Michael S. Romano, a student at Stanford Law School, has written an op-ed for the New York Times (reg. req.) defending the Children's Internet Protection Act of 2000 [PDF] (CIPA) (A Worthwhile Web Regulation). CIPA places restrictions on the use of funding that is available through the Library Services and Technology Act, Title III of the Elementary and Secondary Education Act, and on the Universal Service discount program known as the E-rate (Public Law 106-554). These restrictions take the form of requirements for Internet safety policies and technology which blocks or filters certain material from being accessed through the Internet. In essence, the law requires schools and libraries to use Internet filters or lose federal funding.
The ACLU has, unsurprisingly, challenged the law (ACLU Fighting Government Plan to Censor Internet in Libraries). The American Library Association is the other main plaintiff and supporter of the suit (those crazy shifted librarians) (ALA’s
CIPA Web Site). The trial started March 26, and is nearly over, so the op-ed was published at an odd time. Declan McCullagh has been covering the trial for WIRED and the list of stories he has written can be found on his website (Politechbot's CIPA Archive). David Coursey of the ZDNet News Anchordesk thinks that (The Feds can't protect kids from Net porn). While Coursey doesn't seem very enthusiastic about CIPA, he thinks that opponents haven't offered a good alternative. The Shifted Librarian has written a (rebuttal). As always with regard to filtering, see Peacefire.org and the Censorware Project.
Now let me count some of the reasons that Romano's op-ed is wrong...
Romano claims that CIPA is "no more a threat to free speech than current regulations on television and radio." His main argument being that since pornography online is "not just pervasive — it is inescapable" it should be permissible to regulate it. Romano relies exclusively on the ruling in FCC v. Pacifica Foundation (aka the "Seven Dirty Words" case), which held that (among other things) because radio and television are "a uniquely pervasive presence in the lives of all Americans" regulation of indecent speech is permissible. Romano fails to note the narrowness of the holding. For example, the court also pointed out that "broadcasting is uniquely accessible to children, even those too young to read." This is not the case with the Internet.
Romano does not consider the Supreme Court's ruling in Sable Communications, Inc. v. FCC, where the Court noted the "manifest" difference between a radio show that can "intrude on the privacy of the home without prior warning" and telephones, which require a listener "to take steps to receive the communication. [Placing] a telephone call is not the same thing as turning on a radio and being taken by surprise by an indecent message." Romano does state that, "There are pornographic Web sites disguised as video-game home pages or even government sites, like whitehouse.com." But that wouldn't seem to be relevant either, as people may get taken in, but you can also accidentally dial a wrong number or a number that has been changed.
Apparently, Romano does not watch much cable television ... which is almost exactly the same as broadcast television, except you have to pay a monthly fee for access. In Denver Area Educational Telecommunications Consortium v. FCC, the Supreme Court (applying the reasoning of Pacifica) struck down a regulation that required cable operators to block access to any indecent leased access programs. I suppose that cable is not as pervasive as either broadcast or the Internet.
Romano does claim that the Supreme Court got it wrong in Reno v. ACLU, "the Supreme Court [is] drawing the wrong analogy. Online content is much more like information in the broadcast media." However, the Court's argument was that, unlike television and radio, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." It is not clear to me how Romano's claim that there is a lot of porn on the Internet refutes the Supreme Court's holding.
For example, Romano does mention that, "Unsolicited smut floods unsuspecting e-mail accounts." Well, yes. However, it is entirely unclear how CIPA would deal with that issue since CIPA deals solely with Internet access. Unless, of course, Romano is referring to web-based email accounts, but then it is unclear how you could filter those without either banning them entirely, or invading the privacy of those using such accounts.
As an example of reasonable regulation, Romano notes that, "Adult material, for instance, must be kept to late-night broadcasts." However, adult material is available 24/7 on cable. By Romano's reasoning, that should be illegitimate. Romano also doesn't note how such bans could be translated to the Internet, he simply asserts that, "Similar restrictions for the Internet are not only reasonable, but they are also technologically feasible." Technologically feasible, how? Many, many people have worked hard at creating web filters that will block indecent sites or sites unsuitable to children. Leaving aside the question of the definition of such subjective categories, these filters have all been either underinclusive, overinclusive or both. See, Peacefire.org and the Censorware Project.
For me, of course, the real question is not whether restrictions on television and radio should be extended to the Internet, but whether the freedoms of the Internet should be extended to broadcast. Frankly, the idea that different media should be regulated in such different ways does not make a great deal of sense. What is "pervasiveness" anyway? Although Romano is certainly wrong with the law as it stands, there is no real theoretical reason why the pervasiveness standard couldn't have been applied to cable television in Denver Area. The question is even more acute today with the existence of the V-Chip. Cable isn't pervasive, but broadcast is. Yet broadcast uses a "voluntary" rating scheme that works in conjunction with the V-chip and permits parents to modify the "pervasiveness" of television as much as they want. Every television sold for over the past year has a V-chip.
Listen to George Carlin talk about uncensored comedy and the freedom of the digital age (Carlin: Online and Off-Color) or listen to the original "Seven Dirty Words [MP3]."