Pornography and the new illiberalism: the Digital Economy Bill

A 19th-century drawing after Raimondi, illustrating Aretino’s I Modi; access to Aretino’s work was restricted in most countries due to its being placed on the Catholic Church’s Index

One of the unfortunate consequences of the political hurricane that is Brexit and Trump is that, drowned out by the noise and the mayhem, many political and legislative developments have slipped by quietly and largely unnoticed. The passage of the Investigatory Powers Act (which awaits royal assent) and the Digital Economy Bill (which has completed its legislative stages in the House of Commons, and now moves onto the House of Lords, with a view to it passing into law in 2017) is a case in point. Both are appalling pieces of legislation containing numerous problems—yet there has been little public debate about either of them. Here I’m going to discuss only the Digital Economy Bill, a piece of legislation that deals with several broad issues pertaining to digital communications, above all piracy, file sharing, copyright and pornography. At the risk of disappointing readers, I will focus here solely on that driest of topics: pornography.

Perhaps some form of disclosure ought to preface my discussion. In principle I have no problem with pornography. Sex is an (occasionally) enjoyable and important part of being human; the opportunity to enjoy it, think about it and explore it through pornography and erotica is valuable. (I have written elsewhere about pornography’s historical relationship to radicalism, subversion, satire and freedom.) There are no good arguments, but many bad moral arguments, against the depiction of sex. When it comes to pornography, I am not far off being a libertarian. At the same time, however, I think most pornography is dreadful and has helped to create attitudes towards sex and sexuality which I find troubling; and there is no doubt that the pornography industry is frequently exploitative, and often downright nasty (although, to be fair, the same can be said about most industries and occupations). That a large proportion of pornography is boring, dreary, rubbish, horrible, or all four, and that many pornographic performers are exploited, do not, however, constitute reasons to ban pornography; rather, they should be met by artistic and ethical efforts, by good porn, by feminist porn, by ethical porn, by intelligent erotica. I am, I might add, quite a fan of erotica.

The Digital Economy Bill attempts to address a supposedly common source of popular anxiety: the easy accessibility of pornography to children. Whether or not this anxiety is exaggerated and hysterical, and whether it can be found beyond the pages and readers of the Daily Mail, is not something I can discuss with any authority; but moral panics are not unheard of. (What would be the point of the Daily Mail if it didn’t have a good moral panic to scream about?) Nevertheless, I’m led to believe that there evidently is a lot of pornography on the internet within easy reach, and children, being curious creatures, are wont to search for it. It would be trite to suggest that it is the responsibility of parents to manage and obstruct this curiosity; far better, the government and the morally righteous have concluded, would be to get the state to do the job.

The proposed solution to the problem, as outlined in the new legislation, amounts to this: adult material (by which is meant images, videos and audio) will henceforth require age verification (AV) in order to be accessed; a regulator will be appointed to police the internet, with the powers to enforce sites to implement AV, to block sites that do not comply with the legislation, and to fine site owners in contravention of the law (up to £250,000 or 5% of a site’s turnover, whichever is the greater); the British Board of Film Classification (BBFC) will be assigned the Herculean task of determining whether a site contains adult content. It is important to note that the legislation applies only to commercial sites; non-commercial sites (for example, personal blogs and amateur websites) are unaffected. It is also worth noting that pornography and erotica in the form of the written word are also unaffected; those who like to read and write erotica can breathe a sigh of relief.

There is little of merit in these proposals. The bill threatens to have a negative impact on personal freedom; there are numerous potential anomalies in the legislation; and it is highly likely that it will quickly prove unworkable and impractical. My prediction is that it will join such legislative incompetencies as the 1991 Dangerous Dogs Act (notorious as a poorly considered and kneejerk response to a media-driven panic), and that the proposals on pornography will ultimately be abandoned or repealed. Politicians, often under pressure from both the public and the media, can be inclined to push forward hasty, poor, ill-informed legislation in areas they know little about. Our current set of politicians are neither better nor worse in this respect than their predecessors; history is littered with terrible legislation.

I certainly hope my prediction of abandonment or repeal is correct, because if I am wrong those of us with liberal values have a lot to worry about. Above all, the legislation (especially in tandem with the Investigatory Powers Act) signals a huge expansion in state control of online activity. As well as granting to police and security agencies almost limitless power to snoop on and hack into the digital activity of British citizens (irrespective of whether an individual is suspected of wrongdoing or not), Britain will very soon have the most repressive legislation relating to internet use of any western country. While totalitarianism is not likely in the UK any time soon, what does lie around the corner is some of the basic infrastructure of totalitarianism.

The legislation certainly indicates a chill wind of illiberalism and puritanism is blowing. A striking feature of the bill is its definition of ‘pornographic material’. As might be expected, anything that would receive the BBFC’s R18 classification (i.e. the equivalent of adult movies available only through licensed distributors such as sex shops) is covered—and, to be frank, there is a case for taking some sort of action to prevent this type of material being easily accessible to children. But also designated as content to be restricted is anything that would receive an 18 certificate and was ‘produced solely or principally for the purposes of sexual arousal’. Welcome to an area that is fifty shades of grey. The main intention is presumably to restrict access to softcore pornographic videos and images. But where does softcore end and erotica begin? Films such as Secretary, Fifty Shades of Grey, Nymphomaniac, Blue is the Warmest Colour, Sex and Lucia, and many, many more in that broad erotic genre, all contain explicit sexual scenes that would not be out of place in most softcore films. The legislation will almost certainly not restrict access to such mainstream films (and we can at least be thankful for that, even if Nymphomaniac is not a film I much want to see again). But it’s going to be a fun job for the BBFC to decide whether a video should be designated as ‘produced solely or principally for the purposes of sexual arousal’ or not. What would decide the matter? Would the semblance of a plot, competent acting, dialogue about non-sexual matters, and a modicum of production values ensure that a video escapes being restricted? Or does it all come down to that indefinable quality: taste? Similarly, plenty of difficulties will stem from still images. Nudity and mild sexual scenes are acceptable in 15 films; but would nudity be acceptable in an image? Some nudity is sexual, some isn’t, but most stands somewhere in between. It may come down to context: an image on an adult site will be judged differently from the same image on a non-adult site. I foresee endless arguments and appeals against BBFC classifications, and many inconsistencies in their decisions as to what should and should not be restricted.

What is clear from the bill is that a vast range of adult content will potentially be swept up by its definition of pornographic material: everything from the most explicit hardcore pornography to mild erotica. The impact this will have on the production of and access to adult material in the UK is likely to be profound. This has been discussed eloquently and intelligently elsewhere by, among others, Pandora Blake and Girl On The Net, so here I will only note the main points of their arguments.

The bill is likely to force most small, independent producers of adult content to close down their sites due to the prohibitive costs of implementing AV. It will have less of an impact on the big porn players, who will have the means and resources to accommodate the legislation (probably passing on the costs of AV to the consumer) or to ignore it (leading to their site becoming inaccessible in the UK—whether or not to ignore the legislation will depend on whether they see the UK market as worth the hassle and cost of AV). Some producers will inevitably find ways of circumventing the legislation; most such producers will be based overseas, a long way from any legal risk. Doubtless much porn currently easily accessible will find its way to the wild lands of the dark web. The overall effect of the legislation is likely to be a strengthening of the commercial power of the large producers relative to independent producers, many of whom will not survive. Adult material will be less free, less diverse, less likely to cater to niche interests, and there will simply be less of it.

The new legislation will obviously also affect those who wish to access adult material: not only will this be much harder, and much material no longer available (because the producers will no longer be able to operate, or because the site has no AV and is blocked), but there will be much less free content. In addition, all users will need to provide personal data to verify their age (no-one is clear what data will be used and how AV will be implemented yet), with all the attendant risks of this data being lost, stolen, misused, or sold. As well as creating large databases of porn users, accessible to the regulator and attractive to hackers and blackmailers, AV will also open up opportunities for fraudsters to acquire personal details (expect messages such as ‘Free porn! To access it simply enter your credit card details to verify your age and click here’ to be a lucrative branch of cybercrime). For a more detailed and technical discussion of the numerous issues around implementing AV, see Alec Muffett’s blog article, ‘A Sequence of Spankingly Bad Ideas’.

In short, the bill (presumably unintentionally, since its principal aim is to protect children) spells bad news for both producers and adult consumers of pornography, an outcome that will no doubt be welcome to many campaigners, be greeted by others as an acceptable price for protecting children, but be lamented by those who value the freedom to produce, explore and enjoy perfectly legal erotica and pornography.

But will the legislation work? There are several reasons to think (and hope) it will quickly founder on the rocks.

First, Muffett’s article suggests that there is no straightforward way of implementing AV. Any AV has to be robust and secure, as minimally intrusive as possible but sufficiently intrusive to verify a user’s age, and to apply potentially to every single user of the internet throughout the UK. At present, nobody knows what form AV will take, and it could take a long time before any system has been set up. Those without much knowledge of digital technology, such as most politicians, tend to assume that digital projects are relatively straightforward to fulfil; those of us with experience of working on digital projects know that the opposite is the case. (Think of the billions of overspend and huge delays on Iain Duncan Smith’s much touted system of universal credit for an example of the naïve hopes of the politician about IT projects.) Muffett’s analysis is that any system of AV in line with the bill’s proposals is likely to run into various problems. That may lead to it being abandoned; or it may lead to a more comprehensive form of digital ID that every British citizen will be required to have. If the latter, then we will be inching a little closer to an Orwellian dystopia.

Second, it doesn’t take long to find examples of content that will defeat the intentions of the bill. Consider Twitter. Twitter has a comparatively liberal, hands-off approach to adult content; unsurprisingly, Twitter is awash with pornography. To comply with UK legislation, Twitter will either have to implement AV for UK users, or it will have to remove all adult content. It’s almost impossible to envisage it doing either. To add AV to UK Twitter accounts will mean everybody in the UK who wishes to use Twitter will need to supply personal details simply to have access to an account. Moreover, it will presumably mean that Twitter will become 18+ in the UK. Perhaps this will be acceptable to UK users; but I doubt it. The alternative—to remove all adult content—would mean Twitter changing global policy simply to comply with the laws of a single country, letting the BBFC determine for Twitter what is and what is not acceptable content, and diverting resources so that content can be regularly and closely monitored. There is zero chance of that happening.

Third, I have already mentioned the difficulties facing the BBFC in determining whether material should be restricted or not. This will not be made any easier by the fact that the BBFC will be making decisions on every single adult website, and every website that contains adult content, from all over the world (and the regulator will need to determine whether any sites flagged up by the BBFC are commercial or not, before contacting the site and trying to enforce AV). Numerous job opportunities may well be opening up at the BBFC and in the new regulator’s department in the near future; applicants with a knowledge of pornography will have an advantage.

There are also various potential anomalies that will arise. For example, an erotic short story on a commercial site will be unaffected by the legislation; but if an author includes an audio file of that story, then, according to the letter of the law, AV will be needed to access the blog. A curious aspect of the bill is that the same words have a different legal status depending on whether they are written or spoken. Another anomaly: an explicit short story (one that describes, say, sexual torture) on a non-commercial blog will remain accessible to children; some mild nudity on a commercial adult blog will be restricted. Moreover, hardcore pornography will still be accessible on non-commercial sites (personal blogs, for example) without the need for AV. Fortunately for the Daily Mail, there will remain plenty to get worked up about.

It is worth recalling how ineffective politicians have been in dealing with media generally. For years politicians have discussed how to deal with the some of the worst excesses of traditional media, and have even endeavoured from time to time to do something, yet without any noticeable effect. All the measures designed to regulate newspapers, for example, have done little to curb the worst practices of the tabloids. Whether or not that failure is to be welcomed, it may be instructive when assessing the likelihood of successful regulation of digital media.

Perhaps the fundamental problem is the unrealistic, overweening confidence of UK legislators that a national legislative body can provide solutions in an area that is truly global and ever-changing. One might even say the spirit of Brexit can be detected here: rather than view this issue as requiring transnational cooperation, the British blunder forward in the stubborn belief that it can all be solved at the national level. Equally unrealistic is the idea that proposed solutions in 2016 will be relevant even a year or two from now. Digital technology changes rapidly; new devices and platforms will emerge; new problems will arise; current problems will evolve into different ones; ways will be found around out-of-date legislation. In the world of digital communications, legislation and policy have a very short shelf life, such is the rapidity of change in that world.

None of this is to minimize the seriousness of the problem: easy access to pornography shouldn’t be available to children. But a heavy-handed and censorious approach by the state is not likely to work—at least not without serious restrictions on individual freedom (for reference, see North Korea and Saudi Arabia, among other countries, as guides to effective internet restrictions). Far better would be: to begin a wide-ranging, open and public debate about digital communications; to take a more sophisticated approach to the different types of adult material (which would include thinking about that old chestnut, the difference between pornography and erotica); to work transnationally at addressing these issues; and to work and engage closely with digital producers, with social media companies, and, importantly, with producers of adult material. Easy solutions won’t be forthcoming; but a more informed debate and understanding of digital communications will be generated that is more likely to lead to positive outcomes, and less likely to lead to astonishingly illiberal mistakes such as the Digital Economy Bill.

As I’ve suggested above, there are good reasons to suppose the bill will not work. That is not necessarily good news: it may lead to an even more thoroughgoing attempt at censorship, deeper intrusion into privacy, and greater restrictions on personal freedom. And even if the outcome, more positively, will be the abandonment of attempts by the state to expand its monitoring and close policing of its citizens, the situation in the immediate future is not promising: the Digital Economy Bill will inject numerous anomalies and inconsistencies into the digital culture of the UK, it will move towards the establishment of a database of porn users, it will lead to the demise of many independent producers of erotica and pornography, and it will create a puritanical climate in which erotica is policed in an intrusive and heavy-handed way. For those of us who regard erotica and sex as important topics worthy of attention, creativity and freedom, this is a bleak, dismal state of affairs. And for those of us imagining that erotica might be one form of pleasant distraction from the horrors of Brexit, another hope is in danger of being dashed. It’s becoming increasingly hard to find anything to look forward to in Britain right now.


The Case of the Vanishing Text Messages

It would be a shame if messages like this were lost…

A couple of days ago every text message on my phone vanished. This happened overnight: I slept secure in the knowledge that my 2,000 messages were safely stored; the next morning, on checking my phone after hearing a new text alert, I found only the single, solitary, new message I had just received. Where had they all gone? Quite possibly they exist somewhere, although that somewhere is probably buried deep within the US National Security Agency or Britain’s GCHQ. Thanks to Edward Snowden we know that an NSA program dubbed Dishfire was indiscriminately collecting nearly 200 million text messages every day in 2011. However, contacting the NSA and GCHQ on the off chance they possess an archive of my messages strikes me as foolish. So to all intents and purposes my messaging history over the past couple of years has disappeared for good.

An event such as this ought to hit me hard. I am the sort of person who saves every piece of communication from friends and colleagues that comes my way. I preserve every letter and card I am sent; I save and archive all emails I exchange (on one of my email accounts there is a folder containing all 5,000 or so emails between myself and an unhinged woman in New York, a ‘romantic’ story I am unfolding elsewhere); you can be sure if you contact me the communication will be archived, even if it is only a pithy email expressing the fervent wish that I ‘rot in hell’ (not, some may be surprised to know, a frequent wish, but it has happened). I archive primarily for archiving’s sake. I have no doubt that of all the many thousands and thousands of emails I preserve I will not look at more than a handful again in my remaining years. But in some way they all constitute a record of my past, and as an historian I instinctively like to preserve such records. And as evidence of my brilliant and witty contribution to the art of texting (if not sexting), the disappearance of my messages now means that people will simply have to take my word for it…

... or this
… or this

However the sudden evaporation of my messaging history has happened before with my phone (see here and here for evidence that this issue is not unique to me). And when I upgraded my phone a few years ago, there was no way of retrieving the message archive on my previous phone. So I have long been sceptical of the archiving stability of text messages. Doubtless there are ways to archive were I to devote enough of my precious time to investigating the matter; and I’m told that messages on the iPhone are stored in the Cloud (but since I try to avoid Apple as best I can, this is of no help to me). But in place of doing anything practical about my problem I’ve decided to think about it instead. Two issues seem interesting to me, both in relation to issues raised by digital communication: whether and what we should archive; and the accessibility and security of archives.

Preserving a record of the past is important; even a society which consciously constructs a false version of the past needs its records (a point brought out in George Orwell’s Nineteen Eighty-Four—Winston Smith’s job is to falsify records). Most societies have evolved careful rules and procedures about preserving official documents, court records, important correspondence, minutes, reports, and so on; similarly, companies and businesses are expected to retain records, and most wish to keep an archive. There are good reasons for doing this: the phone-tapping scandal revealed how important from a legal and transparency perspective it was that News International retained its email correspondence (and, fortunately, David Cameron’s struggle to understand what ‘LOL’ means in his text messages to Rebekah Brooks); whereas the failure of the Russian World Cup bid to preserve its emails has hampered the investigation into allegations of FIFA corruption.

But, as any archivist would confirm, it becomes impractical to archive all information—there is simply too much of it. The National Archives at Kew store approximately 11 million documents on 100 miles of shelving, adding at least a mile of shelving each year; to save space at Kew, deep salt mines in Cheshire are now used to hold some records. Even then, records need to be destroyed: the National Archives has drawn up a policy of which records can be discarded—those that are ‘deemed to have no long-term value’. Deciding where to draw the line between those records worthy of long-term preservation and those that can be disposed of as valueless ephemera is, however, fraught with difficulties (not least over who has the power to make these decisions). As many historians know, it is frequently those records which held little value in their contemporary society which go on to become valuable historical documents. A good example of this comes from one of my own areas of research interest: the visual print culture of early modern England. There is a good survival rate of those printed images from the sixteenth and seventeenth centuries at the higher end of the market, since these were the ones valued by collectors. But the survival of cheap prints is much patchier, even though they were almost certainly produced in far greater quantities than the ‘quality’ prints—ignored by connoisseurs and collectors, and regarded as disposable ephemera, many have been lost to us for good. Yet several centuries on, as historians increasingly focus on the everyday life of society and people in the past, it is precisely this low-end material that becomes most valuable as evidence.

A kitten
A kitten

Consider this in relation to digital communications. On Twitter it is estimated that 500 million tweets are sent each day, which works out at over 180 billion tweets per year; on Facebook, 12 billion messages are sent per day, and every minute 50,000 links are shared and 243,000 photos uploaded. A fair proportion of all this stuff is the stirring information that someone has decided to have a boiled egg for breakfast, or the inspirational pictures of kittens doing amusing and ‘cute’ things—all of which, one might suppose, epitomizes the very notion of ‘disposable rubbish’. But does it really lack value? Setting aside my regret that I decided to write articles rather than post endless pictures of kittens and cats (the latter being a more certain means of gaining an audience), I find the limitless ephemera flying around the internet to be fascinating, and I’m sure future historians will do too—as an insight into the culture and mentality of the world we live in, as evidence of our concerns, our ways of interacting, our means of dealing with the world and all its pressures, all of this is valuable material. While I fear for the sanity of the future PhD student who decides that ‘The Cultural Meaning of the Early 21st-Century Obsession with Kittens’ makes for a viable research topic (I start losing my mind at the sight of two or three kitten pictures, so I shudder at the idea of trawling daily through thousands of the damn things), there is a potentially interesting subject in this, and it is important that we preserve the archives to enable it to be pursued one day.

But will the archives exist for the future historian? My failure to preserve any of the text messages I have sent or received over the past ten years or so suggests that the information we exchange digitally is far from secure or stable. In relation to information management and archiving, this seems to me to be one of the pressing issues of our age: how do we manage and preserve the unimaginably vast amount of information we produce so that future generations, should they wish, can study it in order to understand our present and their past? Rapidly evolving and changing file types, media formats and means of storage do not inspire great confidence that our information will be accessible to future generations. If I put all my documents on a USB stick or CD, what are the chances that in, say, a century’s time there will be the easy means of retrieving these documents—let alone whether Word documents from the early twenty-first century will be compatible with whatever file types are standard in the twenty-second century? In my lifetime music has gone from being stored on vinyl and cassette, to CDs and to MP3s; VHS cassettes are now obsolete; and I haven’t seen a floppy disk drive in nearly twenty years.

I don’t know the solutions to these problems—but I do know that the questions are important. And they are important not simply because of the need to think of ourselves in relation to future generations; they are also important because the control of information is a vital issue of our time. Archivists, librarians, cataloguers—these are the gatekeepers to information. How information is stored, what information is to be preserved and what discarded, how information is organized, who has access to information—these are the concerns of the archivist, the librarian and the cataloguer. Whenever a society decides who the gatekeepers to information should be, it is making a decision about who has power. Clearly I have little power over my text messages as a body of information; a ‘decision’ was made about them by my phone (and possibly other decisions have been made by the NSA and GCHQ too). And that bothers me a lot more than my recent loss of occasional drunken declarations of desire, autocorrect mishaps and insightful comments about the boiled egg I am eating for breakfast.