[Note this is historical, the positions described below are no longer those of EFF ]
[The author below also later destroyed and domain-hijacked Censorware Project]
Original source: http://legalminds.lp.findlaw.com/list/cyberia-l/msg19106.html
Subject: Cyber liberties, past and present
From: Michael Sims <jellicle@INCH.COM>
Date: 3 Jun 1999 12:09:12 -0000
Good stuff below. Really.
Chris Savage wrote:
> Seth F. asks what he should do to correct what he views to be a
> misstatement by Mike G. of the views of some censorware opponents
> some years back.
It's not a misstatement, it's a lie. I second Seth's note that no one, no one, has ever made the argument Godwin attributes:
"Arguing an essential identity between server-level and user-level filtering, some of them have suggested not only that government should be barred from blocking content, but also that individuals should, perhaps, be barred from this as well."
--Salon magazine, May 15, 1998, Mike Godwin, Staff Counsel for the Electronic Frontier Foundation
It's simply a lie. The last time Godwin was called on it, the one person he could think of that could, perhaps, have said something along these lines immediately refuted it (unbeknownst to Godwin, she had joined cyberia-l). Mr. Savage, there's no use trying to put a happy face on everything people do. Sometimes they deliberately and calculatedly lie. Period. Call a spade a spade. As you note at the end of your email, there may be tactical advantages in smearing your opponents so.
> I don't know about the rest of you, but I don't think who thought
> what three years ago matters much to anyone who wasn't there. Now,
> maybe 99% of CYBERIANs were there and do care, but I personally
Perhaps you should. The groundwork laid a few years ago haunts, drives, and controls the current censorship situation on the internet. At first glance, this may seem like a flamewar between Godwin and Seth or Godwin and whoever, about things which happened in the past. However, if you look closer, you find those things in the past have foreshadowed and driven the situation today, and they represent very serious and very important things which _will shape_ the internet of tomorrow.
Do I have your attention yet?
A brief review is in order. Bear with me, it gets better, but it's simply impossible to launch into this without some background and perhaps my history is a bit different than you'd expect. I still make some assumptions about people's level of knowledge, so if I'm talking past anyone, I'm sorry. If there are any acronyms anyone doesn't recognize, put them into a search engine along with "censorship" and you'll figure out what they are.
During 1995 (and up to several years earlier) and the time of the great cyber-panic, corporate interests got together and said, basically, "If we aren't careful, public outcry is going to result in direct government internet censorship, which will cost us money." As a result, they started talking to "cyber liberties" groups such as CDT and EFF about heading this off at the pass. A meme was decided upon: "Censorware is our saviour." The concept, of course, is that software on your computer will stop "bad stuff" from getting to you, and thus it's okay to _publish_ it. Sounds great, right? No governmental laws costing companies money, actually creates opportunities in a new field - sort of like Caller ID and Caller ID Blocking. We'll sell you both the problem and the solution.
But their efforts were too little, too late. Congress passed the CDA anyway. So a dual plan was settled on - fight the CDA in court, and fight the social forces that prompted the CDA with "Censorware is our saviour." John Gilmore, Esther Dyson, other "famous names", were all enamored of filtering/rating systems such as PICS as a golden sword to beat off direct government censorship. Little, if any, thought was given to the consequences of this argument. Later on, this promotion of censorware would have the same or _worse_ effects than direct government censorship. If you look at these companies and "cyber liberties" groups charitably, this wasn't anticipated; if you look at them less charitably, it was, but the companies wanted (by controlling the software) to be the ones doing the censoring instead of the government and the cyber-liberties groups a) didn't care, as long as it wasn't the government (the libertarian ethic) and b) wanted the corporate donations.
The well-read reader can refer here to Lessig's arguments regarding control of the software being more powerful than control of the law.
The CDA case was won. But of course public sentiment about the "bad stuff" on the internet, driven by the "sex-sells" media, continued to bubble. So the second part of the plan had to be continued and promoted. EFF's press release after the CDA decision stated that the law had been overturned because of censorware, a lie; and it gave press time to SurfWatch, a censorware vendor, for no readily apparent reason. Mike Godwin wrote the press release. As a result of the EFF release and similar lockstep "interpretations" of the decision, hundreds of journalists across the country wrote, "Due to filtering software, the Supreme Court overturned the CDA." It was an easy [wrong] explanation to sell to the general public, some percentage of whom would be up in arms and would want to know 'why'. It created a vast body of dis-knowledge which persists today.
Godwin received some criticism over this. He tried to defend the
release as being accurate, and couldn't. Much later, he admitted
that he had been ordered to write the release as he did by the EFF
leadership. The EFF leadership has so consistently promoted
censorware that they've never managed to release any official
position on it - Stanton McCandlish wrote one, in December 1996, and
the EFF board sat on it because it was a little too negative. It's
still available - as a short-term draft, not to be quoted as policy -
on the EFF website.
>From that point, we've seen a weaker emphasis on direct governmental censorship. So one could argue that the strategy has been successful.
On the other hand, promotion of censorware has had some severe intended/unintended side effects. Today, probably the majority of K-12 school systems are using it - sub-contracting governmental censorship decisions to an unaccountable corporation with no oversight whatsoever would not normally be acceptable in this country, except groups like the ACLU have found it too hot a topic to touch, precisely because they get no support from organizations like EFF. The ALA is actually organized and opposed to censorship, and has managed to keep censorware out of most libraries, but now (of course) the government is turning to those supposed "user empowerment" tools and mandating them. It's increasingly likely that some version of Senator McCain's push to link e-rate funding to censorship-by-software will pass.
And in developments that are far more dangerous than even those, the corporations are gathering to sell us Caller ID Blocking - errrr, sell us a censorship system which they control instead of the governmental one they don't. On May 12, 1999, ICRA, the "Internet Content Rating Association" was formed. This just solidifies an unofficial relationship that has existed for a couple of years. Here's a bit of their press release:
"Internet Content Rating Association Formed to Provide Global System for Protecting Children and Free Speech on the Internet
AOL, British Telecommunications plc (BT), Cable & Wireless, Demon Internet, IBM, Internet Watch Foundation, and Microsoft Join Forces with Other Global Organizations to Create and Manage International Online Rating System"
The background here is complex, but essentially Europe was sold on the governmental-censorship-by-rating-system plan a few years ago, after heavy lobbying by the Microsoft-founded-and-funded Recreational Software Advisory Council and PICS evangelists from W3C (the W3C PICS people are mostly from AT&T and IBM). Europe is now paying these corporations to build a rating system for all of Europe, upon which governmental censorship laws will be hung. This is the declared intent - not a pipe dream of the possibility of censorship, but what governments have stated they will do. Australia's doing it right now; Europe will guide the rating system to follow their laws and then mandate it. ETA: less than two years. Opposition is minimal - after all, this is "our saviour" from censorship, right? And corporate profits will be maximized - the government will have to work within the constraints of the system set up by the corporations, instead of the other way around. IBM even has a patent on the PICS process.
The government likes this process because the corporations do all the work and the corp.'s have abilities, such as censorship, which are difficult for governments.
"International Online Rating System" ought to raise all sorts of red flags to people who care about being able to access information tomorrow. But it doesn't. That's the value of censorware-promotion.
And people like Esther Dyson continue to strive to make the web safe for corporations to make money from. Dyson created TrustE, whose primary mission is to deflect criticism of corporate non-privacy practices on the internet. Now she's moving to ICANN and excluding individuals from a stake in the domain-name games. It is a deep and serious mistake to believe that Dyson's efforts as Chairman and Boardmember of the Electronic Frontier Foundation have anything to do with promoting individuals' rights on the electronic frontier.
Dyson is symbolic of some very powerful forces - the corporate presence. The optimum environment for a corporation is one where it makes the rules - profits are maximized in such a situation. On the internet, this is true for privacy, censorship, domain names, everything. And so the push is for disenfranchisement. Don't regulate privacy! Don't do direct censorship! Let us do it! The grass is always greener!
Unfortunately, this doesn't necessarily lead to less censorship. It certainly doesn't lead to more privacy. Corporations don't care about censorship, they care about money. And often censorship is profitable. An internet without direct governmental censorship - but with maximum censorship controlled by corporations - is seen as optimum, safe, bland, predictable, and controllable. Perfect for risk-averse corporate entities.
This sort of contracted-out censorship is extraordinarily difficult to fight at all, and in a situation like this, where so-called "cyber liberties" groups are actually - and actively - supporting it, it's impossible.
And so you see, the conflict between Godwin and [whoever] looks like a flamewar but it's actually rather deeper and vastly more important. These are outlying skirmishes in a tremendous war over who gets to control the internet. There is a tremendous amount of propaganda present. But fundamentally, the war is between people who believe that the net should be secured from the depredations of both government and corporations (like me) and people who believe that it should be secured from both government and individuals, leaving a few corporations to reign supreme, like Dyson.
It is not a minor thing, it should not be dismissed, it is not merely a flame war. It's not even limited to the U.S. with its quaint conception of 1st Amendment "rights", since the most dangerous foes, the corporations which control the architecture of the internet and access to it, are not bound by the First. And if you disregard it because you think it's something old and unimportant, you're doing just what Dyson would prefer that you do; pay no attention to the man behind the curtain.
It will determine whether the internet of the future looks like TV or whether it is a place where people can still travel anonymously, still access information freely, etc. The two paths are mutually exclusive, and right now the corporations look like they're going to win.
 Which is really neither here nor there, and actually argues for his, errr, goodness - a good man caught in a bad situation.
Michael Sims The Censorware Project
When in doubt, use brute force.