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I thought the structure of the decision was interesting. We have a unanimous decision written by Justice Souter that completely ignores the Sony test. Then, there are two concurring (but totally opposite) opinions by Justice Ginsburg and Justice Breyer arguing about the correct interpretation of Sony. Fundamentally, Ginsburg and Breyer read the very text of Sony in different ways.

• Ginsburg implies, “The time-shifting and library-building(?) uses of the Betamax were found to be fair use; therefore, a significant number of [potential uses of the Betamax] were non-infringing, so Sony was not liable.” In Grokster, we have “no finding of any fair use and little beyond anecdotal evidence of non-infringing uses.” Ginsburg calls on Grokster to show that “a reasonable prospect that substantial or commercial non-infringing uses were likely to develop over time.”

  Ginsburg seems to completely eviscerate the “capable” part of the “capable of non-infringing uses” test. She seems to imply that if time-shifting and library-building were not fair use, then Sony would have been liable. After all, there is no way that Sony could have predicted the billion-dollar market success of pre-recorded home videos as a reasonable prospect of a substantial non-infringing use.

• Justice Breyer, on the other hand, reads the Sony decision as formulating the “capable of non-infringing uses” test and then applying it. Even if library-building and time-shifting were not fair use (and given that only 9% of VCR use was “authorized”), Sony would still not have been liable. Breyer likes the “capable of non-infringing uses” test because it’s forward-looking and doesn’t prematurely cut off technology.

These are totally different readings of Sony. I don’t think there’s any way to reconcile them. We could have guessed at Ginsburg’s reading when she made this objection in oral argument:

There is a statement — one could take it as clear — “capable of substantial noninfringing use.” That would be very clear, I agree. But Sony goes on for 13 more pages. If the standard were all that clear, it would have stopped there. … Or if you then read back, as a careful reader would, then you find the statement that the primary use of the Sony machine for most owners was time-shifting, a use that the Court found either authorized or fair, and, hence, noninfringing.

Well, that’s the last word. How will our world change now?

Link.

Class members, feel free to post here about the decision if you get the urge.

For news about the case, and pointers to online discussions, check out my blog.

I agree with the majority’s analysis in U.S. v. American Library Assn. that the mere inclusion of internet access in a library does not create an open forum (which would hold any abridgments of free speech in libraries subject to strict scrutiny). The argument that libraries have a compelling interest to protect children from pornography – common ground amongst even the dissenting Justices, and probably most parties who would enter this argument from either side – is a convincing reason to enact something like CIPA. However, given that libraries are not public forums, such a strong argument in favor of CIPA is not even necessary. Libraries have the discretion to choose what information they make available to the public without violating First Amendment standards. They are not required to shelve every conceivable print resource that an author or patron might like to see available, so why should the internet be any different? I find arguments that the internet is, by its very nature, different from the print resources that libraries provide – and thus expected to be less subject to censorship and regulation – unconvincing. Indeed, a library could choose not to provide internet access at all, in the same way that it might not provide access to subscription cable television or radio broadcast facilities for patrons. In the case of the internet, this would surely not be the best policy for striving to meet a library’s goal of making information available to the public, but a library that chose to do so would be, barring other rules and restrictions, within its rights.

Some have argued that while CIPA may be constitutional, it is just not good policy to restrict access to the internet in the ways that filtering technology does. To the extent that filtering technology “overblocks,” thus preventing library patrons’ access to non-obscene material or otherwise inhibiting their web browsing experience, I agree with this position. However, it would seem that the provision of CIPA allowing for disabling of filtering software upon request does much to weaken objections on these grounds. For those unsatisfied with this solution –because a user might be too embarrassed, ignorant, or otherwise unwilling to request that filtering technology be disabled – I believe that a user profiles approach has much to offer. It does not seem unusual that a library might require patrons to sign up for internet access. In such an application, users could sign up for either a “child” or an “adult” account, or otherwise indicate the degree of blocking they wished to have on their own library internet access (to prevent minors from escalating their privileges, a parent or guardian could be required to cosign the application). In this manner, libraries would not have to maintain an unreasonably high number of user accounts – such as, say, in the case of one account per cardholder – but could still allow for some profile-based tailoring of users’ internet experiences and avoid the problem of instituting strict filtering as the baseline condition for web access.

As humankind enters the 21st century…the advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral…

As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to occur…federal legislature has begun paying some attention to the network, and state regulators seem equally anxious to leave their mark on the burgeoning field of “cyberlaw”…

Of course, even without the enactment of new laws or regulations, there are already on the books plenty of laws that states might apply to the Internet…

By contrast, the Attorney General of Florida, has opined that because of the novel nature of the Net, forays into on-line enforcement of current law would be premature.

The wisdom of the Florida position becomes apparent when the nature of the Internet is carefully considered. The Internet extends beyond the boundaries of any of the states, and the effects of state regulation will likewise spill over state borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. The prospect of states applying haphazard and uncoordinated multi-jurisdictional regulation to the Internet’s seamless electronic web raises profound questions regarding the continued growth and usefulness of this medium. And, given the international nature of the network, even centralized federal attempts at regulation raise grave questions regarding international sovereignty and jurisdiction.

Though Burk largely intended to address jurisdiction in his remarks, they apply well to some of the “thornier” issues that we have raised this semester. As diverse as these issues appear they share one central tenet: namely, they all stem from a failure to recognize the “novel nature of the Net.”

For example, Burk cites federal legislation which seeks to “leave [its] mark on cyberlaw.” Certainly no one would argue that the Federal government does not have a legitimate interest in setting uniform internet legislation. Yet, as Burk alludes to, some of this legislation fails to situate itself within the context of the very thing it seeks to legislate – namely, the ever expanding national and international web community. We discussed two prime examples of this already: the Digital Millennium Copyright Act (DCMA) and the Computer Fraud and Abuse Act (CFAA) – both of which have perverse, if perhaps unintended externalities for the web (and academic) communities (to name two).

Yet, the federal government is not alone in this unfortunate state of affairs. State legislatures also seek to influence cyberlaw, further muddying the descriptive record. Again, we addressed several such state legislative conundrums, such as the various “long arm” statutes which claim nearly unlimited jurisdiction under myriad statutes. And as we’ve seen in our discussion of the trespass to chattels doctrine, state legislation can apply different positive standards to the same “netizen.”

As we’ve seen in internet copyright disputes, constitutional issues drive much of the discussion surrounding the internet. While neither “right” is explicitly given precedence, copyright law within the context of the internet pits the “right” of innovators to innovate, versus the “right” of copyright holders to exploit their lawful monopoly. Speech presents another thorny constitutional issue when cabined within the confines of cyberspace. Specifically, the strong protections afforded speech in the “real world” appear inadequately or unevenly applied in cyberspace.

As if these issues were not enough, cyberspace necessarily implicates not just US law, but in fact international law, and the laws of other national sovereigns. Our discussions about the propriety of, and possible alternatives to ICANN amply demonstrated to me how difficult it will be to reconcile the three.

Where does this leave us? These myriad problems all stem from inadequate recognition that cyberspace is, in reality, a new extraterritorial, “extranational” community, which both “exists” in real time and also lacks many elements common to a traditional community (defined borders, perfectly identifiable participants, common standards – or at least some compromise position, legal character, and “real” property). Thus, one might legitimately ask whether or not cyberspace presents as novel a reality as these facts might suggest. In other words, does “cyberspace” actually exist? If so, is it worthy of unique legal character? If yes, how is this legal code to be determined, and perhaps as importantly – by whom?

While recognition of these “novel” elements is essential to any resolution of problematic cyberlaw, mere recognition does not solve the problem. And yet, as Burk suggest, it presents the necessary first step.

First of all, no filtering software can really block all unwanted material. Moreover, even if filtering software is currently successful, it is very likely that Internet users will find a way to get around it soon, making it impossible for software developers to keep track of the changes that take place in the network. This aspect of filtering software would not be as significant a problem if it were not accompanied by a greater flaw. Namely, in an attempt to discover all possible obscenity out in the web, filtering software usually ends up blocking wanted material, preventing users from accessing legitimate websites. Since librarians are supposed to disable the filtering software at a computer at the request of an adult, this situation only makes it harder for adult library users to browse the web with total freedom. However, for minors there is no solution to this problem. Since the filtering software cannot be disabled for them, they will have to enjoy a limited freedom while browsing the web, possibly missing out on totally legitimate and informative websites.

Moreover, CIPA financially and time wise strains librarians. Namely, filtering software developers keep their database of unwanted material secret, making it impossible for librarians or users to know in advance which web sites they will not be able to access with a specific filtering software product. Accordingly, choosing the right filtering software might be a difficult task for librarians. Moreover, it is possible that certain filtering software knowingly or involuntarily blocks necessary and legitimate material such as a news website. Once this is discovered the library has to switch to another filtering product, spending more time and money on deployment of such systems. Furthermore, requiring librarians to disable the filtering software at the requests of adults places even more burden on librarians as they need to attend individual computer users, disabling and enabling filters in between users.

Unfortunately, there is no easy way to replace filtering software or making them more effective. However, I think there are alternatives to CIPA act. For example, CIPA requires librarians to attend all adult computer users if they wish to disable the computers. Once an adult user leaves a computer librarians need to re-enable the filtering software before a minor can use the same computer. Since so much attention and time of library staff is already spent on ensuring children’s protection from obscenity and since filtering software already fails to prevent secondary subjection to obscenity, why not abandon the act altogether and just require librarians to occasionally check whether minors are using the computers for viewing obscenity or not? Such a solution will not only save libraries funds but will also not limit the freedom of library computer users. It might even be more effective than filtering software as librarians can ask adults who print out indecent material and leave such printouts in the printing terminal to leave the library, protecting minors from secondary subjection.

However, it is important also that children be protected from obscene material. Internet access in schools therefore should have restrictions. Very heavy filtering rules (possibly white-list only) should be applied, and only as students get older might those filtering rules be relaxed as age provides maturity but also the necessity for more potentially risqué resources for papers. If children wish to use the Internet in public libraries, they must be accompanied by an adult. This does not, however, alleviate the possibility of children walking by the computer when a user has something pulled up that might be objectionable, leaving objectionable materials on the screen or in the printer tray. The latter problem can be solved technically by causing timeouts and printer queues. The possibility of walking by on-screen objectionable material could be dealt with simple privacy screens placed over the monitors.

Lastly in order to encourage positive use of the Internet at both public libraries and schools, there need to be repercussions against those who deliberately seek out objectionable materials on the Internet. These should be levied against the individual, not against the organization, especially one that is providing such an important service. Those that are pulling this objectionable material are *not* the majority of web users, and they are the ones that should be blamed.

… immemorially been held in trust for the use of the public and, time out of mind, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.

where a designated public forum requires that

the government … make an affirmative choice to open up its property for use as a public forum … The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional form for public discourse.

Since our discussions on trespass to chattels in regard to Internet servers, we have been plagued by the question of whether a website is a chattel or a piece of real property. While we never completely settled this dichotomy, the fact that the servers on which sites are hosted are physical objects seemed to override any claims to trespassing in cyberspace (a term which seems to carry little legal credence). It seems obvious that a chattel cannot serve as a forum, as a chattel offers no location at which to carry out actions appropriate for a forum. However, while the servers which comprise the Internet may be insufficient to be considered a forum, the Internet as a whole may be considered greater than the sum of its parts by virtue of its ability to act as an publicly accessible means of communication.

Before considering this application of the term forum to the Internet, several issues need to be resolved. First, one must consider that the Internet is highly commercialized, and a large portion of Internet servers and service providers are privately owned, thus making them unsuitable as elements of a public forum; however, the information distributed by those servers (if not restricted by some affirmative means of entry control) is publicly available, and thus expression by way of the Internet becomes a public resource. Additionally, the Internet has not necessarily … immemorially been held in trust for the use of the public (US v. ALA). This requirement for classification as a public forum may be inappropriate when applied to the Internet, as the sheer number of individuals who are able to make their voices heard via the Internet seems to outweigh the need for a longstanding tradition of forum-specific activity. I feel quite confident in presuming that the Internet has been more …used for purposes of assembly, communication of thoughts between citizens, and discussing public questions… (US v. ALA) than some real public forums. Finally, the fact that the Internet is not government property may make it difficult for it to attain forum status. But while the government may not own the Internet as a whole, it has displayed a significant interest in the Internet’s continuation (such as in the continuing contract between ICANN and the D.o.C.) and is directly involved with the Internet in its maintenance of government administered web servers. The Internet may not be government property, but the government’s contributions to the Internet may suffice to allow the application of forum status.

The growing number of blogs and ease by which users may host websites through which they express (and discuss) their opinions on public questions seems to make the Internet an ideal public forum. Take as an example of forum-like activity occurring currently the Frist Filibuster - this protest has been accompanied by a live web cast, and, by publicizing information on the demonstration through the Internet, has been able to gain attention in other forms of media. The Internet has provided a means by which members of the Princeton community can draw attention to this particular question of public interest (i.e. the filibuster preventing certain republican judicial nominations from being approved) so it can be widely can be widely heard and discussed. As such, should free speech on the Internet not be protected as if it were a public forum?

While it is understandable that the locality of an Internet access point (i.e. a library) and the interests pertaining thereto may override protection of free speech (it may be best that rights of a forum accessed from a place which is explicitly not a forum give way to the welfare of the non-forum), it is important to recognize that the Internet has, in an incredibly short period of time, taken on this role, and deserves all possible protection for free speech.

Beyond challenging technology creators to build on the innovations of the internet, this medium has challenged lawmakers as well. Traditional geographically-based conceptions of property and jurisdiction have been repeatedly called into question. Our discussions this last week regarding community standards in cases like U.S. v. Thomas bring up once again the role of geography with the internet. For regional businesses, laws incorporating community standards for conduct make sense, since practically only these customers would have access to them. With the internet, on the other hand, even with password protection, filters, and other means, some people under the jurisdiction of strict community standards would be bound to obtain access to the material. Why should a company be obligated to research the arbitrary standards that a jury might impose thousands of miles away, when companies would have little recourse to prevent these parties from accessing their site? Cases like this demonstrate the need for at least national—or better yet international internet community standards—for determining what is “legal” to place, sell, do, etc. on the web.

The example of U.S. lawmakers intending to shield children from accessing pornographic material through public libraries highlights the difficulty national laws have in combating a problem that needs a more international solution. Filters are just a band-aid in U.S. v. American Library Association. Without some sort of consensus and/or change in the internet infrastructure, most sites lie within easy reach of anyone, regardless of age or place. The value of this cannot be underestimated, but neither can the costs. The success of the internet comes through the interconnectedness of sites around the globe. This ideal would lean towards implementing more internet community laws or common standards that users should abide by. Creating an international law would be a difficult process. But, this truly global entity which does not yield to arbitrary state or country borders necessitates such an approach. Last week’s discussions and multiple posts on ICANN highlighted the potential role that this organization could take to govern the internet. Already in charge of domain names and the disputes arising from this governance, this organization or another one to take its place could become the central point for creating rules that all countries could abide by. While some people proposed that all domain names should end with a country code, which would allow countries more jurisdiction over the kinds of sites in their domain and the ability to provide better filtering for examples like the Library case, to me this defeats the value of the internet. Many of the cases and laws discussed this semester continually point towards lawmakers resorting to more traditional geographical viewpoints. Discussion of trespass to chattels use in cases of sending spam and robots crawling websites have called me to question the use of internet nomenclature like homepage and site in terms of their real personal property value. Lawmakers should question these conventions as well and look beyond the physical constraints of clearly outlined borders and national property rights when governing the internet.

Whether it is the Supreme Court rendering a decision on Grokster or Congress enacting the DMCA, no decision about the internet or creation of new technology operates completely in a vacuum within the borders of America. A clear cut set of rules on a global scale is best for internet users, government regulators, and the creators of technology. Inventors must have protection from overly invasive governments or Courts which would restrict their rights to create and sell new technologies as well from overly-lax places which would give them no incentive to create and not protect their rights. This is true for the maker of the next iPod as well as the new company which launches its international e-commerce site. While difficult to implement, a global consensus for rules would be the best means to protect all of these parties.

First, many libraries may not wish to curate their Internet access in the same way they do their print collection. The Internet is an extremely large resource and is extremely dynamic, which would make it difficult to select the most beneficial or most interesting parts of it in any kind of timely fashion, even with a substantial staff dedicated to the purpose — which very few libraries, if any could afford. If a library chooses to provide Internet access to its patrons, perhaps this suggests that the library has decided that the Internet as a whole is a resource worth providing, despite its inability to examine all of the material it contains.

Second, a library’s traditional role towards the selection of material is positive, not negative — while its role in the selection of worthwhile Internet material is usually the opposite. A positive role, in which the library affirmatively chooses what material to display in its collection, indicates that the most important limiting factor in the size of the collection is not a dearth of worthwhile material, but rather the library’s limited resources and inability to make an infinite number of items available to its patrons. A negative role, in which the library displays everything by default and eliminates objectionable material from its collection, indicates that the limiting factor is the amount of worthwhile material and not library resources. The court in this case errs in determining that negative filtering is within a library’s typical or necessary role. This brings me to the next part.

Third, a filtering software does not help a library to find the material that a patron desires to find. In fact, any negative filtering method generally will not help a patron find information — even after the elimination of all objectionable information, there is simply too much material remaining for a user unfamiliar with the collection to determine what is worth his attention and what is not. It is not by the suppression of information of questionable quality that Internet users find information, but instead through search engines and human-maintained indices of content. Internet filters do not have any recognizable role here — their role is simply in preventing some users from seeing material that they might find offensive.

The majority of the court, in this case, has found the Internet to be, in nature, similar to a large pile of books. In this context, they believe it is the library’s role to locate and display only those books that contain worthwhile content. But this is necessarily a subjective (and in many cases controversial) determination, and, since the library is not constrained by limited resources, it makes little sense to state that Internet filtering is a service that should be expected from a library. To do so is to seek to confine libraries to a role that they have traditionally held, and to deny them the opportunity to expand their service and their goals in light of the new capabilities that the Internet affords them.

Why bother?

Another question I had was why bother with this case? I mean, sure the material was obscene in Tennessee, but last time I checked the internet was chock full of tons of other sites promising depictions of the same and similar weird and deviant behaviors (personal opinion). So what makes the Thomases bulletin board any different? What makes this case in particular worth pursuing? Because the internet is almost wholly accessible from anywhere you can access any part of it, surely there are an abundance of other sites, both password protected and unprotected, where people within Tennessee jurisdiction can come in contact with similar material.

It’s been done before

Something else that struck me about this case is the lack of originality (which is not to say that individuals need be more creative with respect to the expression and depiction of their deviant behavior). To me, it seems that any ruling in this case could have followed directly from a precedent set by any cases relating to obscene materials distributed via mail order. Disregarding the differences between the way customers interface with each company, I think it is easy to agree that most issues concerns raised by Thomas’company are probably common to companies that specialize in obscenity via mail.

What is the point of this case?

What is the point of this picture?

It’s been a great semester

In April of last year Howard Stern, famous radio shock jock, and one of his syndicated broadcasters, Clear Channel Communications, received the biggest fines in the history of broadcasting, from the FCC. His employer, Infinity Broadcasting, also received very heavy fines shortly after. I admit that the things Howard was discussing in this case, the subjects of the fines, would probably be considered lewd and indecent by most communities’ decency standards; this is not what worries me. What does worry me is the fact that the man who received these fines is one of the most outspoken anti-Bush public personalities.

Howard Stern had been talking about indecent things on the radio for years, and had never received such fines. However, as it neared election time, he stepped up his Bush criticism more than ever. The newly appointed chairman of the FCC seemed to have it out for him. These fines were so large that it became a liability for any broadcaster to syndicated the Stern show, and it was announced that he would no longer be broadcast over public radio waves, and would instead move to the much smaller, less-developed satellite radio market. If this isn’t disturbing enough, here’s another interesting fact: the new FCC chairman was none other than Colin Powell’s son. If anyone owed Bush a favor for being placed in a position of power that he probably didn’t rightly deserve (I’ll leave the reasons why for another post elsewhere…), it was Michael Powell.

FCC censorship and regulation is quite a nice, well-meaning idea and set of laws. It was, in my opinion, used in a very disingenuous way. I could see CIPA being misused in a very similar way. The idea of our current conservative government blocking out sites concerning contraception and birth control has been mentioned, but I could also see this government blocking many other things. Certain particularly violent anti-Bush sites could be blocked, since such criticism of the President is indecent; sites that are particularly insistent that evolution is a correct theory and that creationism is hogwash could be blocked, since evolution is just a theory and it’s indecent to not give creationism the same weight; sites that criticize the war in Iraq could be blocked, since it’s indecent to criticize our brave troops; etc, etc, and more etc.

I find government-mandated censorship in general to be a very slipper slope. Instead of investing in ineffectual filtering technologies, I think it makes much more sense to hire an extra worker at libraries. Children cold be banned from the computers altogether, and allowed to use them only with adult supervision, including the supervision of that one extra library worker who has been hired. I would much rather entrust the child to that adult than violate everyone’s 1st amendment rights. In addition, that adult will be able to filter what the child sees according to local decency standards, rather than a blanket system which is too restrictive in some communities and not restrictive enough in others.

There are three main reasons that I believe it can be acceptable for someone to distribute pornography online. These characteristics can define an “online” or “network community.” First, people must sign up for the service. Second, the material must be password protected. Third, it should be very difficult for minors to obtain the material.

The reason I believe people must sign up for the service is because this shows a positive action on their side. When somebody signs up online in order to view or download this material, they are, in effect, joining the “online community.” Because they have decided to join this community, knowing what it entails, members cannot later say that they did not want to have access to this material.

The second characteristic that needs to be included is to password-protect the material. This can be either members logging in with their own passwords, or all using one password to view the material. The main goal of this provision is to make it difficult or impossible for anyone not in this “community” to accidentally gain access to the material. By being forced to enter a password to view the material, the community is, in effect, protected.

The third characteristic, difficult access for minors, is the toughest to achieve. However, there are ways to make it more difficult. Forcing members to use a credit card, acknowledge that they are over 18, or something of the sort can help accomplish this.

The reason that I believe an “online community” is possible is because of the difference in access as opposed to a real-life situation. If obscene/indecent material is posted on a billboard, sold in a store, or distributed via mail, the community as a whole is exposed to it, and their values should be considered. However, an online community has a different set of values, since everyone who joined this community, knew what kind of material would be available.

If a community is formed online in this manner, I feel that it should be allowed to exist and distribute its material regardless of the physical location their members exist. Once members sign up for this online community, they agree to respect its values and rules.

For Justice Souter, library limitation of internet usage is rooted far more deeply than the mechanisms by which it is achieved. It extends beyond the imperfections of filtering technology; it is not even an issue of how responsive librarians are in unblocking the filtering technology. Souter says that allowing libraries to filter information to adult patrons is like “buying a book and then keeping it from adults lacking an acceptable ‘purpose,’” or “buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.” (p.7 of dissent) This analogy doesn’t seem to fit quite right. The purpose of the limitation is to reduce the secondary effects of exposing minors to objectionable material. Adults “suffer” the consequences of the stricter standards, but presumably most libraries would not invest in materials widely found objectionable. The nature of the internet is such that materials available are not subject to publisher discretion, are not subject to constraints of shelf space, and are not subject to any form of community standards as are even periodicals on sale in book stores. While that freedom makes the internet an ideal forum for free expression of ideas, it also allows for populations not intended to access materials that have relatively little consequence with regard to the exchange of ideas if we assume that most of the material objectionable does not satisfy the Miller Test of having some artistic, political, or literary merit.

Seven out of the nine justices agree to varying degrees that libraries have an interest in limiting children’s access to pornographic materials. Justice Stevens, the only dissenting opinion in that count of seven states that “I agree with the plurality that it is neither appropriate not unconstitutional for a local library to experiment with filtering software as a means of curtailing children’s access to Internet Web sites displaying sexually explicit images.” (p.1 of his dissent) He finds the act unconstitutional for its reliance on unreliable filtering technology that overblocks legitimate material and underblocks objectionable material. So, it seems that libraries should have some means of recourse, limiting patron access where a simple glance at a computer monitor would expose minors to the equivalent of public obscenity.

So, it seems reasonable for libraries to limit patron access to uses that would not, at a casual glance, grossly offend the general community standards (I know, many disagree with the notions of community standards but that discussion is saved for other posts) of public decency, especially in the context of minors. I want to echo Chris’ suggestion in class that an appropriate method of discouraging such use would be to put signs up around computer terminals, informing patrons that objectionable uses may result in fines or confiscation of future usage privileges. This would seem to pass the time, place, and manner standard generally applied to First Amendment cases where it is not a content-based restriction, but the context of the situation that does not afford protection.

I agree about the premise that current internet filters have a lot of problems. I acknowledge that they do a lot of overblocking and underblocking, and that these problems will likely never go away. I also realize that it is very difficult to have an agreed upon definition of obscene, and for that definition to be accurately implemented in the filters.

One problem I have with the filtering technology is that no one really knows what they’re blocking and how that’s determined. In Justice Souter’s dissenting opinion, he mentions the

“indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software, see 201 F. Supp. 2d, at 408 (‘The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking’).”

This represents a large problem. If there is to be a required suppression of the internet from library computers, the public deserves the right to know what is being suppressed, and why. I lack the experience in constitutional law to articulate just why this is the case, but it simply makes sense. If a public institution is blocking some of the internet, they should be blocking it for a reason, and there needs to be accountability. Without such accountability, libraries would be free to indiscriminately block certain material that they wished people not to see, material that could be useful to adult users or minors.

For example, the current government doesn’t seem to want anyone to know about birth control, favoring abstinence-only messages. While such an endorsement is arguably acceptable, (even if not the “right” message), it would be unacceptable for them to prevent the other side’s messages from being heard by adding those to the filter, a scenario not inconceivable.

I doubt that libraries would try such things, but it could certainly occur. What may be more worrying is the fact that libraries themselves don’t even know what is being blocked; only the software developers do. This to me seems even more dangerous. I don’t like the idea of a government sponsored entity being able to restrict speech and not divulge how; I like even less the idea of that entity paying a private organization to do so. Their motivations for what goes onto the filtered list can never be clear, and much less transparency is required compared to a government entity. The whole thing just seems bad.

The second point I’d like to make deals with what to do with filters, given these problems. I have conceded that they both underblock and overblock, and these problems cannot be fixed. I agree with Justice Souter regarding the problems with indiscriminate and unexplained blocking, though that problem can conceivably be fixed.

Assuming it was fixed, I disagree with the conclusion made by Manlius, that filters shouldn’t be used because of the overblocking/underblocking. I think that it may be in our best interests to shield children from a lot of the content on the internet, and the government has a compelling interest to do so. Even if filtering technology is incomplete, can’t one argue that it’s better than nothing? I don’t like the idea of censorship in general, and so I don’t necessarily like the idea of filtering the internet. But what alternatives are there? People have mentioned some alternatives; some seem alright, and some seem not useful. One that I have a problem with is putting minor’s internet within view of library staff. I don’t like the idea of having someone over children’s shoulder, giving them the impression that privacy is not a right they have and that “big brother” is always going to be watching. It seems far too Orwellian for me.

The other alternatives seem good enough, but I don’t see a reason why they couldn’t be implemented in conjunction with a filter. Just because they would accomplish some of the same goals doesn’t mean that a filter wouldn’t help the cause.

I don’t like the idea of filtering the internet, or of censorship in general. But it seems that there may be a compelling interest in doing so. This doesn’t mean that I believe the CIPA as it currently is written is constitutional and good policy. Even if the filter’s mechanisms were disclosed, I still have problems with CIPA: turning the “libraries may unblock . . . ” clause to “libraries must unblock . . . ” would help immensely. But I think there may be a use for internet filters in the long run, even if imperfect.

Otherwise, people will be forced to be excessively careful about what websites they visit. No longer will people be able to casually browse the web, looking at whatever seems interesting. Instead, they will have to take great pains to ensure that they don’t go to the wrong website. That, or web browser creators will have to take great pains in order to ensure that their browsers conform to some standard that transmits information about what sites a specific user is allowed to view and which sites are prohibited. This is obviously an inefficient use of everyone’s time, especially considering the fact that most websites do not really need or want such protection.

Something else to consider is the fact that users do not always have control over what websites they visit. Imagine if one was committing a tort every time a website redirected them a prohibited website. The fact that websites can redirect people, links are often ambiguous, and even individual webpages often draw specific parts (images, etc.) from other websites, makes it very difficult for a user to always know to what website they are making requests.

One of the major strengths of the internet thus far has been its ability to adapt to the various technical requirements of users. The technology has been created to conform to what users need, and innovators have been free to do so. If implied consent to view websites is not assumed, a bad precedent is set. Those kinds of restrictions make it more and more difficult for people to make the kinds of technological advances we now take for granted.

Ultimately, those restrictions cause a sense of fear and uncertainty about technology, as opposed to the openness and sharing of information for which the internet has been designed. The internet has benefited from this sense of openness, and will continue to do so. Simple common sense tells us that when someone puts up a website, they know people will see it; that’s the reason they’re putting it up. If someone puts up a billboard, we don’t need to ask them if it’s alright if we look at it. We know that it’s up there for people to see.

When dealing with all the tort issues we’ve been talking about in class (trespass to real property, trespass to chattels, etc.), one thing I believe we should assume is that there is implied consent inherent in websites. This does not give people carte blanche to act however they please, hacking into websites or executing DOS attacks. This assumption merely states what should be fairly obvious: when someone creates a website, they grant consent for other members of the internet to view it.

In Apple v. Does, Apple subpoenaed the ISPs of two online enthusiast websites Apple Insider and PowerPage, to obtain information about who leaked confidential information about products to these well-reputed news sites. The Court did not address the Constitutional issues related to this case, but decided instead that discovery should proceed because trade secrets are involved. This case is currently on appeal.

The First Amendment guarantee of the freedom of the press is pillared on the right of journalists to protect their confidential sources. This guarantee promotes the free flow of information and maximal discourse without fear of prosecution. The traditional definition of “journalist” is now under scrutiny with the recent rise of bloggers as online journalists. The blogosphere has dramatically changed the landscape of information dissemination in the online medium. Popular blogs, such as Gizmodo and DailyKos, are read by thousands of people a day and offer many unique and informative filings not covered by traditional media sources. This democratization of the tools necessary to distribute information widely to the public is undeniably beneficial to society.

But, what defines a journalist in the blogosphere? EFF describes the test as

…whether the person seeking to invoke the reporter’s privilege had the intent to use material-sought, gathered or received-to disseminate information to the public and whether such intent existed at the inception of the newsgathering process. Under this test, courts have provided the privilege to non-traditional journalists, including book authors and documentary filmmakers.

To be sure, blogs run the gamut in terms of quality of reporting. Some blogs certainly look and act like highly edited, accountable traditional media sources. Some bloggers have even obtained traditional press credentials, such as at this year’s Republican and Democratic National Convention. At the same time, many blogs often display very poor editing, low integrity, and possibly even misleading information. Where should the law draw the line in defining “journalists” and whose journalistic rights will be protected? This question has not yet been answered by the courts.

Many more important issues are also at stake including privacy and surveillance with RFID technology, and secure and fair elections with electronic voting machines, just to name a few. As currently unrealized technologies make the leap into the public eye, existing laws will be held under microscopic scrutiny, re-interpreted by the Courts and re-written by legislatures. The controversies and debates will only get more exciting from here.

Schools don’t have to identify music pirates

‘CadillacMan’ and ‘hulk’ will remain anonymous, judge rules.
The Associated Press
Updated: 4:45 p.m. ET April 27, 2005

RALEIGH, N.C. - A federal magistrate has ruled that two North Carolina universities do not have to reveal the identities of two students accused of sharing copyrighted music on the Internet.

The music industry trade group, the Recording Industry Association of America, filed subpoenas in November 2003 asking for help identifying a North Carolina State University student who used the name “CadillacMan” and a University of North Carolina-Chapel Hill student who used the name “hulk.” The students allegedly file-swapped songs using the universities’ computer systems.

Both schools initially were willing to cooperate, but later joined attorneys for the students in opposing the request, U.S. Magistrate Judge Russell A. Eliason wrote in his order, which was filed earlier this month.

An attorney representing “Jane Doe,” the University of North Carolina student, said he was not concerned about allegations of music piracy but whether identifying her would violate privacy rights.

“We would never condone music piracy,” attorney Michael Kornbluth said. “What we’re interested in is the rights of the individual — privacy rights being protected.”

University of North Carolina administrators were pleased with the order but do not condone students’ downloading copyrighted information, school spokeswoman Lisa Katz said.

You can access this article at MSNBC.com, or click the following link.

Finally, we mentioned that internet filtering may not be the best method of preventing youth to see obscene images in the library. We discussed such preventative measures as parental supervision, requiring an account, or having to slide a magnetic library card, with age info, into a card reader before beginning an internet session. In his dissent Justice Stevens mentions many of these alternatives that were brought up at the district court level. Some of these include (1) the ability of the library to enforce internet use policies, and call the police if necessary, (2) restricting minors’ unfiltered access to terminals within view of library staff, (3) optional filtering, (4) privacy screens, and (5) recessed monitors. All these measures may in fact be considered “less restrictive,” that is they might take care of most of the problem, but without the negative effects of overblocking.

While Dan considers these filters to be a nuisance, Justice Stevens goes farther and calls the requirement of internet filtering a “statutory blunderbuss” that violates the First Amendment. He likens the hundreds of thousands or so overblocked sites to “constitutionally protected messages” and notes that such an overly broad restriction is not justified.

While I too believe that internet filters are a nuisance, I don’t necessarily have the same logic as Justice Stevens for why I don’t like them. Surely overblockage is a problem, for, if it wasn’t, then the strength of the filter could be cranked up such that almost all obscene sites are blocked, as well as many non-obscene ones. In other words, I don’t believe in a solution that also creates a large problem. I think that the intention of CIPA is a good one. I don’t think that it is wrong in requiring that libraries try to protect children from obscene images, but I don’t think that today’s internet filtering technology, while probably the least expensive option, is the best way to go about doing this. Congress needs to realize this, so that more effective and more appropriate measures can be put in place in public libraries.

Questions remain, though, about the actual quality of the filters, and how much they “underblock” and how much they “overblock”. Dan introduced some alarming anecdotal evidence on the problems created by bad filters. One item we didn’t address much that is of significant concern for many is the power filtering technology companies have in light of legislation like the CIPA. Are we sure it makes sense to allow someone the power to restrict the information we can receive from the Internet? How can we be sure software providers don’t have an alternate agenda, and seek to block things beyond obscene pornography?

It’s not just a wild hypothetical – it’s happened repeatedly. While it is true that keyword blocking has accidentally blocked sites discussing “chicken breasts” and unsophisticated object blocking has blocked art instead of pornography, a much more threatening type of filtering also exists. Virtually all filtering software has a pre-included list of URLs that are to be blocked, and what URLs have shown up here in the last decade might surprise you. CyberSitter (an award-winning software, no less) once blocked TIME Magazine’s website due to an article that criticized CyberSitter as a product. Other blocked sites have included the ‘National Organization for Women’, anti-racist websites, gay politics websites, and more. The power to control information is not something to be taken lightly, and the abuse of this power is a real, if not widespread problem that we ought to consider with regards to filtering.

A skeptic might say, “but filtering software that made such choices (or accidentally overblocked) couldn’t do so over the long term – word would get out about what sites were being blocked, and they would quickly be added to the safe URL list. The ability to add sites to the safe list means filtering software essentially rapidly improves.” I was hoping this was the case – I’m now not so sure it is. In 2001, Ben Edelman, a Harvard researcher, published a list of sites inappropriately blocked by popular software. Despite publishing his findings and sending this list to the software companies, five months later, most of those sites were still blocked. You can read about it here (scroll about one-third of the way down).

Of course, this evidence is anecdotal, and one can argue that this evidence doesn’t illustrate that severe a problem. Nonetheless, it’s irrefutable that bad things have happened before (far worse than not being able to access the web page of Middlesex) and it would be naïve to think it could never happen again. That’s why if you support filtering software, I think it only makes sense for the CIPA to mandate that any adult request the filter be turned off. How often do you even look over people’s shoulders at the library to see what’s on their monitor anyway? Free flow of information is extremely important to protect, and given the problems presented by filtering software, it makes sense to allow adults to turn off the filter at any time.

(2) Everyone has the following fundamental freedoms:

• Freedom of conscience and religion;
• Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• Freedom of peaceful assembly; and
• Freedom of association.

In our definition the key point is bullet #2, particularly the phrase, “including freedom of the press and other media of communication.” This varies significantly from the US counterpart, whose pertinent phrase from the First Amendment, “Congress shall make no law…abridging the freedom of speech, or of the press” does not explicitly take into account other forms of communication besides the press. It may be the fact that this is directly implied by the language in the Amendment, yet in comparison it still is not specifically addressed. Granted the Canadian version was ratified much later than the US version, but in our form of Freedom of Speech, “other media of communication” is a major proponent of the definition and explicitly defines any form of communication to be protected. In this respect, a lot of the discussions we’ve had in class lately can be viewed quite differently if viewed with the Canadian perspective in mind.

Normatively speaking I think it is fair and correct to attempt to regulate the behavior of government funded institutions, as the government by definition represents the best interests of society as a whole. We spoke in class earlier about the Miller Test for obscene materials, and in particular the first prong of its definition. In this case, what the federal government as a whole deems to be obscene would make me feel much more comfortable than something that a given community might feel. Since citizens of the United States actively elect their government representatives, these people must act as the voice of the citizens themselves, presenting the general sentiment of the people they represent. As a result, the Miller Test should be made to take into account the classifications of the federal government and not the “community standards” which can be extremely biased depending on a given location. One logical point that was brought up in class discussions is that the First Amendment should not be applied differently depending on which particular part of the nation you were standing in. Instead, it was envisioned to be a blanket of security that would hold anywhere within the borders of the United States.

To clarify, however, I feel that the government’s actions should still be well within the law and rights of its citizens. With respect to the discussion today, I think that the distinction must be made clear that the Internet itself is not under attack for censorship of any kind. Instead, the government’s intention is to limit the access that users have on the Internet at government funded libraries. Constitutionality aside, I think that the broad blanket censorship is unfair and against the intuition of the freedom of speech. At least with respect to the Canadian definition, the freedom of speech includes the freedom of communication via any medium and therefore constitutes the right of Internet users and content creators to conduct their transactions safely. Although the content may not be to parallel with a particular person’s taste, there always exists the option of not visiting the specific page in the first place. Yet the key fact remains that if they person wanted to visit the page, they could. In my opinion, the implementation of filters would inhibit this capability and therefore be an inherently unconstitutional act.

Yet the government does have a vested interest in limiting the content that children can access at these public libraries. The distinction that must be made is that the proposed legislation is to protect the interests of children, or minors, from viewing obscene material. Instead of a blanket filter system that was implemented on all government-funded library systems, there should be a choice to disable the system altogether, much like the system proposed in class today. Of course this choice must be offered only to adults as they are of sufficient age and maturity to decide what and what not to view, but this would help deflect any charges of unconstitutionality and still manage to solve the problem. By limiting the access that children themselves could have is not an unconstitutional move and will limit their exposure to obscene materials. To implement this, there are many different possibilities ranging from library logins to separate monitored computer clusters in larger libraries. Yet the key point is that there must be a choice for adults whether to keep the filter on, or to remove it when trying to access information via the Internet in a government-funded library.

Thinking rather abstractly I come to the comparison of this type of filtering to the rating system for movies in the United States. Again, the Canadian system is much different from the American counterpart, but I will not include that here. In either case, movies deemed to be inappropriate for minors under 17 are designated with an NC-17 rating, explicitly barring children under 17 from viewing the movie. Although these theatres aren’t government run and the rating are imposed by the Classifications and Ratings Administration, the movies are free of unconstitutionality claims which limit the audience that can view them. In this case there are people that are excluded from the movie without protest from the viewing audience. If this type of situation can be devised for the Internet information viewing within government-funded locations, then there will be no claims of unconstitutionality by library patrons or other concerned organizations. In other words, these designations help restrict access to material deemed to be inappropriate for minors, so why can’t the filtering technology for the Internet be applied in the same way?