IP: PICS: Tyranny in the Infrastructure?

[David Farber <farber () cis upenn edu>]

Date: Wed, 16 Jul 1997 15:57:24 -0800
To: farber () cis upenn edu, fight-censorship () vorlon mit edu
From: "--Todd Lappin-->" <telstar () wired com>




In light of today's meeting at the White House... some more thoughts on
"third-party" ratings schemes, as seen recently in Wired.  As Larry Lessig
points out, "laws affect the pace of technological change, but the
strictures of software can do even more to curtail freedom."


--Todd Lappin-->


--------------------------------
<From Wired Magazine, June 1997>


Tyranny in the Infrastructure
The CDA was bad - but PICS may be worse.


By Lawrence Lessig


In a few weeks, the Supreme Court is expected to strike down the
Communications Decency Act in the name of the First Amendment. No doubt the
victory will prompt a great deal of celebration. Yet I wonder if we'll be
happy in the world the decision will leave behind. While many think that
efforts to "regulate" speech in cyberspace will be crippled after the CDA
goes down, the Court's ruling may have the opposite effect.


Washington pundits expect Congress to propose a "Son of CDA" soon after the
Court issues its decision. But instead of trying to restrict access to a
specific category of speech - "indecency" or "pornography" - CDA II will
likely mandate the deployment of technologies that allow parents to select
the types of speech they want to block. By shifting the burden of
censorship from online publishers to individual users, the legal code won't
be the censor anymore; instead, software code will do the censorial dirty
work.


This alternative is often praised as a "private" or "user-empowering"
solution to the indecency problem. URL-blocking software such as SurfWatch
or Cybersitter, which works by restricting access to specific addresses,
was the first version of this idea. More recently, in response to cyberporn
hysteria, the World Wide Web Consortium has developed a sophisticated
technology called the Platform for Internet Content Selection, or PICS.
Blocking software is bad enough - but in my view, PICS is the devil.


PICS is an HTML standard that makes it possible to filter material on the
Net. It is not a filtering technology; rather, PICS is a labeling standard
that establishes a consistent way to rate and block online content. PICS
doesn't target any particular category of speech. Instead, private agencies
will use PICS to develop their own content rating schemes. The Christian
Coalition, for example, could have a rating system, as could the ACLU.
Parents would then select the content rating systems they want to use. In
this way, PICS is viewpoint-"neutral." It doesn't discriminate among
filters or rating systems; it supports the Nazi Party as much as the Jewish
Defense League.


However, no technology is truly neutral, and PICS will have an effect. The
PICS filter can be imposed at any level of the distribution chain - at the
level of the individual user, the proxy server, the ISP, or the
nation-state. "Neutral" or not, PICS will have a devastating effect on free
speech all over the world.


As part of the Web's infrastructure, PICS will be an extremely versatile
and robust censorship tool - not just for parents who want to protect their
kids, but for censors of any sort. PICS will make it easier for countries
like China or Singapore to "clean up" the Net; it makes it easier for
companies to control what their employees can see; it makes it easier for
libraries or schools to prevent patrons from viewing controversial sites.
PICS makes censorship easy because it embeds the tools of censorship into
the root architecture of online publishing.
As HotWired columnist Simson Garfinkel has described it, PICS is "the most
effective global censorship technology ever designed."


This kind of talk makes cyberactivists uneasy. For the most part, their
efforts have focused on government-sponsored Internet regulation schemes.
Yet they have overlooked the most troubling form of online regulation: that
imposed by changing the architecture of the Net. Software code - more than
law - defines the true parameters of freedom in cyberspace. And like law,
software is not value-neutral.


The same point could be made about other cyber rights issues. While Bruce
Lehman's efforts to expand the legal rights of online copyright holders are
currently in limbo, technologists such as Mark Stefik from Xerox PARC now
predict that the Net is moving toward the use of "trusted systems" -
architectures that facilitate perfect control over the online use and
distribution of copyrighted material. But what then happens to the fair-use
rights the law now guarantees? The question is not whether law will do
enough to protect intellectual property, but whether code will do too much.
This has prompted University of Pittsburgh law professor Julie Cohen to pen
what others have called the Cohen theorem: One has a right to hack trusted
systems in order to defend traditional rights of fair use.


I don't take issue with the values inherent in any one particular system of
code. My criticism is directed against those who think about cyber
regulation solely in terms of "law." Laws affect the pace of technological
change, but the strictures of software can do even more to curtail freedom.
In
the long run, the shackles built by programmers may well constrain us most.


###


Lawrence Lessig (lessig () pobox com) is a professor at the University of
Chicago Law School.