Intellectual Freedom Handbook, 1999
Fahrenheit 451.2:
Is Cyberspace Burning?
How Rating and Blocking Proposals
May Torch Free Speech on the Internet
Executive Summary
Introduction
Is Cyberspace Burning?
Free Speech Online: A Victory Under Siege
Rethinking the Rush to Rate
Recommendations and Principles
Six Reasons Why Self-Rating Schemes Are Wrong
Is Third-Party Rating the Answer?
The Problems With User-Based Blocking Software in
the Home
Why Blocking Software Should Not Be Used by Public
Libraries
Conclusion
Appendix: Internet Ratings Systems How Do They
Work?
Fahrenheit 451.2: Is Cyberspace Burning?
How Rating and Blocking Proposals May Torch Free Speech on the Internet
Executive Summary
In the landmark case Reno v. ACLU, the Supreme Court overturned
the Communications Decency Act, declaring that the Internet deserves the
same high level of free speech protection afforded to books and other
printed matter.
But today, all that we have achieved may now be lost, if not in the
bright flames of censorship then in the dense smoke of the many ratings
and blocking schemes promoted by some of the very people who fought for
freedom.
The ACLU and others in the cyber-liberties community were genuinely
alarmed by the tenor of a recent White House summit meeting on Internet
censorship at which industry leaders pledged to create a variety of
schemes to regulate and block controversial online speech.
But it was not any one proposal or announcement that caused our
alarm; rather, it was the failure to examine the longer-term
implications for the Internet of rating and blocking schemes.
The White House meeting was clearly the first step away from the
principle that protection of the electronic word is analogous to
protection of the printed word. Despite the Supreme Court's strong
rejection of a broadcast analogy for the Internet, government and
industry leaders alike are now inching toward the dangerous and
incorrect position that the Internet is like television, and should be
rated and censored accordingly.
Is Cyberspace burning? Not yet, perhaps. But where there's smoke,
there's fire.
"Any content-based regulation of the Internet, no matter
how benign the purpose, could burn the global village to roast the
pig."
U.S. Supreme Court majority decision, Reno v. ACLU
(June 26, 1997)
Introduction
In his chilling (and prescient) novel about censorship, Fahrenheit
451, author Ray Bradbury describes a futuristic society where books are
outlawed. "Fahrenheit 451" is, of course, the temperature at
which books burn.
In Bradbury's novel and in the physical world people censor the
printed word by burning books. But in the virtual world, one can just as
easily censor controversial speech by banishing it to the farthest
corners of cyberspace using rating and blocking programs. Today, will
Fahrenheit, version 451.2 a new kind of virtual censorship be the
temperature at which cyberspace goes up in smoke?
The first flames of Internet censorship appeared two years ago, with
the introduction of the Federal Communications Decency Act (CDA),
outlawing "indecent" online speech. But in the landmark case Reno
v. ACLU, the Supreme Court overturned the CDA, declaring that the
Internet is entitled to the highest level of free speech protection. In
other words, the Court said that online speech deserved the protection
afforded to books and other printed matter.
Today, all that we have achieved may now be lost, if not in the
bright flames of censorship then in the dense smoke of the many ratings
and blocking schemes promoted by some of the very people who fought for
freedom. And in the end, we may find that the censors have indeed
succeeded in "burning down the house to roast the pig."
Is Cyberspace Burning?
The ashes of the CDA were barely smoldering when the White House
called a summit meeting to encourage Internet users to self-rate their
speech and to urge industry leaders to develop and deploy the tools for
blocking "inappropriate" speech. The meeting was
"voluntary," of course: the White House claimed it wasn't
holding anyone's feet to the fire.
The ACLU and others in the cyber-liberties community were genuinely
alarmed by the tenor of the White House summit and the unabashed
enthusiasm for technological fixes that will make it easier to block or
render invisible controversial speech. (Note: see appendix for detailed
explanations of the various technologies.)
Industry leaders responded to the White House call with a barrage of
announcements:
- Netscape announced plans to join Microsoft together the two
giants have 90% or more of the web browser market in adopting
PICS (Platform for Internet Content Selection) the rating standard
that establishes a consistent way to rate and block online content;
- IBM announced it was making a $100,000 grant to RSAC (Recreational
Software Advisory Council) to encourage the use of its RSACi rating
system. Microsoft Explorer already employs the RSACi ratings system,
Compuserve encourages its use and it is fast becoming the de facto
industry standard rating system;
- Four of the major search engines the services which allow users
to conduct searches of the Internet for relevant sites announced
a plan to cooperate in the promotion of "self-regulation"
of the Internet. The president of one, Lycos, was quoted in a news
account as having "thrown down the gauntlet" to the other
three, challenging them to agree to exclude unrated sites from
search results;
- Following announcement of proposed legislation by Sen. Patty
Murray (D Wash.), which would impose civil and ultimately criminal
penalties on those who mis-rate a site, the makers of the blocking
program Safe Surf proposed similar legislation, the "Online
Cooperative Publishing Act."
But it was not any one proposal or announcement that caused our
alarm; rather, it was the failure to examine the longer-term
implications for the Internet of rating and blocking schemes.
What may be the result? The Internet will become bland and
homogenized. The major commercial sites will still be readily available
they will have the resources and inclination to self-rate, and
third-party rating services will be inclined to give them acceptable
ratings. People who disseminate quirky and idiosyncratic speech, create
individual home pages, or post to controversial news groups, will be
among the first Internet users blocked by filters and made invisible by
the search engines. Controversial speech will still exist, but will only
be visible to those with the tools and know-how to penetrate the dense
smokescreen of industry "self-regulation."
As bad as this very real prospect is, it can get worse. Faced with
the reality that, although harder to reach, sex, hate speech and other
controversial matter is still available on the Internet, how long will
it be before governments begin to make use of an Internet already
configured to accommodate massive censorship?
If you look at these various proposals in a larger context, a very
plausible scenario emerges.
It is a scenario which in some respects has already been set in motion:
- First, the use of PICS becomes universal; providing a uniform
method for content rating.
- Next, one or two rating systems dominate the market and become the
de facto standard for the Internet.
- PICS and the dominant rating(s) system are built into Internet
software as an automatic default.
- Unrated speech on the Internet is effectively blocked by these
defaults.
- Search engines refuse to report on the existence of unrated or
"unacceptably" rated sites.
- Governments frustrated by "indecency" still on the
Internet make self-rating mandatory and mis-rating a crime.
The scenario is, for now, theoretical but inevitable. It is clear
that any scheme that allows access to unrated speech will fall afoul of
the government-coerced push for a "family friendly" Internet.
We are moving inexorably toward a system that blocks speech simply
because it is unrated and makes criminals of those who mis-rate.
The White House meeting was clearly the first step in that direction
and away from the principle that protection of the electronic word is
analogous to protection of the printed word. Despite the Supreme Court's
strong rejection of a broadcast analogy for the Internet, government and
industry leaders alike are now inching toward the dangerous and
incorrect position that the Internet is like television, and should
berated and censored accordingly.
Is Cyberspace burning? Not yet, perhaps. But where there's smoke,
there's fire.
Free Speech Online: A Victory Under Siege
On June 26, 1997, the Supreme Court held in Reno v. ACLU that
the Communications Decency Act, which would have made it a crime to
communicate anything "indecent" on the Internet, violated the
First Amendment. It was the nature of the Internet itself, and the
quality of speech on the Internet, that led the Court to declare that
the Internet is entitled to the same broad free speech protections given
to books, magazines, and casual conversation.
The ACLU argued, and the Supreme Court agreed, that the CDA was
unconstitutional because, although aimed at protecting minors, it
effectively banned speech among adults. Similarly, many of the rating
and blocking proposals, though designed to limit minors' access, will
inevitably restrict the ability of adults to communicate on the
Internet. In addition, such proposals will restrict the rights of older
minors to gain access to material that clearly has value for them.
Rethinking the Rush to Rate
This paper examines the free speech implications of the various
proposals for Internet blocking and rating. Individually, each of the
proposals poses some threat to open and robust speech on the Internet;
some pose a considerably greater threat than others.
Even more ominous is the fact that the various schemes for rating and
blocking, taken together, could create a black cloud of private
"voluntary" censorship that is every bit as threatening as the
CDA itself to what the Supreme Court called "the most participatory
form of mass speech yet developed."
We call on industry leaders, Internet users, policy makers and
parents groups to engage in a genuine debate about the free speech
ramifications of the rating and blocking schemes being proposed.
To open the door to a meaningful discussion, we offer the following
recommendations and principles:
Recommendations and Principles
- Internet users know best. The primary responsibility for
determining what speech to access should remain with the individual
Internet user; parents should take primary responsibility for
determining what their children should access.
- Default setting on free speech. Industry should not develop
products that require speakers to rate their own speech or be
blocked by default.
- Buyers beware. The producers of user-based software programs
should make their lists of blocked speech available to consumers.
The industry should develop products that provide maximum user
control.
- No government coercion or censorship. The First Amendment prevents
the government from imposing, or from coercing industry into
imposing, a mandatory Internet ratings scheme.
- Libraries are free speech zones. The First Amendment prevents the
government, including public libraries, from mandating the use of
user-based blocking software.
Six Reasons Why Self-Rating Schemes Are Wrong
for the Internet
To begin with, the notion that citizens should "self-rate"
their speech is contrary to the entire history of free speech in
America. A proposal that we rate our online speech is no less offensive
to the First Amendment than a proposal that publishers of books and
magazines rate each and every article or story, or a proposal that
everyone engaged in a street corner conversation rate his or her
comments. But that is exactly what will happen to books, magazines, and
any kind of speech that appears online under a self-rating scheme.
In order to illustrate the very practical consequences of these
schemes, consider the following six reasons, and their accompanying
examples, illustrating why the ACLU is against self-rating:
Reason #1: Self-Rating Schemes Will Cause Controversial Speech
To Be Censored.
Kiyoshi Kuromiya, founder and sole operator of Critical Path Aids
Project, has a web site that includes safer sex information written in
street language with explicit diagrams, in order to reach the widest
possible audience. Kuromiya doesn't want to apply the rating
"crude" or "explicit" to his speech, but if he
doesn't, his site will be blocked as an unrated site. If he does rate,
his speech will be lumped in with "pornography" and blocked
from view. Under either choice, Kuromiya has been effectively blocked
from reaching a large portion of his intended audience teenage
Internet users as well as adults.
As this example shows, the consequences of rating are far from
neutral. The ratings themselves are all pejorative by definition, and
they result in certain speech being blocked.
The White House has compared Internet ratings to "food
labels" but that analogy is simply wrong. Food labels provide
objective, scientifically verifiable information to help the consumer
make choices about what to buy, e.g. the percentage of fat in a food
product like milk. Internet ratings are subjective value judgments
that result in certain speech being blocked to many viewers. Further,
food labels are placed on products that are readily available to
consumers unlike Internet labels, which would place certain kinds
of speech out of reach of Internet users.
What is most critical to this issue is that speech like Kuromiya's
is entitled to the highest degree of Constitutional protection. This
is why ratings requirements have never been imposed on those who speak
via the printed word. Kuromiya could distribute the same material in
print form on any street corner or in any bookstore without worrying
about having to rate it. In fact, a number of Supreme Court cases have
established that the First Amendment does not allow government to
compel speakers to say something they don't want to say and that
includes pejorative ratings. There is simply no justification for
treating the Internet any differently.
Reason #2: Self-Rating Is Burdensome, Unwieldy, and Costly.
Art on the Net is a large, non-profit web site that hosts online
"studios" where hundreds of artists display their work. The
vast majority of the artwork has no sexual content, although there's
an occasional Rubenesque painting. The ratings systems don't make
sense when applied to art. Yet Art on the Net would still have to
review and apply a rating to the more than 26,000 pages on its site,
which would require time and staff that they just don't have. Or, they
would have to require the artists themselves to self-rate, an option
they find objectionable. If they decline to rate, they will blocked as
an unrated site even though most Internet users would hardly object to
the art reaching minors, let alone adults.
As the Supreme Court noted in Reno v. ACLU, one of the
virtues of the Internet is that it provides "relatively
unlimited, low-cost capacity for communication of all kinds." In
striking down the CDA, the Court held that imposing age-verification
costs on Internet speakers would be "prohibitively expensive for
noncommercial as well as some commercial speakers."
Similarly, the burdensome requirement of self-rating thousands of
pages of information would effectively shut most noncommercial
speakers out of the Internet marketplace.
The technology of embedding the rating is also far from trivial. In
a winning ACLU case that challenged a New York state online censorship
statute, ALA v. Pataki, one long-time Internet expert testified
that he tried to embed an RSACi label in his online newsletter site
but finally gave up after several hours.
In addition, the ratings systems are simply unequipped to deal with
the diversity of content now available on the Internet. There is
perhaps nothing as subjective as a viewer's reaction to art. As
history has shown again and again, one woman's masterpiece is another
woman's pornography. How can ratings such as "explicit" or
"crude" be used to categorize art? Even ratings systems that
try to take artistic value into account will be inherently subjective,
especially when applied by artists themselves, who will naturally
consider their own work to have merit.
The variety of news-related sites on the Web will be equally
difficult to rate. Should explicit war footage be labeled
"violent" and blocked from view to teenagers? If along news
article has one curse word, is the curse word rated individually, or
is the entire story rated and then blocked?
Even those who propose that "legitimate" news
organizations should not be required to rate their sites stumble over
the question of who will decide what is legitimate news.
Reason #3: Conversation Can't Be Rated.
You are in a chat room or a discussion group one of the
thousands of conversational areas of the Net. A victim of sexual abuse
has posted a plea for help, and you want to respond. You've heard
about a variety of ratings systems, but you've never used one. You
read the RSACi web page, but you can't figure out how to rate the
discussion of sex and violence in your response. Aware of the
penalties for mis-labeling, you decide not to send your message after
all.
The burdens of self-rating really hit home when applied to the
vibrant, conversational areas of the Internet. Most Internet users
don't run web pages, but millions of people around the world send
messages, short and long, every day, to chat rooms, news groups and
mailing lists. A rating requirement for these areas of the Internet
would be analogous to requiring all of us to rate our telephone or
streetcorner or dinner party or water cooler conversations.
The only other way to rate these areas of cyberspace would be to
rate entire chatrooms or news groups rather than individual messages.
But most discussion groups aren't controlled by a specific person, so
who would be responsible for rating them? In addition, discussion
groups that contain some objectionable material would likely also have
a wide variety of speech totally appropriate and valuable for minors
but the entire forum would be blocked from view for everyone.
Reason #4: Self-Rating Will Create "Fortress America"
on the Internet.
You are a native of Papua, New Guinea, and as an anthropologist you
have published several papers about your native culture. You create a
web site and post electronic versions of your papers, in order to
share them with colleagues and other interested people around the
world. You haven't heard about the move in America to rate Internet
content. You don't know it, but since your site is unrated none of
your colleagues in America will be able to access it.
People from all corners of the globe people who might otherwise
never connect because of their vast geographical differences can
now communicate on the Internet both easily and cheaply. One of the
most dangerous aspects of ratings systems is their potential to build
borders around American- and foreign-created speech. It is important
to remember that today, nearly half of all Internet speech originates
from outside the United States.
Even if powerful American industry leaders coerced other countries
into adopting American ratings systems, how would these ratings make
any sense to a New Guinean? Imagine that one of the anthropology
papers explicitly describes a ritual in which teenage boys engage in
self-mutilation as part of a rite of passage in achieving manhood.
Would you look at it through the eyes of an American and rate it
"torture," or would you rate it "appropriate for
minors" for the New Guinea audience?
Reason #5: Self-Ratings Will Only Encourage, Not Prevent,
Government Regulation.
The webmaster for Betty's Smut Shack, a web site that sells
sexually explicit photos, learns that many people won't get to his
site if he either rates his site "sexually explicit" or
fails to rate at all. He rates his entire web site "okay for
minors." A powerful Congressman from the Midwest learns that the
site is now available to minors. He is outraged, and quickly
introduces a bill imposing criminal penalties for mis-rated sites.
Without a penalty system for mis-rating, the entire concept of a
self-ratings system breaks down. The Supreme Court that decided Reno
v. ACLU would probably agree that the statute theorized above
would violate the First Amendment, but as we saw with the CDA, that
won't necessarily prevent lawmakers from passing it.
In fact, as noted earlier, a senator from Washington state home
of Industry giant Microsoft, among others has already proposed a
law that creates criminal penalties for mis-rating. Not to be outdone,
the filtering software company Safe Surf has proposed the introduction
of a virtually identical federal law, including a provision that
allows parents to sue speakers for damages if they
"negligently" mis-rate their speech.
The example above shows that, despite all good intentions, the
application of ratings systems is likely to lead to heavy-handed
government censorship. Moreover, the targets of that censorship are
likely to be just the sort of relatively powerless and controversial
speakers, like the groups Critical Path Aids Project, Stop Prisoner
Rape, Planned Parenthood, Human Rights Watch, and the various gay and
lesbian organizations we represented in Reno v. ACLU.
Reason #6: Self-Ratings Schemes Will Turn the Internet into a
Homogenized Medium Dominated by Commercial Speakers.
Huge entertainment conglomerates, such as the Disney Corporation or
Time Warner, consult their platoons of lawyers who advise that their
web sites must berated to reach the widest possible audience. They
then hire and train staff to rate all of their web pages. Everybody in
the world will have access to their speech.
There is no question that there may be some speakers on the
Internet for whom the ratings systems will impose only minimal
burdens: the large, powerful corporate speakers with the money to hire
legal counsel and staff to apply the necessary ratings. The commercial
side of the Net continues to grow, but so far the democratic nature of
the Internet has put commercial speakers on equal footing with all of
the other non-commercial and individual speakers.
Today, it is just as easy to find the Critical Path AIDS web site
as it is to find the Disney site. Both speakers are able to reach a
worldwide audience. But mandatory Internet self-rating could easily
turn the most participatory communications medium the world has yet
seen into a bland, homogenized, medium dominated by powerful American
corporate speakers.
Is Third-Party Rating the Answer?
Third-party ratings systems, designed to work in tandem with PICS
labeling, have been held out by some as the answer to the free speech
problems posed by self-rating schemes. On the plus side, some argue,
ratings by an independent third party could minimize the burden of
self-rating on speakers and could reduce the inaccuracy and mis-rating
problems of self-rating. In fact, one of the touted strengths of the
original PICS proposal was that a variety of third-party ratings systems
would develop and users could pick and choose from the system that best
fit their values. But third party ratings systems still pose serious
free speech concerns.
First, a multiplicity of ratings systems has not yet emerged on the
market, probably due to the difficulty of any one company or
organization trying to rate over a million web sites, with hundreds of
new sites not to mention discussion groups and chat rooms
springing up daily.
Second, under third-party rating systems, unrated sites still may be
blocked.
When choosing which sites to rate first, it is likely that
third-party raters will rate the most popular web sites first,
marginalizing individual and non-commercial sites. And like the
self-rating systems, third-party ratings will apply subjective and
value-laden ratings that could result in valuable material being blocked
to adults and older minors. In addition, available third-party rating
systems have no notification procedure, so speakers have no way of
knowing whether their speech has received a negative rating.
The fewer the third-party ratings products available, the greater the
potential for arbitrary censorship. Powerful industry forces may lead
one product to dominate the marketplace. If, for example, virtually all
households use Microsoft Internet Explorer and Netscape, and the
browsers, in turn, use RSACi as their system, RSACi could become the
default censorship system for the Internet. In addition, federal and
state governments could pass laws mandating use of a particular ratings
system in schools or libraries. Either of these scenarios could
devastate the diversity of the Internet marketplace.
Pro-censorship groups have argued that a third-party rating system
for the Internet is no different from the voluntary Motion Picture
Association of America ratings for movies that we've all lived with for
years. But there is an important distinction: only a finite number of
movies are produced in a given year. In contrast, the amount of content
on the Internet is infinite. Movies are a static, definable product
created by a small number of producers; speech on the Internet is
seamless, interactive, and conversational. MPAA ratings also don't come
with automatic blocking mechanisms.
The Problems With User-Based Blocking
Software in the Home
With the explosive growth of the Internet, and in the wake of the
recent censorship battles, the marketplace has responded with a wide
variety of user-based blocking programs. Each company touts the speed
and efficiency of its staff members in blocking speech that they have
determined is inappropriate for minors. The programs also often block
speech based on keywords. (This can result in sites such as
www.middlesex.gov or www.SuperBowlXXX.com being blocked because they
contain the keywords "sex" and "XXX.").
In Reno v. ACLU, the ACLU successfully argued that the CDA
violated the First Amendment because it was not the least restrictive
means of addressing the government's asserted interest in protecting
children from inappropriate material. In supporting this argument, we
suggested that a less restrictive alternative was the availability of
user-based blocking programs, e.g. Net Nanny, that parents could use in
the home if they wished to limit their child's Internet access.
While user-based blocking programs present troubling free speech
concerns, we still believe today that they are far preferable to any
statute that imposes criminal penalties on online speech. In contrast,
many of the new ratings schemes pose far greater free speech concerns
than do user-based software programs.
Each user installs the program on her home computer and turns the
blocking mechanism on or off at will. The programs do not generally
block sites that they haven't rated, which means that they are not 100
percent effective.
Unlike the third-party ratings or self-rating schemes, these products
usually do not work in concert with browsers and search engines, so the
home user rather than an outside company sets the defaults. (However, it
should be noted that this "standalone" feature could
theoretically work against free speech principles, since here, too, it
would be relatively easy to draft a law mandating the use of the
products, under threat of criminal penalties.)
While the use of these products avoids some of the larger control
issues with ratings systems, the blocking programs are far from
problem-free. A number of products have been shown to block access to a
wide variety of information that many would consider appropriate for
minors. For example, some block access to safer sex information,
although the Supreme Court has held that teenagers have the right to
obtain access to such information even without their parent's consent.
Other products block access to information of interest to the gay and
lesbian community. Some products even block speech simply because it
criticizes their product.
Some products allow home users to add or subtract particular sites
from a list of blocked sites. For example, a parent can decide to allow
access to "playboy.com" by removing it from the blocked sites
list, and can deny access to "powerrangers.com" by adding it
to the list. However most products consider their lists of blocked
speech to be proprietary information which they will not disclose.
Despite these problems, the use of blocking programs has been
enthusiastically and uncritically endorsed by government and industry
leaders alike. At the recent White House summit, Vice President Gore,
along with industry and non-profit groups, announced the creation of www.netparents.org, a site that
provides direct links to a variety of blocking programs.
The ACLU urges the producers of all of these products to put real
power in users' hands and provide full disclosure of their list of
blocked speech and the criteria for blocking.
In addition, the ACLU urges the industry to develop products that
provide maximum user control. For example, all users should be able to
adjust the products to account for the varying maturity level of minors,
and to adjust the list of blocked sites to reflect their own values.
It should go without saying that under no set of circumstances can
governments constitutionally require anyone whether individual users
or Internet Service Providers to run user-based blocking programs
when accessing or providing access to the Internet.
Why Blocking Software Should Not Be Used by
Public Libraries
The "never-ending, worldwide conversation" of the Internet,
as one lower court judge called it, is a conversation in which all
citizens should be entitled to participate whether they access the
Internet from the library or from the home. Just as government cannot
require home users or Internet Service Providers (ISPs) to use blocking
programs or self-rating programs, libraries should not require patrons
to use blocking software when accessing the Internet at the library. The
ACLU, like the American Library Association (ALA), opposes use of
blocking software in public libraries.
Libraries have traditionally promoted free speech values by providing
free books and information resources to people regardless of their age
or income. Today, more than 20 percent of libraries in the United States
offering free access to the Internet, and that number is growing daily.
Libraries are critical to realizing the dream of universal access to the
Internet, a dream that would be drastically altered if they were forced
to become Internet censors.
In a recent announcement stating its policy, the ALA said:
Libraries are places of inclusion rather than exclusion. Current
blocking/filtering software prevents not only access to what some may
consider "objectionable" material, but also blocks
information protected by the First Amendment. The result is that legal
and useful material will inevitably be blocked.
Librarians have never been in the business of determining what their
patrons should read or see, and the fact that the material is now found
on Internet is no different. By installing inaccurate and unreliable
blocking programs on library Internet terminals, public libraries
which are almost always governmental entities would inevitably censor
speech that patrons are constitutionally entitled to access.
It has been suggested that a library's decision to install blocking
software is like other legitimate selection decisions that libraries
routinely make when they add particular books to their collections. But
in fact, blocking programs take selection decisions totally out of the
hands of the librarian and place them in the hands of a company with no
experience in library science. As the ALA noted, "(F)ilters can
impose the producer's viewpoint on the community."
Because, as noted above, most filtering programs don't provide a list
of the sites they block, libraries won't even know what resources are
blocked. In addition, Internet speakers won't know which libraries have
blocked access to their speech and won't be able to protest.
Installing blocking software in libraries to prevent adults as well
as minors from accessing legally protected material raises severe First
Amendment questions. Indeed, that principle that governments can't
block adult access to speech in the name of protecting children was
one of the key reasons for the Supreme Court's decision in Reno v.
ACLU.
If adults are allowed full access, but minors are forced to use
blocking programs, constitutional problems remain. Minors, especially
older minors, have a constitutional right to access many of the
resources that have been shown to be blocked by user-based blocking
programs.
One of the virtues of the Internet is that it allows an isolated gay
teenager in Des Moines, Iowa to talk to other teenagers around the globe
who are also struggling with issues relating to their sexuality. It
allows teens to find out how to avoid AIDS and other sexually
transmitted diseases even if they are too embarrassed to ask an adult in
person or even too embarrassed to check out a book.
When the ACLU made this argument in Reno v. ACLU, it was
considered controversial, even among our allies. But the Supreme Court
agreed that minors have rights too. Library blocking proposals that
allow minors full access to the Internet only with parental permission
are unacceptable.
Libraries can and should take other actions that are more protective
of online free speech principles. First, libraries can publicize and
provide links to particular sites that have been recommended for
children. Second, to avoid unwanted viewing by passersby (and to protect
the confidentiality of users), libraries can install Internet access
terminals in ways that minimize public view. Third, libraries can impose
"content-neutral" time limits on Internet use.
Conclusion
The ACLU has always favored providing Internet users, especially
parents, with more information. We welcomed, for example, the American
Library Association's announcement at the White House summit of The
Librarian's Guide to Cyberspace for Parents and Kids, a
"comprehensive brochure and Web site combining Internet
terminology, safety tips, site selection advice and more than 50 of the
most educational and entertaining sites available for children on the
Internet."
In Reno v. ACLU, we noted that Federal and state governments
are already vigorously enforcing existing obscenity, child pornography,
and child solicitation laws on the Internet. In addition, Internet users
must affirmatively seek out speech on the Internet; no one is caught by
surprise.
In fact, many speakers on the Net provide preliminary information
about the nature of their speech. The ACLU's site on America Online, for
example, has a message on its home page announcing that the site is a
"free speech zone." Many sites offering commercial
transactions on the Net contain warnings concerning the security of Net
information. Sites containing sexually explicit material often begin
with a statement describing the adult nature of the material. Chat rooms
and newsgroups have names that describe the subject being discussed.
Even individual e-mail messages contain a subject line.
The preliminary information available on the Internet has several
important components that distinguish it from all the ratings systems
discussed above: (1) it is created and provided by the speaker; (2) it
helps the user decide whether to read any further; (3) speakers who
choose not to provide such information are not penalized; (4) it does
not result in the automatic blocking of speech by an entity other than
the speaker or reader before the speech has ever been viewed. Thus, the
very nature of the Internet reveals why more speech is always a better
solution than censorship for dealing with speech that someone may find
objectionable.
It is not too late for the Internet community to slowly and carefully
examine these proposals and to reject those that will transform the
Internet from a true marketplace of ideas into just another mainstream,
lifeless medium with content no more exciting or diverse than that of
television.
Civil libertarians, human rights organizations, librarians and
Internet users, speakers and providers all joined together to defeat the
CDA. We achieved a stunning victory, establishing a legal framework that
affords the Internet the highest constitutional protection. We put a
quick end to a fire that was all but visible and threatening. The fire
next time may be more difficult to detect and extinguish.
Appendix: Internet Ratings Systems How Do
They Work?
The Technology: PICS, Browsers, Search Engines, and Ratings
The rating and blocking proposals discussed below all rely on a few
key components of current Internet technology. While none of this
technology will by itself censors speech, some of it may well enable
censorship to occur.
PICS: The Platform for Internet Content Selection (PICS) is a
rating standard that establishes a consistent way to rate and block
online content. PICS was created by a large consortium of Internet
industry leaders, and became operational last year. In theory, PICS does
not incorporate or endorse any particular rating system the
technology is an empty vessel into which different rating systems can be
poured. In reality, only three Third-party rating systems have been
developed for PICS SafeSurf, Net Shepherd, and the de facto industry
standard RSACi.1
Browsers: Browsers are the software tool that Internet users
need in order to access information on the World Wide Web. Two products,
Microsoft's Internet Explorer and Netscape, currently control 90% of the
browser market. Microsoft's Internet Explorer is now compatible with
PICS. That is, the Internet Explorer can now be configured to block
speech that has been rated with PICS-compatible ratings. Netscape has
announced that it will soon offer the same capability. When the blocking
feature on the browser is activated, speech with negative ratings is
blocked. In addition, because a vast majority of Internet sites remain
unrated, the blocking feature can be configured to block all unrated
sites.
Search Engines: Search engines are software programs that
allow Internet users to conduct searches for content on a particular
subject, using a string of words or phrases. The search result typically
provides a list of links to sites on the relevant topic. Four of the
major search engines have announced a plan to cooperate in the move
towards Internet ratings. For example, they may decide not to list sites
that have negative ratings or that are unrated.
Ratings Systems: There are a few PICS-compatible ratings
systems already in use. Two self-rating systems include RSACi and Safe
Surf. RSACi, developed by the same group that rates video games,
attempts to rate certain kinds of speech, like sex and violence,
according to objective criteria describing the content. For example, it
rates levels of violence from "harmless conflict; some damage to
objects" to "creatures injured or killed." Levels of
sexual content are rated from "passionate kissing" to
"clothed sexual touching" to "explicit sexual activity;
sex crimes." The context in which the material is presented is not
considered under the RSACi system; for example, it doesn't distinguish
educational materials from other materials.
Safe Surf applies a complicated ratings system on a variety of types
of speech, from profanity to gambling. The ratings are more contextual,
but they are also more subjective and value-laden. For example, Safe
Surf rates sexual content from "artistic" to
"erotic" to "explicit and crude pornographic."
Net Shepherd, a third-party rating system that has rated 300,000
sites, rates only for "maturity" and "quality."
Notes
1 While PICS could be put to legitimate use
with adequate free speech safeguards, there is a very real fear that
governments, especially authoritarian governments, will use the
technology to impose severe content controls.
Credits
The principal authors of this white paper are Ann Beeson and
Chris Hansen of the ACLU Legal Department and ACLU Associate Director
Barry Steinhardt. Additional editorial contributions were provided by
Marjorie Heins of the Legal Department, and Emily Whitfield of the
Public Education Department. This report was prepared by the ACLU Public
Education Department: Loren Siegel, Director; Rozella Floranz Kennedy,
Editorial Manager; Ronald Cianfaglione, Designer.
This paper can be accessed via the ACLU's website, www.aclu.org and America Online site
(keyword: ACLU). Copies can also be obtained for $1.00 each through ACLU
Publications at 1-800-775-ACLU or P.O.B. 186, Wye Mills, Maryland,
21679.
Copyright 1997, The American Civil Liberties Union.
