Free-Market Filtering

The objectionable sites currently include things like child pornography or information related to terrorism, both of which are unlawful in Oz. The Australian Communications and Media Authority maintains and updates a list of tens of thousands of such prohibited websites and would mandate that all ISPs in Australia prevent their users from accessing the sites. A second, voluntary form of Web censorship would allow users to block access to other sites deemed by the ACMA to be inappropriate due to violence or sex.

Whether this is legal or not — and I believe it is not — it is a monumentally bad idea.

Let me make this clear: I am not one who screams about whether the government can tell me what I can and cannot download or watch. That battle is already lost. I also have no great objection to the government enlisting the voluntary assistance of the ISPs in the fight against child exploitation, pornography, and child sexual abuse. Indeed, they should block such content. In the United States, federal law grants them immunity from any lawsuits that might result.

However, there is a big difference between entities voluntarily acting as Internet police, and in that role as agents of the government, in preventing illegal conduct and being forced to act as government agents either by operation of law or under threat of prosecution.
Digital deputies

In the United States, there are examples of the government coercing companies into cooperation. For example, the New York State Attorney General has induced entities like Cablevision, Comcast, AT&T, Verizon, AOL, Sprint, and Time Warner Cable to install blocking software, sometimes resorting to sending a letter requesting that the ISPs “voluntarily” act as the government’s deputy in preventing crime, and noting that if they don’t voluntarily agree, “my office will pursue the legal remedies open to it to stop child pornography.”  Moreover, the Attorney General will publicize any acts of “non-cooperation.” Under such circumstances, the ISP is no longer voluntarily filtering content; it has effectively become an agent of the government.

It’s all in the name of protecting kids from what is, after all, unlawful materials, so what is the problem?

The problem isn’t so much blocking the unlawful conduct, it’s the technology that has to be developed and deployed to do so. To be marginally effective, ISPs must deploy software that will examine the contents of every e-mail communication and attachment, the results of every Internet search, the content of every IM message and direct connection, and all files transferred by peer-to-peer file sharing, FTP, MMS, or other electronic means. Known as deep packet inspection, this is the electronic equivalent of mandating that the U.S. Postal Service, DHL, UPS and FedEx open and read every package and letter — without a warrant or probable cause — to determine whether there is anything in the container which meets a predefined government supplied list of prohibited items.

One technology that has been touted to accomplish this nanny function for the government is called the Global File Registry (GFR) CopyRouter. This technology would sit on an ISP’s main routers and essentially check a hash of every packet against a list of illicit content. The government would seed the filter with hash values of content it considered to be objectionable. If a user anywhere attempted to download this content, the content would be blocked. Presumably, the government could also be notified about the attempt and could then swoop in and make an arrest. The list of banned files could be created by the government or could be supplemented by entities like the National Center for Missing and Exploited Children or other watchdog groups.
Automated searches are still searches

So why object to an automated tool that simply blocks content that is illegal to possess?  First and foremost, in order to find this objectionable content, the tool has to essentially read the content of all the non-objectionable material and determine whether it is prohibited.

So the ISP, at the government’s behest, is examining everything you do, blocking some of it, and presumably reporting on what it finds otherwise. Because it is a private search, the government would not need a warrant. Imagine every parking lot attendant being sent a letter from the government that requested that they examine the contents of every car they parked. Or every apartment-building doorman. Or every toll taker. We could deputize the entire community to examine the contents of everyone’s cars, mail, luggage, and homes, and report anything the government found objectionable. Because this searching and blocking is done by private entities, the government would not need a warrant.

The government has repeatedly argued that ISP policies that permit companies to examine the contents of e-mails, search for spam, or block prohibited activity are not “searches” under the Fourth Amendment. Thus, everybody’s communications could be scanned for prohibited information.

Of course, such a technology is ripe for abuse. While the Australian filtering scheme only seeks to identify and filter child pornography and terrorist information, there is no reason it could not — or should not — be deployed to also seek out communications related to, for example, drug trafficking, murder, or the unlawful transfer of copyrighted materials. After that, we can look for people distributing unlawful manifestos which promote views unpopular with or prohibited by the government. All are potentially criminal activities.

There are two main problems with the proposals by the Australian government — and the actions of the N.Y. Attorney General — despite their good intentions. First, the proposals essentially enlist ISPs to act as government agents to do something that the government itself would not lawfully be permitted to do. Second, it mandates — or, in the case of New York, merely encourages under threat of prosecution or embarrassment — the intrusion into the privacy of hundreds of millions of innocent users and hundreds of billions of innocent communications.
A modest proposal

Let’s face it, the ISPs want to do the right thing. They want to make the Internet as open a place as possible and not be legally responsible for how people use it, but also want to keep it reasonably safe. Nobody except the shadiest of operators would want to become known as a haven for child pornography. The same may be said, to a lesser extent, of other kinds of prohibited conduct.

So, rather than mandate, why not offer their subscribers a blocking service? Indeed, Section 230 of the Communications Decency Act already requires ISPs to notify their customers about the availability of blocking software. The ISPs can create “child-friendly” services that block all sex and violence — and presumably tweakable by the subscriber — in addition to a “responsible adult” version that blocks child pornography and other kinds of illicit conduct. Other ISPs could choose not to, and offer completely free and open access to the Internet — kiddie smut included.

By making filtering optional, the ISPs would not be any more liable for the content that their subscribers download and would put the power to block content in the hands of the subscriber. This would limit the problem of inadvertently or accidentally finding prohibited content. Since the vast majority of subscribers would presumably want to block this content, eventually the marketplace would likely make the illegal content difficult to find.

However, in order to implement such filtering, some tool would still have to examine the contents of every communication. ISP privacy policies would have to make it abundantly clear that this tool was examining everything the user was doing during the process of filtering content. It would also be recommended for the agreement to also state that the consent to such automated monitoring did not constitute a waiver of any rights to privacy in the contents of communications. Thus, for the government to get the contents of an email, a bittorrent or an IM, the normal legal processes would still apply.

The end result is that we would have enlisted, as Adam Smith called it, the invisible hand of capitalism, rather than the paternalistic fist of the government.

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