Opinion: Politics and technology

Over the past 100 years I've been writing this column, readers have sent me several irate letters because they were enraged that I would dare to bring politics into a technically oriented publication. For those of you who feel this way, you might want to stop reading now.

Here's the thing about technology and politics: They are inseparable. You can't do things like you guys do at the scale you do with the huge amounts of money involved and pretend that the ugly realities of politics don't have profound implications.

Just consider H-1B visas, the Digital Millennium Copyright Act, the Sarbanes-Oxley Act, the Health Insurance Portability and Accountability Act, privacy policies, technology import/export restrictions, the CAN SPAM Act (for what it is worth). It is a long list of stuff that affects you in one way or another, and it's all overtly political, or at the least has political spin.

And then there are the big social issues, such as the nonexistent national broadband policy and network neutrality, which have hugely complex political dimensions. These affect many of you guys because you are in the industries that are directly or indirectly involved, while the rest of us have our technology choices (or lack thereof) modified by those issues.

As an example of politicized technology let us consider the Federal Communications Commission. I have had more than a few opportunities to criticize this body over the last 1,000 years and for good reason: It obviously has an agenda, or rather several agendas, which are unarguably political and transcend the technical realm by moving into the role of censors, albeit, so far, censors with fairly limited scope.

This topic is on my mind because, finally, the Supreme Court is going to rule on the FCC's authority regarding "indecency" in the broadcast media.

In case you don't know the background to the FCC "broadcast decency" policy it is all comedian George Carlin's fault. Here's the story: A Carlin monologue was broadcast over the radio on Oct. 30, 1973 and it featured seven "obscenities" (the famous "Seven Dirty Words").

Some guy who, in the company of his son, heard the broadcast and rather than switching it off, took offence at being subjected to these words and protested to the FCC. The FCC issued a "declaratory order" (in effect, a letter that says "Do it again and you'll be in trouble, buster").

The broadcaster got the order overturned by the Court of Appeals so the FCC, for what I can only assume were political reasons, appealed the appeal to the Supreme Court and won. Thus was born the legal framework for Janet Jackson to be fined almost 30 years later for her Super Bowl stunt.

At the heart of the issue is the concept of "obscenity," which is, of course, just a little tricky to define. It appears that the FCC goes by the weak definition of obscenity as something that offends the moral standards of the community. It seems the FFC's interpretation of standards is rooted in some decidedly Victorian ideas on what is and isn't "nice" and some amusingly Freudian perceptions of what constitutes sexuality (we'll come back to the latter issue in a moment).

After some "naughty" words were used in passing by some worthies at two award ceremonies broadcast by the Fox Network (in 2002 and 2003), the FCC found Fox guilty of indecency (in 2004) but didn't fine the company. The FCC has taken action many times over the last 30 years, but this time it went after Fox not for intentional indecency (think Howard Stern) but for "fleeting expletives."

Fox appealed the decision (in 2007) and the U.S. Court of Appeals for the 2nd Circuit in New York decided the FCC's policy was "arbitrary and capricious" and that the FCC had "failed to articulate a reasoned basis for its change in policy."

The appeals court noted that the policy raised First Amendment issues and told the FCC that the policy needs more work. Again, the FCC was miffed to be thwarted and appealed to the Supreme Court, which agreed, at the urging of the Bush administration, to hear the case.

Kevin Martin, the FCC chairman, said that the appeals court had "put the commission in an untenable position" because the FCC's responsibility is to enforce indecency rules (which the commission crafted) but the appeals court judgment essentially prevents the commission from doing anything.

According to The Washington Post , the Bushies argued that "the lower court's ruling had left the FCC in an 'untenable' position between protecting children and protecting freedom of speech."

I guess I'm missing something here. In the land of the free and the home of the brave, have we become so delicate, so easily offended, so afraid of anything that could be considered "dirty" that we have to engage in these labyrinthine legal contortions to "protect children"? It's insane! Any child can sit in front of an Internet-connected computer and see prurient material at a level of detail and on a scale that we couldn't have even dreamt of when we were kids.

Fox has it in for the FCC over another recent matter: A US$91,000 fine that the FCC levied for a scene in a show I've never heard of called "Married in America." Apparently the episode contained a segment in a strip club in which key "details" were obscured using pixelation.

Fox appealed and, in response, the FCC's denial of appeal wrote "The fact that isolated body parts were 'pixelated' did not obscure the overall graphic character of the depiction [and] despite the obscured nature of the nudity, it is unmistakable that the [characters] are participating in sexual activities and that sexual organs are being exposed." Fox filed a detailed rebuttal and refused to pay the fine.

Fox not unreasonably argues that what the FCC claims to be unmistakable would require that it was able to see what it claims to have seen. Due to the pixelation, it couldn't have actually seen anything so it was therefore assuming the characters were "participating in sexual activities and that sexual organs [were] being exposed." In other words, Fox is accusing the FCC collectively of having a dirty mind.

And weirdly a dirty mind it does seem to have. In January the FCC found 51 ABC stations guilty of indecency for an episode of "NYPD Blue" in which a woman's naked bottom was shown. The FCC ruled (and this is completely true) that the scene in question "depicts sexual organs and excretory organs--specifically an adult woman's buttocks."

ABC attorneys argued (quite reasonably in my and most normal people's opinion) that buttocks do not constitute a sexual organ. The FCC countered: "We reject this argument which runs counter to both case law and common sense."

Exactly how case law has a bearing on biological fact is not clear and why common sense apparently trumps logic is equally mysterious. It is this kind of twisted logic on the part of the FCC that makes the Supreme Court hearing so important.

The Supreme Court hearing is going to be crucial because, as Solicitor General Paul D. Clement wrote in his court brief, "The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives."

Now why does this matter? It matters because "decency" in broadcast media is a political issue and allowing government-mandated control of ideas, even ideas you disagree with, should be abhorrent to every American who understands the Constitution.

And even more political pressure is being thrown at the indecency issue. Clear Channel, the dominant force in broadcast radio, is asking the FCC to force the merged Sirius/XM satellite radio service to obey the same rules as broadcast media, despite the glaringly obvious fact that satellite radio is not really broadcast media in the same sense as TV and terrestrial radio.

What is most troubling about Clear Channel's petition is that it is shamelessly based on a competitive argument -- that by Sirius/XM not having to obey the same constraints it can transmit more "edgy" content and Clear Channel will lose advertising revenue.

Mark my words, should the FCC prevail there will be lots of political pressure for satellite radio to be regulated and next will come satellite TV, cable TV, and right around the corner are the ISPs and your Internet connection. The Fox case is potentially the thin edge of a massive legal wedge that is all about censorship.

Now do you see why politics and technology are inseparable?

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