-in only strategy for pornography viewing, the 65 percent of non-adopters who agree that there is too much pornography online will be somewhat less hesitant to adopt.

The Workplace Effected by Pornography

Surprisingly, most viewing of pornography occurs between the hours of 9am and 5pm, i.e. during business hours presumably in the workplace.  A 2010 scandal was uncovered at the SEC in which one busted employee spent eight hours a day viewing and downloading pornography as the economy crashed.  Further, 9am -5pm make up the peak hours of spectrum use.  Using the opt-in strategy benefits employers because their work computers, smartphones, and other devices would have to be authorized for opt-in.

Solution:  Opt-In for Online Pornography, as the UK did.  The Possibilities for America.

Voluntary spectrum incentive auctions proposed by the FCC offer one remedy to the spectrum crunch.  Spectrum auctions, however, are years in the making and depend on the voluntary choice of spectrum licensees.  Limiting access to pornography through an “opt-in” strategy, similar to the United Kingdom’s strategy discussed below, could curb the spectrum problem in a much shorter timeframe.

The opt-in strategy differs from the present model available to Internet service providers’ (“ISP”) customers.  Presently, customers have to block these sites one-by-one, if not caught by filters, and even then access can be gained outside the home.  Under the opt-in strategy, ISPs would filter out all pornographic sites such that none would be viewable unless a customer specified that he or she would like access, much like the way cable TV works now with basic cable and premium channels.  This option prevents customers from having to piecemeal through millions of sites to shelter the eyes of their loved ones that can evade online filters.

In October, the UK’s biggest Internet service providers decided their customers must opt in if they want to view sexually explicit Web sites, as part of a government-sponsored curb on online pornography.  The UK acted in response to nearly two-thirds of voters, including 79 percent of women, wanting to see Internet pornography blocked.

In the UK, the idea took hold because the nature of the content was disliked by the majority of the population – a justification that would not be permissible under U.S. first amendment law.  Since pornography is protected speech of low value that is heavily regulated, see Miller v. California, 413 U.S. 15 (1973), the opt-in must be for all other forms of content to avoid a first amendment challenge.  Thus the opt-ins could be for this, for news, for non-pornographic entertainment, for sports, feature films, etc.

Addressing First Amendment and Net Neutrality Concerns

Some readers may be thinking:  If American ISPs choose the “opt-in” strategy for pornography, doesn’t this call into question the principles of net neutrality, namely the principle of blocking lawful content?  And what about the First Amendment concerns?

First, ISPs are not blocking content, because the general public will still have access.  For those who contend that limiting pornography violates net neutrality, consider limiting principle.  What if 90 percent of the traffic were pornography and there were almost no spectrum left to support all other users (and uses)?  Further, the solution of a content-neutral opt-in for various categories would not violate net neutrality.  The solution likely will reduce pornography traffic by (1) allowing employers to block its use at work and (2) allowing parents to block its use by their children at home.

Second, regarding the First Amendment freedom of speech and expression concerns, the Internet is not public in the sense that a convenience store is public.  Putting nude magazines behind the counter at a convenience store does not hold when applied to the Internet.  One’s online viewing isn’t seen by neighbors, visitors, etc.  So this article does not advocate that ISPs must act as convenience stores; rather, opt-in is simply a way to reduce the spectrum crunch and thus make sure that there is enough bandwidth to make room for others who wish to speak as well.

Further, regulation does not equal exclusion.  This article does not advocate eradication of pornography, which wouldn’t happen anyway, but it advocates restrictions on access.  Roth v. United States, 354 U.S. 476, 484 (1957), held that obscenities can be regulated in light of their “redeeming social importance.” Throughout legal history, proper regulations or restrictions are viewed as an acceptable balance between First Amendment rights and public policy concerns.

For the pornography industry that accounts for a significant portion of both Internet use and public outcry, the opt-in option by US ISPs could be a viable solution to remedying the need for spectrum in the short term and in the long-term remove some hindrances to broadband adoption and internet use.

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