Friday, Jul 25, 2008
Trashing the flamers: By Mike Godwin. An online civil libertarian discovers the proper uses of "censorware" software filters
May 15, 1998 | I've often said publicly that I'll never impose software filters on my daughter (now 5 years old and happily computing) -- that my job as a parent is aimed at preparing my child for life, not hiding life from her.
What I never anticipated was that the harshest critics of "censorware" would persuade me to use blocking software myself.
And, in fact, they've caused me to rethink my feelings about software filters -- to reject the notion that they are necessarily repressive, or that there is something inherently pernicious about the technology. I don't hate government censorship any less, but I have a newfound respect for those individuals who, for whatever reason, choose to screen what they see online.
First, a little history: I've been fighting for free speech on the Net for a long time -- for much of my career as a writer, and for my whole professional career as a lawyer and as counsel to the Electronic Frontier Foundation. In that role, I've worked on free-speech issues almost every day, and helped develop legal theories about freedom of speech on the Net that became part of the successful challenge to the constitutionality of the Communications Decency Amendment.
Our win in that case was based on a number of complementary constitutional theories, one of which was an argument that, reduced to its essence, goes something like this: The Communications Decency Amendment's ban on so-called indecent online expression is not the least restrictive means of achieving whatever legitimate goal the government may pursue in its efforts to protect children. The existence and ongoing development of software that can be used to filter out such speech when it comes from the Internet is an example of a less-restrictive alternative that achieves substantially the same goals.
This argument is based on a standard constitutional test of the validity of any government action aimed at restricting constitutionally protected speech (and what the government calls "indecent" speech is nonetheless protected by the First Amendment). Such content regulations have to be shown -- by the government, which bears the burden of proof -- to be the least restrictive means of achieving the government's goal.
I had made various versions of this argument in speeches and articles since 1994, and representatives of companies or organizations developing filtering schemes joined in the anti-CDA fight. But despite the fact that I saw strategic value in the existence of filters, I was never a fan of the software or of any of the proposed rating schemes for Net content. All of the products and systems I saw were deeply flawed in several respects -- and, as reporters Brock Meeks and Declan McCullagh later revealed, the stand-alone software packages often seemed to have antigay, antisex or antifeminist agendas in the lists of sites and words that were blocked.
For many critics of "censorware," this was all they needed to know: It meant these products were in some sense evil, since they incorporated some less-than-desirable opinions and blocked content on the basis of those opinions.
But I couldn't join in their condemnation, in large part because I saw a sort of paternalism in it that was just as disturbing as that of the CDA. If there was anything that I'd learned as a civil libertarian and student of the First Amendment, it was the necessity for tolerating those whose views I disagreed with. Surely this included those parents who might choose to use a content-blocking product that I'd never use -- a product whose content choices I personally might find abhorrent. After all, nobody was compelling me to listen to those parents, or to accept the agendas of the blocking lists, or to use the stuff on my little girl. In an open society, we allow people to speak their minds for the most part; we also don't require everyone else to listen to the speakers.
In a number of online forums -- mailing lists, in particular -- I began to express this view. The result? I was suddenly attacked for being a tool of the censorware vendors -- perhaps even in their pay! (It was also asserted, equally falsely, that EFF must have gotten donations based on my public "support" of filtering software.) Not that I was uniformly attacked at first -- occasionally one of the anticensorware guys would try to win me over to the One True Way. When one of the opponents of filtering software first brought to my attention how he'd discovered that one product blocked gay sites, feminist sites and even the home page for my own organization, EFF, he expected me to be horrified. But I couldn't muster up enough outrage -- while I didn't approve of these choices on the part of the programmers, I knew that for many parents this content blocking qualified as a feature, not a bug.
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