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Date: Mon, 3 Nov 1997 11:11:56 -0500
From: Mike Godwin
Subject: Law Professor calls for new CDA
To: NETLY-L@pathfinder.com
(I have been saying for some time that Professor Lessig, despite how he
characterizes himself, is no friend of freedom of speech. But here's where
the other shoe has dropped.)
From the online edition of the New York Times:
October 30, 1997
By CARL S. KAPLAN
Is a Better CDA Preferable To Opaque Censorship?
he Communications Decency Act is dead, and most free speech advocates say,
"good riddance." If there must be a solution to the problem of kids and
cyber-pornography, let a thousand software-blocking packages bloom in
homes, libraries and schools.
Professor Lawrence Lessig of Harvard Law School is having none of this,
however. In a recent controversial draft essay on the regulation of
cyberspace, Lessig, a respected cyberlaw scholar, argues that if government
must embrace a solution to indecent speech, a revamped CDA-like plan would
be far more protective of traditional free speech values than the dangerous
filtering products that many civil libertarians seem to love, or at least
to prefer.
"My sense is that this first major victory [in Reno v. ACLU] has set us
in a direction that we will later regret," Lessig writes, referring to the
Supreme Court opinion striking down the CDA on First Amendment grounds.
"It has pushed the problem of kids and porn towards a solution that will
(from the perspective of the interest in free speech) be much worse. The
(filtering products) touted by free speech activists in Reno are, in my
view, far more restrictive of free speech interests than a properly
crafted CDA."
Lessig is not the first free speech advocate to damn filtering software.
But he goes further than most in his nostalgia for a revised CDA. He also
knows that his conclusions may invite some fury.
"Promoting a CDA-like solution to the problemb of indecency is very much
to step out of line," he writes. "I am not advocating a CDA-like solution
because I believe there is any real problem. In my view, it would be best
just to let things alone. But if Congress is not likely to let things
alone, or at least if the President is more likely to bully a private
solution then we need to think through the consequences of these different
solutions. . . . We may well prefer that nothing be done. But if something
is to be done, then whether through public or private regulation, we need
to think about its consequences for free speech."
Lessig's article, titled "What Things Regulate Speech," is a trove of
ideas and legal scholarship on the permissible scope of government
regulation of indecency, the evils of filtering and the nature of law in
cyberspace, where restrictions on speech, for example, are apt to be
enacted not by federal or state statues, but by minimally debated software
codes. Happily, the article is written in plain English, not law school
professor-ese. Many of the author's ideas have been expressed in earlier
articles, law review essays and speeches.
Boiled down and simplified, the main points of Lessig's CDA argument run
like this:
First, he argues that government has the power to place or "zone" hard-core
pornography out of the reach of kids, so long as the means chosen is the
least restrictive form of discrimination that existing technology permits.
For example, Lessig notes that a California law making it a crime to sell
porn in unattended vending machines, unless the machines are equipped with
an adult identification system, was upheld by a Federal Appeals court. The
Supreme Court earlier this year declined to review the case and thereby
left the California law standing. In a historical footnote, the denial was
issued in the same week the Supreme Court heard oral arguments in the CDA
case w another matter involving the distribution of porn to kids.
Next, Lessig points out that the success in the CDA case came in persuading
the Court that other, less restrictive means for protecting children from
porn were still available. The evils associated with the less restrictive
means [ traditional blocking software ] are legion, however.
For one thing, blocking software is crude because it tends to filter out
too much [ sites opened to discuss AIDS or gay rights, for example ]
because of mistaken associations with indecency. Also, blocking software is
opaque, because the lists of banned sites are not published. Finally, the
filtering companies, prompted by the demands of the market, tend to offer
generalized censorship [ restrictions on access to a variety of potentially
objectionable sites, from those dealing with violence to gambling ] not
just censorship of so-called indecent sites.
The upshot is that to the extent that government embraces filtering
software, or mandates its use in libraries or schools, for example, such
state action may be unconstitutional, because the government is exceeding
its narrow justification in separating kids from hard-core pornography.
As bad as private blocking is, PICS is worse, Lessig argues. PICS, an
acronym for "Platform for Internet Content Selection," is a proposed
labeling standard that makes it possible to rate and block material on the
Net.
"It was motivated as an alternative to the CDA," Lessig, 36, said in a
recent telephone interview. "The MIT geniuses who thought it up realized
it had broader potential that just blocking indecent speech."
Like blocking software, PICS will probably be used as a general filtering
tool w far exceeding the narrow interests of government, Lessig says.
Another problem is the invisible nature of PICS: "If I use PICS on a
search engine, and PICS returns two hits, and blocks 8 hits, it doesn't
report
back to me that 8 sites have fallen off the Earth," Lessig says.
Most ominously, he argues, PICS can be imposed by anybody in the
distribution chain. Thus a filter can be placed on an person's computer, or
at the level of a company, an ISP or even a nation without the end user
ever knowing it, Lessig says, making it easier for centralized censors to
place filters on the Net.
Taken together, filtering software and PICS lead to a hard-wired
architecture of blocking that is antagonistic to the original free-wheeling
and speech-enhancing values of the Internet, Lessig argues.
By contrast, the scheme proposed by the old CDA wasn't that bad, he
suggests. Of course, the original CDA was flawed because it went after a
category of speech that was too vague to pass constitutional muster, Lessig
says - a problem that CDA II could fix by taking sharper aim at hard-core
pornography.
More important, the scheme envisioned by the old law was somewhat
protective of free speech values. Under the CDA, the "means" offered to
separate kids from pornography was to put porn behind a wall that screened
out kids with reasonable effectiveness. The technique was not filtering. It
was to set up identity checks on the doors through which people wanted to
pass.
This type of system has two things going for it, says Lessig. First, its
restrictions extend only as far as the legitimate governmental interest w
screening kids from porn. Second, it is unlikely to morph into a more
comprehensive system for general censorship.
Lessig adds that this type of identification system - contrary to the
court's factual findings - is workable.
Reaction to Lessig's ideas from the free-speech cohort is understandably
mixed. James Boyle, a law professor at American University, for example,
agrees with Lessig's point that people should be very suspicious of
technological solutions to indecent speech on the Internet, like blocking
software and PICS.
"There's a kind of belief that technological solutions are pure and
neutral. They have an allure - like Jetson's Jurisprudence," he says.
"But I agree with Larry; people need to understand that technology isn't
necessarily benign."
Even so, Boyle is disinclined to reconsider the merits of the CDA adult
identification scheme. "I do diverge there," he says, adding that it is
impractical to be totally against filtering systems. "The question is how
to design filtering systems so they have the maximum vibrancy."
Jonathan Wallace, a New York lawyer and writer on cyberspace issues, also
shares Lessig's skepticism on blocking software and PICS. But he thinks a
dusting off of the CDA is "wrongheaded."
Even assuming that an adult identification scheme were viable - which he
doubts - Wallace asserts that any attempt to redefine indecent speech more
narrowly would invite lawsuits from right-wing groups intent on proving
that under their community standards, objectionable speech should be
banned.
Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and
suggestions.
Copyright 1997 The New York Times Company
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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.
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