1997-12-04 - Re: NYTimes oped: Federal laws better than censorware

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From: Andrew Shapiro <ashapiro@interport.net>
To: Declan McCullagh <cypherpunks@toad.com
Message Hash: 8c7ee431815a7fd3d9f71b51a79de3f75e173530a24e1e7247705b14f05d376e
Message ID: <>
Reply To: <v0300780bb0ac81fe47dc@[]>
UTC Datetime: 1997-12-04 17:07:07 UTC
Raw Date: Fri, 5 Dec 1997 01:07:07 +0800

Raw message

From: Andrew Shapiro <ashapiro@interport.net>
Date: Fri, 5 Dec 1997 01:07:07 +0800
To: Declan McCullagh <cypherpunks@toad.com
Subject: Re: NYTimes oped: Federal laws better than censorware
In-Reply-To: <v0300780bb0ac81fe47dc@[]>
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MIME-Version: 1.0
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Hold your horses, folks.

At 11:02 AM 12/4/97 -0500, Declan McCullagh wrote:
>Check out the last paragraph of Andrew's op-ed: it's Larry
>Lessig's argument, though conveniently unattributed.

For space reasons, the Times cut my attribution to Larry (as he knows and
will tell you).  The piece was 700 words at 7:00 pm yesterday, 425 words at
7:15.  Believe me, I was sorry not to be able to credit my friend,
colleague, and former teacher.

And incidentally, it was the third-to-last graph, not the last (is this
kind of looseness with the facts a coincidence?).

>Of course Andrew neglects to say that the CDA was not just
>civil regulation like many FCC rules: it, and its
>successor, are criminal laws

Hello? in graph 2: "Communications Decency Act, the law *criminalizing*
on-line indecency..."

>He also neglects to say that the reason PICS was created is
>pressure from the Feds.

You're wrong or overstating the case.  PICS began as an effort -- rightly
enough -- to *respond to* and/or *stave off* laws like the CDA.  But did
the Feds "pressure" anyone to come up with PICS?  No.  I just
double-checked with someone linked to PICS's founding, who told me: "Nobody
in the federal government ever came to the 3WC and told them to create
PICS."  And even if the Feds had "pressured" someone to do so, that
wouldn't in anyway justify its speech-inhibiting design features.

Now, as to whether politicians are pressuring industry to *use* PICS and
other total filtering schemes, that's another question.

>Try as hard as they may, not even RSACi can throw you in

That's irrelevant, Declan.  Day-to-day, speech can be inhibited as much by
technology as by law.  In fact, you're the one who's shown us that so well
with your countless posts about the dangers of censorware.

>If the market VOLUNTARILY comes up with a rating system, I
>don't know how you can say that's worse than government
>censorship and possible jail time.

That's not what I said.  I'm not in favor of censorship and I oppose any
attempt to *criminalize* 'indecent' speech.  But criminalize does not =

>children do
>not have a of Constitutional right to have
>censorware-free computers.

Really!  I seem to recall *you* making the argument that kids have first
amendment rights to access any information, particularly in public
facilities like libraries.  The 17 1/2 year old college freshman perhaps?
Did you change you mind?

-- Andrew 

>Opinion: The Danger of Private Cybercops
>At a conference this week on protecting children from the
>perils of the Internet, consensus emerged on a strategy to
>keep minors away from cyberporn: let the private sector
>handle it. Rather than relying on Government regulation,
>Vice President Al Gore said, parents should look to
>industry for tools that will let them filter Internet
>Civil libertarians are largely responsible for the success
>of this approach. Indeed, they convinced the Supreme Court
>that it would do less harm to free speech than the
>Communications Decency Act, the law criminalizing on-line
>indecency, which the Court struck down in June.
>Yet those advocates may now regret what they wished for,
>because some of their schemes seem to imperil free speech
>more than the act did.
>For example, software that users install to block out
>certain Internet content often excludes material that isn't
>indecent. One such program, Cybersitter, prevents users
>from visiting the site of the National Organization for
>Women. And the makers of these programs often won't even
>tell adults what sites have been blacklisted.
>Still worse is a protocol known as PICS that changes the
>Internet's architecture to make it easy to rate and filter
>content. PICS is theoretically neutral because it allows
>different groups to apply their own labels, but could hurt
>the Internet's diversity by requiring everything to be
>rated. Small, unrated sites would be lost.
>Moreover, these technologies enable what might be called
>total filtering, where objectionable speech of any type can
>be screened out effortlessly. Benign as this may seem, such
>filtering might be used not just by individuals but by
>employers, Internet service providers and foreign
>governments seeking to restrict information that others
>The ground rules for an open society could also be
>undermined. When total filtering meets information
>overload, individuals can (and will) screen out undesired
>interactions, including those crucial to a vibrant
>political culture -- the on-line equivalents of a civil
>rights protest or a petition for a reform candidate. In
>such a filtered society, civil discourse and common
>understanding will suffer.
>This should lead us to think long and hard about the way
>that technology can be an even more cunning censor than
>law. That's not to say that Government solutions are
>problem-free or desirable. But at least when the state goes
>overboard, speech defenders have the safety valve of a
>First Amendment lawsuit. This legal recourse is not an
>option when politicians simply persuade industry and
>consumers to use speech-inhibiting tools. Who knows,
>free-speech advocates may find themselves nostalgic for
>public regulation after all.
>Andrew L. Shapiro is a fellow at Harvard Law School's
>Center for the Internet and Society and at the Twentieth
>Century Fund.