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Philly court spells it out

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The recent ruling by a Philadelphia court in response to a challenge by the American Library Association (ALA) and the American Civil Liberties Union (ACLU) to the Children's Internet Protection Act (CIPA) represents another setback for Congressional prudes and the filtering software lobby.

Briefly, the CIPA would deny public funds to libraries which refuse to install expensive content-filtering software on their Net-connected computers, and the court ruled it unconstitutional.

The ruling will undoubtedly influence further decisions regarding public access to Internet content which the government in its infinite wisdom reckons you're better off not encountering.

The Philadelphia decision hinges on the means of enforcement, not the theoretical framework on which the CIPA is based. Surely it wouldn't be unconstitutional to block obscenity and child porn which have no protection, so long as protected content isn't blocked. The question, then, is whether the means exist to satisfy Congress' insatiable appetite for regulating the pleasures of citizens without running afoul of the First Amendment.

The solution which Congress hit upon was Internet filtering software, such as Cyber Nanny and SurfControl, which at one time was blocking The Register in fear that the world's tender sprouts might be corrupted by our cynicism.

Congress, no doubt bamboozled by numerous rigged demonstrations cheerfully proffered by the vendors, superstitiously believed that the technology would work as advertised. It all looked like magic to their technologically naive minds, so they hacked out a law entrusting the First Amendment to the technological equivalent of a wizard's magic potion. It's pretty clear that the filtering software companies had a hand in crafting the legislation as a means of legally mandating their products and ensuring a revenue-stream composed of public funds.

Broken software

To simplify the contestants' arguments, the prudes in Congress and the filtering industry lobby assert that the CIPA would be unconstitutional only if it's impossible for a public library to comply without violating the First Amendment. In other words, the technology must fail always and everywhere, which it clearly does not. The ALA contends that the filtering requirement is unconstitutional if it's impossible to guarantee the inverse: that the technology won't block access to constitutionally-protected material some of the time.

It boils down to a simple, practical issue: can the thing be done? And the answer is, no. The software is simply too buggy, the court decided. It underblocks, leaving children exposed to all sorts of filth; and it overblocks, denying adults access to material they have every right to view. And the fact that a librarian can unblock a site which has been inappropriately blocked on request wasn't good enough for the court:

"The government falls back on the ability of the libraries, under CIPA's disabling provisions to unblock a site that is patently proper yet improperly blocked. The evidence reflects that libraries can and do unblock the filters when a patron so requests. But it also reflects that requiring library patrons to ask for a Web site to be unblocked will deter many patrons because they are embarrassed, or desire to protect their privacy or remain anonymous. Moreover, the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries. Accordingly, CIPA's disabling provisions do not cure the constitutional deficiencies in public libraries' use of Internet filters.

It may be called the Children's Internet Protection Act, but that's pure packaging rhetoric of the sort which Congress excels at. Everyone wants to protect children, obviously, so it takes guts to vote against a measure purporting to do so. However, in reality the act also requires that adult library patrons receive a filtered Internet eXPerience, to prevent them encountering child porn and 'obscenity'.

This is why, for example, we can't simply have two rooms for library patrons; one with filtered terminals for children, and one without filtering for adults as a way to get Congress' nose out of our business in the library. (Personally, I could go for something like that if I didn't worry that Congress might later try to block children's access to political, historical and literary works which could lead them to question the rubbish they're fed in school.)

But the court found that when filtering is applied to an adult's use of the Internet as allowed under the CIPA, the software blocked "a huge amount of speech that is protected by the First Amendment." (my emphasis)

That's because only KP and obscenity aren't protected; but the filters wipe out vast swaths of the Net containing material merely upsetting to the religious right-wing, and to the precious 'sensitivities' of hundreds of groups who can't endure criticism.

The court also made much of the fact that the filtering software vendors are the ones evaluating the content of Web sites and deciding whether or not it's proper for us to read or to view.

This may be all right for private organizations and individuals, but a library is a public forum, the court decided.

"Public libraries, like sidewalks and parks, are generally open to any member of the public who wishes to receive the speech that these fora facilitate, subject only to narrow limitations."

And of course they're funded with public money, giving the filtering companies a shot at the sort of corporate parasitism which the technology industry generally indulges with great enthusiasm.

Do we really want private companies deciding what the public is entitled to know? Shall we reward them with tax dollars in exchange for putting blinders on us in a public place? SurfControl blocked The Register in its entirety because we ran a story explaining how to defeat its software. If they'll pull a self-serving stunt like that, then what's to stop them blocking sites that run news/editorial items like this one which merely criticizes their product and corporate ethics? What's to stop them taking a kickback from another company to block content critical of their products or corporate ethics? Their banned URL lists are proprietary, and they'll take you to court for trying to find out what's in those files.

Clearly this technology is too easily abused by private interests to be appropriate for a public forum such as a library. But the core argument is that filtering is a hopelessly blunt instrument. "Filtering companies also widely engage in the practice of categorizing entire Web sites at the 'root URL,' rather than engaging in a more fine-grained analysis of the individual pages within a Web site," the court observed.

"We find that, given the crudeness of filtering technology, any technology protection measure mandated by CIPA will necessarily block access to a substantial amount of speech whose suppression serves no legitimate government interest," it concluded. ®

Related Link

The ruling, full text [we hope SurfControl hasn't blocked it -- ed.]

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