Consistency in Congress: Yet Another Child On-line Protection Law that Can't Possibly Work
by Dr. Rob Reilly
In recent years the Congress has attempted to enact laws to protect children from Internet pornography. This seems to be a good thing to do---this seems to be a very very good thing to do. Those laws, as most laws do, have very high-minded titles---the Communication Decency Act (CDA), the Children's Internet Protection Act (CIPA). What could be wrong with supporting these laws---everyone wants to protect children. Right?
Well the titles, in these cases, are misleading. Not only are they partisan titles but the laws themselves do not do what they purport to do---they don't protect children from anything. Strike One. Not only that, these laws trample the Constitutional rights of adults (e.g., freedom of speech for one, freedom of associaton/assembly for another)---oops! Strrrriiike Two.
A few years ago one of those online protection laws, the Communications Decency Act (CDA), was struck down by the US Supreme Court by a 9-0 margin---it's very rare that the 'Supremes' unanimously agree on anything. Strike Three! Or was it? This was a major message to the Congress. But the message, was apparently, not received. As the Congress went back to the drawing board, repackaged, and renamed the CDA, and then went ahead and passed the 'new' law---the Children's Internet Protection Act (CIPA). I guess the Congress thought that no one would notice that this was version #2 of the CDA.
Well, just a few weeks ago a three-judge federal court in Pennsylvania struck down the CIPA on the grounds that in an attempt to protect children it also denied adults their basic Constitutional right to Free Speech. Strike Four??
It is not as troubling to me that the Congress is trying to censor the Internet---if that's their position, then that's one thing. That's just politics and if we disagree then we mount a campaign against it. It is not as troubling to me that the Congress is trying to pass a law that I am personally in diagreement with. That too is just politics and it's part of the democratic system we live in. However it IS troubling, very troubling, that Congress fails to realize that the technology they rely upon to enforce the mandates of the CIPA, and its prececessor (and I expect its successor), does not exist.
CIPA wants to employ blocking software and/or commercial blocking services such as Net Nanny, Cyber Patrol, N2H2 Internet Filtering, Secure Computing SmartFilter, and Websense Enterprise to prevent children from accessing (or being accessed) by inappropriate material or people. Don't get me wrong I'm all in favor of keeping children safe. I don't want children harmed. But even if I agreed, (I don't) that limiting an adult's right to Internet access and limiting an adult's right to free speech was acceptable given the greater good inherent in protecting children from obscene and/or pornographic material, the problem is that filtering software does NOT work. The fact which Congress fails to understand, is that filters are not capable of screening-out material that CIPA demed to be "harmful to minors." Ladies and gentlemen, this is not my partisan opinion, this is technologically proven fact---it's so well proven it's beyond being classified as a 'fact,' it can be classified as a scientific fact.
Ben Edelman from the Berkman Center for the Internet and Society at the Harvard Law School stated in his testimony before the Congress:
Internet blocking programs configured to block particular categories of Internet content will inevitably block Internet content that does not meet the programs' self-defined category definitions. I have further concluded that these programs 1) are incapable of blocking only images on the Internet that meet certain definitions; 2) are incapable of blocking all content on the Internet that meets certain definitions; 3) are incapable of blocking Internet content that meets certain definitions and is communicated through certain non-Web-based protocols; and 4) do not provide a practical or efficient system for configuring blocking programs to allow access only to a specific blocked site during a limited time period for a particular user for a specific purpose.
In short, he's saying that filters do not work because they have been shown to over block (block material that is not objectionable and they do not block material that should be blocked). The research that underpins this conclusion is not partisan and it is certainly not small scale. The research is not in dispute.
Edelman also states that: currently available blocking programs are fundamentally unable to satisfy the requirements of their own specifications and category definitions. They cannot prevent access to all Internet content meeting certain category definitions while simultaneously allowing access to all other content, and they will remain unable to do so for the foreseeable future.
Certainly there will be issues inherent in any law that the Congress passes, certainly there will be proponents and there will be opponents---this goes without saying. But I cannot ever recall the Congress passing a law that so many folks so clearly admit is foundationally flawed in the way it will implemented---using filtering/blocking software or a filter/blocking service. Aside from matters of law, which themselves were enough to overturn the CIPA, the three-judge federal court noted that technical: "problems faced by manufacturers and vendors of filtering software are legion."
My warning to you is that Congress seems bent on passing some sort of legislation that mandates the use of filters to protect children while they are on-the-Internet. This is a laudable goal---it's one that I fully support. But…but…but…there is no technology that currently exists which will accomplish this goal. Even if the Taliban were still in control in Afghanistan and they wanted to block/filter what their citizens could access over the Internet, they could not technologically enforce that mandate.
Before I close let me try to answer one question that may linger. That being: "If all that I have said is true and there's no dispute, why then does Congress persist in drafting such legislation when they know filters/filtering does not work?"
Well, I suppose that given the situation the Congress is faced with, the same situation that schools and libraries are in, that being, they know there's a problem and they must act to in a positive proactive manner---they can't be perceived as 'doing nothing.' But their only option is to mandate filters/blocking mechanism. I suspect that Congress (along with school administrators) knows that it cannot sit idle and do nothing. I suppose that if they are confronted by angry parents (voters) the Congress is in a better position if they can say "we keep crafting laws to protect children but the courts keep striking them down"!!
Electronic Frontier Foundation's news page (http://www.eff.org) See the section entitled:
"Federal Court Declares CIPA Unconstitutional" - A federal appeals court ruled that the Children's Internet Protection Act (CIPA) is unconstitutional because it requires libraries to violate the First Amendment rights of their patrons.
Berkman Center for Internet and Society at the Harvard Law School -(http://cyber.law.harvard.edu) See section entitled: Federal Court Rules in Favor of ACLU in CIPA Challenge