Online activist warns against government-mandated Internet filtering

Friday, December 18, 1998

Jonathan Wallac...
Jonathan Wallace

Online activist Jonathan Wallace fears that efforts to filter speech on the Internet subvert the meaning of the First Amendment and full access to ideas.

An attorney, software consultant and author, Wallace says his great passion is ensuring that public institutions do not restrict speech on the Internet through the use of filters, or censorware as he calls them.

Wallace’s interest in the Internet began in the 1980s when he practiced computer law, including online issues, and co-authored two books, Syslaw: the Sysops Legal Manual and Understanding Software Law.

Though he has moved from the full-time practice of law to software consulting, Wallace maintains his interest in cyberspace and free speech.

“I have always been interested in civil liberties,” says the Harvard law graduate.

His passion for cyber liberties culminated in his 1996 book, Sex, Laws and Cyberspace, which he co-wrote with Mark Mangan.

In the book Wallace warns that “history shows that the first attempt to regulate a new technology is almost always disastrously wrong.”

The Censorware Project

What Wallace combats is the government rush to embrace filtering software.

Along with publishing an online newsletter, The Ethical Spectacle, Wallace founded the Censorware Project, an organization that opposes the use of filtering software in public institutions such as public libraries or public schools.

“The Censorware Project grew out of my October ’97 piece ‘The X-Stop Files,” about a filtering program purporting to block obscenity, pornography and other adult material.

The article, which Wallace co-wrote with future Censorware Project members, reported that the filter blocked many sites containing no sexually explicit material. These included the Banned Books page at Carnegie Mellon, the Web site of the American Association of University Women, the AIDS Quilt site and the Web site of the Religious Society of Friends, better known as the Quakers.

Wallace says The Censorware Project has two closely related purposes: (1) to oppose the use of filters in public institutions and (2) to inform consumers about different censorware products.

To Wallace, filters are crude, imperfect tools that cannot make the fine legal distinctions between unprotected and protected speech. It will be a long time before any software can do that, Wallace says: “It would require an artificial intelligence with a level of sophistication not yet developed.

“A jury of 12 human beings has a hard enough time in obscenity cases across the country. How can we possibly expect a computer program to do a better job?” he asks.

Wallace also says that given the amount of content on the Internet, it is an “impossible task” to filter it.

Mainstream Loudoun case

Wallace played a role in the first court case challenging the constitutionality of filtering at public libraries: Mainstream Loudoun v. Loudoun County Board of Trustees.

Along with several other artists, organizations and civil liberty groups, Wallace intervened in the lawsuit, alleging that the filtering software used by the Virginia county library, X-Stop, blocked his site, which contained no obscenity, pornography or material harmful to minors, but rather speech with educational and/or artistic value.

Last Nov. 23, U.S. District Judge Leonie Brinkema ruled that the Loudoun County Library’s policy mandating filtering at all terminals for all patrons violated the First Amendment.

Wallace calls the decision “profoundly important.”

“Judge Brinkema was right on point with her analysis that censorware in its present clumsy form blocks constitutionally protected material,” he said.

Last session Congress introduced measures, such as Arizona Sen. John McCain’s Internet School Filtering Act of 1998, which would have required schools and libraries that receive federal funding to provide blocking software on computer terminals. Wallace says Brinkema’s decision establishes that such a law is “clearly unconstitutional [and] should be thrown out of court the same day.”

Filtering in schools

Wallace opposes filtering even in public schools. “Censorware is simply no substitute for adult supervision,” he says. Furthermore, Wallace criticizes the one-size-fits-all filters that treat 17- and 18-year-old high school students the same as 6- and 7-year-olds.

Wallace concedes that there is definitely material on the Internet that is inappropriate for minors, but says younger students should never be on the Internet without a teacher nearby.

And filters can get in the way of education. Wallace says that some public high school students have been unable to do their assignments because the filters block access to crucial information.

He cites an incident in Ohio in which a high school journalism teacher had to remove the filter because the students were unable to complete assignments on topics such as teen pregnancy, drug use and AIDS.

Wallace says his own Web site has been blocked at one time or another by six or seven different filtering products.

Wallace’s Ethical Spectator Web site on the Holocaust was one example of protected speech that has been blocked, he said. The site contained first-hand testimony from survivors of a Nazi death camp, yet it was blocked.

“I have been called by teachers thanking me for posting this material on the Holocaust,” Wallace said. “While some of the material discusses medical experiments with humans, it has vastly important educational value.”

Laws restricting speech on the Internet

Wallace was one of many plaintiffs in the challenge to Congress’ first attempt at regulating speech on the Internet, the Communications Decency Act of 1996. On June 26, 1997, the U.S. Supreme Court ruled in Reno v. ACLU that provisions of the CDA criminalizing indecent and patently offensive online communication violated First Amendment free-speech rights.

After the high court’s historic decision, Congress returned with a more narrowly tailored law called the Child Online Protection Act, or COPA, which was passed last October. Wallace says the new law is “again overbroad and vaguely enough drafted to infringe on serious content on the Web.”

He predicts that the federal courts will strike down COPA as they did the Internet indecency provisions of the CDA. In fact, Wallace says that the general pattern of legislatures enacting state laws and courts striking them down will continue.

“These laws are generally knee-jerk reactions that are not carefully thought out,” he says. “Plus, it’s politically popular and such an apple-pie kind of issue — protecting our children from pornography.”

He predicts that the most visible threats to the First Amendment will be “Internet-related” in the next year.

“As a generic matter, the biggest threat to free speech is that no one seems to understand or value the First Amendment. Everyone seems to favor an exception for their personal speech demon. If we allow these exceptions, the First Amendment will become a patchwork. That’s why I am a First Amendment absolutist.

“The underlying values of the First Amendment are humility, tolerance and optimism,” he says. “I subscribe to Justice Oliver Wendell Holmes’ idea that in the marketplace of ideas the best speech will eventually triumph. We must be unafraid of ideas.”