‘Tools’ fail as strategies to keep kids away from Net sex at libraries
(Editor's note: The following is excerpted from Paul McMasters' statement yesterday afternoon before the National Research Council's “Committee to Study Tools and Strategies for Protecting Kids from Pornography and Their Applicability to Other Inappropriate Internet Content.” The committee is chaired by former U.S. Attorney General Richard Thornburgh and was commissioned by Congress.)
When good people with honest motives sit down to discuss tools and strategies for protecting our children from harmful speech, “censorship” may seem too harsh a word, but we must not set it far from our deliberations. It is tempting, after all, when confronted with such a problem, to consider harnessing the machinery of technology to the power of government to restrict children's access to certain information, especially information that as individual parents we might consider risky or harmful. But we submit to such temptation at peril of First Amendment rights and values.
Those who struggle to reach a rationale for suppression of sexual speech or burdensome regulation of such speech on the Internet must of necessity rely heavily on moral and ideological assumptions and assertions rather than scientific or psychological evidence. As a result, arguments for the harm to minors of so-called “indecent” material on the Internet are rife with speculation and hypothesis. Not only does this provoke First Amendment concerns, but it stands in the path of helpful deliberations and useful solutions.
Technological tools for restricting access
Many view technology as the best approach to searching out, blocking or segregating material considered inappropriate for children on the Internet or World Wide Web. These technical tools include filtering and blocking software that depend to some extent on voluntary or mandated labeling or rating of content, assignment of an “adult” domain name, age-verification systems, or a combination of these approaches. All of these approaches, however, carry considerable constitutional baggage.
Rather than go into details of the various ways filtering and rating systems incur serious First Amendment concerns, I would refer the committee to other statements from this panel and two other excellent resources:
Robert S. Peck's Libraries,The First Amendment and Cyberspace, published by the American Library Association.
David Sobel's Filters & Freedom, published by the Electronic Privacy Information Center.
For a helpful analysis of so-called “cyberzoning” – the “dot sex” or “dot xxx” domain- names approach – I commend to you the statement of Robert Corn-Revere before the COPA Commission last month.
As for mandated age verification, which would be required for any of these systems to effectively do the job desired, these systems represent not only an invasion of privacy rights for adults and children, but they have serious First Amendment implications. “Any requirements that Internet users identify themselves in some way (or even take additional steps to establish that they are entitled to receive the information they seek) as a condition of access to online content necessarily chills speech,” says David Sobel. “The courts have recognized that the exercise of First Amendment rights may not be conditioned on a surrender of personal privacy.”
While these tools may well be helpful to parents who wish to guide and monitor their children's use of the Internet, their mandated use in public venues carries grave threats for fundamental freedoms. There is no way that I know of for mandating their use in public libraries and schools or by upstream providers without engaging the constitutional rights of both adults and minors and of both users and providers.
Aside from constitutional considerations, technological tools, and strategies based on technology, must confront a hard reality: They are, at best, temporary solutions. They will be worked around. (For example, see the work done by Peacefire, The Censorware Project and others in exposing the errors and vulnerabilities of filtering software.)
The nation's public libraries are Ground Zero in the debate over blocking or restricting access to inappropriate material for young people. Thus, the First Amendment perspective on the use of filtering and blocking technology by libraries merits special mention.
There is evidence that the scope of the problem can get exaggerated in public discourse. In a report prepared for the National Coalition Against Censorship, Elisabeth Werby notes that most young library patrons do not “surf” the Internet, instead using it to play games and revisit the same sites over and over. “Certainly, some children do deliberately seek out sexually explicit material,” she wrote. “But after more than two years of aggressive effort to collect data, the pro-censorship organization Filtering Facts identified only 196 such incidents. Considering that an estimated 344 million children visit public libraries each year and that nearly three-fourths of these libraries offer some form of public Internet access, this evidence belies the claim that there is a problem of 'epidemic' proportions.”
While 75% of public libraries have Internet access, and 15% have installed filtering systems, there are serious constitutional problems to library officials using filtering and blocking software. Parents have a right and a duty to guide and monitor their children's access to Internet material. Activist groups have a right to advocate for those parents' values. But librarians should not be coerced by law or public pressure to serve as stand-ins for parents when it comes to restricting access to certain kinds of speech. That would conflict with their larger duty to the community, not to mention First Amendment jurisprudence.
Libraries, are, in fact, governed by a stringent set of rules for removing material or denying access to it. Librarians simply cannot declare some material off-limits for some people. There must be a determination in a formal process, sanctioned by legal proceedings in which speakers have an opportunity to defend their speech, before material can be removed or restricted for obscenity or harm to minors.
The unique character and nature of libraries is reflected in the fact that many statues regarding harmful-to-minors material exempt the public library, according to Robert S. Peck in Libraries, The First Amendment and Cyberspace. In addition, writes Peck, the Supreme Court in Reno v. ACLU “strongly suggests that public libraries treat the Internet no differently than their policies on books.”
So what can libraries do? Outside of the posting of “Acceptable Use Policies” and pro-active measures such as creating recommended Web sites for minors, or imposing time- manner-place restrictions, libraries must walk a fine line in this area.
Laws and coercive policies raise serious practical and First Amendment problems, as I have indicated. More importantly, they expend critical energy, resources and time in the debate leading up to implementation and the inevitable court battles they provoke.
It is instructive that the Communications Decency Act was struck down by a unanimous Supreme Court and that the Child Online Protection Act, crafted to avoid some of the CDA's failings, is now under permanent injunction from a federal court. Mainstream Loudoun and other cases show that state and local efforts to restrict access to Internet content are likely to fare no better when challenged on First Amendment grounds.
As David Sobel noted in his statement before the COPA Commission last month: “Every federal judge (including the justices of the Supreme Court) who has considered this issue has agreed that content-based restrictions on Internet 'indecent' or 'harmful to minors' speech are unconstitutional.”
Aside from that, there are all sorts of practical and legal negatives accompanying a governmentally mandated approach to restricting access to Internet material, for either adults or minors. There is no centralized control of the Internet or World Wide Web. It is an international medium with no geographic borders. Any effort to regulate or restrict would necessarily entail some of the technological tools already found wanting for practical and legal reasons.
A legalistic approach also is an open invitation for advocates of restricting access to other types of speech considered “inappropriate” material on the Web: violence, hate, birth control and contraception, gay and lesbian information, and extremist political and religious expression, to list a few. Each of these presents its own unique First Amendment challenges. Further, government action in restricting access to so-called “inappropriate” content not only threatens First Amendment rights, it would severely limit the Internet's potential as an individually empowering and uniquely democratizing medium.
Given the difficulties in finding the proper tools to restrict access to whatever becomes defined as “inappropriate” or “harmful” speech, not to mention the difficulties in determining who should have access to such material, the only sensible approach to the problem ultimately must give priority to individual and parental determination.
First Amendment-friendly approaches
For those reasons and more, I would urge the members of this committee to carefully consider a voluntary educational approach to the problems the committee has been charged with addressing. There are a number of Internet operations, corporations and organizations that are offering educational resources for parents and others, including books, pamphlets, special Web sites, videos, and even classes. A special cooperative effort of major players online has produced the GetNetWise Web site that helps parents and children to make wise choices. The American Library Association, as well as individual libraries, offers helpful online guides for patrons, young and old.
In fact, there is a wide array of options for parents and children as guides to safe and secure surfing on the Internet. “Parents can choose from among literally thousands of kid-friendly web sites, and can use child-oriented ISPs and browsers to keep their kids' Internet experiences within safe bounds,” Richard Kaplar writes in the introduction to Protecting Kids Online, a compendium of projects and efforts by industry and nonprofit organizations, published by The Media Institute. “At the same time, parents can choose from scores of filtering and blocking software products to screen out inappropriate content before it reaches their children.”
Those resources more than address the concerns of parents who wish to direct their children's online activities at home. That leaves the problem of children accessing the Internet at the homes of friends, at the public schools and libraries, Internet café, bookstores and other places. No laws are going to cover all of those online venues, nor the other media in which children will encounter — accidentally or intentionally — inappropriate speech.
In such circumstances, the ideal strategy is education and voluntary efforts that enable parents, guardians and teachers to help children become Internet savvy.
It is the only strategy that protects parents' rights to instill the standards and values they wish for their children.
It is the only strategy that safely protects the First Amendment rights of both speakers and listeners.
It is the only strategy that is relatively safe from paralyzing legal challenge.
As the Supreme Court found in Reno v. ACLU, material on the Internet is as “diverse as human thought.” Any attempt to limit access to that material should be made with the utmost caution. That caution applies equally for children or adults. In 1975, the Supreme Court said in Erznoznik v. City of Jackson:
“Speech … cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.”
Not only is the educational approach the most First Amendment-friendly, it is the most effective in the long run. It not only protects children at home but in school, at the library, and elsewhere where they may encounter inappropriate material, in whatever medium or form it may appear. Any other approach aimed at content on the Internet, which continuously expands, redirects, transforms and indeed morphs into various other media, is constitutionally suspect, practically challenging, and destined for failure.
Harnessing technology to zone, filter and restrict access to Internet content are cyberspace equivalents of muzzling, silencing and censoring in other media. To do so constructs a class system in expression that measures speech not by its value but by the stigma pressure groups and parental panic are able to attach to it.
As appealing as some of the technological tools may be, we must accept the fact that there are no smart bombs to take out precise categories of speech; the collateral damage to other speech is always massive.
Instead we must rely on the fact that our children are remarkably resilient, relentlessly individual and essentially good. They have thrived on extensive First Amendment rights and deserve to arrive at adulthood with those rights intact.
And as a nation and a society engaged in an exhilarating experiment in democracy, we have thrived on the idea that we can tolerate, even defend, inappropriate speech for appropriate principles.
Under the circumstances, however, we should be loath to try anything other than a voluntary educational approach. Give the parents the proper tools and they'll develop their own strategies. Outside the home, especially in public places, the rest of us should continue to embrace the risks of living free and thinking large.
Over the past two centuries, Americans have invested heavily in the idea that it is better to be offended than silenced. Let's not abandon that idea in the face of an undemonstrated threat of an unproven harm.