NYTimes oped: Federal laws better than censorware

Check out the last paragraph of Andrew's op-ed: it's Larry
Lessig's argument, though conveniently unattributed. It's
also a dangerous one, and a favorite of leftists, claiming
that "accountable" government regulations are somehow
better than "unaccountable" private classification schemes.

Of course Andrew neglects to say that the CDA was not just
civil regulation like many FCC rules: it, and its
successor, are criminal laws with serious jail time and
up to quarter-million dollar fines if you violate them.

He also neglects to say that the reason PICS was created is
pressure from the Feds.

Try as hard as they may, not even RSACi can throw you in
jail -- unless Congress passes Murray's bill, which means
it's no longer private-sector action.

If the market VOLUNTARILY comes up with a rating system, I
don't know how you can say that's worse than government
censorship and possible jail time. (Read Solveig's op-ed on
this, which I posted earlier this week.)

Arguing that private selection is "worse" than government
censorship is simply incoherent. If government is coercing
industry to adopt a scheme, which is the direction we're
heading now, then it's time to make the argument that the
government pressure amounts to state action. Then
eventually challenge it in court.

I'm not sure if Andrew is going here or not, but some
leftists (or "liberals," if you like) oppose
rating systems and censorware because they think children
have a general right to access information. Even if their
parents buy the computers. I think this is another
incoherent argument that we should be careful not to buy
into.

It may be a bad idea for parents to install such
programs -- as it may be a bad idea to feed Junior
poptarts instead of bran cereal -- but children do
not have a of Constitutional right to have
censorware-free computers.

-Declan

==============

Opinion: The Danger of Private Cybercops

By ANDREW L. SHAPIRO


At a conference this week on protecting children from the
perils of the Internet, consensus emerged on a strategy to
keep minors away from cyberporn: let the private sector
handle it. Rather than relying on Government regulation,
Vice President Al Gore said, parents should look to
industry for tools that will let them filter Internet
content.

Civil libertarians are largely responsible for the success
of this approach. Indeed, they convinced the Supreme Court
that it would do less harm to free speech than the
Communications Decency Act, the law criminalizing on-line
indecency, which the Court struck down in June.

Yet those advocates may now regret what they wished for,
because some of their schemes seem to imperil free speech
more than the act did.

For example, software that users install to block out
certain Internet content often excludes material that isn't
indecent. One such program, Cybersitter, prevents users
from visiting the site of the National Organization for
Women. And the makers of these programs often won't even
tell adults what sites have been blacklisted.

Still worse is a protocol known as PICS that changes the
Internet's architecture to make it easy to rate and filter
content. PICS is theoretically neutral because it allows
different groups to apply their own labels, but could hurt
the Internet's diversity by requiring everything to be
rated. Small, unrated sites would be lost.

Moreover, these technologies enable what might be called
total filtering, where objectionable speech of any type can
be screened out effortlessly. Benign as this may seem, such
filtering might be used not just by individuals but by
employers, Internet service providers and foreign
governments seeking to restrict information that others
receive.

The ground rules for an open society could also be
undermined. When total filtering meets information
overload, individuals can (and will) screen out undesired
interactions, including those crucial to a vibrant
political culture -- the on-line equivalents of a civil
rights protest or a petition for a reform candidate. In
such a filtered society, civil discourse and common
understanding will suffer.

This should lead us to think long and hard about the way
that technology can be an even more cunning censor than
law. That's not to say that Government solutions are
problem-free or desirable. But at least when the state goes
overboard, speech defenders have the safety valve of a
First Amendment lawsuit. This legal recourse is not an
option when politicians simply persuade industry and
consumers to use speech-inhibiting tools. Who knows,
free-speech advocates may find themselves nostalgic for
public regulation after all.

Andrew L. Shapiro is a fellow at Harvard Law School's
Center for no the Internet and Society and at the Twentieth
Century Fund.

At 11:02 -0500 12/4/97, Declan McCullagh wrote:
>Check out the last paragraph of Andrew's op-ed: it's Larry
>Lessig's argument, though conveniently unattributed.

Let me retract this particular statement. I'm told that Lessig was properly
cited then edited out late last night.

-Declan

Hold your horses, folks.

At 11:02 AM 12/4/97 -0500, Declan McCullagh wrote:
>Check out the last paragraph of Andrew's op-ed: it's Larry
>Lessig's argument, though conveniently unattributed.

For space reasons, the Times cut my attribution to Larry (as he knows and
will tell you).  The piece was 700 words at 7:00 pm yesterday, 425 words at
7:15.  Believe me, I was sorry not to be able to credit my friend,
colleague, and former teacher.

And incidentally, it was the third-to-last graph, not the last (is this
kind of looseness with the facts a coincidence?).

>Of course Andrew neglects to say that the CDA was not just
>civil regulation like many FCC rules: it, and its
>successor, are criminal laws

Hello? in graph 2: "Communications Decency Act, the law *criminalizing*
on-line indecency..."

>He also neglects to say that the reason PICS was created is
>pressure from the Feds.

You're wrong or overstating the case.  PICS began as an effort -- rightly
enough -- to *respond to* and/or *stave off* laws like the CDA.  But did
the Feds "pressure" anyone to come up with PICS?  No.  I just
double-checked with someone linked to PICS's founding, who told me: "Nobody
in the federal government ever came to the 3WC and told them to create
PICS."  And even if the Feds had "pressured" someone to do so, that
wouldn't in anyway justify its speech-inhibiting design features.

Now, as to whether politicians are pressuring industry to *use* PICS and
other total filtering schemes, that's another question.

>Try as hard as they may, not even RSACi can throw you in
>jail

That's irrelevant, Declan.  Day-to-day, speech can be inhibited as much by
technology as by law.  In fact, you're the one who's shown us that so well
with your countless posts about the dangers of censorware.

>If the market VOLUNTARILY comes up with a rating system, I
>don't know how you can say that's worse than government
>censorship and possible jail time.

That's not what I said.  I'm not in favor of censorship and I oppose any
attempt to *criminalize* 'indecent' speech.  But criminalize does not =
regulate.


>children do
>not have a of Constitutional right to have
>censorware-free computers.

Really!  I seem to recall *you* making the argument that kids have first
amendment rights to access any information, particularly in public
facilities like libraries.  The 17 1/2 year old college freshman perhaps?
Did you change you mind?

-- Andrew 


>==============
>
>Opinion: The Danger of Private Cybercops
>
>By ANDREW L. SHAPIRO
>
>
>At a conference this week on protecting children from the
>perils of the Internet, consensus emerged on a strategy to
>keep minors away from cyberporn: let the private sector
>handle it. Rather than relying on Government regulation,
>Vice President Al Gore said, parents should look to
>industry for tools that will let them filter Internet
>content.
>
>Civil libertarians are largely responsible for the success
>of this approach. Indeed, they convinced the Supreme Court
>that it would do less harm to free speech than the
>Communications Decency Act, the law criminalizing on-line
>indecency, which the Court struck down in June.
>
>Yet those advocates may now regret what they wished for,
>because some of their schemes seem to imperil free speech
>more than the act did.
>
>For example, software that users install to block out
>certain Internet content often excludes material that isn't
>indecent. One such program, Cybersitter, prevents users
>from visiting the site of the National Organization for
>Women. And the makers of these programs often won't even
>tell adults what sites have been blacklisted.
>
>Still worse is a protocol known as PICS that changes the
>Internet's architecture to make it easy to rate and filter
>content. PICS is theoretically neutral because it allows
>different groups to apply their own labels, but could hurt
>the Internet's diversity by requiring everything to be
>rated. Small, unrated sites would be lost.
>
>Moreover, these technologies enable what might be called
>total filtering, where objectionable speech of any type can
>be screened out effortlessly. Benign as this may seem, such
>filtering might be used not just by individuals but by
>employers, Internet service providers and foreign
>governments seeking to restrict information that others
>receive.
>
>The ground rules for an open society could also be
>undermined. When total filtering meets information
>overload, individuals can (and will) screen out undesired
>interactions, including those crucial to a vibrant
>political culture -- the on-line equivalents of a civil
>rights protest or a petition for a reform candidate. In
>such a filtered society, civil discourse and common
>understanding will suffer.
>
>This should lead us to think long and hard about the way
>that technology can be an even more cunning censor than
>law. That's not to say that Government solutions are
>problem-free or desirable. But at least when the state goes
>overboard, speech defenders have the safety valve of a
>First Amendment lawsuit. This legal recourse is not an
>option when politicians simply persuade industry and
>consumers to use speech-inhibiting tools. Who knows,
>free-speech advocates may find themselves nostalgic for
>public regulation after all.
>
>Andrew L. Shapiro is a fellow at Harvard Law School's
>Center for the Internet and Society and at the Twentieth
>Century Fund.
>
>
>
>

I still don't understand why it is "censorship" when any
company can come up with any software that rates sites
according to any scheme, and anyone can choose to use
any package, or ignore the software altogether. there is total freedom 
in all of this.

Declan, why is it that you are now editorializing against an
editorial that asks for government standards & laws instead of
free market ones? are you starting to finally figure out that
private enterprise filtering systems, while having huge 
aspects that are not all that pleasant, are superior to the
alternative? (btw, I don't like the claims of the editorial
either, but that has always been my position on this issue--
that private enterprise 
systems are superior to government censorship)

I agree that PICS was introduced in part to try to come up
with a solution to the problem of offensive content that
could be presented as an alternative to any government 
involvement. people on the net want to solve their own problems
on the net, without laws, in general.

everyone who continues to rant against filtering companies
strike me as people who are screaming sour grapes. "we don't
like the choices these companies have made!!" but just start
your own!! the market is deciding what filtering company
is doing the best job, mostly regardless of your ranting.
and surprise!! guess what!! the market may not actually
decide that it even cares whether filtering products are
up front about informing what sites they filter.

what, it takes a lot of work to filter sites? well, you're
damn right-- doing anything of value requires a lot of work,
and the filtering companies are working hard to improve their
technology, no thanks to the screechings of a lot of people
who feel that they have some better way of judging filtering
software than the parents who use it.

the net will continue to support schemes that help separate,
segregate, and rate content, and those who reject such ideas as
"censorship" are going to be seen as increasingly out-of-touch
and clueless about how the technology works.

does anyone claim it is censorship because a service interested
in rating "cool sites" does not rate many sites it thinks are not
cool? why then is there so much controversy when a *service*
designed to rate *sites acceptable to children* does not include
certain sites? can anyone tell me the difference? answer: many
people wish to be the judge of what children can and cannot see.
but ultimately,  does anyone other than a parent have the
authority to do this? in a free society, which I think we
still live in, that is?

if you think you are a better judge of what children should
see, create your own service that includes whatever you think
is being excluded. the market may support you. or, the market
may thumb its nose at you.

(however, postscript to all of the above,
I do agree that any government laws making filtering
software in some way mandatory is bogus and abhorrent.)

I think the answer to your question is that most of us find the very idea
of filterware distasteful (let alone the generally poor quality of the
implementations.  However, that's much the same as I find american cars
distasteful.  If somebody else wants to blow their money on one of those
pieces of crap, by all means let them.  (I admit, they're slowly getting
better)  This leads us to poke fun at the current systems and argue against
people actually using them, much the same way a christian friend of mine
keeps trying to get me to accept jesus into my heart and love him so that I
won't go to hell.  On the other hand, we get really pissed off when
somebody tries to force us and our kids to use this crap.  It doesn't
matter if it is AOL or the FBI, outside coercion is outside coercion.
At 04:48 PM 12/7/97 -0800, Vladimir Z. Nuri wrote:
>
>I still don't understand why it is "censorship" when any
>company can come up with any software that rates sites
>according to any scheme, and anyone can choose to use
>any package, or ignore the software altogether. there is total freedom 
>in all of this.
>
>Declan, why is it that you are now editorializing against an
>editorial that asks for government standards & laws instead of
>free market ones? are you starting to finally figure out that
>private enterprise filtering systems, while having huge 
>aspects that are not all that pleasant, are superior to the
>alternative? (btw, I don't like the claims of the editorial
>either, but that has always been my position on this issue--
>that private enterprise 
>systems are superior to government censorship)
>
>I agree that PICS was introduced in part to try to come up
>with a solution to the problem of offensive content that
>could be presented as an alternative to any government 
>involvement. people on the net want to solve their own problems
>on the net, without laws, in general.
>
>everyone who continues to rant against filtering companies
>strike me as people who are screaming sour grapes. "we don't
>like the choices these companies have made!!" but just start
>your own!! the market is deciding what filtering company
>is doing the best job, mostly regardless of your ranting.
>and surprise!! guess what!! the market may not actually
>decide that it even cares whether filtering products are
>up front about informing what sites they filter.
>
>what, it takes a lot of work to filter sites? well, you're
>damn right-- doing anything of value requires a lot of work,
>and the filtering companies are working hard to improve their
>technology, no thanks to the screechings of a lot of people
>who feel that they have some better way of judging filtering
>software than the parents who use it.
>
>the net will continue to support schemes that help separate,
>segregate, and rate content, and those who reject such ideas as
>"censorship" are going to be seen as increasingly out-of-touch
>and clueless about how the technology works.
>
>does anyone claim it is censorship because a service interested
>in rating "cool sites" does not rate many sites it thinks are not
>cool? why then is there so much controversy when a *service*
>designed to rate *sites acceptable to children* does not include
>certain sites? can anyone tell me the difference? answer: many
>people wish to be the judge of what children can and cannot see.
>but ultimately,  does anyone other than a parent have the
>authority to do this? in a free society, which I think we
>still live in, that is?
>
>if you think you are a better judge of what children should
>see, create your own service that includes whatever you think
>is being excluded. the market may support you. or, the market
>may thumb its nose at you.
>
>(however, postscript to all of the above,
>I do agree that any government laws making filtering
>software in some way mandatory is bogus and abhorrent.)
>
>


                             -Colin

At 4:48 PM -0800 12/7/97, Vladimir Z. Nuri wrote:
>I still don't understand why it is "censorship" when any
>company can come up with any software that rates sites
>according to any scheme, and anyone can choose to use
>any package, or ignore the software altogether. there is total freedom
>in all of this.

If that were all that were going on, no one would argue with it.

The problem arises when government bodies require use of a particular
filter (as in libraries), or require publishers to attach derogatory labels
to the information they publish (as in too many trial balloons for me to
list). These are abuses of freedom, and if you pay attention, you'll see
that such applications of filter and labeling programs receive the lion's
share of vocal opposition.

There are a couple of subsidiary problems - one is that current filterware
is, not to put too fine a point on it, terrible to the point of
constituting fraud on the consumer; another is with the issue of minors'
rights to access information they need, and the limits that parents and
schools must observe in restricting those rights while still fulfilling
their responsibilities. Current filterware would still be criticized -
rightly so - even if it weren't being used for censorship. But the fact is
that it is being so used.

Someday, perhaps the threat of censorship-via-filters will go away and we
can spend less time discussing them.

--
Morning people may be respected, but night people are feared.

At 10:37 PM -0500 12/7/97, Mike Godwin wrote:
>At 12:00 PM -0500 12/4/97, Andrew Shapiro wrote:
>>That's not what I said.  I'm not in favor of censorship and I oppose any
>>attempt to *criminalize* 'indecent' speech.  But criminalize does not =
>>regulate.
>
>Perhaps it is a flaw in my legal education, but I was always taught that
>criminal laws were a form of regulation.

What I meant to say, Mike, was that not all regulation, obviously, is criminal.

A.

At 12:00 PM -0500 12/4/97, Andrew Shapiro wrote:

>You're wrong or overstating the case.  PICS began as an effort -- rightly
>enough -- to *respond to* and/or *stave off* laws like the CDA.  But did
>the Feds "pressure" anyone to come up with PICS?  No.  I just
>double-checked with someone linked to PICS's founding, who told me: "Nobody
>in the federal government ever came to the 3WC and told them to create
>PICS."

I believe the first version of the Exon Amendment was introduced in late
summer of 1994. I believe PICS postdates this, but I am not certain.

>And even if the Feds had "pressured" someone to do so, that
>wouldn't in anyway justify its speech-inhibiting design features.

Does PICS inhibit speech in e-mail or in Usenet newsgroups or in FTP sites?
Isn't PICS just the Web?
Conversely, doesn't any version of the CDA inhibit speech in, e.g., e-mail,
Usenet newsgroups, and FTP sites?

I cannot conceive of any version of the CDA that does not restrict speech
more broadly, and have a greater chilling effect, than PICS. Note that this
is not a defense of PICS.

>That's irrelevant, Declan.  Day-to-day, speech can be inhibited as much by
>technology as by law.

I don't believe PICS, whatever its other flaws, poses any threat of putting
speakers of unapproved speech in jail.

>That's not what I said.  I'm not in favor of censorship and I oppose any
>attempt to *criminalize* 'indecent' speech.  But criminalize does not =
>regulate.

Perhaps it is a flaw in my legal education, but I was always taught that
criminal laws were a form of regulation.

>>children do
>>not have a of Constitutional right to have
>>censorware-free computers.
>
>Really!  I seem to recall *you* making the argument that kids have first
>amendment rights to access any information, particularly in public
>facilities like libraries.

I cannot speak to what Declan's argument actually was, but I note that
these two positions are not, in fact, logically inconsistent.


---Mike





----------------------------------------------------------------------------
We shot a law in _Reno_, just to watch it die.

Mike Godwin, EFF Staff Counsel, is currently on leave from EFF,
participating as a Research Fellow at the Freedom Forum Media Studies
Center in New York City. He can be contacted at 212-317-6552.
----------------------------------------------------------------------------