As some folks may have heard, New York City has begun a really awesome project in free broadband access with it’s LinkNYC program. NYC is replacing no longer used pay phone kiosks with free WiFi access points (and an available interface built into the kiosk for those who cannot afford a smart device).
In a surprise to no one but the bright eyed innocents who set up the program, homeless people followed the advice of Avenue Q and decided that the Internet was indeed really really great — for porn. On the plus side, this certainly silenced those critics of the program who alleged that LinkNYC would only serve rich tourists. On the downside, the sight of the unwashed whacking hordes gathering around WiFi access points like pigeons clustered around lonely people with breadcrumbs on Central Park benches was not exactly the “proof of concept” the City hoped to get. So, once again to no one’s surprise, LinkNYC decided to install filters to block porn sites.
As has been the case since we first started debating Internet blocking in 2008, some folks raise the argument that net neutrality will prevent people from blocking porn sites. I testified on this back in 2008 at the FCC’s open hearing at Stanford University when folks claimed that if Comcast couldn’t block file-swapping sites it couldn’t block porn. Naturally, it also got debated in the lead up to the 2010 Open Internet Order and the 2015 Open Internet Order. So it’s not like we never thought of this before and it’s not like we don’t know the answer: free access sites can block porn (or otherwise filter) no problem. Indeed, as others have observed in the past, free access sites (like coffee houses or libraries) do not count as broadband Internet access providers and free Internet access is not Title II broadband Internet access service (BIAS).
Why? See below . . .
UPDATE: LinkNYC made this reply to my post through their official twitter account.
@haroldfeld @b_fung LinkNYC does not filter the Wi-Fi. There is a 3rd party filter on the public tablet only.
— LinkNYC (@LinkNYC) June 22, 2016
So LinkNYC is not actually filtering. But if they were, it would still be O.K. Well, legal.
As always with things telecom, we start with the Communications Act. 47 U.S.C. 153(53) defines a “telecommunications service” as “the offering of telecommunications for a fee to the public” (emphasis added). Likewise, the FCC’s regulations (47 C.F.R. 8.2) defines broadband access service as a “mass market service.” (Mass market is defined elsewhere as being for a fee, since you can’t have a thing defined as a telecommunications service which doesn’t meet the statutory definition of a cable service.)
LinkNYC’s wifi access service is offered directly to the public, but it is not offered “for a fee.” This same rule applies to free library Internet access and complimentary Internet services such as those offered at McDonald’s. Libraries, coffee houses, and others don’t become “telecommunications providers” by offering free WiFi anymore than they became “telecommunications providers” by having payphones in the old days because even though they are providing access to a telecommunications service, they do so for free.
This does not mean that a government provider can simply block whoever or whatever it wants. Anyone interested in this fascinating subject can go read the voluminous case law we’ve accumulated since 1997 on mandatory Internet filtering. But it does mean that we don’t even reach the question of whether LinkNYC is now a “curated” ISP as discussed in the First Amendment section of the Open Internet case. LinkNYC isn’t even an ISP (or, more technically, a BIAS provider) under the Open Internet rules, let alone a “curated” ISP.
So, sorry Trekkie Monster. While the Internet may indeed be really great for pron, especially when you have a fast connection so you don’t have to wait, free Internet can be filtered to block porn sites. Unless, of course, you happen to work in Congress.
Stay tuned . . .