Saturday, February 02, 2008
COPA, the new content labeling bill, and the First Amendment: playing Devil's Advocate
The previous posting notes that Congress has taken note of the content labeling concept, and proposing regulations of commercial sites requiring them to be labeled for HTM content. As noted, there is a large number of questions to be answered. For example, many web-authoring software packages don’t yet provide hooks for installing content labels, and there is confusion as to what labels would be recognized by the law (as several companies and organizations work on the issue now; I don’t yet know where Blogger and Wordpress stand on this issue). Search engines are starting to work with ICRA and provide filtered searches for labeled content. That could pressure more webmasters to use labels. Another problem is that sometimes every file (even “G rated” files) on a site must be labeled to certify a site, and that is still too cumbersome. And the new federal law, as proposed, would require that files with HTM content not even show up from a search, but be introduced by introductory warning pages. I wonder if the law would also require the webmaster to have all files labeled with something, even the "G-rated" files. For many older sites, this would be too cumbersome, unless more software products are developed.
It’s well to take a deep breath here and recall how we reached this point in our debate of internet censorship and filtering. The “family values” crowd is always pointing out that parents make real sacrifices to raise kids in a stable environment, and are burdened in keeping up with technology, and therefore that individuals without children should be expected to restrain themselves online to make it easier for parents, who should not be expected to keep up with every technological gimmick. Indeed, the wording of the 1998 COPA law tried to recognize this idea of “shared responsibility” with parents in its wording. One disturbing feature of this argument is that the Internet has allowed newbies to publish and gain global audiences with little or no capital or formal financial accountability. This, some say, should not be perceived as a fundamental right when it runs up against major social cohesion issues. Indeed, one wonders whether, had all of the issues around search engines, social networking, reputation, and security risks been anticipated and grasped around 1990, the general public would have been turned loose to “have at it” with the Web, at least without more formal requirements for training and capital resources. (One can imagine how a number of other social and political changes might have progressed differently.) The Supreme Court, however, in its rulings on the CDA (1997) and two rulings on COPA (2002, 2004), has come down forcefully on the principle that, in our implementation of the First Amendment (not always universally appreciated by the general public) government may not censor on conceptual content even when the means of dissemination is novel. The 1997 CDA opinion mentioned the risk of the “heckler’s veto” but does seem open to the idea that efficient labeling mechanisms might one day exist, and should be used if they actually work..
The labeling issue needs some real leadership and coordination, especially in the private sector.