Can The Government Censor Wireless Broadband?

Free wireless broadband has been a goal of academics, activists, and politicians for years, and M2Z, a new start-up led by former FCC official John Muleta might give it to them. Unfortunately, it will not be the broadband they’ve been looking for, because the FCC has proposed that M2Z “filter[] or block[] images and text that constitute obscenity or pornography.”

Now, Wendy Seltzer and ONI’s Sally Walkerman have already written some great posts about how this sort of restriction would hurt innovation and free speech. This post focuses on the potential legality of such regulation.

The US government has tried once already to prevent minors from finding pornography online: it was the Communications Decency Act of 1996, and key portions of it were ruled unconstitutional a year later in Reno v. ACLU. The reasons the court overturned those provisions are highly relevant to the proposal the FCC is making today.

Television and radio, the court observed, have been regulated by the government since their inception. Additionally, they are inherently scarce media: there just isn’t enough spectrum to present every possible view. And relatedly, they are traditionally invasive media: if a television is on in a public room, it’s hard not to pay attention. For these three reasons the court believed itself justified in regulating certain content on TV and radio.

Justice Stevens, writing for the majority in Reno, observed that none of these conditions exist for the Internet. There is no substantial history of regulating cyberspace, nor is its content scarce, nor is it an inherently invasive medium: computers in public places are easily ignored.

Furthermore, with TV or radio it is comparatively easy to control content at its creation: NBC, ABC, CBS, and Fox are all headquartered in the United States. If they broadcast pornography they can be sued, or if necessary, their executives can be arrested. But no such legal options exist online. It is virtually impossible to control content from the source of creation – there are too many people creating content in too many different places to effectively regulate them all.

And so, the court ruled, the government could not regulate pornographic content online for the purpose of protecting children. Would this ruling apply to the FCC’s proposed standards for M2Z? It’s an interesting question. While M2Z’s network like television or radio would be carried over the airwaves, its content would not be scarce or invasive in the way radio and television content is. And while the wireless network would be free, making it easier for children to find Internet access outside the home, it would remain easier to censor at the end-user, not the content-creation level. Of course, all this is just speculation – these proposed rules may not even be adopted. But you can contribute to the debate by filing a comment with the FCC here (the proceeding number is 07-195)