Legislators in Rhode Island have come up with a novel way to deal with online pornography: require ISPs to block sexual content and then require consumers to pay a $20 "digital access fee" if they want to see smut.
The proposal – Senate Bill S 2584 [PDF] - has caused an explosive debate with First Amendment rights advocates clashing with those warning about human trafficking.
The bill would also allow the state attorney general to file suits against ISPs that do not block offensive material, including child pornography, revenge pornography and websites that facilitate prostitution or human trafficking.
But it is the $20 digital access fee – which would be collected quarterly by the state and used to fund the state’s council on human trafficking - that has been garnering a lot of attention.
As indeed it did last month in Virginia when House Bill 1592 called for ISPs to block offensive content and offer a $20 digital access fee to bypass controls, with the funds going to human trafficking victim funds.
And as it did in December when Kentucky lawmaker Dan Johnson proposed that ISPs block "obscenity, child pornography, revenge pornography, and prostitution" but allow such blocks to be lifted if Kentuckians paid a $20 fee to have the block lifted. The resulting funds would be, you guessed it, used to fund human trafficking compensation programs.
People were also quite exercised about the $20 digital access fee when it was proposed in North Dakota (H 1187) back in January 2017, but that was nothing compared to the anger directed at South Carolina's proposal (H 3003) for a $20 digital access fee in December 2016.
Why not $10?
All of which raises a much bigger question: why $20? And how come that is the figure that lawmakers across the land – both Democrat and Republican – seem to think is the right amount to access online sexual content.
On top of that, it seems unlikely that it is pure coincidence that everyone argues that the money raised from this "digital access fee" go to human trafficking programs?
Or that almost of the bills believe that $500 is the most suitable fine for each piece of content not blocked.
All of which suggests that there is a significant degree of organization and lobbying going on by a third party to push the issue. But who?
Our first thought was, of course, the secretive American Legislative Exchange Council (ALEC), based in Washington DC, that is notorious for working with big business to push legislation that ends up financially benefiting its members.
Having become almost a punchline in policy circles following numerous articles exposing its inner working back in 2012 and 2013, ALEC has since become quite open about its legislative proposals – even publishing them on its website and seeking contributions for third parties.
We did a search for references to digital access fees and human trafficking on the various sites that track ALEC's policy position and turned up nothing. Which doesn't prove anything of course, but here's why we don't think ALEC is behind this anti-porn push: because ALEC is effective at making law.
And so far every one of these digital access fees proposals has fallen flat on its face, introduced one week and killed in committee the next.
Umm, ain't that already illegal?
It's not hard to fathom why. First, there is the ridiculous suggestion that ISPs block other content including child pornography, prostitution and human trafficking – which are universally illegal in the first place, with the famous exception of Nevada and prostitution.
If any internet company comes across such content, it reports it to the authorities as a matter of course. The idea that an attorney general would fine an ISP $500 for providing access to child pornography is ludicrous. If it had knowingly done so, he would push for criminal charges. So the inclusion of that offensive content is just a smokescreen for the porn block and $20 access fee.
Then there is the huge issue of making ISPs legally liable for the content that passes over their networks: something that most recently raised its head in the big debate over SESTA/FOSTA and Section 230 of the Communications Act where online platforms may be held liable for not taking down human trafficking content.
Is that part of the same push? Possibly, although it's unlikely because that drive was focused on getting content down, not raising money. And the proponents of that bill support the move, largely to hurt big companies like Google and Facebook.
As odd as it was for IBM and Oracle to come out in support of SESTA, it's hard to imagine either company is secretly backing a measure to make ISPs liable for pornography while offering to bypass the whole system for twenty bucks.
So who is behind the $20 porn fee?
So far we have been unable to track the organization down. But we bet it is based in Washington DC and either it, or its members, stand to benefit financially.
And, were such a law to pass, it would certainly produce a healthy income. Virginia, for example, has a population of 8.5 million people. If five per cent of them paid $20 to access pornography it would provide an $8.5m windfall to whoever was able to define themselves as a human trafficking program. And who knows if 5 per cent is the right answer; if statistics on online porn viewing are to be believed, it would likely be much higher.
So an unscrupulous organization, based in Washington DC, that would dedicate significant resources in the hope of getting a law passed to benefit itself. It would almost certainly rule out most human trafficking organizations, who, due to the nature of their work, would tend to want to spend the resources they have helping victims rather than trying to line their own pockets.
So, we're willing to bet it's an outlier to the human trafficking community – and an organization that those organizations are wary of; plus an organization that has a policy wonk in charge, rather than, say, ex-law enforcement or humanitarian worker. And here's betting that policy wonk head has worked on other dubious legislative pushes in the past. Maybe even at ALEC.
We'll keep looking. Or perhaps lawmakers who are doing their job for them would like to inform us where they got the legislative language from.
Either way, two things are pretty certain: first, this is not the last time we'll hear about the idea of a $20 digital access fee; and second, it is never going to pass in any of the larger US states. Because it is, of course, a terrible idea. ®