"Dr.L.D.Misek-Falkoff" <[EMAIL PROTECTED]> writes: David J. Loundy wrote: > > Here's this month's article. > > --David-- > > Published in the Chicago Daily Law Bulletin, March 12, 1998 at page 5. > > ------------------------------------------------------------------------ > > Filtering software poses legal pitfalls. > > Copyright 1998 by David Loundy > Archived at http://www.Loundy.com/CDLB/ > To subscribe, send the message > "subscribe" to [EMAIL PROTECTED] > > ------------------------------------------------------------------------ > > A decision is expected shortly in a case brought in the United States > District Court for the Eastern Division of Virginia, Mainstream > Loudoun v. Board of Trustees of the Loudoun County Public Library, No. > CA-97-2049-A, which is being watched carefully by libraries, > legislatures, civil rights activists and the anti-pornography crowd. > The suit concerns the use of "filtering software" (often referred to > as "blocking software" or simply as "censorware"). > > Filtering software is designed to screen Internet material for > "inappropriate" content. Such software packages have been widely > adopted, especially in light of their endorsement by President Clinton > at a White House Summit following the U.S. Supreme Court's mention of > the software as perhaps being a preferable alternative to legislation > such as the ill-fated Communications Decency Act. Various states have > also jumped on the bandwagon by proposing legislation that would > require the installation of such software or other means of content > restriction in schools and public libraries. > > Sen. John McCain, R-Ariz., has also introduced legislation in the U.S. > Senate (S1619 IS, available on the Internet at > ftp://ftp.loc.gov/pub/thomas/c150/s1619.is.txt), which would deny > certain funds to schools and libraries that fail to implement a > filtering or blocking system for Internet-connected computers. > > There are a few problems with these legislative attempts and other > voluntary efforts to install such software: the software packages do > not work as well as most people think they do, and they also > erroneously block Constitutionally protected material. To understand > the legal pitfalls associated with filtering software, it is necessary > to look at the technology and how it operates. > > Filtering software works by employing a variety of schemes. Two common > blocking schemes used in filtering software either screen, based on > the presence of key words, or block certain addresses. Some filtering > software packages will search for words present in Internet material > which match a list of prohibited terms. If a prohibited term is > present, the material is blocked from viewers. Other filtering > software may block material based on its URL (Uniform Resource > Locator-- a standardized way of describing an Internet address, be it > a web page, a usenet news post, an e-mail address, or an FTP file > archive). Blocked URLs are usually included on a list that comes with > the software after the manufacturer examines the material and > classifies it as objectionable to a particular audience. Thus, users > are offered options to filter particular types of material they wish > to avoid, such as material which contains sexual content, violence, > profanity, etc. Users must obtain updated lists to account for new > sites that are found or addresses that have changed after the software > was purchased. > > Unfortunately, both of these filtering schemes are flawed. First of > all, key word blocking will not block images. Second, if a key word > filter blocks key words appearing in an address, such as in a domain > name, all of the content appearing at that domain will be blocked, > regardless of what material is actually housed at that domain. Third, > key words can be circumvented. For instance, if a filter blocks the > word "breast" it might not block "bre_ast." And fourth, if the list of > blocked key words is expanded too greatly, then inoffensive content > may also be blocked, as occurred in the famous incident where part of > the White House web site was blocked by a filtering package because > the software blocked occurrences of the word "couple"-- which was used > to describe Bill and Hillary Rodham Clinton. > > Filtering software which blocks based on the material's address may > allow for more precision in theory, but it also suffers some drawbacks > in practice. To block based on a URL requires that all URLs be checked > and classified. This is generally a subjective endeavor allowing for > inaccuracies in classification and, thus, filtering. > > Blocking by URL is fundamentally an impossible proposition. The > Internet is growing too quickly for a small software company to keep > up with the volumes of new material. It is not economically feasible > for a software company to hire sufficient numbers of people to rate > every web site and usenet news group, much less stay abreast of > changing content. As a result, some filtering software may block an > entire domain or portion thereof as a short-cut. If the domain belongs > to an Internet service provider, then access to all of the service > provider's clients' web sites may be blocked because of the rating > assigned to one or two of the service provider's users. In addition, > some content may be available through a database which spontaneously > generates web pages, and therefore has no stable address to block. > > Any legislation that requires that all inappropriate material be > blocked cannot be complied with using existing technology. All of the > existing filtering technology may be considerably over-inclusive in > its restrictions, a state of affairs that is not likely to survive > last year's U.S. Supreme Court decision in Reno v. ACLU, 117 S.Ct. > 2329 (1997). Additionally, the Constitutional tests for obscenity and > indecency both include a "community standards" element. Any statute > that requires that access be blocked to "obscene," "indecent," or > "illegal" material requires evaluation based on local community > standards. Some filtering package promoters make the claim that their > software blocks only illegal material. This is a nonsensical claim. > Either the software must employ the judgment of the software company > as to what material is inappropriate, or each individual community > must rate the entire Internet (as the McCain bill would require of > each school board or library). > > These issues are being squarely debated in the Mainstream Loudoun > case. In this case, U.S. District Judge Leonie Brinkema (who, at the > end of February, struck down as unconstitutional a Virginia statute > which sought to restrict State employees' access to sexually explicit > material using state-owned computers) is faced with the issue of > whether the Loudoun public library is violating the First Amendment by > requiring the use of filtering software on library computers. > > A citizens' group and a few assorted plaintiffs are suing the Loudoun > Library Board, claiming that the "X-Stop" filtering software installed > on library computers is infringing their Constitutional rights. > Specifically, the plaintiffs argue that the library policy "is a harsh > and censorial solution in search of a problem." It restricts all users > to content suited to the most sensitive users, and threatens criminal > penalties to any who try and circumvent the block. None of the > libraries in the County system had complained that there was a problem > with inappropriate material, and the library board was presented with > data "that less than two-tenths of one percent of the information > available on the Internet is even arguably 'pornographic'" before it > imposed what some consider to be the nation's most restrictive access > policy. > > In addition, the plaintiff's have argued that the policy requires the > software to perform, in essence, a legal test to determine what > material is inappropriate. Furthermore, enforcement of the library > policy requires that Internet terminals be placed in full view, thus > increasing, rather than reducing, the chance that library patrons will > be exposed to material they find offensive. This public placement of > terminals may also have a chilling effect by dissuading patrons from > looking even at unfiltered content which they do not want to share > with any library patron who may be in the area. > > The plaintiffs also argued that the legislation is overbroad and that > the filtering software removes the ability of a parent to determine > what his or her children (or self) should be allowed to see. > > Perhaps the plaintiffs' best argument against the legislation is that > the filtering software would block material on the Internet that is > available to library patrons by simply picking up the same material > from the library's shelves. (An argument not likely to be as effective > is that the policy requiring blocking software violates the library's > own "Freedom for Ideas-- Freedom From Censorship" policy (as well as > the American Library Association's principals of freedom and its > explicit resolution condemning the imposition of filtering software).) > > The defendants' arguments are also interesting, but unpersuasive. The > defendants argue that the legislation is based on a policy restricting > the library's obtaining of objectionable material at a library > patron's request. However, the library board has argued that calling > up material from a remotely located machine on an Internet-connected > computer is analogous to using the library facilities to request an > interlibrary loan of the material. The defendants have stated that as > far as they know "no court has ever held that libraries are required > by the First Amendment to fulfill a patron's request to obtain a > pornographic film-- or any other information-- through an interlibrary > loan." Furthermore, they argue that there is Supreme Court precedent > in a sharply divided case (Board of Education v. Pico, 457 U.S. 853 > (1982)) that intimates that school boards should have the freedom to > decide what materials to house in their libraries. > > The interlibrary loan argument is unpersuasive because the Internet > connection and its benefits are already present in the library, and > the library staff is not needed to arrange for the transfer of any > content available to an Internet-connected library computer. The > software which restricts access to certain material, on the other > hand, is brought into the library by its staff in order to remove > access to material which would otherwise be freely available to > library patrons but for the blocking software. A better analogy would > be for the librarians to tell patrons that they may read any books in > the library, except the ones the librarians grab out of the patron's > hands if they try to take the restricted books off the shelf. > > I predict that some of the legislation requiring blocking of Internet > content will pass. I also predict the library patrons will win (as, > hopefully, will the plaintiffs who challenge any passed filtering > legislation). The stakes in this debate are high. At issue here are > small battles in schools and libraries. > > However, there are two issues more important than whether the Loudoun > County libraries allow uncensored Internet access. First, there are > whole countries that use "proxy servers" that function as national > filtering software. Some proposed filtering-enabling schemes, such as > PICS (Platform for Internet Content Selection), constitute what some > believe to be the ultimate tool for government censorship by building > a mechanism for censorship into the Internet's infrastructure. While > countries are entitled to their own Internet content laws, the > mainstreaming of such tools should proceed only with care and > consideration as to the potential effects. > > The second issue, to return to the beginning, is that these filtering > tools do not work as most people believe them to work. People need to > understand what they may be missing, and to what they may still be > subjected. Filtering software is not the Holy Grail, at best, it is > the Holy Colander. > > http://www.Loundy.com/CDLB/1998-Censorware.html > > ____________________________________________________________________ > This list is used to distribute the written works of attorney and > author David Loundy. > > It is provided by NETural Communications/U.S.Host > (http://www.netural.com). > > To unsubscribe, send a message reading "unsubscribe" to > [EMAIL PROTECTED] > ____________________________________________________________________ > David J. Loundy | E-Mail: [EMAIL PROTECTED] > Davis, Mannix & McGrath | WWW: http://www.Loundy.com/ > 125 S. Wacker Drive, Suite 1700 | > Chicago, IL 60606-4402 | Phone: (312) 332-0954 > ____________________________________________________________________ Subscribe/Unsubscribe, email: [EMAIL PROTECTED] In the body of the message enter: subscribe/unsubscribe law-issues
