Academic

Private Sector Censorship: Cuomo Outsources Content Ban

By Dan Filler

As both Corey Yung and Orin Kerr noted yesterday (along with large and small news outlets), New York Attorney General Andrew Cuomo reached an agreement with three major Internet Service Providerss (ISP's) (Sprint Nextel, Verizon, and Time Warner Cable) to block access to particular newsgroups and websites that traffic in child pornography.  On the upside, this agreement may reduce the proliferation of these images.  The downside, as is always the case when the government gets involved in the business of suppressing speech, is that this agreement models creative and scary approaches to censorship.

Private ISP's are (largely) free to shut down any information streams they choose - whether that be child pornography or criticism of their own brand.  We don't call that censorship - we call it the free market.  But when these companies manage their own litigation risk by agreeing to censor material, we start to see how markets don't necessarily provide free information flow.  And when the litigation risk is created by government agencies, things get even stickier.  Here, pressure from the New York Attorney General will result in changes in information flow for people across the entire country - because Verizon isn't just going to block sites for New York customers.  This agreement shows how 50 different Attorney Generals can pressure ISP's to block all manner of material - some of it legal in 49 other states - all without exerting any formal governmental censorship.  If Troy King in Alabama thinks that man-on-man sexual images are obscene under Alabama community standards, he can threaten to sue Time Warner - unless Time Warner blocks gay sex sites.  If Time Warner voluntarily blocks the material, it's just the market acting rationally to reduce litigation risk - right?

A particularly troubling aspect of this case involves the challenging problem of determining which sites to block.  Part of the task is reasonably easy - the ISP's  are creating software that will search out and block sites distributing known child porn images...or at least that's what a non-techie like me understood.  But here's the bigger worry: the project of identifying additional "bad sites" seems to have been outsourced to an interest group - the National Center for Missing and Exploited Children (www.missingkids.com) - which has been a powerful political engine pushing for that whole basket of sexual offender laws which have been widely criticized as examples of ineffective legislation primarily designed to pander politically.  NCMEC members may have their hearts in the right place, but I'm not sure that they'd be the group I'd assign the task of deciding which content Americans can or cannot see.   

It's unclear the degree to which NCMEC censorship choices will be reviewed by Cuomo, the ISP"s, or anyone for that matter.  One thing is clear: a certain 501(c)(3) out of Alexandria, Virginia, just got a lot more powerful.

Full post as published by The Faculty Lounge on June 11, 2008 (boomark / email).