Regulating Porn

Ilaw

May 13

9:00 am

6 Years ago – first session/experimental/intense

From the beginning, participation was global.

6 months later – Singapore – with core from that part of the world

2003 – Rio – some Latin American participation

Then – Stanford

Now, back to Cambridge

Holes are in Africa, Greenland and Antartica (I ain’t going there!)

Lecturers

Yochai Benkler

William Fisher

Jerry Kang, UCLA and Visiting Professor of Law

Lawrence Lessig

Charles Nesson

John Palfrey

Jonathan Zittrain

All lectures being videotaped…

Lectures available in DVD form sent ahead to compress this conference into 3 days.

So, Lessig on Regulation of pornography

Application: The selective regulation of speech

1) Law, Norms, architecture, market regulate the space, the target, so to speak.

2) Laws affect things that regulate

            Can change architecture

             Change market

            Modify the norms

We won’t talk about how market affects or architecture – this is a law school isn’t it…

You would thing there is no such thing as regulated speech – afterall “no law” means no law – except of course if you talk to lawyers…  (Lessig has had too much caffeine – very fast).

Obscenity can be banned

Pornography can only be banned for small group (under the age of 18).

How do we deal with regulations that separate the world into kids and adults?

Focus first on the <some> problem

Objective is to forbid access of kids to porn.

So law says you can’t sell or expose to kids

Norms – modest, etc operates to keep it hidden

Market – porn requires money and kids don’t have a lot of that

Architecture – of real space is single most important feature – it is hard to hide the fact that you are a kid.  Real space gives you self-authenticating age…

Requirement of money + self-authenticating age – means this is a space that can be regulated.

Now, move to cyber space –

Same law

Same norms

But

Since cost of producing and distributing digital objects is small – a lot of stuff is free (or practically so when compared to real world)

More fundamentally

Architecture – no one knows you are a dog or a kid in cyber space.  So, this is not a self-authenticating age architecture…  these constraints are invisible.

Restriction of the market/architecture constraints results in explosion of access to porn.

So, how do we solve this problem – since the space seems to be unwelcome to regulation.

LAWS affect things that regulate

The regulator objective can be expressed as:

            If AGE=Minor

                        And

                Content=PORN

            Then

            BLOCK access

            Endif

CDA – Communications Decency Act (1996)

If serving harmful to minors speech to someone under 18 then you go to jail for a long time.  This force people to demand id.  So, you have to verify you are of age to enter this space. 

Zittrain – CDA approach is wrong since you can’t ask for IDs on the Internet.

Lessig – First thing you said is that we can’t do anything about it – that’s a view of net libertarians.  “There is nothing government can do”. 

Second thing you said is government can require you to change architecture – change rules of access. So, government threatened punishment – if you didn’t re-engineer access.

Zittrain – So, you ask for a credit card number assuming kids don’t have them.  I don’t like that idea.

Lessig – If world divided into the two age camps – the CDA solution burdens everybody.  We ought to have a system that only burdens the class that should be burdened (under 18).

Here’s a solution- imagine an account set up that broadcasts everywhere you go on the Internet – hey, I’m a kid!  So such sites would then block the site…

Zittrain – but then you are telling all pornographers who the kids are…  That seems like a kids privacy problem making them vulnerable.

Lessig – ok, rather than broadcasting that I’m a kid – we say browsers have kid mode setting and if turn on then the kid’s browser will be aware of a tag on content (harmful to minors tag)

This ideal doesn’t suffer from first complaints of CDA – thought parents have to learn to set preferences on the browser – so burden is being set on parents and not kids – it doesn’t identify who is on the internet and third – it affectively assures Internet becomes age aware.

Zittrain – so your third idea slides in – how do you figure what on the net is harmful.

Lessig – so you fix the problem

Zittrain – I am going to show how MS fixed this problem. The browser allows you to set what you want to be allowed – various degrees of visual/textual things like violence, language, nudity, etc.  Depends on site rating itself

Lessig – So, how does Netnanny work?

Zittrain – a subscription that updates to your machine what is offensive and what is not…  But the lists are trade secrets

www.sethf.com – has list on filters, content advisors  - their methods and results

But, the content filter from MS won’t let you see the sethf site… bks it doesn’t have a rating (CNN isn’t allowed either)

Lessig – Seth discovered that when you become a critic – the netnanny type sites then blacklist your site…  hmmm…

Problem 1 – secret lists (so, they block sites critical of them preventing their customers from seeing the criticism – sounds like Stalin!)

Problem 2 – enables people to block content on criteria that has nothing to do with sexually explicit speech (overinclusive). 

Zittrain – PICS – platform for Internet Content Selection…  It’s a way for anybody to tell the world about your view on sites.  Luny left, Christian Right – all get to broadcast their ratings. 

The servers are transparent so you know who is blocking whom…

Lessig – this takes care of the first problem. Since the lists are now public.  But what about the second problem – the transparency lets your criticize the ratings, etc… But it is basically a general architecture that is way beyond what got the discussion goind

Zittrain – the Horizontal portability problem – You solve a narrow problem with a solution that scales – i.e. this facilitates blocking all sorts of speech.

Lessig – do we want to build an architecture that turns the Internet into one of the most effective censors that we have ever seen.

Zittrain – maybe only go back to category that can truly hurt kids.

Lessig – Idea – go back to harmful to minors rule.  So, government says enable tags that identify sites as such.

Problem with this is how do we know who is regulated and by whom?  How do you deal with problem that standards (as to what is offensive) are different around the world? 

Zittrain – if we have a global internet – can you have internet respect local boundaries – supply side filtering.

SO, you look for white supremacist group – you get stormfront on Google US – but in Germany – you are deprived. 

Lessig – but what about moving offshore – build a site a hundred miles from England – on an old anti-aircraft platform – free from any jurisdiction.  Giving people total access to a free internet. (Sea Land story). 

Zittrain

(Roy, the owner, works at a shellfish processing plant by day but the rest of the time he is known as Prince Roy).  One law on Sea Land is no child porn as the internet provider would cut them off.

Did study showing number of sites in China being blocked… 

Services like anonymizer – lets folks get through such blocks – (Though the service US provides to Iran does block pornography – but blocking “ass” also blocks embassy – go figure.  If it contains “bush” or “gay” you can’t get there.)

Services in countries like Saudi Arabia, The Pennsylvania AG office…which can ask ISP’s to block sites under PA law.

Lessig – is there an ability to question the decision by PA AG regarding a decision to block the site?

Why hasn’t there been a response from Seth?

Seth – I don’t touch child pornography.

Zittrain – people are sensitive to being portrayed as supporting child porn.

Lessig – tomorrow is the day oral arguments will be heard in federal district court by Center for Digital Technology against Pennsylvania law.

Zittrain :

Is it a good thing or a bad thing to create independently securable neighborhoods?

(hmm.. anonymizer example may be good to use in legislative discussions…)

Lessig

In real space, if you required stores to put signs out front “Pornography Here” – that would be chilling and a burden on say Barnes and Noble.

In Cyber space – the chill effect and the burden both diminish…

Similar argument against suggestions requiring spammers to label their spam as spam.

If law requires tags – the incentives exist for manufacturers to enable such. 

But, there are also norms – to discourage kids to access. 

Congress passed CDA a second time – where Catholic Teachers testified against law – we want a world where kids are trained to do the right thing – morals education vs law solution.

Seth – discussed sites, like language translation sites, which get blocked because they create “work arounds”… Google Cache… another loophole.

Lessig – Remember our solution only requires content provider to apply the tag. (But what happens if you go through a relay site).

Govt regulates speech by a)hiding it or b) changing the mix. So, you create speed bumps – making it more difficult but not impossible.

End of discussion