Saturday, August 15, 2009

ACLU v. Gonzales

Another case on the "Must Read" list at the Safelibraries blog is ACLU v. Gonzales, appearing there with the caption "filters 95% effective & don't block health-related sites." Here again I have to agree that the caption is correct as far as it goes, although it is also misleadingly incomplete.

I'm not going to argue too much about this one. I've already said I support internet filters for children, as long as they're implemented with pragmatism and according to what the law really says, instead of what some wish it said. I think filters mostly work, but are not perfect, an assessment that agrees completely with this court decision, which in part acknowledges that, ". . .filters are not perfect and are prone to some over and under blocking . . . ."

What was it about? This case was actually the final blow in the demise of the Child Online Protection Act (COPA). The stated goal of COPA was to protect children from pornographic materials by requiring commercial websites dealing in pornography to take steps to verify that their customers were over the age of 17. An earlier attempt at this, the Communications Decency Act (CDA), had previously been overturned, and the COPA was an attempt to fix some of the constitutional problems of the CDA.

What happened? The district court's decision in ACLU v. Gonzales overturned the COPA, holding the act unenforceable because it violated the First Amendment. When the Supreme Court refused to hear an appeal, the district court's decision became final. The district court found the act failed to achieve it's goal because it did nothing to prevent minors from accessing non-commercial pornography, and could do nothing about the many pornography sites based outside the US. A large part of the court's logic was that internet filters are available at low cost, are easy to use, and are much more effective at preventing minors from accessing pornography than the burdens placed on vendors by the COPA. In fact, the whole sentence I quoted above with elipses is:
"Although filters are not perfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, are more effective than COPA in furthering Congress’ stated goal for a variety of reasons."
Is 95% good? YES, in the sense that it indicates that filters mostly work. NO, in the sense that it isn't good enough to keep a library that (mis)uses filters from getting sued. Remember that there are tens of billions of web pages out there. If we assume 20 billion pages, certainly too small a figure, then an error of merely 1% equates to 200 million pages. An error of 5% would be 1 billion pages! Of course, the practical problem is smaller than that: nobody actually tries to access all the pages that are out there.

Lesson Learned? Realistically, it only takes a few web sites, or even just one, to cause a problem. An adult really only needs to show that he or she was persistently blocked from a single legitimate site to make a First Amendment case. That's one of the reasons other court cases have acknowledged the importance of allowing adults to bypass filters on demand. Look at the recent ACLU case against Tennessee school districts with internet software that was blocking access to gay-affirming sites like Parents Families and Friends of Lesbians and Gays (PFLAG), the Gay Lesbian and Straight Education Network (GLSEN), the Human Rights Campaign (HRC), and the Gay and Lesbian Alliance Against Defamation (GLAAD). The total number of sites involved was a tiny fraction of the total internet, far less than 1%. It even seems that the blocking of these sites was at least partly unintentional. But foot-dragging by the school districts and service contractors still got them sued. Luckily, in this case, the school districts had the common sense to unblock the sites and settle out of court.

The full text of the decision, including the quotes above, can be read at: http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf

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