Harvard Law School Berkman Center for Internet & Society The Berkman Center for Internet & Society at Harvard Law School

Andrew Shapiro
Biography Current Research Bibliography

The Danger of Private Cybercops

By Andrew L. Shapiro

New York Times, December 4, 1997

At a conference this week on protecting children from the perils of the Internet, consensus emerged on a strategy to keep minors away from cyberporn: let the private sector handle it. Rather than relying on Government regulation, Vice President Al Gore said, parents should look to industry for tools that will let them filter Internet content.

Civil libertarians are largely responsible for the success of this approach. Indeed, they convinced the Supreme Court that it would do less harm to free speech than the Communications Decency Act, the law criminalizing on-line indecency, which the Court struck down in June.

Yet those advocates may now regret what they wished for, because some of their schemes seem to imperil free speech more than the act did.

For example, software that users install to block out certain Internet content often excludes material that isn't indecent. One such program, Cybersitter, prevents users from visiting the site of the National Organization for Women. And the makers of these programs often won't even tell adults what sites have been blacklisted.

Still worse is a protocol known as PICS that changes the Internet's architecture to make it easy to rate and filter content. PICS is theoretically neutral because it allows different groups to apply their own labels, but could hurt the Internet's diversity by requiring everything to be rated. Small, unrated sites would be lost.

Moreover, these technologies enable what might be called total filtering, where objectionable speech of any type can be screened out effortlessly. Benign as this may seem, such filtering might be used not just by individuals but by employers, Internet service providers and foreign governments seeking to restrict information that others receive.

The ground rules for an open society could also be undermined. When total filtering meets information overload, individuals can (and will) screen out undesired interactions, including those crucial to a vibrant political culture -- the on-line equivalents of a civil rights protest or a petition for a reform candidate. In such a filtered society, civil discourse and common understanding will suffer.

This should lead us to think long and hard about the way that technology can be an even more cunning censor than law. That's not to say that Government solutions are problem-free or desirable. But at least when the state goes overboard, speech defenders have the safety valve of a First Amendment lawsuit. This legal recourse is not an option when politicians simply persuade industry and consumers to use speech-inhibiting tools. Who knows, free-speech advocates may find themselves nostalgic for public regulation after all.