Politech mailing list archives
FC: Why libraries cannot legally filter the Net after all
From: Declan McCullagh <declan () well com>
Date: Fri, 07 Jul 2000 09:50:22 -0400
[Before the replies, a response from the author. --Declan] ******** See also: http://www.wired.com/news/print/0,1294,37259,00.html McCain Renews Porn-Filter Push by Declan McCullagh (declan () wired com) 8:30 a.m. Jun. 28, 2000 PDTWASHINGTON -- Senator John McCain, who has spent the last few years trying to push blocking software on public libraries, has found a new way to cordon off Internet porn. On Tuesday, the Arizona Republican and erstwhile presidential candidate successfully added a sex-filtering amendment to a spending bill being debated on the Senate floor. [...]
********
From: Msnadel () aol com Date: Fri, 7 Jul 2000 08:20:19 EDTSubject: Re: Libraries can legally filter the Internet, law review article saysTo: mech () eff org, terry.s () juno com CC: declan () well com X-Mailer: AOL 4.0 for Windows 95 sub 107 I welcome comments on my Texas article and look forward to learning from them, however, the reason the article is more than 10,000 words and includes more than 200 footnotes is that I attempted to carefully present and analyze all aspects of the narrow First Amendment issue I address fairly and completely. If commenters point out opposing arguments that I have omitted or distorted I will try to acknowledge such errors and revise the paper to reflect them. The same goes for any errors in my logic, references, or other aspects of the article. On the other hand, I think that it is a waste of everyone's busy day to debate the issues based solely on the 1-paragraph abstract of the article. Isn't it comparable to criticizing a film based on its advertising, before actually watching it?
Date: Thu, 06 Jul 2000 09:12:40 -0700 From: Lizard <lizard () mrlizard com> Organization: Ferengi Academy of Business Ethics To: declan () well com CC: politech () vorlon mit eduSubject: Re: FC: Libraries can legally filter the Internet, law review articlesays I see two major flaws with this already. The first is that the librarian understand the rules by which content is filtered. Since no one, including the filtering companies, knows suc rules, this standard is impossible to meet. Secondly, the librarian is not selecting content -- he is allowing an unknown and unaccountable third party to randomly *exclude* content. There's a difference.
Date: Thu, 06 Jul 2000 14:52:26 -0700 To: declan () well com From: "A.Lizard" <alizard () ecis com> Subject: Re: FC: Libraries can legally filter the Internet, law review article says [...]This article asserts that the First Amendment permits libraries to use private-sector software to filter Internet access as long as the filters do not attempt to favor one socio-political viewpoint over another. ItI'm not sure that *any* available filtering products meet that criteria, though some are much more egregious about it than others. At the very least, filterware providers generally use the filters to advance their own internal viewpoint that nobody should have access to information regarding what's wrong with their products.A.Lizard ************************************************************************
Date: Thu, 6 Jul 2000 13:40:28 -0700
To: Msnadel () aol com
From: mech () eff org (Stanton McCandlish)
Subject: Re: Libraries can legally filter the Internet, law review
article says
These are my initial thoughts about the abstract (Bcc'd to lists I know
it has circulated on). I'm in the process of going over the full paper.
>>The article argues, however, that the First Amendment
>>requires libraries using filters 1) to retain "final say" over selection
>>decisions, 2) to understand the criteria that the filter uses to exclude
>>content, and 3) to have the resources to correct the viewpoint
>> discrimination that filters are likely to generate.
This may not be the politest way to put it, but this paper strikes me
as lacking any applicability to the real world.
Point 1 can almost be seen as valid, at first, since librarians can
simply turn the software off, at least in theory. But, no. There's a
serious logic flaw here. Publicly funded libraries and their staffs
are "government" for the purposes of First Amendment analysis, by
definition (and by long-established caselaw). They *cannot* have the
final say. The library patron has the final say, or a constitutional
objection arises automatically. Now, if "selection decisions" refers
solely to traditional library stock selection decisions, not the
decision of the patron to select what material to look at from what is
available, then the argument is invalid here. As the Loudoun court
recognized easily, accessing a particular item of content available on
the Internet is not a the selection and possession by the library of
resource for the library's collection, but rather a reading decision by
the library patron. Selection of Internet access at all is a library
resource selection decision. Censorware in public libraries is akin to
a library selecting the Encyclopaedia Britannica, and then taking
scissors to it, redacting articles the library staff (or, more
accurately, Congress and state legislatures) might not like. If a
publicly funded library makes a resource available, it is simply not
permissible under the First Amendment for the library to deny access to
selected paged or passages because of their content.
Next, point 2 is moot because there is no reason to expect censorware
to actually follow its own stated criteria (and it is probably
physically impossible for it to do so, for reasons that are obvious to
everyone but policymakers, it seems). There's a mountain of evidence,
which Surfwatch and others are trying to suppress, that conclusively
demonstrates that censorware categorically and invariably does censor
outside its stated criteria, both on purpose and due to ridiculously
high error rates.) The software simply (and provably) *does not work
as advertized or expected*. Not to mention the fact that censorship is
not magically validated simply because the reasons for the censorship
of the content, and the subjective categorization of the content, are
(allegedly correctly but often incorrectly) disclosed.
Likewise, point 3 falls flat on its face. Librarians simply do not
have these resources (What? Are they going to examine EVERY blocked
page, all day long? This is not what librarians are for! And who'd
pay for this incredible drain on staff time?). And they may well
suffer from personal "viewpoint discrimination" themselves, may not
notice the viewpoint discrimination (especially in cases where the
reason[s] why a particular item was blocked are unclear or the blocking
isn't even detectable), may not be qualified enough on the topic of the
material in question to determine whether there is any viewpoint
discrimination going on, etc. Point 3 in particular is a total
pipedream. And again, detecting viewpoint discrimination to determine
whether someone should have access to material, is not the job of a
librarian. Providing access to content without regard to whether the
librarian agrees with the content or not, is the job of a librarian.
>>Furthermore, it concludes that the
>>issue of library filtering of Internet access is not so much an issue of
>>cyberspace law as one of the First Amendment's more general limitations on
>>librarian discretion in the selection of content.
This is a completely faulty analysis unless all of the 1-2-3 points are
true (which they self-evidently are not) because otherwise librarians
are not excercizing any discretion. Rather, lawmakers are mandating or
effectively mandating the implementation of blocking software, and the
authors of that software, acting in effect as the tools weilded by the
lawmakers, are the ones exercizing the discretion, thereby triggering
all of the First Amendment concerns the author of this law review
article argues incorrectly against.
Finally, the paper is incorrect to target the Loudoun decision as
faulty and to offer this "alternative", since the paper's proposed
system is not possible under current (or any likely forseeable)
technology and does not jibe with the function of libraries in the
first place. The Loudoun court, as it should have, examined the case
and the facts before it, including the context of libraries and their
purpose in the real world. And Loudoun's not the only case (for
example, a California court threw out an attempt by an offended patron
to force a library to install censorware.)
Something the paper's author doesn't mention: Mark Nadel works at the
FCC. The apparent tone ("censorship is OK as long as we make up some
random rules and jargon") and reasoning ("if librarians are in charge
of censorship decisions, then it's not really censorship") of the
abstract do not surprise me at all given this fact. The FCC has a
vested and longstanding interest in media censorship, and at least some
people there would love to have authority over the Internet as well as
radio, television and telephony.
Papers like this do not bolster one's faith in already hard-to-credit
FCC statements that the agency is disinterested in "regulation"
(censorship) of online media.
--
Stanton McCandlish mech () eff org http://www.eff.org/~mech
Online Communications Director/Webmaster, Electronic Frontier Foundation
voice: +1 415 436 9333 x105 fax: +1 415 436 9993
From: "David Burt" <dburt () n2h2 com> To: <Declan () well com> Cc: <j.s.tyre () cyberpass net>Subject: Re: FC: Libraries can legally filter the Internet, law review article saysDate: Thu, 6 Jul 2000 13:34:01 -0700 X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal What's more, Mr. Nadel includes "The Hustler Challenge" in his paper. But that was small potatoes compared to last week, when Sen. John McCain actually read "The Hustler Challenge" along with portions of "Dangerous Access" on the Senate floor and into the Congressional Record: Mr. McCAIN. On that note, I will read very briefly from an editorial contained in the January 14, 2000, Wall Street Journal: Maybe blocking software is not the solution. We do know, however, that there are answers for those interested in finding them, answers that are technologically possible, constitutionally sound and eminently sane. After all, when it comes to print, librarians have no problem discriminating against Hustler in favor of House & Garden. Indeed, to dramatize the ALA's inconsistency regarding adult content in print and online, blocking software advocate David Burt three years ago announced 'The Hustler Challenge'-a standing offer to pay for a year's subscription to Hustler for any library that wanted one. Needless to say, there haven't been any takers. Our guess is that this is precisely what Leonard Kniffel, the editor of the ALA journal American Libraries, was getting at last fall when he asked in an editorial: 'What is preventing this Association . . . from coming out with a public statement denouncing children's access to pornography and offering 700+ ways to fight it?' Good question. And we'll learn this weekend whether the ALA hierarchy believes it worthy of an answer. The ALA hierarchy met, and obviously they seemed to defend what I believe is an indefensible position. <SNIP> Mr. McCAIN. Mr. President, I want the Record to be clear that the Catholic Conference is not in opposition to this legislation. Here is the problem contained in the report 'Filtering Facts,' which is a very deep, detailed analysis of this problem that we are facing. On page 8 is a chapter entitled 'Adults Accessing Child Pornography: 20 Incidents': There were 20 incidents of adults accessing child pornography in public libraries. Child pornography is different from other forms of pornography in that it is absolutely illegal and, like drugs, is treated as contraband by Federal law. Of particular concern is that many public libraries employ policies that would seem to encourage the illegal transmission of child pornography. Many public libraries not only have privacy screens, but also destroy patron sign-up sheets after use, and employ computer programs that delete any trace of user activity. These policies make it almost impossible for law enforcement to catch pedophiles using public library Internet stations to download child pornography. At the Multnomah County, OR, Public Library, and the Los Angeles, CA, Public Library, pedophiles have taken advantage of the anonymity to actually run child pornography businesses using library computers. The staff at Anderson, IN, Public Library observed a pedophile accessing child pornography on three separate occasions: 'A customer who is known to frequent Internet sites containing sexually explicit pictures of nude boys ... This is the third time this customer has been observed engaging in this activity.' Yet, the only appropriate action the library saw fit was to 'highly recommend that he be restricted from the building for a period of not less than 2 months.' ############################################ David Burt Software Tester/Network Administrator N2H2, Inc. - "Intelligent Technologies for a Safe and Productive Internet" http://www.n2h2.com/ E-mail: dburt () n2h2 com Phone: (206) 892-1130 Fax: (509) 271-4226 Snail Mail: 900 4th Avenue, Suite 3400 Seattle, WA 98164 ############################################
From: terry.s () juno com To: declan () well com, Msnadel () aol com Date: Thu, 6 Jul 2000 14:48:36 -0400Subject: Re: FC: Libraries can legally filter the Internet, law review article saysX-Mailer: Juno 2.0.11 >Subject: Texas Law Rev. article on Internet Filtering >This article asserts that the First Amendment permits libraries to use >private-sector software to filter Internet access as long as the filters do >not attempt to favor one socio-political viewpoint over another. It >challenges the 1999 federal court's finding in the Loudoun County Library This article either shoots itself in the foot, or must be intended for con artist and illiterate lawyers, willing and skilled at reality denial. It's impossible to define censorship "criteria" without choosing favored and disfavored types of ideas, and in turn classes of people they represent. That's true whether the system is based on semi-arbitrary human editors, "bad word" and "bad idea" lists scanned by Bots, or supposed "neutral criteria" standards. The latter is the most insidious form of hate speech via censorware, as it most disguises exactly whose ideas, religion, art, or politics it blocks, like a Klansman using a robe to hide his own arsons and murders, or social coercion of neighbors to join him. As a long time naturist and pagan clergyperson, as well as broadcast engineer with clients both in urban minority and evangelical sectors, it's painfully obvious that nudity, sex, and speech criteria for alleged "offense" or supposed "harm to minors" are little more than obfuscations of a core intent to denigrate, defame, and outcast as second class citizens anyone who dares not conform his life choices and core self to views of a social or legal lynch mob. It matters not how many people brey in unison proclaiming that to be "a good thing", or are indoctrinated to act like bigots and react against the values and life paths of neighbors. Such censorship of speech merely attacks the outward faces or words as tools of underlying real human lives. That's little different than directly discriminating against core traits of persons as banned by law. Rev. Terry Smith Electronic Communication Freedoms Liaison ERLAN, Earth Religions Legal Assistance Network
Date: Thu, 6 Jul 2000 12:10:32 -0400 From: Rich Kulawiec <rsk () gsp org> To: declan () well comSubject: Re: FC: Libraries can legally filter the Internet, law review article saysUser-Agent: Mutt/1.2i On Thu, Jul 06, 2000 at 11:10:58AM -0500, Declan McCullagh wrote: > This article asserts that the First Amendment permits libraries to use> private-sector software to filter Internet access as long as the filters do> not attempt to favor one socio-political viewpoint over another. Unfortunately, no such filters exist. As has been copiously documented by the PeaceFire project, the filters extant in the marketplace at the moment are all severely, and obviously, heavily biased toward right-wing, Christian, American, fundamentalist ideologies. This is no surprise: the overt (or in some cases, covert) agenda of their makers is to promote their viewpoint(s) and to exclude others, not to actually "protect children" as is so often claimed. ---Rsk Rich Kulawiec rsk () gsp org
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