*********** Date: Mon, 3 Nov 1997 11:11:56 -0500 From: Mike Godwin <mnemonic@WELL.COM> 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 ---------------------------------------------------------------------------- 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. ----------------------------------------------------------------------------