Opinion This column may be out of date two days after publication. That’s when the US Supreme Court decides whether the Constitutional right to free speech overrides the laws against online porn adopted by many southern states.
Obscenity, smut, and pornography have generally won that argument since the 1960s, even in the pre-internet days when distribution was easier to police.
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These are not the 1950s, though. There’s a 6-3 conservative majority in the Supremes, and the President-elect is already talking like a mob leader, threatening to take over neighboring turf and demanding deals with menaces. Mobsters did very well out of Prohibition, they do very well indeed out of the War on Drugs, and they profit handsomely from smut wherever smut is banned.
In all such cases, prohibition not only fails to work but does huge damage. As for the porn laws, forcing user ID into the hands of content creators and producers creates a host of problems. If everyone complies, the potential for cyber-extortion goes into orbit. Non-compliant sites will become highly attractive and equally dangerous. As for driving users into the murky world of VPNs, which gain intimate access to all your traffic, well – good luck with that.
All these are mere facts, though. As Mark Zuckerberg said when he abolished fact-checking on Meta properties, fact-checkers are biased and free speech is more important. This nicely aligns with the incoming administration, where facts will never get in the way of a good time. It also nicely removes any obligation on Meta to ensure the accuracy of the swarms of AI bots it is busy breeding in its vats. Nobody made Zuck sack the fact-checkers any more than anyone made him appoint Republican activists to Meta’s board. Just good ideas.
Students of the radicalization of Germany in the 1930s will know a useful term, “working towards the Führer.” Alongside coordinating radical reforms in the civil service and judiciary, this was a much more nuanced process where organizations and individuals moved to synchronize their activities with fascism on the grounds that it would find favor. No laws needed to be changed, no orders issued, you just knew what to do – and what would happen if you didn’t. Many heads of industry felt it prudent to conform. Who knows, you might even get your own government department to control the regulatory environment in which your businesses operate.
Whether or not you find this idea applicable today, it remains an exhaustively documented fact – there’s that word again – and thus useful to compare your own observations against. If there is a pattern, it’s best to be aware.
All of us who work in tech have a special responsibility here. If Arkansas or Florida say that forcing ID on porn sites will protect children without increasing risks to everyone, then those who understand how the internet actually works, technically and socially, have to pay attention and ask what the real motivation is. Likewise, canceling facts in an environment where engagement is driven by algorithms. Technology and its regulation have always been at the heart of every modern state. Both are complex and endlessly changing. Both are easy to misrepresent, but facts will always trump opinion. Try configuring your enterprise border router by opinion rather than the rule book and find out.
The outcome of the Supreme Court ruling on the porn laws will be an excellent testbed for the future online regulation. If the laws prove unconstitutional, then as usual the conservative states will try to come up with some new idea that will stick next time.
If they’re upheld, though, then “harmful to children” will become a magic bullet. Porn is an emotive issue, useful for excusing experiments in weakening civic rights. Once established, it’s easier to break through other civic protections for other groups, no facts required. The state does not currently have the right to impose broad monitoring and reporting duties on network providers and device makers due to constitutional protections of privacy through outlawing warrantless searches and the like.
Those rights too may be weakened, and that will mean changes in the governance and technical behavior of the infrastructure in which so many of The Register‘s readership are deeply enmeshed. A great deal will depend on institutional responses to any such development, from strongly fighting it to actively signaling a willingness to comply.
The historical precedents are not encouraging, yet we are not bound by history. Those of us who have grown up through the huge changes brought about by digital technology, especially those of us who have been taking notes, have not only the freedom but the duty to say what we see and what we think it means.
Opinion is free, facts are sacred, and those who herd bits know the facts about the digital world better than most. 2025 is going to need us. ®
