How Antitrust Crusaders Brought a Porn App to iPhones
The E.U.'s Digital Markets Act is making it easier for iPhone users to watch porn.
A porn app called Hot Tub can now be added to iPhones in the European Union, thanks to an overzealous interpretation of antitrust law.
Hot Tub is an "aggregator that offers iOS users a way to search and play videos from a variety of adult websites, including Pornhub, Xvideos, XNXX, and XHamster," according to TechCrunch.
Hot Tub's journey to iPhones is a perfect story of unintended consequences. And it should serve as a warning for U.S. activists and authorities who seem to think they can both restrict access to adult content and require Apple and Google to facilitate more competition to their app stores.
You are reading Sex & Tech, the newsletter from Elizabeth Nolan Brown on sex, technology, bodily autonomy, law, and online culture. Want more on sex, technology, and the law? Subscribe to Sex & Tech. It's free and you can unsubscribe any time.
How Hot Tub Made It to iPhones
For years, Apple has banned apps that carry "overtly sexual or pornographic material" from appearing in its App Store—which serves as the default marketplace for downloading apps on iPhones, similar to the Google Play store on Androids.
In recent years, some antitrust zealots have begun to denounce Apple and Google for blocking or discouraging apps—including competing app marketplaces—from being downloaded outside of their official app stores. Apple and Google said this was essential to ensuring the safety, reliability, and functionality of their products. Critics complained that they had an unfair monopoly on app distribution and sales and said this really only about making them more money.
Of course, there are ways for consumers to download apps from sources outside of official app stores, even on iPhones (which are much stricter about outside apps). And content not available through a standalone app—such as porn—could still be viewed through a browser.
But some people insist that requiring extra steps of consumers or developers amounts to unfair restraint of trade and throttling of competition. According to these folks, those convenient app stores are simply the tools of evil monopolists.
That's how we wound up with a law like the E.U.'s Digital Markets Act, which—among other things—requires Apple to allow alternative app stores.
Last week, one of these alternative app stores started allowing iPhone users to download Hot Tub.
Right or Wrong?
Some will welcome porn apps to smartphones, and some will loathe it. To me, this is a neutral development at its core. People could already use their phones to view porn in a variety of ways, including visiting porn websites through browser apps or searching for porn on social media platforms. So it's not as if alternative app stores are opening up phones to a heretofore unavailable type of content, although they could arguably make this content easier to access or more user-friendly to view.
To me, the interesting question and relevant moral quandary is Where is the government coercing action?
To the extent that Apple and other phone manufacturers do not want to allow porn apps and the new antitrust rules effectively require it, this is an unfair incursion on their private business decisions and free speech/association rights.
Now, one might argue that, all things being equal, executives at Apple (and other tech companies) don't really care about preventing porn apps and the only reason they've imposed these rules against them is because of pressure from regulators and lawmakers. In this scenario, we've got competing kinds of coercion.
There's certainly some merit to the above arguments. A lot of tech companies, including Apple and Google, seem to have gotten more restrictive about sexual content as government attention and threats around sexual content picked up.
But there are also plausible reasons that don't have anything to do with government pressure why Google and Apple might want to restrict porn apps, such as wanting app stores to be welcoming to wide audiences or fearing being boycotted by anti-activists.
In the end, it's sort of impossible to disentangle all the competing forms of government coercion here and arrive at a conclusion about these companies' true desire. I think the best we're probably left with is acknowledging that, for whatever reason(s), Apple wanted to prevent porn apps, and now, because of the Digital Markets Act, it is hamstrung from doing so.
This is, if nothing else, funny. Because the cohorts who wail about app-store monopolies and needing to stick it to big tech companies over "competition" tend to be the same cohorts who think tech companies need to do more to "protect" people from ever encountering anything sensitive.
And by messing with markets and mandating that Apple open its phones up to competing app stores, authorities have all but ensured the proliferation of porn apps.
Social-media censorship bill update: A new "think of the children" censorship bill is moving through Congress. At least this time, lawmakers had the decency to give it a pretty straightforward name. There's no grandstanding about "protection" or "safety"—the "Kids Off Social Media Act" (KOSMA) just cuts to the point: getting kids off of social media platforms.
KOSMA "is sort of an attempt to create a 'more palatable' version of KOSA, but…still a censorship bill at its core," writes Cathy Gellis at Techdirt.
"This bill—if enacted—would actively undermine child safety, harm marginalized youth, erode privacy, and impose unconstitutional restrictions on young people's ability to engage online," according to the American Civil Liberties Union (ACLU) and other free speech groups who signed a February 4 letter opposing KOSMA. They write:
Banning kids from creating an account, including ones with appropriate safeguards, would cut them off from online expression, political engagement, news and even essential educational resources on platforms like YouTube, Pinterest, and GroupMe. At a time when books are being banned in schools and curricula are being restricted, ensuring young people can access a broad range of perspectives online—and be able to engage with a broad community– is more critical than ever. KOSMA, however, would completely shut kids under 13 off from this world, in violation of the First Amendment.
KOSMA passed out of the Committee on Commerce, Science, and Transportation the next day.
"All the major social media platforms already prohibit children under the age of 13," notes the Information Technology and Innovation Foundation:
Online services restrict these users because the Children's Online Privacy Protection Act (COPPA) imposes additional requirements on platforms with users under the age of 13. At the same time, KOSMA does not require platforms to use age verification to ensure they have no users below age 13. As a result, this bill accomplishes nothing that platforms do not already do in terms of restricting young children from their services.
However, KOSMA creates a regulatory challenge for social media platforms. With regard to underage users, COPPA holds platforms to an "actual knowledge" standard—online services are obligated to act when they are aware and have no doubt that a minor under the age of 13 uses the service. But KOSMA uses a "reasonable knowledge" standard—online services must act if there is a high likelihood that a user is below the age of 13. COPPA's actual knowledge standard allows online services to protect children without significantly increasing compliance costs, whereas KOSMA's reasonable knowledge standard is so broad and ill-defined that it would raise compliance costs and subject platforms to an increased risk of liability, even when attempting to comply in good faith.
In addition to entirely banning people under age 13 from creating social media accounts of any kind and ordering platforms to delete the accounts of existing users 12 and under, it would ban the use of personalized recommendations and algorithmic feeds for anyone under age 18. And that's not all. From the ACLU letter:
This legislation would also bar schools from receiving E-Rate funding if they do not enforce "a policy of preventing students of the school from accessing social media platforms on any supported service, device, or network." Not only would this prevent students of all ages from accessing social media during after-school activities or when relying on parking lot wi-fi, but this prohibition will also extend into students' homes. Today, schools often provide students with computers, hotspots, and other networking equipment. However, these devices are disproportionately used outside of school by low-income households, who struggle to afford a device or broadband connection on their own.
The nonprofit group Fight for the Future has called KOSMA a "pathetic fart" of a bill that would "make the Internet worse and endanger those who use it to organize."
More Sex & Tech News
• Not to be outdone by the folks who thought they found a "sex trafficking operation" in a charity toy drive, a Virginia man convinced himself that his neighbors' Bible study group was a human trafficking soiree. He was arrested and jailed after breaking into their home and threatening members of the Bible study with assault.
• Libya's eastern government is banning rap music on the grounds that it might incite young people to "sex work, suicide, or rebellion against family and society."
• I talked with the Cato Institute's Caleb Brown last week about Massachusetts seeking to define all prostitution customers as sex traffickers. Listen here.
• Republican lawmakers in New York have introduced a bill that would require porn websites to age-verify users. "The bill, introduced by Republicans Jake Ashby and Assemblywoman Mary Beth Walsh, is almost identical to every other law that has passed across the country in the last two years related to age verification," and "would require porn sites to verify that visitors are at least 18 years old through 'digital identification,' credit card transaction, government ID, or password-protected login," reports 404 Media.
• "A federal district court on Friday has issued more temporary blocks on provisions of a Texas law designed to restrict what kinds of materials and advertisements minors can see on social media and age verification requirements," reports The Texas Tribune. Calling the law "unconstitutionally vague," Judge Robert Pitman "enjoined several provisions of the Securing Children Online through Parental Empowerment Act, also known as the SCOPE Act." The law is being challenged by Students Engaged in Advancing Texas and others, with assistance from The Foundation for Individual Rights and Expression.
Today's Image
