America has begun to censor the Internet. Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in “soft” blocking of on-line material. This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP Act, is normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims. First, only one strategy – deputizing intermediaries – is limited significantly by current law. Government retains considerable freedom of action to employ the other methods, and has begun to do so. Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation. Lastly, it proposes using specialized legislation if the U.S. decides to conduct Internet censorship, and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine. It concludes by assessing how soft Internet censorship affects current scholarly debates over the state’s role in shaping information on-line, sounding a skeptical note about government’s potential to balance communication. ...
Internet filtering in America has evolved. The content that it targets has shifted, moving from a focus upon sex-oriented materials, particularly those inappropriate for minors, to concentrate on gambling, intellectual property infringement, and national security material. The approach employed by the state has shifted, from attempts to force intermediaries such as ISPs to act as agents in censorship, to less direct and less visible methods such as payment, pretext, and persuasion through pressure. And lastly – and most counterintuitively – the legitimacy has shifted, and not for the better. Hard censorship efforts such as the Communications Decency Act and the Children‟s On-line Protection Act were problematic in the wide sweep of their prohibitions, and in their attempts to wish problems away by hoping for technological solutions. Nonetheless, they represented censorship that was overt about its goals and rationales, and that attempted – with great imperfection – to engage countervailing concerns such as the rights of adult Internet users and the risks of overcriminalization.
Soft censorship does not share these virtues. It is less open and transparent about its restrictions, and often less precisely targeted (less narrow, in filtering lingo). Accountability is diffused, particularly when the state seeks to coerce private parties to block material, but then conceals its role. The absence of direct state action limits constitutional redress, and the absence of sufficient competition among broadband providers limits market constraints. Soft censorship is both more normatively problematic than hard censorship, and less restricted by the safeguards that Americans normally rely upon when their government seeks to shape what they say and what they read.
This Article proposes an unexpected solution: if Americans decide, through their elected officials, that certain material should not be readily available on-line, we should admit that we are willing to censor the Internet.
And, we should use specialized legislation to do so – legislation that is careful in what it targets, thorough in the procedural protections it creates, and balanced in the burdens it places upon intermediaries such as Internet service providers. The debate is no longer whether to censor: we are already doing that. The key question is how. We should prefer Orwell's Oceania to Orwell's armchair: censorship that is overt, robustly defended, and carefully limited forces us to take moral responsibility for our actions.
12 March 2012
'Orwell's Armchair' by Derek Bambauer comments that -