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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.
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