Ian & Stuart's Australian Mac: Not for Sale/Another.not.for.sale (Australia).iso/no need to argue/10 Fallacies of Censorship

Text File | 1994-10-09 | 19KB | 382 lines

   Newsgroup: can.infohighway

                     TEN FALLACIES OF INTERNET CENSORSHIP

    Jeffrey Shallit
    Department of Computer Science
    University of Waterloo
    Waterloo, Ontario N2L 3G1
    Canada
    [e-mail]
    [phone]



   The Internet is growing -- growing in the number of users, and growing
   in public perception. Although most Internet users are convinced of
   its general utility and positive benefits, the naive reader of the
   daily newspaper might well conclude that most Internet users pass
   their time by pirating software [1] or distributing child pornography
   [2]. As the Internet grows, there are increasing calls for its
   regulation from many sides.

   Those who call for more regulation or censorship often treat the
   Internet as if it were some terrible dragon that needs to be slain;
   they are often ignorant of the Internet culture and seem almost proud
   of their lack of techno-literacy. Many ignore obvious historical
   parallels with more familiar media and the guidance provided by
   analogies with them. The censors and regulators also frequently have
   no awareness that the issue has even been discussed; see important
   books such as Ithiel de Sola Pool's Technologies of Freedom [3] and
   Ethan Katsh's Electronic Media and the Transformation of Law [4].

   De Sola Pool's Ten Principles are particularly worth scrutiny. Here is
   a brief summary of the first four:
    1. [freedom of speech] applies fully to all media.
    2. Anyone may publish at will... government may not prohibit anyone
       from publishing.
    3. Enforcement of the law must be after the fact, not by prior
       restraint... Libel, obscenity, and eavesdropping are punishable,
       but prior review is anathema.
    4. Regulation is a last recourse. In a free society, the burden of
       proof is for the least possible regulation of communication...
       Common carriage is a default solution when all must share a
       resource in order to speak or publish...

The Ten Fallacies

   Here are some of the arguments presented for censorship of the
   Internet and why they are defective.

  1. "PEOPLE FREQUENTLY POST OFFENSIVE MATERIAL TO USENET NEWSGROUPS AND OUR
  ORGANIZATION (UNIVERSITY, BUSINESS, ETC.) SHOULDN'T BE SUPPORTING THAT."

   Those unfamiliar with Usenet often picture racist propaganda and child
   pornography popping up, unbidden, on users' computer screens. But, of
   course, it's not like that at all. To read a particular Usenet
   newsgroup, one must explicitly "subscribe" to it by name and issue a
   command to read the messages posted to that newsgroup. It is difficult
   to feel much sympathy for someone who chooses to read a newsgroup
   named "alt.sex.bestiality" and then is shocked at what they find.

   Just as large cities contain seedy areas where one can find X-rated
   movie theaters and bookstores, so the virtual community of the
   Internet also has areas where people may discuss things you don't
   approve of. But, just as you can avoid the local X-rated movie theater
   simply by not going there, you can avoid Usenet newsgroups you don't
   like simply by not subscribing.

   To paraphrase US Justice Oliver Wendell Holmes, if freedom of speech
   means anything at all, it means protection for the thoughts we hate,
   not just for the thoughts we agree with.

   The mere fact that an organization provides access to material does
   not imply endorsement of the views contained therein. Your local
   public or university library, for example, may contain controversial
   books such as Arthur Butz's Hoax of the Twentieth Century (denies the
   existence of the Holocaust and blames a Jewish conspiracy); Adolf
   Hitler's Mein Kampf; Petronius' Satyricon (encourages sexual activity
   among small children); etc.

   As the American Library Association says, "Viewpoint-based
   discrimination has no place in publicly supported library collections
   or services; for the library to espouse partisan causes or favor
   particular viewpoints violates its mission... The fact of public
   sponsorship of a library in no way implies endorsement of any of the
   myriad viewpoints contained within a library's collection." [5]

  2. "WE HAVE TO REGULATE USE BECAUSE WE'VE HAD PROBLEMS WITH OBSCENE AND/OR
  HARASSING ELECTRONIC MAIL."

   No doubt about it, harassing e-mail is a potential problem. But what
   many users don't seem to know [6] is that it is relatively simple to
   change one's mailer to simply dump messages from users you don't want
   to communicate with. Messages can even be scanned for objectionable
   words and dumped on that basis, if one so chooses.

   Even without this facility, it is worthwhile to examine what is done
   with harassing regular mail or telephone calls. We don't deny access
   to these important services simply because some users abuse them.
   Rather, we provide methods for tracking use (such as Call Display) and
   penalties for abuse. The same methods can be used on Internet under
   already existing laws. No new regulation is necessary.

  3. "WE'VE HAD PROBLEMS WITH USERS DISPLAYING OFFENSIVE IMAGES ON WORKSTATIONS
  IN PUBLIC AREAS."

   Again, this problem has arisen before in other media. Many
   organizations have guidelines about what material is inappropriate to
   display in public areas (such as Playboy centerfolds, or Nazi
   swastikas). Most likely, your organization has sexual harassment
   guidelines that can be applied without change to the case of material
   on computer screens.

  4. "COMPUTER PORNOGRAPHY IS ILLEGAL AND HARMS WOMEN; THEREFORE, IT MUST BE
  REMOVED."

   First, there is a common confusion between "pornography" (defined to
   be erotic depictions intended to provoke a sexual response) and
   "obscenity" or "child pornography". "Pornography", per se, is
   protected speech and is not generally illegal. The Canadian Supreme
   Court, in its February 1992 Butler decision, held the obscenity
   provision of the Canadian Criminal Code to be constitutional. In the
   decision, very specific tests were provided for determining whether or
   not material is obscene and hence contrary to the law. (Briefly,
   illegal material must combine both violence and explicit sex.) In the
   waning days of the Mulroney government, the Canadian Parliament passed
   a "child pornography" law that criminalizes many kinds of depictions
   of sex with minors or those *depicted* to be minors. This law has yet
   to be tested in the Supreme Court, and many believe it will not
   survive challenge.

   The historical record shows clearly that laws against pornography have
   been used to stifle unpopular opinions and dissent; see, for example,
   [7]. Ironically, by denying access to "pornographic" newsgroups,
   organizations may be removing an effective route for combatting
   pornography by those who feel it needs combatting. Retaining the
   groups allows anti-pornography activists to post in response to
   pornographic stories, expressing their position and explaining their
   displeasure.

   Despite what some might have you believe, there is no consensus about
   whether pornography can be demonstrated to be harmful to women. The
   following books [8][9] present a more skeptical view of the alleged
   harmful effects of pornography. Even Catharine MacKinnon, one of the
   leaders of the modern anti-pornography movement, advocates the
   decriminalization of pornography (she would prefer treating it as a
   civil matter).

   Even if it were conclusively demonstrated that pornography had ill
   effects on society, that alone would not necessarily be enough to ban
   it. For example, the collection of essays [10] by prominent Canadian
   feminists take the view that pornography may be bad, but censorship is
   worse. Even the Dworkin-MacKinnon model pornography ordinance suggests
   that pornography in university libraries, even on open shelves, should
   be exempt from censorship.

  5. "WE HAVE TO BAN SOME NEWSGROUPS BECAUSE THEY ARE OBSCENE AND WE MIGHT BE
  PROSECUTED FOR PUBLISHING OBSCENE MATERIAL."

   Essentially this rationale was used by University of Waterloo
   President James Downey [11] to ban the following five newsgroups at
   the University of Waterloo: alt.sex.stories, alt.sex.stories.d,
   alt.sex.bestiality, alt.sex.bondage, and alt.tasteless.

   There are several fallacies here. First, it is quite doubtful that the
   University can be held to be a "publisher" by having a Usenet feed,
   which passively receives and redistributes millions of bytes each day.
   Second, newsgroups themselves cannot be obscene: a newsgroup is simply
   a logical archive or a meeting place. It is conceivable that some
   individual postings to newsgroups might possibly contravene Canadian
   law, but this has never been demonstrated. The Butler decision is held
   by some observers to apply only to explicit pictorial depictions made
   for commercial gain, and has no applicability to noncommercial text.
   In any event, banning an entire newsgroup because once in a while an
   "obscene" posting might appear is, to use the words of a US Supreme
   Court justice in an obscenity decision, "a case of burning down the
   house to roast the pig." The vast majority of postings to newsgroups
   constitute legally protected legitimate expression. Third, the
   likelihood of criminal prosecution of universities is virtually
   non-existent. No Canadian university has even been charged with
   distributing obscene material.

  6. "MOST OF THE MATERIAL POSTED TO USENET NEWSGROUPS IS WORTHLESS TRASH;
  THEREFORE WE SHOULDN'T PROVIDE ACCESS TO IT."

   Yes, a lot of what gets posted to Usenet *is* worthless trash, no
   doubt about it. But as Theodore Sturgeon has observed, "90% of
   *everything* is crap"--why should Usenet be exempt?

   Many Usenet newsgroups are like discussions at a bar -- a lot of heat,
   and little light. Except, every once in a while, the world's expert on
   the subject walks in, and suddenly the discussion is transformed.

   It is unrealistic to expect the same standards of writing on Usenet as
   one would find in a newspaper, magazine, or book. After all,
   newspapers, magazines, and books are generally commercial productions
   prepared by professionals. People who post to Usenet, however, don't
   get paid for their efforts, and they're often devoted amateurs.

   Usenet is a communications medium, first and foremost. Does your
   organization have rules on what may be said over its public
   telephones?

   If you don't find the Internet useful for your purposes, fine. But
   don't deny access for those who find it extraordinarily useful, even
   vital, for their work. In a few years, not having a Usenet feed at a
   University will be like not having a library.

   Indeed, Andrew Odlyzko's recent article [12] forecasts boldly that
   traditional academic journals will disappear in 20 years. In this
   case, the Internet will *become* the library.

  7. "THE INTERNET IS A BROADCAST MEDIUM; THEREFORE, IT SHOULD BE REGULATED
  LIKE RADIO AND TELEVISION."

   Part of this argument is a semantic trick which makes it look like
   something profound is being said. "Broadcast" has two definitions; one
   means "to distribute via radio or television". Now this does not yet
   apply to Internet, which is usually not distributed by radio or
   television. The other definition means "to distribute widely", which
   can be said to apply to Internet--but it also applies to magazines,
   newspapers, and books, none of which are regulated like radio and
   television.

   But even if one rephrases this argument to read "The Internet is like
   radio and television; therefore it should be regulated like those
   media", the argument is a poor one.

   Internet has little in common with broadcast radio and television. You
   can't just go to a store, buy a computer, bring it home, turn it on,
   and suddenly get newsgroups. You have to get the proper software, and
   you have to have a Usenet feed, or dial the right phone number on your
   modem.

   You don't turn on your computer and get flooded with newsgroups--you
   have to explicitly ask for them. Once you're "tuned in", you don't get
   deluged with pictures and sound until you turn your computer off --
   you have to explicitly request each additional message. You can easily
   prevent access by children in your household simply by not telling
   them your password.

   The history of radio content regulation is a sad one, as related by
   Emord [13]. Regulations arose not because of the scarcity argument (as
   is often supposed), but because corporate interests were afraid of Mom
   and Pop broadcasters horning in on their monopolies. Sound familiar?

   In any event, cable television (which is more analogous to Internet
   than traditional broadcast television) has a complete different (and
   weaker) set of content regulations [14]. Before we regulate Internet
   to death, let's treat the case of radio and television content
   regulations as a cautionary tale.

  8. "THE NEWSGROUP ALT.FAN.KARLA-HOMOLKA VIOLATES A CANADIAN PUBLICATION BAN;
  THEREFORE, IT MUST BE REMOVED."

   Judge Francis Kovacs imposed a publication ban on the details of the
   trail of Karla Homolka in July 1993. Soon many organizations removed
   access to the newsgroup alt.fan.karla-homolka because, they claimed,
   they did not want to violate the court order.

   The main problem with this reasoning is that the newsgroup was *not*
   created with the intention of breaking the publication ban, but rather
   to discuss aspects of the trial that were *public knowledge*, rumours,
   the wisdom of Judge Kovacs' ban, and the wisdom of publication bans in
   general. Of the approximately 2000 messages posted to the newsgroup in
   the first few months, fewer than 1% might have contained banned trial
   details. Hence 99% of the messages constituted legally protected
   legitimate speech.

   Even if *all* the messages contained banned trial details, the
   decision to remove the newsgroup was not justified. If you post a
   message to the Internet, it is *you* who are doing the publishing, not
   the organizations that passively transmit the message. Hence, *you*
   are the one who should be liable for breaking the law.

   The alt.fan.karla-homolka newsgroup fiasco points to the need for
   "common carrier" status for the Internet. Awarding such status will
   allow organizations to carry *all* forms of speech, no matter how
   controversial, without fear of criminal charges. On the other hand,
   those who post can be held responsible for their postings.

  9. "USERS IN OTHER COUNTRIES HAVE AN OBLIGATION TO RESPECT OUR LAWS."

   This argument was heard most frequently in regard to the
   alt.fan.karla-homolka newsgroup. But it is fatally flawed.

   As more and more countries become connected to the Internet, more and
   more forms of speech will become freely available. Do we have an
   obligation to restrict our speech so that it remains legal in *all*
   those countries, even Iran, Iraq, North Korea, China, etc.?

   Of course not. Each individual country must decide for itself whether
   it will be connected to the Internet or not. Each individual country
   must decide how to handle postings that it deems illegal. There is no
   obligation for people around the world to self-censor their postings
   to ensure, for example, that no Iranian law is violated.

   And now, for good measure, here is one fallacy from the
   anti-regulation camp.

  10. "IT'S ALL JUST BYTES. HOW CAN BYTES SENT OVER THE INTERNET BE AN ILLEGAL
  ACT?"

   This is a reductionist argument that is evidently invalid. By the same
   argument, death threats over the telephone are "just" sound waves and
   libel published in the daily newspaper is "just" molecules of ink on
   paper. But a claim this somehow decreases one's liability would be
   laughed out of any court.

   Indeed, just recently an anthropologist won a settlement of A$40,000
   for libelous material "published" on an electronic bulletin board
   [15].

Conclusions

   It is beyond doubt that the Internet can be used as a tool to break
   the law in various ways (utter death threats, conduct mail fraud,
   break publication bans, etc.). Is it really surprising, when these
   laws can also be broken through traditional media?

   What is remarkable is that, in a community estimated to be as large as
   25,000,000 users, there have been so few incidents of this type. Let
   us not use them as an excuse to over-regulate a "technology of
   freedom". Let us instead work towards wise enforcement of already
   existing laws, and more uniform international laws.

References



   1. Peter H. Lewis, "Student accused of running network for pirated
   software", New York Times, April 9, 1994, p. A1.

   2. Reuters news dispatch, April 15, 1994.

   3. Ithiel de Sola Pool, Technologies Of Freedom, Belknap Press of
   Harvard University Press, 1983.

   4. Ethan Katsh, The Electronic Media And The Transformation Of Law,
   Oxford University Press, 1989.

   5. American Library Association position paper, "Regulations,
   policies, and procedures affecting access to library resources and
   services", Adopted January 27, 1982.

   6. Frank W. Connolly, letter in Chronicle of Higher Education, April
   6, 1994, p. B2.

   7. Edward de Grazia, Girls Lean Back Everywhere: The Law Of Obscenity
   And The Assault On Genius, Vintage Books, 1993.

   8. F. M. Christensen, Pornography: The Other Side, Praeger, 1990.

   9. Edward Donnerstein, Daniel Linz, and Steven Penrod, The Question Of
   Pornography: Research Findings And Policy Implications, The Free
   Press, 1987.

   10. Varda Burstyn, ed. Women Against Censorship, Douglas & McIntyre,
   1985.

   11. Memo from University of Waterloo President James Downey, January
   31, 1994.

   12. Andrew Odlyzko, "Tragic loss or good riddance? The impending
   demise of traditional scholarly journals", (Preliminary version,
   December 30, 1993), available from [e-mail].

   13. Jonathan W. Emord, Freedom, Technology, And The First Amendment,
   Pacific Research Institute for Public Policy, 1991.

   14. Kenneth P. Norwick and Jerry Simon Chasen, The Rights Of Authors,
   Artists, And Other Creative People: The Basic ACLU Guide To Author
   And Artist Rights, Southern Illinois University Press, 1992.

   15 Judgement of Supreme Court of Western Australia, David Rindos v.
   Gilbert John Hardwick, delivered 31 March 1994, Unreported Judgement
   940164.
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