Filtering out Net indecency: Porn foes look for a technological solution

By David Hudson
First Amendment Center

Unable to defeat online smut with congressional "decency" legislation, some anti-porn activists have turned to a technological weapon—filters. Many members of the online community are now calling for Internet filtering software programs to screen out sexually explicit material.

In fact, one argument the opponents of the Communications Decency Act made against the law was that a less restrictive alternative already exists to protect children from online indecency: user-based filtering programs.

David Burt, a librarian and technology expert who runs a nonprofit corporation called Filtering Facts, told freedomforum.org: "Filters are the answer. Filters do make mistakes and some of them are overly broad, but the more finely tuned filters are pretty good."

Filters took center stage earlier this year in Congress when Sen. John McCain (R-Ariz.), in February introduced Senate Bill 1619, the Internet School Filtering Act. According to the senator, the bill is "designed to protect children from exposure to sexually explicit and other harmful material when they access the Internet in the school and in the library."

If passed, the bill would require public schools to certify with the Federal Communications Commission that they would use filtering software on their computers before they could be eligible for so-called "universal service fund subsidies" for Internet hook-ups. In addition, public libraries would have to certify that they would install filtering software on at least one computer terminal. If the libraries failed to comply, they too would not receive the government subsidies.

Many pro-family advocates support the McCain bill as a necessary step towards combating cyberporn. Buddy Smith of the American Family Association told freedomforum.org: "We would like a piece of federal legislation to go further than the McCain bill, but we support it in hopes that it will move our society one step closer to putting pressure on the Department of Justice and the present administration to start doing their jobs of protecting us from this trash and garbage on the Internet."

Karen Jo Gounaud, president and founder of Family Friendly Libraries, says: "The McCain bill is a good step, but it does not go far enough. The availability of Internet access at schools completely changes the atmosphere and mission of the public library. The purpose of a library is information seeking, while the only purpose of online porn is sexual titillation. We have got to quit turning library patrons into sexual predators."

Steve Watters, Internet research analyst for Focus on the Family, says the filtering bill is "necessary in order to prevent libraries from becoming sexually hostile environments and pornographic welfare distribution centers."

However, some free-speech advocates see constitutional problems with the McCain bill. For instance, Chris Finan, president of the American Booksellers Foundation for Free Expression, told freedomforum.org: "The concern is generally with the effect of forcing filtering on people who don’t want to use it and because of the limitations of the filtering software itself."

Prominent First Amendment attorney William Bennett Turner says that "filters seem to be the gizmo of choice after the court’s decision in Reno v. ACLU. The other ploy of government officials is using the lever of government subsidy."

Other free-speech experts say the issue is a bit more complex. David Sobel of the Electronic Information Privacy Center says that "the McCain bill presents a much different situation than the Coats bill. The constitutional issues are not quite as clear. It will be hard to assess until directives are in the hands of local library boards."

Solveig Singleton of the Cato Institute, a libertarian think tank, agrees that the constitutional questions posed by the McCain bill are not as clearly delineated as those posed by the Coats bill. The McCain bill illustrates that when government hands out subsidies, it naturally assumes the role of censor, says Singleton. However, she says that the McCain bill "might well be ruled constitutional in schools, but not in public libraries. Schools are given more leeway in imposing a certain amount of control over content. It all boils down to the specific purpose of a school--which is to teach. However, libraries serve a much broader and different purpose."

Special role of libraries

Mandatory installation of Internet filtering software—even if it were constitutional—would conflict with the fundamental role of the public library as epicenter of intellectual freedom, say those who oppose filters on library computers. For this reason, the head council of the American Library Association, adopted a resolution on July 2, 1997, that "the use in libraries of filtering software to block access to constitutionally protected speech violates the Library Bill of Rights." According to the ALA, current blocking software "blocks information protected by the First Amendment."

Mary Minow, an attorney and librarian, points out in her paper "Filters and the Public Library: A Legal and Policy Analysis" that the debate over filtering is complex, in part because "all filters … are not the same, nor are they used in a uniform manner."

Minow identifies a range of options, including installing filters on every terminal; restricting children’s access to the Internet unless they have parental permission; not restricting children’s access unless they have parental objections on file; offering a filtered terminal for those who request it; having no filters at all; or installing filters in the children’s area of the library while leaving the adult terminals unblocked.

According to Minow, "each option presents varying degrees of burdens on the speech of both children and adults." Minow concludes libraries should offer at least one filtered terminal, leaving the decision to have full or filtered access with the patron.

EPIC’s Sobel sees the McCain legislation’s primary problem as the fact that "every school district and library will be subject to litigation. We already see this happening with the Loudoun County lawsuit in Virginia."

The case Sobel refers to is Mainstream Loudoun v. Board of Trustees, the first lawsuit filed against a library board because of its adoption of a mandatory Internet filtering policy. The judge ruled in her decision that the library board may not "selectively restrict certain categories of Internet speech because it disfavors their content."

However, libraries appear to be caught between a rock and a hard place. The city of Livermore, Calif., was recently sued for failing to provide blocking software on its computer terminals after a minor downloaded scores of pornographic pictures.

Do filters block too much?

A major problem with blocking software--or censorware--according to cyber liberties groups, is that blocking software prevents access to constitutionally protected material. In their letter to the Senate Commerce Committee, the American Civil Liberties Union and Electronic Frontier Foundation wrote: "Blocking software restricts access to valuable, protected online speech about topics including safe sex, AIDS and even web sites posted by religious groups such as the Society of Friends and the Glide United Methodist Church."

David Greene of the National Campaign for Freedom of Expression told freedomforum.org: "Filters sure do block constitutionally protected material. There is no filtering product on the market that can make the legal/illegal distinction: the technology simply doesn’t exist."

Bennett Haselton, founder of Peacefire, a group of youths devoted to fighting Internet censorship, says "many non-pornographic Web sites have been blocked, including the Web sites of many of the organizations that challenged the CDA."

Judith Krug, director of the Intellectual Freedom Office of the American Library Association, says filters are "sledgehammers trying to do the job of scalpels."

The National Coalition Against Censorship contends in a paper entitled "Censorship’s Tools du Jour: V-Chips, TV Ratings, PICS, and Internet Filters" that the rush to embrace blocking technology has created a culture wherein the "government is privatizing censorship, contracting it out" to software companies.

Burt of Filtering Facts admits that the products do "err on the side of caution," but "what’s wrong with that when we’re talking about protecting minors?" he asks.

Greg Young, vice president of corporate communications for X-Stop, a leading filtering software product, says that "to have all the computer terminals unfiltered is completely nuts. Filters remain the only solution that can meet the free-speech concerns of adults and the concern for protecting minors."

Proponents of filters say the software is becoming more effective as technology improves. Focus on the Family’s Watters says that "filtering services have now been upgraded to such an extent that they only have a 2- to 3-percent screw-up rate, meaning they only block 2 to 3 percent of protected material.

"To argue that we shouldn’t have filters because it is an inexact science is similar to arguing that because the judicial system has some cracks in it, we shouldn’t prosecute child molesters," says Watters.

Burt distinguishes between the different products. "Some of the filtering software products are particularly bad. However, some of the better products, like WebSense and X-Stop, make many fewer mistakes."

However, Larry Ottinger, an attorney with the People for the American Way, told freedomforum.org that "X-Stop does block a lot of constitutionally protected material. If X-Stop is the best filtering software product out there, then there really is a problem," he says.

Jonathan Wallace, a leading opponent of filtering software and co-author of Sex, Laws and Cyberspace, agrees that "evidence of numerous bad blocks by these products is widespread and easily substantiated. In my opinion, it is filtering advocates who are making misrepresentations about these products."

But X-Stop’s Young told freedomforum.org that "the reports that filtering software block a lot of useful information are completely overblown. Prior to the CDA being struck down, the ACLU and others used filters as a reason to strike down the law. Now these same groups are saying filters are the devil."

According to Young, the complaints about filters blocking valuable information may have been true in 1995 but are no longer valid in 1998.

"The old technology, which blocked sites based on words or phrases, did block some legitimate sites, but the new technology, which uses search arrays and direct address blocking, actually finds Web sites before blocking them," Young says.

Besides, Young asks, "If you’re going to occasionally block a legitimate site, isn’t that better than having millions of porn sites unchecked out there?"

Free-speech advocates say the problem is that third parties are blocking material without using legal standards of what’s constitutional and unconstitutional. "The mandatory installation of filtering software is unconstitutional, because government decision-making has been delegated to third parties who are using vague criteria to determine what’s appropriate," says Wallace.

When the Supreme Court struck down the CDA in Reno v. ACLU, it noted that "systems have been developed to help parents control the material that may be available on a home computer with Internet access."

These "systems" are filtering software products. The question, for First Amendment purposes, is should the installation of filters be a parental issue or government-mandated?

Proponents of filters argue that blocking software, while not perfect, is the best solution currently available to protecting children from pornography. They argue that if government institutions, such as libraries and schools, don’t install blocking software, they will be subject to liability when children access sexual material.

However, filters screen material based on content and this concerns First Amendment advocates. Some cyber liberties groups have already promised to fight McCain’s bill if it becomes law just as they battled and defeated the CDA.