Posted by Eugene Volokh:
Great Firewall of Australia? (Great E-Barrier Reef?)
Earlier this year, I [1]criticized the U.S. government's planned
crackdown on obscenity -- either it would be futile, because people
could still get all the porn they want from off-shore sites, or the
government would have to go considerably beyond just prosecuting
pornographers:
[One possible outcome of the visible futility of the obscenity
crackdown may be that t]he government gets understandably outraged
by the "foreign smut loophole." "Given all the millions that we've
invested in going after the domestic porn industry, how can we
tolerate all our work being undone by foreign filth-peddlers?" So
they unveil the solution, in fact pretty much the only solution
that will work: Nationwide filtering.
It's true: Going after cyberporn isn't really that tough -- if you
require every service provider in the nation to block access to all
sites that are on a constantly updated government-run "Forbidden
Off-Shore Site" list. Of course, there couldn't be any trials
applying community standards and the like before a site is added to
the list; that would take far too long. The government would have
to be able to just order a site instantly blocked, without any
hearing with an opportunity for the other side to respond (since
even that would take up too much time, and would let the porn sites
just move from location to location every several weeks).
Sure, that sounds like a violation of First Amendment procedural
rules, even given that obscenity law is substantively valid. Sure,
that would make it easier for the government to put all sorts of
other sites on the list. Sure, it's a substantially more intrusive
step than any of the Internet regulations we've seen so far, and is
substantially more intrusive in some ways than virtually any speech
restriction in American history (I say in some ways, not in all
ways, since it would have a limited substantive focus -- but the
procedure would be unprecedently restrictive, and First Amendment
law has always recognized the practical importance of procedure).
But it's the only approach that has any hope of really reducing the
accessibility of porn to American consumers.
Well, it turns out that some Australian lawmakers -- seemingly
encouraged by a left-wing Australian think tank -- are [2]indeed
suggesting nationwide filtering:
ALL internet service providers would be forced to block hard-core
pornography reaching home computers under a radical plan to protect
children being pushed by federal Labor MPs.
Mark Latham's office is understood to have shown "strong interests"
in controls that would automatically filter out violent pornography
such as images of rape, torture, bestiality and coprophilia.
A confidential paper from the left-wing think tank the Australia
Institute, which is now being considered by the Opposition Leader's
office, proposes that ISPs install compulsory filtering programs so
only adults who can verify their age could view X-rated material.
Labor's communications spokesman Lindsay Tanner, leading ALP women
including Carmen Lawrence, and pro-family values backbench MPs are
in favour of a tough new regime that would shield children from
online porn.
The recommendation follows moves in Britain, where the largest ISP,
British Telecom, began blocking customers in June from accessing
child pornography sites.
The Australia Institute's executive director Clive Hamilton said
Labor would benefit from a social wedge issue by cracking down,
because inaction by the Howard Government "opens it up to the
charge it's soft on porn".
"As it is responsible for a hopelessly ineffective system of
regulation of internet pornography, yet frequently expresses
concern for the moral dangers facing children, the Howard
Government is vulnerable on this issue," the paper says.
Dr Lawrence said the current system of regulation of online porn
"clearly isn't working".
The Australia Institute recommendation "is a proposal that has
merit because it gets to the problem at the source and it would
make it much harder for the industry to duck responsibility", she
said. . . .[T]he policy proposal -- supported by 93 per cent of
parents of 12 to 17-year-olds according to a Newspoll survey -- is
expected to face some opposition from libertarians and
frontbenchers including Kate Lundy, the Opposition spokeswoman on
information technology.
The proposal isn't exactly what I described in my original post: The
law would require ISPs only to filter material from those users who
couldn't "verify their age"; and it apparently covers not all sexually
themed material, but only what many may see as the most reprehensible
subset.
But I don't think it takes much paranoia -- or even much imagination
-- to assume that once government-mandated nationwide filtering is
imposed on one level, there'd be considerable pressure to extend it.
After all, if some porn is illegal even for adults to get, the
argument would go, why shouldn't service providers be required to
filter it out? We already mandate provider-based filtering of material
aimed at children, and this is just a small extra step, since it's
only going after illegal material (and material that, of course, might
fall into the hands of children even if it's initially downloaded by
an adult).
True, the filtering may be overinclusive, because it will inevitably
block even some material that, on closer examination, would have
proved to be constitutionally protected. But we've already crossed
that bridge in the earlier proposal, haven't we? So why not take this
a step further? The slippery slope is [3]a real phenomenon, in legal
and political systems that are heavily influenced by notions of
precedent and logical consistency.
Now perhaps the bottom of the slippery slope isn't that scary. Maybe
service providers, in Australia or America, should automatically block
access to sites that private filter companies -- or the government --
has decided contain illegal hard-core porn, child pornography,
copyright-infringing material, libelous statements, statements that
express hostility based on race, religion, or sexual orientation (at
least when accessed from those Western countries that outlaw such
statements). Rather than requiring trials to decide whether each site
contains illegal information, a process that would be so cumbersome
that it would keep the regulatory schemes from working effectively, we
should just have providers instantly block access to any site that
some government agency has decided is indeed illegal. Much more
efficient, indeed perhaps the only efficient way of effectively
shielding Australia and America from potentially harmful off-shore
speech.
In my view, such a solution, efficient as it may be, would nonetheless
be wrongheaded; and under U.S. law, it would be an unconstitutional
prior restraint, since it would involve the government mandating the
blocking of potentially protect speech before a final court judgment
that the speech is indeed unprotected.
But my broader point is that, whether mandated filtering is good or
not, it is the logical next step in any attempt to crack down on
illegal online material. The government understandably dislikes having
its policies frustrated by foreign outlaws. ("[I]naction by the . . .
Government 'opens it up to the charge it's soft on porn.' 'As it is
responsible for a hopelessly ineffective system of regulation of
internet pornography, yet frequently expresses concern for the moral
dangers facing children, the . . . Government is vulnerable on this
issue . . . .'") That's why mandated nationwide filtering may be
coming to Australia. And the more the U.S. government tries to go
after obscenity, the more likely such mandated filtering would to come
to America, too.
References
1. http://volokh.com/archives/archive_2004_04_07.shtml#1081432091
2.
http://australianit.news.com.au/articles/0,7204,10455969%5E15319%5E%5Enbv%5E15306,00.html
3. http://www1.law.ucla.edu/~volokh/slipperyshort.pdf
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