July 25, 2003

CIPA-compliance, N2H2, and free market

In response to the FCC's recent decision, mentioned yesterday, to again not set any standards for the CIPA Federal library censorware law, censorware company N2H2 has been claiming another victory. David Burt, their PR flack, posted:

N2H2 filed ex parte comments with the FCC two weeks ago asking that the FCC not set any standards for filtering software to comply with CIPA, such as the ability to be unblocked or a level of effectiveness. We feel these are decisions best left to the free market and the libraries themselves to decide. So we are pleased by the ruling.

Law professor Peter Junger made the following illuminating remark about N2H2's FCC comments:

"It does seem perverse to argue that a decision is best left to the free market when the subject matter of the decision is kept secret."

That sentence finally led me to understand the reasoning behind N2H2's arguments. It's not that N2H2 is a Libertarian believer in free-markets, even to the detriment of its own business interests. Rather, if there were a government standard, N2H2 fears that standard could be a lever with which to get access to censorware blacklists - in order to test compliance with the standard! The government compliance procedure would provide a focal point for pressure with Freedom-Of-Information Act requests and similar.

By arguing "free market", in fact, they are able to keep the subject matter secret. They can take the position of: "You can use our censorware, or not, but we don't have to tell you how it works, what's on the secret blacklist. If you don't like it, use something else."

It's another example of what I term "privatIZED censorship". Government imposes a censorship system, but which would normally be accountable through the judicial process, but the implementation is done by private businesses, and hence unaccountable.

By Seth Finkelstein | posted in censorware , legal | on July 25, 2003 09:58 PM (Infothought permalink) | Followups
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This analysis makes sense. Of course the "libraries" don't have any role in the decision-making.

Posted by: K. G. Schneider at July 25, 2003 10:15 PM

All of which argues for the ALA, on behalf of its members, using its weight in the "free market" to set standards of transparency, flexibility and accountability - not to mention price - which reflect its members' committment to free speech and information.

Karen is right, no one is asking the libraries; but if the libraries through the ALA set minimum standards - including the release of blacklists to users - you can bet any filtering company which wants to be in the library game will have to comply.

The key here is for the ALA to announce it will be setting standards for filtering software and give the filtering companies a couple of weeks to submit their products for certification. Include the requirement that the lists be sent in clear text.

It is important to note that the ALA setting standards is not an endorsement of filtering: it is merely the ALA using its market power to ensure the worst effects of a bad law are mitigated for its members.

Posted by: Jay Currie at July 26, 2003 05:36 PM