SmartFilter's Greatest Evils - a library censorware implication


Date: Mon, 20 Nov 2000 00:17:05 EST
To: [a computers and policy list]
From: Seth Finkelstein
Subject: Re: SmartFilter's Greatest Evils - censorware & privacy/anonymity

As something of a follow-up, here's a library-censorware lawsuit issue idea I'd like to toss out. As has been much noted, the concept that censorware must ban anything that allows a user to escape, is obvious in retrospect. However, people usually say that in a context of what-do-you-expect. And I reply it's not about expectations, but rather implications.

That is, I want to follow the implications a little. Library-censorware lawsuit arguments have discussed notable overblocking and underblocking. I suggest that the necessity to blacklist privacy/anonymity sites and translation services puts a new spin on this anticensorware argument in a First Amendment context. The censorware companies can always say any particular howler is an honest mistake, to be fixed in the next blacklist update (though of course, who knows what else lurks undiscovered ...). However, if they must keep these privacy/anonymity and translation services sites blacklisted, because of the potential of use of them to escape the blacklist, doesn't that now raise a very profound Constitutional question in a very stark form?

A privacy/anonymity or translation service site is, I believe, thoroughly protected under the First Amendment. <Insert here speeches waxing eloquent over all the Supreme Court decisions protecting right to anonymous speech and right to private and confidential ability to read material>. The idea that these sites are of necessity subject to across-the-board persistent blacklisting, for their potential for use to get around the blacklist, seems to me to raise a specific Constitutional issue of itself.

I don't know if anyone will judge this idea worthy. But I wanted to put it out for consideration.

Seth Finkelstein  Consulting Programmer    SmartFilter's Greatest Evils

[This was in reply to a list-member's follow-up question]

Date: Tue, 21 Nov 2000 12:33:52 EST
To: [same list]
From: Seth Finkelstein
Subject: Re: SmartFilter's Greatest Evils - censorware & privacy/anonymity

> Paul Gowder
> I'm sure it's a good idea, but not sure I understand it. It's all
> constitutionally protected. What's particularly special about the
> privacy/anon services, as opposed to the political sites or the porn
> sites, that gets a special constitutional argument?

1) The privacy/anon/translation services can't be said to be blacklisted as oops, mistake, we-didn't-know, fixed-in-next-release, blacklist-is-now-reset-to-assumption-of-perfection.
2) In fact, they can't be unblacklisted at all.

What this does is to drive a stake into one of the pro-censorware arguments, that "If you find a site unjustly blacklisted, the library can override it". If you override any of those privacy/anon/translation sites, and that's known, then the censorware becomes vastly diminished in its effectiveness. This is not a property of political and porn sites. So, in the First Amendment context it poses a very stark dilemma - either accept widespread blacklisting of privacy, anonymity, and even language translation web sites as an absolutely necessary corollary to enforcing the blacklist. Or admit those sites won't be blacklisted as a matter of policy, and have an escape hole.


Seth Finkelstein  Consulting Programmer    SmartFilter's Greatest Evils

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