Qwest has announced that it will block websites with child pornography, as determined by the National Center for Missing & Exploited Children. Qwest’s announcement comes on the heels of Time Warner and Verizon’s agreement with New York to remove the alt.* Usenet hierarchy from their servers.
Qwest’s plan is more troubling than the Time Warner and Verizon plan. Usenet is a shell of its former self, with more noise than content these days. Cutting off the alt.* heirarchy—even the overbroad step of removing all alt.* as opposed to alt.binaries.*—won’t really impact people who care about those groups. The impact is symbolic more than practical: another death knell for the old pre-commercial Internet some of us knew.
Removing Usenet groups is also an editorial decision. An ISP hosting newsgroups has to decide what newsgroups to carry, just as a library must choose which books to stock. An ISP could choose not to carry certain newsgroups because of disk space or bandwidth concerns. Given those concerns, the surprise is that Verizon and Time Warner were still carrying some of the alt.binaries.* groups until now.
Qwest, however, will be blocking traffic to third-party web sites. That’s a fundamentally different model than removing newsgroups. An ISP that controls what sites you may or may not visit is acting as a carrier, not a host, and in the U.S. we’ve grown accustomed to carriers forwarding all our communications regardless of content or destination. Sometimes that’s legally required because the letter carriers and phone companies are common carriers, who are required to carry traffic without preference. ISPs have successfully avoided that status.
One of the major questions in Qwest’s arrangement is the role of the National Center for Missing & Exploited Children. How accurate will its list of bad sites be? What are the criteria? Is any legal due process involved, or will it just be a list of sites the NCM&EC decides have child pornography? Will there be an appeal process?
Derek Bambauer points out that the U.S. is gradually joining the list of countries that filter Internet access in some way. As Professor Bambauer says, we typically think of countries that filter the Internet as “bad” (e.g., China, Iran, etc.). If we want to avoid the U.S. also being a bad Internet filterer, we need to consider how much filtering is appropriate, if any. Some interesting edge cases come up in that analysis. Consider these two cases where some Internet blocking would be considered (by many) to be good:
Blocking offshore child porn servers. Law enforcement has limited ability to deal with servers hosted outside the U.S. Suppose the FBI finds a server with child pornography that’s hosted in a country not overly prone to cooperating with U.S. law enforcement. A court grants an injunction against the site. Should the FBI be able to tell the ISP to block all access to that site? What if a court hasn’t granted an injunction? What if it’s the NCM&EC instead of the FBI? What if the site is text-only stories of underage sex? What if it’s text-only stories of consensual adult sex? At what point, procedurally, do we decide that blocking Internet traffic is okay?
Spam. It’s almost as hard to find someone in favor of spam as it is to find advocates for child pornography. Wouldn’t it be great if we could block spam at the source, or in the Internet backbone, before it ever reached a mailbox? But a lot of spam filtering is based on content (a lot of it isn’t—some techniques that would be useful at the ISP level involve checking that the claimed sender and source address are valid, which is more a matter of validating envelope information than content). If we take the position that all ISP content-filtering is bad, how can an ISP do anything about spam?
I don’t have any good answers to these. But I can suggest a few factors to include in the analysis:
How close to the edge is the filtering happening? In general, I think the closer the filtering is to the network edge, the more likely it is to be appropriate. If my local Internet provider blocks P2P traffic, I have other providers to choose from. If the handful of major backbone carriers all block P2P, I have no recourse. Consumers don’t have as much ISP choice as we did back when there were thousands of dial-up ISPs, but we do have some choice. We can avoid last-mile filtering, but backbone filtering catches everyone.
How much legal process is involved in the filtering decision? A court-ordered block has more legitimacy than one unilaterally declared by a private organization.
How transparent is the filtering decision process? This goes to some of the questions above. Can anyone see the list of blocked sites, or is it secret? Is there a process to remove oneself from the blocked list? If I can’t see the whole Internet, I’d like to know what it is I’m not allowed to see.
How much of the filtering decision is really government action in disguise? The First Amendment limits what the government can do directly to limit speech. But can the government suggest to ISPs that it would be very much in their interests to do things the government couldn’t force them to do? The recent FISA bill (now law) tells ISPs that even if what the government asks is illegal, Congress will bail them out anyway. The line between government action and private action is blurred when ISPs decide to limit information access by agreement with state Attorneys General.
We need to develop a policy that considers these factors. The alternative is ad-hoc filtering decisions based on least-common-denominator market forces and “suggestions” from government entities. If some form of ISP filtering is inevitable (and even desirable), we need to make sure that the filtering is as benign and transparent as possible.
