NYTimes oped: Federal laws better than censorware

[Declan McCullagh <declan@well.com>]

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.