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Computer underground Digest Tue Mar 11, 1997 Volume 9 : Issue 18
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.18 (Tue, Mar 11, 1997)
File 1--Purchase of Blocking Software by Public Libraries Unconstitutional
File 2--Dan Kennedy, COCK HUNGRY TEENS, and cyberlibertarianism
File 3--Joab Jackson on Maryland online "harassment" bill, from BaltCP
File 4--Cu Digest Header Info (unchanged since 13 Dec, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Mon, 03 Mar 1997 20:15:20 -0800
From: Jonathan Wallace <jw@bway.net>
Subject: File 1--Purchase of Blocking Software by Pub Libraries nconstitutional
Jonathan Wallace
The Ethical Spectacle http://www.spectacle.org
Co-author, Sex, Laws and Cyberspace http://www.spectacle.org/freespch/
"We must be the change we wish to see in the world."--Gandhi
PURCHASE OF BLOCKING SOFTWARE BY PUBLIC LIBRARIES IS UNCONSTITUTIONAL
A Briefing Paper
by
Jonathan D. Wallace, Esq.
jw@bway.net
The following is intended for use by free speech advocates to oppose the
installation of blocking software such as Cyberpatrol, Surfwatch, NetNan
ny or Cybersitter in public libraries. Permitted uses include basing your
own correspondence or documents upon the research presented here, excerp
ting this document, or presenting it in its entirety to the people you ar
e trying to influence. Please redistribute freely.
Jonathan D. Wallace, Esq., is a New York City-based attorney, author and
free speech advocate. He is the co-author, with Mark Mangan, of Sex, Law
s and Cyberspace (Henry Holt 1996), and with Michael Green of two forthco
ming law review articles, "Curing Metaphor Deficiency: The Internet, The
Printing Press and Freedom of Speech" (Seattle University Law Review) and
"Anonymity, Democracy and Cyberspace" (Hofstra Journal of Law and Legisl
ation).
Public libraries in Austin, Boston and elsewhere have decided to instal
l blocking software on computers connected to the Internet. Other librar
ies around the United States are considering purchasing such software. T
he purpose of this paper is to summarize, for readers who are not themsel
ves attorneys, the legal precedents that establish that the installation
of blocking software by public libraries is unconstitutional under the Fi
rst Amendment.
Blocking software is defined as software products published by commercia
l software publishers which do any of the following: block access to Inte
rnet sites listed in an internal database of the product; block access t
o Internet sites listed in a database maintained external to the product
itself; block access to Internet sites which carry certain ratings assig
ned to those sites by a third party, or which are unrated under such a sy
stem; scan the contents of Internet sites which a user seeks to view and
block access based on the occurrence of certain words or phrases on thos
e sites. Blocking software products currently on the market include Safes
urf, Surfwatch, NetNanny, CyberPatrol and Cybersitter.
It has been widely reported recently that these products go far beyond b
locking "pornography". In fact, most block sites containing speech which
is clearly First Amendment protected, such as the National Organization f
or Women site (http://www.now.org), blocked by Cybersitter, and the Elect
ronic Frontier Foundation archive (http://www.eff.org), blocked by CyberP
atrol. More information on political and lifestyle sites blocked by these
products is available on the Peacefire Web pages, (http://www.peacefire.
org), and in The Ethical Spectacle, maintained by the author of this pape
r. (http://www.spectacle.org/peace.html). (Please note that both of these
sites are themselves blocked by Cybersitter for their criticism of the p
roduct.)
Most advocates of the use of blocking software by libraries have forgott
en that the public library is a branch of government, and therefore subje
ct to First Amendment rules. While libraries have discretion in determini
ng what materials to acquire , the First Amendment prevents government fr
om removing materials from library shelves based on official disapproval
of content. Secondly, government rules classifying speech by the accepta
bility of content (in libraries or elsewhere) are inherently suspect, may
not be vague or overbroad, and must conform to existing legal parameters
laid out by the Supreme Court. Third, a library may not delegate to a pr
ivate organization, such as the publisher of blocking software, the discr
etion to determine what library users may see. These points are each dis
cussed at greater length, with citations to significant cases, below.
I. The Installation of blocking software by libraries constitutes an un
constitutional removal of materials from the library.
In the leading case of Island Trees Board of Education v. Pico, 457 U.
S. 853 (1982), the local board ordered removal from the school library of
books including Bernard Malamud's The Fixer and Richard Wright's Black B
oy. The Supreme Court held:
" Our Constitution does not permit the official suppression of ideas. Th
us, whether petitioners' removal of books from their school libraries d
enied respondents their First Amendment rights depends upon the motivatio
n behind petitioners' actions. If petitioners intended by their removal d
ecision to deny respondents access to ideas with which petitioners disagr
eed, and if this intent was the decisive factor in petitioners' decision
, then petitioners have exercised their discretion in violation of the Co
nstitution."
The Court also said:
" As noted earlier, nothing in our decision today affects in any way the
discretion of a local school board to choose books to add to the librari
es of their schools. Because we are concerned in this case with the suppr
ession of ideas, our holding today affects only the discretion to remo
ve books. In brief, we hold that local school boards may not remove book
s from school library shelves simply because they dislike the ideas conta
ined in those books and seek by their removal to 'prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opini
on.'.... Such purposes stand inescapably condemned by our precedents."
Clearly, the Pico case will govern the use of blocking software in libra
ries if, and only if, the blocking of a site by the product is analogize
d to the removal of a book from a shelf. If, as advocates of the purchase
of these products argue, the blocking of a site is analogous to the dec
ision not to purchase a book, then Pico will not apply.
However, the blocking of a site is analogous to the removal of a book fr
om a shelf.
Libraries certainly are not required by the First Amendment to grant use
rs access to the Internet. A library might, by contrast, decide only to
give access to sites pre-screened by the librarian. This act of screening
sites and then adding them to a list of sites accessible from the librar
y's computers would be analogous to the process followed in deciding wha
t books or periodicals to order, and would be undoubtedly constitutional.
(Significantly, it is impossible to imagine any public librarian in the
United States deciding not to authorize access to the National Organizati
on for Women pages or the Electronic Frontier Foundation archive.)
On the other hand, a library installing computers with full Internet acc
ess has, in effect, acquired the entire contents of the Internet. Blockin
g software which screens out sites based on their inclusion in a database
of impermissible sites, or blocks them based on the occurrence of banned
words or phrases, is effectively removing these resources from the libra
ry. Just as the board of education did in Pico, someone has gone through
a thought process which resulted in the removal of materials based on the
ir disfavored content.
Therefore, the installation of blocking software in a public library di
rectly violates the rules laid down in the Pico case.
II. The Criteria Used By Blocking Product Publishers Are Vague and Over
broad and May Not Legally Be Adopted by Public Libraries
While certain speech, such as obscenity, is considered outside the prote
ction of the First Amendment and can be barred at will, the Constitution
provides significant barriers to rules pertaining to protected speech.
When a library installs blocking software, it is enforcing a set of rules
determining which protected speech its users can access . These rules a
re inherently suspect under First Amendment principles and are likely to
be held unconstitutional. In general, government rules regulating protec
ted speech must be narrowly tailored to serve a compelling government int
erest. Rules that are overbroad or vague, and which attack too much speec
h, will almost inevitably fail.
There is a certain irony in the failure of many commentators to draw the
appropriate parallel between last June's ACLU v. Reno, 929 F. Supp. 824
(E.D. Pa. 1996) decision holding the Communications Decency Act (CDA) unc
onstitutional, and today's library controversy. The CDA banned speech o
n the Internet "depicting or describing" sexual "acts or organs", even if
that speech otherwise had significant social value. A panel of three fe
deral judges held the CDA to be overbroad, in that it would ban much valu
able speech online. The examples given by the court included newsworthy r
eporting of female genital circumcision in Africa, and the dissemination
of safe sex information. Advocates of the use of blocking software by lib
raries have failed to explain why, if the government could not directly b
an the National Organization for Women pages via the CDA, it can do so in
directly through the use of blocking software.
While the court referenced blocking software as a less restrictive alter
native to government censorship, it did not mean use of blocking software
by the government. It meant that a concerned parent could install a bloc
king product on a home computer (a clearly constitutional use, as there i
s no government action involved) obviating the need for laws banning cont
ent on the Internet. The court did not consider the use of blocking softw
are by libraries. It did, however, decline to endorse the government's su
ggestion that an "-L18" rating scheme be mandated for all speech on the N
et. A public library's installation of blocking software in effect circu
mvents the ACLU v. Reno ruling, by creating a customized Communications D
ecency Act applicable to the library's users.
It is a constant of First Amendment cases that speech rules, in order to
be constitutionally acceptable, must be clear enough to communicate to c
itizens which speech is legal and which is not. There is no consistent s
et of standards followed by blocking products, and almost all of the publ
ishers refuse to disclose their database of blocked sites. Several have p
ublished the rules they follow in determining which sites to block; here
is one example:
"CYBERsitter Site Blocking Policies
The CYBERsitter filter may block web sites and/or news groups that contai
n information that meets any of the following criteria not deemed suitabl
e for pre-teen aged children by a general consensus of reports and commen
ts received from our registered user
- Adult and Mature subject matter of a sexual nature.
- Pornography or adult oriented graphics.
- Drugs or alcohol.
- Illegal activities.
- Gross depictions or mayhem.
- Violence or anarchy.
- Hate groups.
- Racist groups.
- Anti-semitic groups.
- Advocating of intolerance.
- Computer hacking.
- Advocating violation of copyright laws.
- Any site that publishes information interfering with the legal rights a
nd obligations of a parent or our customers.
- Any site maintaining links to other sites containing any of the above c
ontent.
- Any domain hosting more than one site containing any of the above conte
nt.
The above criteria is subject to change without notice."
These criteria, if adopted by government to determine which speech to ba
n, would be struck down as unconstitutional just as quickly as a civil li
berties organization could race into court and get a decision. These crit
eria as written ban speech about the listed items, in most cases even if
the speech opposes the subject matter. For example, the ban on informati
on about "drugs or alcohol" is so broadly written as to include sites ma
intained by anti-drug organizations or by Alcoholics Anonymous. Note that
almost all of the criteria pertain to speech that, though disfavored by
most people, is clearly constitutionally protected, and may legitimately
be the subject of a child's research project: hate speech, speech about
intolerance, and speech about illegal activities are three examples. Non
e of the criteria make any exception for materials with social value. Thu
s the criteria would not permit a teenager to research a report about the
Holocaust, which might fall under the ban on "gross depictions or mayhem
", antisemitism or hate speech. If this seems unlikely, it isn't; CyberPa
trol at one point blocked Nizkor (http://www.nizkor.org), an important Ho
locaust archive, because it contained "hate speech." In fact, the criteri
a made available by every publisher of blocking software are equivalently
vague. As the Supreme Court said in a leading case involving a Dallas m
ovie rating scheme, " the restrictions imposed cannot be so vague as to
set 'the censor....adrift upon a boundless sea...' In short, as Justice F
rankfurter said, 'Legislation must not be so vague, the language so loose
, as to leave to those who have to apply it too wide a discretion.'" Inte
rstate Circuit v. Dallas, 390 U.S. 676 (1968).
In summary, the criteria followed by every existing blocking product are
far too vague and broad to meet the exacting standards of ACLU v. Reno a
nd decades of Supreme Court precedents, even if the library had adopted
these criteria itself. As we will see in the next section, the delegation
by the library of its decision-making to private parties--the publishers
of blocking software--is also unconstitutional.
III. A Library Cannot Relegate to Private Parties The Authority to Dete
rmine What Its Users Can See
Although the installation of blocking software by a library may be a pol
itically expedient solution, it involves an illegal delegation of the lib
rary's authority to third parties. Since the library itself, as we estab
lished in the section above, could not validly enforce vague rules, it do
es not avoid the exacting requirements of the First Amendment by abdicati
ng responsibility to the blocking software publisher.
For example, federal courts have established that government cannot enac
t laws granting legal enforcement to the private ratings of the Motion Pi
cture Association of America (MPAA). In MPAA v. Spector,315 F.Supp. 824
(ED Pa. 1970), the court dealt with a Pennsylvania law making it a crim
e to permit a child to see a movie rated "R" or "X" under the MPAA schem
e. The court held the law unconstitutional:
"The evidence clearly established that the Code and Rating Administration
of the Association has itself no defined standards or criteria against w
hich to measure its ratings. ...[I]t is manifest from a reading of Act No
2E 100 that, however well-intended, it is so patently vague and lacking
in any ascertainable standards and so infringes upon the plaintiffs' righ
ts to freedom of expression, as protected by the First and Fourteenth Am
endments to the Federal Constitution, as to render it unconstitutional..
2E.[T]the attempted recourse to Association ratings is of no avail."
Other federal courts have agreed that " it is well-established that the
Motion Picture ratings may not be used as a standard for a determinatio
n of constitutional status", Swope v. Lubbers, 560 F.Supp. 1328 (W.D. M
ich. 1983). As one judge tartly observed in Engdahl v. Kenosha 317 F.S
upp. 1133 (E.D. Wis. 1970):
This determination as to what is proper for minors in Kenosha is made b
y a private agency, the Motion Picture Association of America. It was con
ceded at the hearing upon the present motion that if the Motion Picture A
ssociation utilized any standards whatsoever in reaching its judgments as
to what is an 'adult' movie, the defendants are not aware of what these
standards are.
Similarly, most public libraries buying blocking software will do so wit
h only a vague awareness, at best, of the standards (if any) followed by
the software publisher.
Under these clear legal precedents, a library cannot block its users fro
m accessing Internet sites based upon a vague or undisclosed set of stand
ards implemented by the publisher of the blocking software.
Conclusion
The installation of blocking software by a public library is clearly unc
onstititutional under relevant First Amendment case law.
Please contact Jonathan Wallace at jw@bway.net with any comments or quest
ions. For more information and for updated copies of this document, check
the Net Freedoms page, http://www.spectacle.org/cda/cdamn.html.
------------------------------
Date: Thu, 6 Mar 1997 21:01:50 -0800 (PST)
From: Declan McCullagh <declan@well.com>
Subject: File 2--Dan Kennedy, COCK HUNGRY TEENS, and cyberlibertarianism
You'll find a porn-ucopia of online smuttiness -- from "COCK HUNGRY TEENS"
to "women administering fellatio to dogs" -- in Dan Kennedy's column in
the most recent issue of the _Boston Phoenix_, where he decries
cyberlibertarians, damns Net-sex, and extols the virtues of censorware.
I haven't read so much turgid prose since Marty Rimm.
His factual errors are worth noting. Kennedy says CyberPatrol blocked the
National Organization for Women and then unblocked it, when in truth
CyberPatrol never blocked NOW. Kennedy incorrectly says that GLAAD was not
on the CyberNOT oversight committee last summer, when in truth they were.
Kennedy says a Federal appeals court struck down the CDA; it was a
district court. Kennedy says the Supreme Court will hear arguments on the
CDA next month; in reality, they'll hear arguments this month. Kennedy
incorrectly labels Rimm a graduate student; he was an undergraduate.
Kennedy talks of the "cyberlibertarian grassroots" when discussing a
member of the Boston Coalition for Freedom of Expression, even though that
person is a leftist, not a libertarian. Kennedy incorrectly says Brock
wrote the "much-cited" expose' of censorware, when in fact we coauthored
it.
But forget accuracy. Instead, let's rant about THE DANGERS OF PORN ONLINE!
It's not like it hasn't been done before:
For instance, it's not
at all difficult to find photo-animations of a young woman
performing fellatio above the inscription COCK HUNGRY TEENS, and of
two men having anal sex; both are just one click from Yahoo, the
big Internet search engine, which maintains an extensive guide to
online sex...
It's difficult to exaggerate the offensiveness of some of this
stuff, the likes of which few people ever laid their eyes on before
technology made it possible. You can find photos of women tied up,
gagged, and being tortured with heavy lead weights suspended from
their pierced nipples and genitals. Photos of women administering
fellatio to dogs. Photos of women literally eating feces (if you
see a pattern here, it's no accident: men rarely star in these
twisted plots), and photos of lifeless victims of horrible
And it gets worse...
So does Kennedy's column. Keep reading.
-Declan
---------- Forwarded message ----------
http://www.bostonphoenix.com/archive/news/quote.html
By Dan Kennedy
March 6 - 13, 1 9 9 7
Porn patrol
The digerati are screaming `censorship' over Mayor Menino's Internet sex
ban at the Boston Public Library. But cybersmut is more disgusting -- and
Menino's proposal more reasonable -- than his critics are willing to
admit.
In cyberspace, everyone can hear you scream. And at those outposts
favored by the technosavvy elite, they've been screaming bloody
murder ever since Mayor Tom Menino issued a decree banning Internet
porn from the Boston Public Library.
In most quarters, including the editorial pages of the _Boston
Globe_ and the _Boston Herald_, Menino's action has been seen as
measured and sensible -- especially if, as now seems likely, he
backs away from a misguided attempt to extend the ban to adults as
well as children.
But to the digerati, given to hyperlibertarian politics and a
utopian, messianic belief in the ability of the Internet to
transport humanity to a higher level of consciousness, Menino is an
ignorant, jackbooted thug, and those who support him are
technological illiterates trying to escape a culture they neither
like nor understand.
Parts of Usenet, a portion of the Internet comprising interactive
discussion groups, have been filled with angry posts from
cyberlibertarians, most of them in a thread titled "The Demise of
Mayor Menino." For the most part, postings have consisted of
vitriolic assertions that children have the same right to
uncensored Internet access as adults, and of dire warnings of the
political and even personal consequences Menino will suffer if he
doesn't back down.
Among the most incensed is Jim D'Entremont, of the Boston Coalition
for Freedom of Expression. D'Entremont has been especially angry
with the _Globe_ for failing to disclose that its publisher,
William Taylor, is president of the BPL's board of trustees. In a
letter to _Globe_ ombudsman Mark Jurkowitz that was also posted on
the Net, D'Entremont accused Taylor of living "in an ethical
vacuum," and added with more portentousness than logic: "It's very
clear to us now, at least in general terms, just what has been
going on." For good measure, D'Entremont, in a brief interview with
the _Phoenix_, accused _Globe_ technology writer Hiawatha Bray --
who wrote a generally accurate if pollyannaish piece on the
porn-blocking software that may be installed on library computers
-- of being "a former Christian-right activist in the Midwest." (A
bemused Bray concedes that he was a member of the Chicago-based
Pro-Life Action League before coming to Boston.)
D'Entremont's outburst is far from an isolated phenomenon. Indeed,
his passion is an article of faith among the digerati, a faith that
has best been expressed by _Wired_ editor/publisher/founder Louis
Rossetto. In a 1995 anti-censorship manifesto titled "Fuck, Piss,
Shit, etc.," Rossetto called government officials "power-hungry
sociopaths . . . wiping their asses with our Constitution." The
intellectual framework for this rage has been laid out by the media
critic Jon Katz, who, in an essay for _Wired_ titled "The Rights of
Kids in the Digital Age," blasted V-chips, movie and TV ratings,
Internet censorship, and other attempts to protect kids from the
media as evidence of "anxiety and arrogance," imposed by "brute
authority."
It's an appealing, powerful argument, invoking as it does an
eminently justified anger against mindless government authority, an
ode to individual responsibility, and a gauzy, optimistic vision of
the future. But it's an argument without nuance, leaving its
adherents unable to draw the kinds of important moral distinctions
most of us make all the time.
We don't let kids buy alcohol or tobacco or lottery tickets -- or,
more to the point, _Playboy_ or _Penthouse_. Yet the digerati argue
that we should do nothing to prevent kids from viewing violent,
degrading, hardcore pornography. Such fare, as the
cyberlibertarians never tire of arguing, makes up just a tiny part
of what's available on the Internet. But it is nevertheless
voluminous in its own right and remarkably easy to find.
Free-speech absolutists would have us believe that there is no
moral distinction between a library that removes _The Catcher in
the Rye_ or _The Adventures of Huckleberry Finn_ from its shelves
and one that installs software on computers in the children's room
to block out pictures of bestiality or sexual torture. It's a
slippery slope, they say, noting that such software can block out
sites devoted to the politics of homosexuality, or to denying the
truth of the Holocaust. That's a valid criticism, but to invoke it
as a reason to do nothing is to deny our ability to reason and to
choose.
______________________________________________________________
A close reading of Rossetto and Katz reveals some important nuances
that D'Entremont and company gloss over.
Rossetto's anger was aimed not at those who would keep hardcore
porn from kids, but at the Communications Decency Act, a
heavy-handed attempt to ban "indecent" speech from the Net.
Congress passed the CDA in 1995 in the wake of an infamous _Time_
cover story on cyberporn, which hyped a phony study by an ambitious
graduate student named Martin Rimm. A federal appeals court put the
CDA on ice, citing the very software that Menino wants to install
as evidence that the free market could solve the problem of Net
porn. (The Supreme Court will hear arguments on the CDA next
month.)
Katz's bill of rights is aimed not at young children, but at
teenagers -- "socially responsible" teenagers, to be exact. And
Katz takes the non-absolutist position that "Blocking, censoring,
and banning should be the last resort in dealing with children, not
the first."
At the institutional level, Menino's ban is opposed by the American
Civil Liberties Union and the American Library Association. Their
rhetoric, though, has been distinctly lacking in bite. The ALA
opposes in principle the use of any kind of blocking software, but
does not require its members to go along with that position. As for
the ACLU, John Roberts, executive director of the Massachusetts
chapter, says, "We sort of take the position that it's a risky
business making it [pornography] available, but it's better to pay
that price."
At the cyberlibertarian grassroots, though, passions are white-hot,
and are often expressed in the kind of extremist terms favored by
Jim D'Entremont. It's an extremism that is entirely blind to the
true nature of cyberporn.
Indeed, to listen to those seeking a piece of Tom Menino's flesh,
you'd think that what was at stake was the right of kids to view,
say, an online version of the women's-health book _Our Bodies,
Ourselves_, or to snicker over _[4]Playboy.com_. Yes, you can find
such benign fare on the Net. But that's hardly the extent of it.
These days, when most people speak of the Internet, they mean the
World-Wide Web, a graphics-rich, interconnected series of millions
of "pages" ranging from those offered by huge companies such as
Time Warner to the scrawlings of small self-publishers. You'll find
porn on the Web, some of it pretty hardcore. For instance, it's not
at all difficult to find photo-animations of a young woman
performing fellatio above the inscription COCK HUNGRY TEENS, and of
two men having anal sex; both are just one click from Yahoo, the
big Internet search engine, which maintains an extensive guide to
online sex.
But despite the explicit nature of such photos, Web porn has its
limits. During the past year, most porn sites have started
requiring users to verify that they are at least 18 years old. Some
of these are on the honor system; others, though, require elaborate
procedures (including credit card verification) that are almost
guaranteed to keep out prying young eyes. Then, too, the operators
of websites easily can be located by authorities. A site with
anything prosecutable would likely get shut down in a hurry.
The opposite, however, is true of Usenet, an older part of the
Internet consisting of thousands of so-called newsgroups. The vast
majority of these groups are interactive discussion boards, such as
_[5]ne.general_ (reserved for New England topics) and
_[6]alt.journalism_, where much of the debate over the BPL has
taken place. But it's also possible to post pictures to a Usenet
group, and several hundred groups are devoted to pornographic and
violent images.
It's difficult to exaggerate the offensiveness of some of this
stuff, the likes of which few people ever laid their eyes on before
technology made it possible. You can find photos of women tied up,
gagged, and being tortured with heavy lead weights suspended from
their pierced nipples and genitals. Photos of women administering
fellatio to dogs. Photos of women literally eating feces (if you
see a pattern here, it's no accident: men rarely star in these
twisted plots), and photos of lifeless victims of horrible
accidents.
And it gets worse. Child pornography is not ordinarily found out in
the open, because law-enforcement officials regularly surf the Net
looking for pedophiles; witness last week's bust of an Internet
provider in Texas. Yet some foreign Usenet servers, easily accessed
from the US, routinely include groups devoted to such disturbing
fare as a photo of a very young girl, perhaps seven or eight years
old, being orally raped, her face covered with semen.
Usenet contains so much more depravity than the Web for a simple
reason: no one is in charge. Newsgroups, once created, exist almost
in perpetuity, propagating across the world onto the servers of
Internet service providers (ISPs) both large and small. An
individual ISP may refuse to carry some of these groups, especially
if they contain material that might be considered legally obscene,
which could make the provider liable. But it's no big deal to
access a server somewhere else, in a place where the laws and/or
enforcement are lax. As for tracing individuals who post this
stuff, forget it: the ease of editing "headers," and the ability to
upload porn through "anonymous remailers" that strip out
identifying information, make it difficult (though not necessarily
impossible) to find pedophiles. For instance, the photo of the
young girl was posted by a _Biteme@freeway.net_.
Now, you could argue (and some have) that Usenet is irrelevant to
the Boston Public Library, since its computers offer access only to
the Web. Yet Yahoo lists a number of free, public Usenet servers
that can actually be accessed _through_ the Web. How simple is it?
Last week I sat at an Internet work station in the BPL children's
room (for ages eight to 13), a bright, cheerful environment with
toys and rows of kids' books. A mother sat quietly reading to her
toddler. Older kids worked on school projects. And within five
minutes I was looking at the descriptions of photos in a
hardcore-bondage group. One more click, and the photos would have
appeared on screen. If it was that easy for me, how difficult would
it be for a technically adept, hormonally challenged 12-year-old?
Not very.
And there's not much doubt that kids go looking for porn. June
Eiselstein, the BPL's assistant to the director for community
library services, says the low number of complaints (about five in
18 months) shows the pornography issue is "much ado about nothing."
But BPL staffers say that kids regularly log on to pornographic
sites, often sharing hot Net addresses with their friends.
Over the past couple of years, there's been a rush to develop
software that allows parents, teachers, librarians, and others to
block out offensive locations on the Internet. If anything, such
software has been promoted more by free-speech liberals than by
anti-porn conservatives, who have made it clear through such odious
measures as the Communications Decency Act that their ultimate goal
is to transform the entire Net into a G- and PG-rated parallel
universe.
In Boston, Menino's staff has proposed that Cyber Patrol, the
industry's leading program (about 85 percent of the market) for
blocking out sites, be installed on every public
Internet-accessible computer at the BPL and its branches, and at
the city's community centers.
Cyber Patrol, manufactured by Microsystems, of Framingham, prevents
users from accessing websites and Usenet groups in any one of 12
categories, ranging from partial nudity, full nudity, and sexual
acts to illegal activities (example: how to hack into and damage a
company's computers), gross depictions, and hate groups. A
librarian (or parent, or teacher) can choose to block out sites in
any or all of the 12 categories, and can exclude additional sites
-- or make available sites that Cyber Patrol normally blocks.
Trouble is, Cyber Patrol (like its competitors) is a flawed
solution. For one thing, Microsystems has been caught on several
occasions blocking out sites merely because they were
controversial, such as those of gay and lesbian organizations. For
another, the identity of excluded sites (the "CyberNOT" list) is
semi-secret: though a user is informed when she or he hits a site
that's been blocked, Microsystems does not publish a full list, for
the obvious reason that kids would use it as a guide to forbidden
locations. Although Microsystems has put in place an appeals
process for those who operate sites that have been blocked, the
pseudo-secrecy makes it difficult (or at least inconvenient) for an
operator to find out whether her site is on the list.
Still, attempts by digital guerrillas such as _CyberWire
Dispatch_'s Brock Meeks to depict Microsystems as the Darth Vader
of censorship ("a tale of broken codes, betrayal of a social
contract, and morality run amuck," Meeks wrote last year in a
much-cited exposi of Cyber Patrol and its competitors) don't square
with what seems like a genuine attempt on the company's part to
respect free speech and show some social responsibility. For
instance, representatives of political organizations whose websites
were originally blocked -- among them, the National Organization
for Women, the National Rifle Association, and the Gay and Lesbian
Alliance Against Defamation -- now sit on a Cyber Patrol advisory
committee that helps set policy.
Besides, even some of the outrages cited by Meeks and others are
more ambiguous than they might first appear. The digerati often
point to Cyber Patrol's blocking of an animal-rights group's photo
of slaughtered greyhounds. But even though a 12-year-old doing a
school report clearly ought to have access to such information,
should a six-year-old?
Menino, to his credit, has not behaved precipitately. Though he's
reportedly miffed that his order wasn't obeyed instantly, he's done
nothing to undermine incoming BPL president Bernard Margolis, who's
put off taking final action until he can study the best way of
keeping cyberporn away from kids while protecting the free-speech
rights of adults.
A reasonable solution would appear to exist: Cyber Patrol or
something like it could be installed on computers in the children's
room and perhaps also in the young adults' room, where an
appropriately lighter touch could be applied to what's blocked out.
The computers in the general library could be restricted to adults
-- and left wide open. (Although Menino originally indicated he
wanted porn blocked on computers used by adults as well as
children, his spokesperson, Jacque Goddard, now suggests that he's
willing to be flexible. For instance, she says librarians may be
allowed to "unlock" a computer with a password so that an adult
patron can obtain unimpeded access.)
______________________________________________________________
At the cyberlibertarian extreme, children are to be viewed as
miniature adults possessing a fully formed set of values and
capable of judging what they should and shouldn't be exposed to.
Mike Godwin, the staff counsel for the Electronic Freedom
Foundation and a respected combatant in the war against Internet
censorship, is an articulate spokesman for this view.
"The role of public libraries is to facilitate access to
information. It's perverse for government officials to force them
to do the opposite," he says. "If you're worried about your child's
choosing to see content you disapprove of, there is only one
solution that works reliably, in my view, and that is to teach your
child to disapprove of the same things you do."
But Godwin is missing the point, or part of it, anyway. Parents
can't watch their kids every minute. And even when parents are
successful in teaching their children values, kids' natural
curiosity is going to lead them to the forbidden. A generation ago,
a child might surreptitiously flip through the photos of
bare-breasted women in _National Geographic_, and eventually
graduate to _Playboy_ and _Penthouse_. Today, that natural
curiosity is going to lead to photos of screaming women, suspended
from a ceiling with leather straps, being whipped, beaten, and
mutilated. You don't have to subscribe to the anti-pornography
theories of Catharine MacKinnon and Andrea Dworkin to wonder
whether that might be harmful to impressionable minds.
The cyberlibertarians perform a crucial role. They push us,
challenging the mainstream to defend and explain itself. If it
weren't for people like Louis Rossetto and Jon Katz and Brock Meeks
and Mike Godwin, the Communications Decency Act would be the law of
the land, and Punch Sulzberger's lawyers would break into a cold
sweat every time the _New York Times_ published the words "damn" or
"breast" on its website.
And we should remain on guard against any attempts at real
censorship. Menino's instincts aren't necessarily to be trusted.
Last week, for instance, he vowed to crack down on racy soft-drink
labels -- hardly the response of a person who values free speech.
Vigilance will be needed to make sure Menino doesn't, say, quietly
order the BPL to block out sex-education sites aimed at teenagers.
But just as we don't want Internet content to be dictated by the
likes of Pat Robertson or Ralph Reed, neither would we be well
served by a mediascape shaped by the utopian visions of the
digerati.
The humorist and writer Barry Crimmins, a children's-rights
activist who's incurred the wrath of some free-speech absolutists
for his crusade against online child porn, says the issue isn't so
much about blocking out pornography as it is about deciding what's
appropriate for different age groups.
"Let's deal with reality," he says. "If anyone is going so far as
to say 10-year-olds have a right to see this stuff, then they've
identified themselves as fringe and ridiculous. Ten-year-olds are
not prepared to see depictions of rape and violence. Let them have
some innocence."
_Dan Kennedy's work can also be accessed from his Web site:
[8]http://www1.shore.net/~dkennedy/_
_________________________________________________________________
Dan Kennedy can be reached at [9]dkennedy@phx.com
References
1. http://www.bostonphoenix.com/cgi-bin/imagemap/alt1/map/sidebar.conf
2. http://www.bostonphoenix.com/archive/news/quoteindex.html
3. mailto:dkennedy@phx.com
4. http://www.playboy.com/
5. news:ne.general
6. news:alt.journalism
7. http://www.bostonphoenix.com/archive/news/quoteindex.html
8. http://www.shore.net/~dkennedy/
9. mailto:dkennedy@phx.com
10. http://www.bostonphoenix.com/alt1/issues/current/new.html
11. http://www.bostonphoenix.com/alt1/standard/info.html
12. http://www.bostonphoenix.com/alt1/index.html
13. http://www.bostonphoenix.com/alt1/standard/search.html
14. http://www.bostonphoenix.com/alt1/standard/feedback.html
------------------------------
Date: Sat, 22 Feb 1997 22:11:52 -0800 (PST)
From: Declan McCullagh <declan@well.com>
Subject: File 3--Joab Jackson on Maryland online "harassment" bill, from BaltCP
Source - fight-censorship@vorlon.mit.edu
---------- Forwarded message ----------
Date--Sat, 22 Feb 1997 20:11:11 -0500
From--Joab Jackson <joabj@charm.net>
Declan,
Hello! I just wanted to send this column I wrote on Maryland HB 778,
which starts out as a
harrassment law and seems to be ending up as a censorship law. Thought
you'd be interested.
Resdistribute at will. . . .
Calling Delegate Roseneberg's Hand
If everyone agrees that having a state law against on-line harassment is
such a good idea, then why does almost everyone have problems with the one
now proposed?
On January 31 state Delegate Samuel "Sandy" Rosenberg (D-42nd District)
introduced House Bill 778, which would expand the current state law
prohibiting the use of the telephone to "annoy, abuse, torment, harass, or
embarrass" people to include "electronic mail or similar electronic
communication."
On the face of it, a law against on-line harassment seems overdue. Take the
case of Jayne Hitchcock. Late last year her E-mail account was mail-bombed,
and her phone number was spammed across Usenet, touted as some sort of free
sex-chat line. When she approached Anne Arundel County police, they didn't
know how to handle the case, she says. Only by suing her alleged harasser
could she find relief.
"If today someone were to go through the same thing I did, there is
literally nothing they can do about it," Hitchcock tells me by phone from
her Crofton home. Corporal Michael Donhauser of the Maryland State Police
Computer Crimes Unit agrees: "Presently there are no laws on computer
harassment."
Nonetheless Rosenberg's bill has drawn criticism from the Electronic
Frontier Foundation (EFF), the noted cyber-rights advocacy group. EFF
Director Stanton McCandlish calls it "half-cocked" and "ridiculously
unconstitutional."
McCandlish, whose group is known for its civil-libertarian stance, agrees
that on-line harassment is a serious-and growing-problem, but he says HB 778
isn't the solution. "The wording is vague and overbroad. No one was ever
guaranteed the right not to be annoyed or embarrassed," he tells me by
phone, mocking the bill's language.
Another person who finds the bill's wording too vague is-surprise-Jayne
Hitchcock. Although she supports HB 778, she says she is uncomfortable about
incorporating terms such as "annoy" and "embarrass." After all, being
annoyed or embarrassed are common dangers on the Net.
Hitchcock and McCandlish aren't the only critics. Rosenberg says he has
received numerous complaints via E-mail which raise questions about the
bill's free-speech implications, so he asked Maryland Assistant Attorney
General Kathryn Rowe to study the existing law's constitutionality as it
applies to telephone use. Rowe replied in a February 7th letter that the
courts have determined that the existing proscriptions are constitutional as
long as they are applied only to calls made "with the specific intent to
harass, threaten, or abuse the recipient." Criminal statutes, Rowe explained
to me in an interview, tend to be interpreted very narrowly by the courts.
That's good enough for Rosenberg. He insisted during an interview that the
law will not interfere with "protected political speech" but will merely
extend laws that already apply to the telephone. As he wrote in a response
to the E-mail complaints, "If conduct can be constitutionally restricted in
another medium, it can be limited on the Internet."
It's Rosenberg's use of the word "Internet" here that irks McCandlish-it's
another vague term. "We need to draw more careful distinctions," he argues.
Unlike the telephone, which is used largely for one-to-one conversation, the
"Internet" is everything from encrypted messages only the recipients can
read to Usenet posts accessible to millions. "This law is taking a medium
that is more like newspapers and putting restrictions on speech," McCandlish
told C-Net, an on-line news service.
Rowe seems to be in agreement with both Rosenberg and McCandlish. Her
February 7th letter to the legislator suggests narrowing the bill to just
"electronic mail," leaving out "similar electronic communications." When I
spoke with her she said it "might be advisable" to make even further
distinctions-between private E-mail and mailing lists, for example.
But Rosenberg is adamant about not substantively changing the wording of the
bill before its March 5th hearing. As it stands, HB 778 is as vague as last
year's ill-fated federal Communications Decency Act.
Maryland is not alone in trying to deal with on-line harassment. Other
states have recently passed or are considering legislation on the issue. The
trouble is, according to McCandlish, that elected officials are more anxious
to appear cyber-savvy to their constituents than they are to find out how
cyberspace actually works. Hence these laws are either redundant-proscribing
behavior already barred by existing laws-or so vague as to be blatantly
unconstitutional.
No doubt Rosenberg is angling to appear cyber-savvy. He is one of only a
handful of members of the Maryland House of Delegates to have a privately
run Web page (Sandy Rosenberg). In the past he's introduced
legislation dealing with the thorny topic of computer privacy.
Well, this is his-and the Maryland legislature's-big chance. They
can either draft a sensible, Net-knowledgeable harassment law
that the rest of the country can use as an example, or they can
just push through another dumb censorship law that, if passed,
will end up being struck down in court. The choice is theirs-and
yours.
A hearing on HB 778 is scheduled for 1 P.M. March 5 in the House
Office Building, room 120, in Annapolis. Anyone wishing to
testify must sign the witness register before the hearing begins.
Call 841-3488 for more information.
------------------------------
Date: Thu, 15 Dec 1996 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 4--Cu Digest Header Info (unchanged since 13 Dec, 1996)
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