Message-Id: Date: Thu, 25 Jul 1996 23:18:05 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Enough To: Multiple recipients of list CYBERIA-L At 6:55 PM 7/25/96, Ray Everett-Church wrote: >I love it.... only on Cyberia-L could you get a rebuttal to an acceptance >of an apology. :) By now you know me -- sometimes I get into moods in which I try to rebut every false statement I see. --Mike --------- Mike Godwin EFF 510-548-3290 Message-Id: <199607261320.JAA04635@mailserver2.tiac.net> Date: Fri, 26 Jul 1996 09:20:39 -0400 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Warren Agin Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L At 07:31 PM 7/25/96 -0700, you wrote: >>Of course a lot of the pornography sites on the Internet include links to >>software manufacturers like Surfwatch. This means that performing an Alta >>Vista search for link:"http://www.surfwatch.com" will produce an extensive >>list of pornography sites. Try it, it works! Bet you Surfwatch doesn't >>protect against that!! > >Actually, it does protect against that. Warren, install Surfwatch and try >it, and you'll find that Alta Vista won't let you get access to those >specific sites, as well as to many other sites that are blocked by other >algorithms. It won't even let you get to the LISTS of sites. > >You're making the same error the government's witness net.porn witness >made, and that, to a vastly greater extent, Eugene Volokh made -- you >started generalizing about a technology without having used it first. > > You are correct that I have not tried Surfwatch. Although, in my favor I should say that I visited its website to see if a demo. copy is available for downloading (it is not and the product "demo" available there is rigged). I can see how surfwatch will prevent access to the pages themselves, but are you saying it will prevent altavista from returning a list of sites? What if that list does not contain any actually obscene words? Will it block the return of a statement like: The Adult Site for Kids: Kids, come to this site to view pictures your parents don't want you to see. Also, if Surfwatch will block the return of an Altavista list which contains a dirty word, doesn't that hinder the use of Altavista? For example: couldn't a search for "bunnies" find a webpage description "click here for pictures of nude playboy bunnies" thus triggering the Surfwatch block and preventing the little kid from ever obtaining any information on innocent little bunny rabbits, or does Surfwatch rewrite the altavista inquiry return. Meanwhile, unless you provide test copies of the software for people to download, don't grouse about them not having used it. > >--Mike > > > >--------- > >Mike Godwin >EFF >510-548-3290 > > ___________________________________________________________________ Warren E. Agin Contract Legal Services and Internet Consulting 112 Fulton Street Boston, Mass. 02109 (617) 723-8684 agin@tiac.net ___________________________________________________________________ Message-Id: Date: Sat, 27 Jul 1996 01:02:47 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L At 6:20 AM 7/26/96, Warren Agin wrote: >You are correct that I have not tried Surfwatch. You are to be applauded to have admitted what Eugene Volokh, who gave Slate readers the impression that he was knowledgeable about the technology, would not. >I can see how surfwatch will prevent access to the pages >themselves, but are you saying it will prevent altavista from returning a >list of sites? What if that list does not contain any actually obscene >words? The keyword blocking algorithms are not limited to what you call "obscene words" (I think you mean "profane words," since a word alone is unlikely to flunk the test of Miller v. California). I don't purport to have a list of the words that Surfwatch uses in that part of its program, but let's suppose that list includes the word "erotica." Surely you agree that the word "erotica" (for example) is neither legally obscene, nor profane, nor even "indecent." Does this answer your question at all? >Will it block the return of a statement like: > >The Adult Site for Kids: Kids, come to this site to view pictures your >parents don't want you to see. I don't know, actually. But if the Surfwatch keyword list includes the word "Adult", it should. But even if it doesn't, I'm not sure I understand what point you're trying to make. What harm is associated with your example here? Even if the site description you use as an example is not blocked, *what harm does this site description do? I understood you earlier to be suggesting that an Alta Vista search for "http://www.surfwatch.com" would generate a list of porn sites *that children can then access.* If that's not what you meant, I apologize. Even so, what if a) the list itself isn't blocked, and b) children can keep and read *the list* after this search, so what? I knew that Playboy was "Entertainment for Men" long before I ever got access to a copy. >Also, if Surfwatch will block the return of an Altavista list which contains >a dirty word, doesn't that hinder the use of Altavista? Why, of course. Hindering the use of Altavista in ways that block the return of content featuring "a dirty word" would be a selling point for Surfwatch -- feature, not a bug. >For example: >couldn't a search for "bunnies" find a webpage description "click here for >pictures of nude playboy bunnies" thus triggering the Surfwatch block and >preventing the little kid from ever obtaining any information on innocent >little bunny rabbits, or does Surfwatch rewrite the altavista inquiry return. Hmmmm. Your scenario implies either a) that the "nude playboy bunnies" description you posit will appear on *every page* of the Alta Vista search results for "bunnies," or b) that an Alta Vista search for "bunnies" will yield only a single page of results. Unless you think (a) and/or (b) comprise the whole range of possible responses, the terrible outcome you posit here ("preventing the little kid from ever obtaining any information on innocent little bunny rabbits") has no predicate. >Meanwhile, unless you provide test copies of the software for people to >download, don't grouse about them not having used it. You mean Surfwatch denied your request for a review copy, Warren? That seems very unlike them. When did you contact them and request a review copy? In any case, I never grouse about about people merely for not having used Surfwatch. My mother, for example, has never used it, but it has never occurred to me to grouse about her for that reason. My grouses have been limited to those who publish false factual statements about Surfwatch without having used the program or otherwise researched it. I think that all but one of us on this list agree that this would be an irresponsible thing for, say, a lawyer to do. --Mike --------- Mike Godwin EFF 510-548-3290 Message-Id: Date: Sat, 27 Jul 1996 06:20:11 PDT Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Bob Stock Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L --- On Sat, 27 Jul 1996 01:02:47 -0700 Mike Godwin wrote: >You are to be applauded to have admitted what Eugene Volokh, who >gave Slate readers the impression that he was knowledgeable about >the technology, would not. [snip] >My grouses have been limited to those who publish false factual >statements about Surfwatch without having used the program or >otherwise researched it. I think that all but one of us on this >list agree that this would be an irresponsible thing for, say, a >lawyer to do. Don't you think that you've made your point, Mike, and that repeating it at every opportunity is inappropriate? Also, I don't think you should presume you know what everyone on this rather opinionated list would agree to. I hope that these comments will not inflame you further; it is just a simple request for you to let it go and move on. ------------------------------------- Bob Stock 2-L-2B http://www.geocities.com/Paris/1206/ ------------------------------------- Message-Id: Date: Sat, 27 Jul 1996 09:46:24 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: D B McCullagh Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L In-Reply-To: On Sat, 27 Jul 1996, Mike Godwin wrote, quoting Warren Agin: > The keyword blocking algorithms are not limited to what you call "obscene > words" (I think you mean "profane words," since a word alone is unlikely to Right. Last I checked, SurfWatch blocks pantyhose, lingerie, cunnilingus, prostitution, anna-nicole-smith, bondage, samantha-fox, pierce, and purity. Those words are hardly obscene. Or profane. > >Will it block the return of a statement like: > > > >The Adult Site for Kids: Kids, come to this site to view pictures your > >parents don't want you to see. > > I don't know, actually. But if the Surfwatch keyword list includes the word > "Adult", it should. It does. It also blocks mapplethorpe, couples, and romance. > I understood you earlier to be suggesting that an Alta Vista search for > "http://www.surfwatch.com" would generate a list of porn sites *that > children can then access.* If that's not what you meant, I apologize. I think what Warren meant was an AltaVista search for *links* to SurfWatch could return sites that aren't blocked by SurfWatch. Keep in mind that SurfWatch's nix-list is anything but exhaustive -- it's about the same size as CyberPatrol's and the overlap is less than half. For instance, SurfWatch doesn't block http://www.cyberpeep.com/ or http://www.hothunk.com/, which CyberPatrol does. And its pattern-matching won't catch those site names as smutty. What's a bit disturbing is that at least some of the smut-blockers would censor this conversation on cyberia as inappropriate for <18ers. > >For example: > >couldn't a search for "bunnies" find a webpage description "click here for > >pictures of nude playboy bunnies" thus triggering the Surfwatch block and > >preventing the little kid from ever obtaining any information on innocent > >little bunny rabbits, or does Surfwatch rewrite the altavista inquiry return. > > Hmmmm. Your scenario implies either a) that the "nude playboy bunnies" "Bunny" is blocked by SurfWatch. -Declan Message-Id: Date: Sat, 27 Jul 1996 10:32:15 PDT Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Bob Stock Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L --- On Sat, 27 Jul 1996 09:46:24 -0700 D B McCullagh wrote: >It also blocks mapplethorpe, couples, and romance. Together or separately? :) I think they should leave romance in and only block it for adults. ------------------------------------- Bob Stock 2-L-2B http://www.geocities.com/Paris/1206/ ------------------------------------- Message-Id: Date: Sat, 27 Jul 1996 14:51:29 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L Bob Stock writes: >[snip] > >>My grouses have been limited to those who publish false factual >>statements about Surfwatch without having used the program or >>otherwise researched it. I think that all but one of us on this >>list agree that this would be an irresponsible thing for, say, a >>lawyer to do. > >Don't you think that you've made your point, Mike, and that >repeating it at every opportunity is inappropriate? No. No. The damage done by the Slate article has not been corrected. This continues to be a rankling problem. >Also, I don't >think you should presume you know what everyone on this rather >opinionated list would agree to. I didn't "presume" I "know what everyone on this rather opinionated list would agree to." I used the words "I think" (see your excerpt from my posting above). I meant to be expressing my intuition, not any presumption of knowledge. If I had said "I know what everyone on this list believes about this issue," you might have a point. When it comes to writing and reading, Bob, precision is everything to a lawyer, IMHO. I had tried to express myself precisely -- hoping to avoid the misunderstanding of my meaning that you exhibit here. That I have failed to avoid that misunderstanding is obviously attributable to my failure as a writer. As it happens, even those members of this list who have objected to my pursuing this issue have not done so based on any argument that what Eugene did was ethical or sound. This suggests (but does not amount to proof of) a hypothesis as tof what some large percentage of the members here think about the latter issues. Furthermore, if Eugene had confined his unresearched speculations to this list, rather than publishing them as authoritative truth in Microsoft's journal, I would have stopped referring to this altogether by now. Or, to put it somewhat differently: I may post my intuitions or speculations to this list now and then. But I would not publish them in SLATE or THE NEW REPUBLIC and represent those intuitions and speculations as solid fact. Eugene clearly takes a different view about the ethics of doing the publishing intuitions and representing them as facts. --Mike --------- Mike Godwin EFF 510-548-3290 Message-Id: Date: Sat, 27 Jul 1996 17:11:47 PDT Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Bob Stock Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L --- On Sat, 27 Jul 1996 14:51:29 -0700 Mike Godwin wrote: >No. No. The damage done by the Slate article has not been >corrected. This continues to be a rankling problem. Assuming for the moment that damage has been done and assuming further that it has not been corrected, how will your harping on it correct it? It appears to me that you want some sort of justice in the matter, some sort of final ruling that will satisfy your outrage. Perhaps that's understandable from your vantage point, but I'm not sure that your methods are the most appropriate to achieve your goals. >I used the words "I think" (see your excerpt from my posting >above). I meant to be expressing my intuition, not any presumption >of knowledge. If I had said "I know what everyone on this list >believes about this issue," you might have a point. I never thought you actually *knew* what everyone else on the list thought, and, so, I suppose, if we are going to nitpick words, perhaps I should have said that it was presumptuous of you to *think* that. Is that better? :) Words may be part of our trade, but they and we are not perfect. Sometimes tone says as much as words. >As it happens, even those members of this list who have objected to >my pursuing this issue have not done so based on any argument that >what Eugene did was ethical or sound. This suggests (but does not >amount to proof of) a hypothesis as tof what some large percentage >of the members here think about the latter issues. I'm sure that it's safe to assume that; as you say, it's not proof. My guess (not think, not know, but guess, less presumptuous, but still presumptuous) is that it's more complex than you make it out to be for many members of the list. We may never know. Most people appear to be shying away from the controversy. >Eugene clearly takes a different view about the ethics of >doing the publishing intuitions and representing them as facts. And again. I will try to make this my last post on this subject. It was probably ill-advised for me to address it in the first place. ------------------------------------- Bob Stock 2-L-2B http://www.geocities.com/Paris/1206/ ------------------------------------- Message-Id: Date: Sat, 27 Jul 1996 22:32:30 -0500 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mac Norton Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L In-Reply-To: On Sat, 27 Jul 1996, Bob Stock wrote: > > I'm sure that it's safe to assume that; as you say, it's not proof. > My guess (not think, not know, but guess, less presumptuous, but > still presumptuous) is that it's more complex than you make it out > to be for many members of the list. We may never know. Most people > appear to be shying away from the controversy. It's not safe to assume anything about the views of any member of this list from their silence. Silence here does not give consent. Nor even acquiesence. The mere fact that I, for one, choose not to engage in what I consider to be an uninteresting discussion should be taken to mean no more than that. Well, and also that I think Eugene's a big boy and can stand up for himself quite well, and Mike's never needed help.:) Other than that, I find myself once again where Rhett was with Scarlett at the end of "Gone With The Wind." MacN Message-Id: Date: Sat, 27 Jul 1996 22:13:09 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L At 5:11 PM 7/27/96, Bob Stock wrote: >Assuming for the moment that damage has been done and assuming >further that it has not been corrected, how will your harping on it >correct it? By refusing to let wrongness of what has been done be forgotten, among other things. >It appears to me that you want some sort of justice in >the matter, some sort of final ruling that will satisfy your >outrage. How presumptuous of you to think you know what I want. >>I used the words "I think" (see your excerpt from my posting >>above). I meant to be expressing my intuition, not any presumption >>of knowledge. If I had said "I know what everyone on this list >>believes about this issue," you might have a point. > >I never thought you actually *knew* what everyone else on the list >thought, and, so, I suppose, if we are going to nitpick words, >perhaps I should have said that it was presumptuous of you to >*think* that. Is that better? :) No. Unless you truly think that a hypothesis is presumptuous. >Words may be part of our trade, >but they and we are not perfect. Sometimes tone says as much as >words. If you are asserting here that tone alone can constitute a presumption to know what everyone on the list thinks, then I suggest you are not in a position to criticize someone else's purported presumptuousness. >>As it happens, even those members of this list who have objected to >>my pursuing this issue have not done so based on any argument that >>what Eugene did was ethical or sound. This suggests (but does not >>amount to proof of) a hypothesis as tof what some large percentage >>of the members here think about the latter issues. > >I'm sure that it's safe to assume that; as you say, it's not proof. >My guess (not think, not know, but guess, less presumptuous, but >still presumptuous) is that it's more complex than you make it out >to be for many members of the list. We may never know. Most people >appear to be shying away from the controversy. And now you offer a hypothesis of your own. Fine. But the way to test hypotheses, as we know from Sir Karl Popper and elsewhere, is to expose them to the risk of refutation. That is what I did. And my hypothesis remains unrefuted. To wit: It is still the case that no one has stepped forward to defend Eugene's decision not to research the technology he dismissed or his attempts to obscure his lapse, including the goofy attempt to construct a theory that the constitution -- "as a matter of 1st Am. law" -- would prevent parents' use of software filters from qualifying as a less restrictive means of solving the purported problem addressed by the CDA. Nor has anyone defended Eugene's confusion/conflation of "indecent" content and "sexually explicit" content, which no one who purports to have read Pacifica, much less presents himself as an expert on First Amendment question, can justify. >>Eugene clearly takes a different view about the ethics of >>doing the publishing intuitions and representing them as facts. > >And again. I will try to make this my last post on this subject. >It was probably ill-advised for me to address it in the first place. Seems like it. --Mike --------- Mike Godwin EFF 510-548-3290 Message-Id: Date: Sat, 27 Jul 1996 22:18:03 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Surfwatch Letter to Slate Says Article Is Factually Inaccurate To: Multiple recipients of list CYBERIA-L At 8:32 PM 7/27/96, Mac Norton wrote: >It's not safe to assume anything about the views of any member >of this list from their silence. Silence here does not give >consent. Nor even acquiesence. Absolutely true. And no one here has assumed anything. >The mere fact that I, for one, choose not to engage in what I >consider to be an uninteresting discussion should be taken to >mean no more than that. On the other hand, it is worth noting, within this tread at least, that no lawyer or academic has stepped forward to defend Eugene's lapses in scholarship in the Slate article or in this thread. >Well, and also that I think Eugene's a big boy and can stand >up for himself quite well, and Mike's never needed help.:) :1,$s/can stand up for himself/can run away or otherwise obsure his mistakes/ --Mike --------- Mike Godwin EFF 510-548-3290 Message-Id: <9607291946.AA3085@worldcom-37.worldcom.com> Date: Mon, 29 Jul 1996 17:22:01 -0400 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: "Robert W. Hamilton" Subject: Merits of Surfwatch's Rebuttal Comments: cc: Eugene Volokh , Mike Godwin To: Multiple recipients of list CYBERIA-L While I write this post with a substantial amount of trepidation, I continue to believe that the MERITS of this subject warrant further inquiry. I am hopeful that Eugene has not abandoned the discussion because of Mike's attack's on his professional integrity. Without question, the two people whose posts provide me with the greatest amount of insight on this list are Eugene and Mike. Since Eugene has either chosen not to or been unable to participate further, I now find myself in the curious position of defending, to some degree, the position he took in the Slate article, in the hope that the response of others will provide me with greater insight when debating the CDA-types (which I do frequently in public speaking engagements). More to the point, it struck me that Friedland's rebuttal of Eugene's comments on Surfwatch (which Mike posted to this list) was rather weak. Here are my reactions: Friedland writes "To the editors of Slate: >. . . While the article brings to light some interesting legal concepts, >when discussing our product, SurfWatch, it is both specifically inaccurate >as to our product and generally flawed in its understanding of how >filtering can work. These are Friedland's two main assertions: that Eugene's "discussi[on] of" Surfwatch is "specifically inaccurate as to our product" and that Eugene's discussion of Surfwatch is "generally flawed in its understanding of how filtering can work." I don't think Friedland establishes a convincing case for either assertion. Friedland writes: >In support of his general argument regarding what he sees as the inability >of technical solutions to solve a constitutional probelm of "spillover," >Professor Volokh mischaracterizes our product, SurfWatch, as follows: > "Parents can get software--SurfWatch is one popular brand--that keeps > their computers from accessing any place that's on a list of "dirty" > locations, a list selected and frequently updated by the software > designers...Well, it depends on how much shielding of children > you're willing to sacrifice. The SurfWatch solution is > limited by the software designers' ability to keep up with the latest > "dirty" places. Dozens of Web sites are being added daily, and you > never know what will get posted tomorrow even on existing sites or > newsgroups. Some things will inevitably be missed. The purely > technological fix, then, is less restrictive than the CDA, but > it's also less effective." > >It is unfortunate that at no point did Prof.Volokh contact SurfWatch to >determine how the software works or how effective it might be, rather >relying on his own intuition about how such software might work. Ummm, on what basis is it appopriate for Friedland to assert as fact that Prof. Volokh had simply relied "on his own intuition about how such software might work"? Is it not reasonable to believe that Eugene's reference to Surfwatch was based on his review of written accounts of how the software works (the same as my knowledge re Surfwatch, I might add). That is hardly the same as relying on "intuition." I know Mike believes that it is Eugene's obligation to disclose his references, but I don't agree with that assertion. The article was not presented a research paper nor as a legal brief. It was a discussion piece. I am not aware of the authority on which Mike relies for his belief that Eugene is under a professional obligation to disclose all references on which he relies in publising such a discussion piece. In any event, that question is irrelevant--it doesn't justify Friedland's uncivil and inappropriate accusation that Eugene was relying on no reference material and instead was simply using his "intuition." >Had he done so, he could have avoided factual errors that, in my view seriously >undercut his interesting and potentially important article. > >By failing to do so, he missed some important facts about SurfWatch: > >1) SurfWatch uses a variety of methods to filter access to the Internet, >not merely a "list" of sites. SurfWatch offers both exclusive and inclusive >filters, more commonly known as black lists and white lists. Well, Eugene did NOT say that SurfWatch does not use white lists. His statement was: "Parents can get software--SurfWatch is one popular brand--that keeps their computers from accessing any place that's on a list of "dirty" locations, a list selected and frequently updated by the software designers." That statement is not a "factual error" as suggested by Friedland. It is a true statement. Even Friedland's retort acknowledges that Surfwatch does use black lists, and it was the effectiveness of the black list filtering technology as to which Eugene was commenting on. Sure, Eugene could have chosen also to address the merits of white list filtering technology in his article (and could have mentioned that SurfWatch enables the user to use such technology as well), but he didn't. His failure to do so is my main criticism of the piece. But that doesn't mean that his discussion of the black list technology is factually inaccurate, does it? One could argue that Eugene's statement "implies" that SurfWatch ONLY uses a black list and does nothing else. I don't think that is a fair reading of his statement, but in any event this is a valid concern really only to the makers of SurfWatch who feel their product has been shortchanged. It is not an indictment of Eugene's discussion of the inherent limitation of black list filtering technology. Friedland then writes: >Inclusive >filters have the capability of blocking 100% of the inappropriate sites >selected by a user. This means that two of the issues raised by Prof. >Volokh -- the incidental barring of sites that are not, in fact, legally >'indecent', and the growth in the number of Web sites around the world -- >are directly addressed by our product by putting filtering choices in the >hands of the user. A Surfwatch user has the ability either to a) add >particular Web addresses to an 'inclusive' list of acceptable sites or b) >add additional addresses or words to the 'blocked' list But to say that the problems with black list filtering that Eugene points out "are directly adressed by" SurfWatch does not necessarily rebut Eugene's point regading the effectiveness of black list filtering technology. That a particular user "has the ability" to add additional addresses to the black list does not refute Eugene's main criticism of the technology: "Some things will inevitably be missed." The individual user (the parent) has to find out about the additional addresses before his kids do and take the time to add them to the black list. That is not going to happen all the time. (Kids email each other all the time, and adults sometimes unwittingly or intentionally email kids with messages reporting adult sites that may not yet be on a particular product's black list. I know this for a fact based on personal experience, Mike.) If Friedland (or Mike) thinks that Eugene's main point regarding the effectiveness of black list filtering technology is wrong, they have yet to demonstrate that error to me. Eugene did not address the merits of white list filtering technology in his article. Personally, I think it is this potential of the medium that makes regulatory schemes like the CDA unconstitutional. I am not personally familiar with how SurfWatch builds its default white lists (before they are added to by the user), but the concept of pre-approved sites for your kids' online accounts makes the need for government bans like the CDA less than compelling in my judgment. Eugene has expressed his disagreement with that judgment on this list, but the disagreement is, in the end, one based on differences of value (and legal analysis), not one that is caused by false factual predicates (unless Eugene really thinks that the white list technology is inherently ca pable of permitting kids access to "only a few" sites....) In any event, the disagreement is irrelevant to the factual accuracy of his statements in the Slate article, which address only the merits of the black list technology, not the white list concept. Friedland then writes: >2) SurfWatch filter includes both a datbase of sites as well as a list of >word and word associations used by our proprietary pattern matching >technology to make filtering decisions. In fact, the most important >technology in the product allows the filtering of URLs dynamically created >by search engines, effective stopping a child from searching for sexually >explicit material in the first place. Of course, nowhere in his article did Eugene state that SurfWatch does not use a list of word and word associations to make filtering decisions. What constitutes "the most important technology in the product" is a question of opinion, don't you think? Personally, if it is true that SurfWatch does not permit a kid to search for web sites using the word "bunny," then I would tend to find the product too restrictive for my kids. In any event, preventing kids from searching for sites with filth that are not already blocked by the black list does not mean that they can't access them. If a friend emails them the site, or tells them about it at school or over the phone, the kid can access it, and SurfWatch can't prevent that. That is Eugene's point: "Some things will inevitably be missed." What am I missing here, Mike? Friedland then writes: >. . . [additional text re search-blocking technology omitted] >3) Of the more than 10,000 sites currently being blocked by SurfWatch, more >than 30% come from outside the United States, and therefore fall beyond the >jurisdiction of the CDA. When the effectiveness of the CDA was challenged >in court, this was a significant factor, indicating that many "sex" sites >were already not effected by the CDA and additional sites would and could >move offshore to avoid prosecution under the law. At best the CDA might be >70% effective. That's a standard that we in private industry can easily >beat. And our track record shows we can do so without seriously >undercutting >children's access to appropriate content on the Net. This point, when made in defense of black list filtering, does not really defeat Eugene;s argument. As Eugene (and pro-CDA types) have repeatedly pointed out, neither approach is 100% effective, but COMBINING both approaches is more "effective" than either approach by itself. The relevant inquiry is NOT SurfWatch's black list technology vs. CDA because the two approaches are not mutually exclusive; indeed, user-based filtering technology is not a government-based alternative at all. It is a given, from which one must determine whether there is an ongoing problem that gives the state a compelling governmental interest in trying to remedy. In short, the pro-CDA types argue, "we need the CDA to help us prevent kids from accessing the sites that black list filters inevitably miss." I continue to disagree with some of Eugene's legal analysis of the constitutional doctrines at issue, but as far as the attacks on his professional integrity go, I would say this to Mike and others who may soon have the eyes and ears of the 9 people who really matter. I have been deeply troubled and personally offended by the attacks on Eugene's integrity in connection with his Slate article. Whether I should be offended or not is immaterial to the point I'm trying to make: I am a very strong opponent of the CDA and I speak regularly against it and I do, on occasion, attack the intellectual integrity of some its supporters; if I am offended by the attacks on Prof. Volokh, how do you think certain justices might react? Robert W. Hamilton rwhamilton@jonesday.com Message-Id: Date: Wed, 31 Jul 1996 11:49:32 -0400 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Nigel Allen Subject: CYBERIA-L: Net Shepherd To: Multiple recipients of list CYBERIA-L For people with an interest in filtering software for Web browsers such as NetNanny, I am forwarding a press release from Net Shepherd Inc. I don't work for Net Shepherd, but in light of the vigorous discussion on this list about Eugene Volokh's article, I thought that the press release might be of interest. (I found the press release on the Canada NewsWire web site at http://www.newswire.ca/, which is often worth exploring.) Attention Business Editors: NET SHEPHERD RELEASES NEW TECHNOLOGY THAT COLLABORATIVELY RATES AND FILTERS THE INTERNET Software is first to comply with new industry established standards (PICS) CALGARY, July 30 /CNW/ In a move that will give `legs' to recently established industry standards for Internet content, Net Shepherd Inc. of Calgary, Alberta, today announced the version 1.0 release of its unique solution for rating and filtering Internet Web sites. This new technology called daxHOUND, enables groups and individuals to not only filter Web site viewing consistent with the Platform for Internet Content Selection (PICS) standards, but also to establish collaborative databases using their own rating systems. This allows anyone to create electronic communities that reflect the values of members without infringing on the rights and freedoms of other Internet users. Ron Warris, President and Chief Operating Officer of Net Shepherd Inc. says, ``We feel this is clearly the best rating and filtering solution offered to date. Instead of imposing censorship, it allows groups of people to interactively rate and filter web documents according to what they believe is appropriate. We know that once people start using our system, it will become the industry standard.'' Recent attempts to regulate Internet content (such as the Communications Decency Act in the U.S.) pitted the rights of responsible caregivers to protect their charges from inappropriate or potentially damaging material against freedom from censorship. PICS, the response by an industry consortium, establishes a standard for describing rating systems, a syntax for labels, and methods for distributing the labels. But it leaves open the question of who creates Web site ratings and by what criteria or set of values are used to rate them. ``Net Shepherd is the only company we are aware of that is developing this type of PICS compliant software,'' said Jim Miller, chairman of PICS. ``We are delighted that Net Shepherd is building a product that will conform with all the PICS criteria for Label Bureaus and Rating Services.'' The Net Shepherd software provides the means for parents, schools, associations, social groups, and businesses to use their own values in rating Web sites. The collaborative nature by which these databases are created ensures the ratings more accurately reflect the values of the groups who built them. ``A variety of cultures and viewpoints exist in cyberspace,'' says Ron Warris, ``Net Shepherd allows them to not only co-exist but to flourish, by enabling them to reflect their unique values through on-line communities in which they, as a group, set the standards.'' The Net Shepherd solution differs significantly from other filtering software, by allowing the creation of custom rating systems and databases for Web sites. Cooperatively created by the members of its community, this approach eliminates the need for every individual to rate every document on the Internet. Each ratings database closely reflects the values of its contributing members. Users of Net Shepherd can choose the database that best reflects their values. In this way, all groups are protected without having to use the same rating criteria or demanding that certain content be banned from the Internet. The on-line community decides what is and is not appropriate, not a small group of dispassionate reviewers. The software is currently available for Windows 3.X and Win 95. A Mac version is planned for release in late Summer. Net Shepherd software requires Netscape Navigator or Internet Explorer web browser software, versions 2.0 or higher. Anyone wishing to try Net Shepherd can download it at: http://www.shepherd.net. A white paper titled ``Collaboratively Rating & Filtering Internet Content'' is also available on our web site at www.shepherd.net/presidents/whitepaper.html. Net Shepherd Inc., a global provider of Internet content ratings software and databases, is based in Calgary, Alberta. The company recently entered into a share exchange merger agreement with Enerstar Resources Inc. of Calgary. Enerstar is listed on the Alberta Stock Exchange (ASE) with shares trading under the symbol ENR. Under the share exchange merger agreement, each of the outstanding shares of Net Shepherd Inc. will be acquired by Enerstar on a one to one basis. On July 30, 1996 the shareholders of Enerstar will vote to approve the share exchange merger agreement as well as the change of the name of the combined entity to Net Shepherd Inc. Additional information on PICS (Platform for Internet Content Selection) is available online at: http://www.w3.org/pub/WWW/PICS. For further information: Product Information - Ron Warris, President, Net Shepherd Inc., (403) 250-5310, e-mail: ron.warris(at)shepherd.net; Investment Information - Owen Pinnell, Vice Chairman and CEO, Net Shepherd Inc., (403) 777-4310, e-mail: pinnello(at)cadvision.com 12:56e 30-JUL-96 Message-Id: Date: Wed, 31 Jul 1996 18:20:24 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Slate Readers Respond to Volokh Article To: Multiple recipients of list CYBERIA-L Slate has published a number of letters in response to Eugene Volokh's article, "Speech or Spillover" in Slate. It can be found at this URL: . Volokh has responded to the responses in Slate's new letters column, posted today. Both the reader mail and Volokh's response to that mail can be found at this URL: . After that mail column is (in Slate-speak) "composted," it will be findable at this URL: . Professor Hal Abelson and I composed a lengthy critique of the Volokh article -- too long, it turns out, for the editors of Slate, to whom we submitted it. But you can still read it either in this posting or at: . (It will also be available shortly at my homepage: .) For those who don't want to take fire up a browser just now, here's the text of Hal's and my response: **Response to Volokh article("Speech and Spillover," posted Thursday, July 18)** By Mike Godwin and Hal Abelson 30 July 1996 To the editors of Slate: It is indisputable that the Communications Decency Act raises complex constitutional and factual questions about the government's prerogative under the First Amendment to protect children from certain kinds of speech. It is equally indisputable that Prof. Eugene Volokh should be commended for attempting to clarify those questions in his recent contribution to Slate ("Speech and Spillover," posted Thursday, July 18) . Sadly, however, Prof. Volokh's efforts may have created more confusion than they dispelled. Not only does Volokh blur the constitutional issues raised by legislation like the CDA, but he also misinforms Slate readers about the function and effectiveness of software content filters -- facts that are central to understanding the public debate about regulating content on the Net. There are many problems with Prof. Volokh's First Amendment discussion, but most seem to follow from two basic errors. First, Volokh fails to note that the Supreme Court has conditioned the scope of the government's authority to broadly regulate *constitutionally protected* content (such as nonobscene sexual content) on the specific character of the medium distributing that content. To risk oversimplifying, we may say that the Court has allowed the government greater authority to regulate "indecent" content either when broadcast (e.g., radio broadcasting in the Pacifica case) or delivered in a manner indistinguishable in character -- to the audience, at least -- from broadcasting (e.g., cable television in this year's Denver Consortium case). Secondly, Volokh conflates three distinct (if overlapping) categories of content: "indecent," "sexually explicit," and (by implication) "pornographic." In doing so, he reinforces a common confusion about the Communications Decency Act -- namely, that its reach was limited only to pornographic material. But as the judges in ACLU v. Reno noted, the terms of the CDA criminalized a far broader range of speech -- speech that is "indecent" or "patently offensive" - much of which is not "sexually explicit" as those words are normally understood. (Not all speech that's indecent or patently offensive is about sex, Howard Stern notwithstanding.) The judges also observed that the plaintiffs in ACLU v. Reno (ranging from Microsoft and Wired magazine to organizations such as Human Rights Watch and the National Writers Union) were easily distinguishable from the commercial pornographers whose dial-a-porn services were at issue in Sable Communications v. FCC (1989). That's why it's particularly troubling to see Prof. Volokh cite Sable, a case about *regulating minors' access to commercial pornography*, in support of a more general claim that government has broad power to regulate nonpornographic "indecent" or "sexually explicit" content in the interest of protecting children.. (Justice White, writing for the Court in Sable, does not go so far. Instead, he relies on two cases that, like Sable, involve pornography and minors. White never expressly states in Sable that the government has constitutional authority to regulate - regardless of the medium -- the far broader category of speech called "indecency.") These two basic legal errors give rise to other problems with Prof. Volokh's constitutional analysis. Most notably, he suggests compulsory labelling of online content without mentioning the First Amendment problem of "compelled speech" that clearly would arise, and without discussing whether such compulsory labelling would be constitutional if imposed on books and newspapers. (Medium-specific analysis suggests it wouldn't be, and factual record in ACLU v. Reno seems to entail the same conclusion about compulsory labelling on the Internet.) But perhaps the single most disturbing error in his article has to do with the facts, not the law. In order to support his thesis that technical solutions will never resolve what he sees as a perennial "spillover" problem, Volokh attempts to raise doubts about the effectiveness of selection/filtering software such as Surfwatch: The SurfWatch solution is limited by the software designers' ability to keep up with the latest "dirty" places. Dozens of Web sites are being added daily, and you never know what will get posted tomorrow even on existing sites or newsgroups. Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective. ... What Prof. Volokh implies here (that filters rely solely or primarily on a list of 'dirty places') is wholly false -- not just about Surfwatch, but about filtering software andfiltering paradigms generally. We know of no product that operates as Volokh suggests Surfwatch does -- while many such programs do include specific lists of objectionable sites, *this is not the primary approach any of these programs rely on to filter content*. This is true even though filtering paradigms may differ among products: Surfwatch uses multiple approachs, including keyword- and pattern matching algorithms; the company uses its "blocked site" list as a supplement to its core filtering technologies. Netview's Specs For Kids program, in contrast, doesn't use a "blocking" strategy at all -- instead it reviews and rates sites (147,000 as of this writing), and admits minors only to those pre-approved sites. Surfwatch's continuing success during a period in which the total number of Web sites has boomed undercuts Volokh's generalization about the effect of the boom on these filters' effectiveness. This makes sense -- block the word "sex" in a Web address, and it doesn't matter if the number of Web addresses including the word "sex" has increased tenfold since last year. And it's difficult to see how the effectiveness of the Specs For Kids approach can be diminished by the boom, even in theory. Volokh's analysis of filters, together with his mandatory-labelling suggestion, also show a lack of awareness of the labelling infrastructure that software vendors and the rest of the network industry are increasingly accepting as a standard -- the Platform for Internet Content Selection (PICS). PICS was developed by a cross industry working group coordinated by the World Wide Web Consortium, and is described in the paper "PICS: Internet Access Controls Without Censorship", by Paul Resnick and James Miller. This paper (to appear in the Communications of the ACM) as well as other material on PICS can be found on the World Wide Web at http://www.w3.org/pub/WWW/PICS. PICS is a set of conventions that describe formats for labelling internet content, and methods for how labels are distributed. PICS does not dictate what the labels should say or how they should be used. To quote Resnick and Miller, PICS is "analogous to specifying where on a package a label should appear, and in what font it should be printed, without specifying what it should say." The intent of this flexibility is to support a wide variety of labelling systems and selection methods. For instance, one might configure a Web browser to screen out material that carries certain labels. This is the system imagined by Prof. Volokh, but it is only one approach. As an alternative, one might make accessible only those Web pages that are labelled in a particular ways, for example Web pages that carry the "seal of approval" of various organizations. This second approach, functionally similar to that of Specs For Kids, would address Prof. Volokh's concern about "keeping up with" new Web sites. And these are only the simplest applications; PICS was expressly designed to be an open-ended system that permits multiple labelling services and multiple ways of using labels; unlike the CDA, PICS can be used for purposes other than screening out sexual or offensive content. In creating a standard for interoperability, the PICS designers envisioned the growth of a competitive market in third-party rating services, where the pressures of competition will help assure that current and future labels are timely and accurate. They also envisioned a competitive market in selection software, leading to increasingly sophisticated techniques for using those labels. As Resnick and Miller write: Around the world, governments are considering restrictions on on-line content. Since children differ, contexts of use differ, and values differ, blanket restrictions on distribution can never meet everyone's needs. Selection software can meet diverse needs, by blocking reception, and labels are the raw materials for implementing context-specific selection criteria. The availability of large quantities of labels will also lead to new sorting, searching, filtering, and organizing tools that help users surf the Internet more efficiently. The free-market evolutionary approach may not be perfect, but it is counterintuitive to assume, as Prof. Volokh apparently does, that saddling the system with CDA-derived regulations could make it more effective or efficient. If anything, such a regulation would likely have the opposite effect. Imposing a single, federally approved standard for the kinds of constitutionally protected content that government can banish from public forums in the name of protecting minors seems likelier to skew the market. It would diminish the ability parents now have to decide for themselves which solution is most effective. (And the marketplace of ideas wouldn't exactly be enhanced, either.) Ironically, those who rely on either Prof. Volokh's constitutional "spillover" analysis or his assessment of software filters may feel compelled to craft laws that ensure we never escape from the "spillover" problem: laws that needlessly set adults' First Amendment rights against the state's interest in protecting children. That would be a shame, since the technical solutions that Volokh dismisses carry the promise of avoiding his "spillover" problem altogether. Thanks to these inexpensive and highly adaptable tools, two important social interests -- the protection of children and the preservation of First Amendment rights -- need no longer be viewed as opponents in a zero sum game. Mike Godwin Staff Counsel Electronic Frontier Foundation Hal Abelson Professor of Computer Science and Engineering Massachusetts Institute of Technology --------- --------- Mike Godwin EFF 510-548-3290 Message-Id: Date: Thu, 1 Aug 1996 09:02:56 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Response to Hamilton's defense of Volokh/criticism of Surfwatch's Rebuttal -- PART 1 of 2. To: Multiple recipients of list CYBERIA-L Robert, sorry to be so long in responding to your posting, but this is one time when I can genuinely plead my workload. At 2:22 PM 7/29/96, Robert W. Hamilton wrote: >While I write this post with a substantial amount of trepidation, I continue to >believe that the MERITS of this subject warrant further inquiry. I am hopeful >that Eugene has not abandoned the discussion because of Mike's attack's on his >professional integrity. This seems unlikely, since Eugene had announced his departure (or at least his hiatus) *prior* to my burst of postings. >More to the point, it struck me that Friedland's rebuttal of Eugene's comments >on Surfwatch (which Mike posted to this list) was rather weak. I don't think it was as good as it could have been, but I suspect Friedland was constrained by his being an expert neither on the law nor (beyond a certain general level) on the other products available. >These are Friedland's two main assertions: that Eugene's "discussi[on] of" >Surfwatch is "specifically inaccurate as to our product" and that Eugene's >discussion of Surfwatch is "generally flawed in its understanding of how >filtering can work." I don't think Friedland establishes a convincing case for >either assertion. I don't think he does either, but then I don't think he needed to. Volokh himself established the convincing case for that with his decision to characterize all filtering products as if they all worked basically the same way, using a particular approach that, in fact, *none* of the current products seems to rely on. I know you think he perhaps didn't say such a thing, Robert, but I suggest you didn't look closely enough at Volokh's article -- both logically and grammatically, Volokh can *only* have meant that all filters rely solely on "black lists." More discussion on this point below. >Ummm, on what basis is it appopriate for Friedland to assert as fact that Prof. >Volokh had simply relied "on his own intuition about how such software might >work"? I believe this statement was, in fact, rather generous on Friedland's part. For those of us who are familiar with the technology, and with what has been reported about it publicly, Friedland's inference is the most charitable inference that can be drawn -- the other inferences all include the element of mendacity. I personally do not believe Volokh was mendacious in the crafting of this article. We may also ask why -- even if we stipulate that Volokh had a right not to respond to questions about his sources or expertise -- he chose not to. It was his refusal to address those questions that, in my opinion, was more damning than anything anyone has said about him. >Is it not reasonable to believe that Eugene's reference to Surfwatch >was based on his review of written accounts of how the software works (the same >as my knowledge re Surfwatch, I might add). It would be reasonable if one could find a citable review that says something like what Volokh says. Which reviews state that the entire industry of filtering software relies solely on "black lists"? It is so clearly wrong that I have not been able to find a single knowledgeable technical person (or, for that matter, a nontechnical one--until you, at least) who can defend Eugene's statements in the Slate article. Even here, the strongest argument you can make is that it is a "reasonable" assumption that he had an impression about the software from reading about it in the press, and that, so far as you know, he has no obligation to cite his sources. (I know some former law-review editors who, even as students, would have thought nothing of nixing a professor's submission if, when asked to explain the source of his statements, he was utterly noncooperative.) >That is hardly the same as relying >on "intuition." I know Mike believes that it is Eugene's obligation to >disclose his references, but I don't agree with that assertion. The article >was not presented a research paper nor as a legal brief. It was a discussion >piece. I am not aware of the authority on which Mike relies for his belief >that Eugene is under a professional obligation to disclose all references on >which he relies in publising such a discussion piece. This is an interesting defense. But let me tell you where I believe these obligations come from by telling the two sets of rules I personally strive to adhere to as a lawyer who is also a journalist: 1) the ABA model code and model rules, and 2) the Society of Professional Journalists code of ethics. (When I'm a faculty member, I also routinely consult the AAUP ethics code, which includes the following general but inclusive provision: "Professors, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognize the special responsibilities placed upon them. Their primary responsibility to their subject is to seek and to state the truth as they see it. To this end professors devote their energies to developing and improving their scholarly competence. They accept the obligation to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge They practice intellectual honesty.") The ABA code and rules (both applicable since I publish nationally and am admitted to multiple jurisdictions) aren't terribly specific as to publication, but they do include implicit and explicit commitments to improving public respect for, and the professional quality of, the legal profession. There is a general public obligation, when one is talking about a legal issue to the public, to get the law and the facts right, because many people are more likely that a lawyer who's presented as having a certain expertise actually has it. But you may find those general passages a bit too "penumbral" for your taste, so let me site the code of ethics that I believe all journalists, including opinion writers, have a moral obligation to adhere to: -------------- The Society of Professional Journalists, Sigma Delta Chi Code of Ethics The Society of Professional Journalists, Sigma Delta Chi, believes the duty of journalists is to serve the truth. We BELIEVE the agencies of mass communication are carriers of public discussion and information, acting on their Constitutional mandate and freedom to learn and report the facts. We BELIEVE in public enlightenment as the forerunner of justice, and in our Constitutional role to seek the truth as part of the public's right to know the truth. We BELIEVE those responsibilities carry obligations that require journalists to perform with intelligence, objectivity, accuracy and fairness. To these ends, we declare acceptance of the standards of practice set forth: ---------------------------------------------------------------------------- I. Responsibility The public's right to know of events of public importance and interest is the overriding mission of the mass media. The purpose of distributing news and enlightened opinion is to serve the general welfare. ---------------------------------------------------------------------------- IV. Accuracy and Objectivity Good faith with the public is the foundation of all worthy journalism. 1. Truth is our ultimate goal. 2. Objectivity in reporting the news is another goal that serves as the mark of an experienced professional. It is a standard of performance toward which we strive. We honor those who achieve it. 3. There is no excuse for inaccuracies or lack of thoroughness. 5. Sound practice makes clear distinction between news reports and expressions of opinion. News reports should be free of opinion or bias and represent all sides of an issue. 7. Journalists recognize their responsibility for offering informed analysis, comment, and editorial opinion on public events and issues. They accept the obligation to represent such material by individuals whose competence, experience, and judgment qualify them for it. ---------------------------------------------------------------------------- V. Fair Play 4. It is the duty of news media to make prompt and complete correction of their errors. 5. Journalists should be accountable to the public for their reports and the public should be encouraged to voice its grievances against the media. Open dialogue with our readers, viewers, and listeners should be fostered. ---------------------------------------------------------------------------- VI. Pledge Adherence to this code is intended to preserve and strengthen the bond of mutual trust and respect between American journalists and the American people. Code of Ethics adopted 1926; revised 1973, 1984, 1987 >In any event, that >question is irrelevant--it doesn't justify Friedland's uncivil and >inappropriate accusation that Eugene was relying on no reference material and >instead was simply using his "intuition." You already know where I stand on civility versus truth. I think Friedland was telling the truth as he saw it -- as he could best construct it, based on what Volokh had said. This response grows long, and the most damaging part of my response to your defense of Volokh is yet to come, so I'm going to stop here with Part I of my response and give you a chance to breathe. --Mike ------------------------------------------------------------------------------- Law Professor Errs In Slate Article About Communications Decency Act. Set your browser for the following URL to read a critique of the Slate article by EFF's Mike Godwin and MIT's Hal Abelson: . Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org or at his office, 510-548-3290. Message-Id: <9608011814.AA0792@worldcom-45.worldcom.com> Date: Thu, 1 Aug 1996 15:38:38 -0400 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: "Robert W. Hamilton" Subject: Response to Hamilton's defense of Volokh/criticism of Surfwatch' To: Multiple recipients of list CYBERIA-L Mike Godwin writes: >Volokh himself established the convincing case for that >[the error of his alleged understanding of filtering technology] >with his decision to >characterize all filtering products as if they all worked basically the >same way, using a particular approach that, in fact, *none* of the current >products seems to rely on. 1. I continue to believe that Eugene did not directly state, nor did he intend to imply, that "all" filtering products rely solely, or even primarily, on "black list" technology. I take him at his word on this point -- that he omitted the discussion of other approaches from the Slate article because he did not believe (for whatever flawed reason) that they were important enough to discuss in the context of his argument. (I will NEVER understand how Eugene could think that the PICS technology is a "nonstarter," in his words.) 2. If one insists on being grammatically precise, Mike's statement is clearly false. Friedland himself acknowledges that SurfWatch uses "black list" technology; "uses" is equivalent to "relies on." Therefore, current products DO rely on black list technology, even if their manufacturer does not deem that technology to be the "primary" or "most important" aspect of their product. >I know you think he perhaps didn't say such a >thing, Robert, but I suggest you didn't look closely enough at Volokh's >article -- both logically and grammatically, Volokh can *only* have meant >that all filters rely solely on "black lists." This is where Mike and I reach stasis in our disagreement. I don't believe that Eugene meant that all filters rely "solely" on the "black list" approach, and I believe Eugene when he says that is not what he meant. If Eugene DID mean to say that, then I would not be troubled at all by Mike's aggressive attacks on Eugene, particularly in light of the fact that this issue is currently pending before the Supreme Court, which Eugene obviously knows. I don't believe its worth debating any further on this list the question of what he actually intended; rather, our inquiry should be on the merits of the issues he raises. With respect to the latter point, I would simply state for those of you on this list who still might be following this thread (all 3 of you...) that I found the piece written by Mike and Hal Abelson in response to Eugene's Slate article to be one of the most effective pieces of writing I have ever read on this topic. The description of the PICS technology, and how it fits into the constitutional and policy analysis of these issues, is cogent, convincing (to me) and concise. The last sentence is a gem and I hope it makes it into the briefs submitted to the Supremes. That Slate chose not to publish this response is very troubling to me. What's the point of being online if you're not going to take advantage of that medium?--it's not like Slate has to make t riage decisions in order to fit within a defined page limitation, for crying out loud! I wish we could entice Eugene back into this discussion to analyze further the merits of Mike and Hal's response. Hell, I wish we could entice ANYBODY back into the discussion for this purpose.... (Now is the time, people; not after the Supreme's have already ruled, when your analysis won't mean jack sh...) Robert W. Hamilton rwhamilton@jonesday.com p.s.: Bruce Taylor and DOJ: please note that the word "hell" does not refer to sexual or excretory organs or functions and is therefore not proscribed by the CDA. I don't want to get Trotter (or AOL) in trouble for not requiring list members to subscribe using a credit card.... Message-Id: Date: Thu, 1 Aug 1996 16:50:58 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Response to Hamilton's defense of Volokh/criticism of Surfwatch' To: Multiple recipients of list CYBERIA-L Robert Hamilton writes: >Mike Godwin writes: > >>Volokh himself established the convincing case for that >>[the error of his alleged understanding of filtering technology] >>with his decision to >>characterize all filtering products as if they all worked basically the >>same way, using a particular approach that, in fact, *none* of the current >>products seems to rely on. > >2. If one insists on being grammatically precise, Mike's statement is clearly >false. Friedland himself acknowledges that SurfWatch uses "black list" >technology; "uses" is equivalent to "relies on." Therefore, current products >DO rely on black list technology, even if their manufacturer does not deem that >technology to be the "primary" or "most important" aspect of their product. Must be the poet in me, but I never thought anyone seriously equated the phrase "to rely on" withe the verb "to use." Robert, not too long ago I turned to my girlfriend and said, with warmth and tenderness, "I love being able to rely on you." Now imagine that I had turned to her and said, instead, with the same warmth and tenderness, "I love being able to use you." You suppose that if she takes that phrase the wrong way, it will help me to say to her "But, honey, Robert Hamilton says that 'rely on' is *equivalent to 'use'*"? --Mike ------------------------------------------------------------------------------- Law Professor Errs In Slate Article About Communications Decency Act. Set your browser for the following URL to read a critique of the Slate article by EFF's Mike Godwin and MIT's Hal Abelson: . Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org or at his office, 510-548-3290. Message-Id: Date: Fri, 2 Aug 1996 03:47:43 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: More Jokes! (Part 2 of my response to Robert Hamilton's defense) To: Multiple recipients of list CYBERIA-L "I would not for a moment claim to know more than Mike about SurfWatch et al." --Eugene Volokh, July 21, 1996 -------------------------------------------------------------------- Robert Hamilton writes: >Well, Eugene did NOT say that SurfWatch does not use white lists. His >statement was: "Parents can get software--SurfWatch is one popular brand--that >keeps their computers from accessing any place that's on a list of "dirty" >locations, a list selected and frequently updated by the software designers." >That statement is not a "factual error" as suggested by Friedland. It is a >true statement. Oh, Robert. You really should have pulled the full quote -- decontextualizing a smaller quotation can make it seem as if Volokh is saying something different, but, you know, you can only do so by ignoring the larger chain of reasoning that Volokh was forging. Here is the *full* quote -- take note of it, since both the details within it, and its role in the larger editorial, make it clear that Volokh engaging in what may be an unintential blunder, but which is unquestionably a false and deceptive proof. 'On the Internet, is it possible to shield children without restricting adults? Parents can get software--SurfWatch is one popular brand--that keeps their computers from accessing any place that's on a list of "dirty" locations, a list selected and frequently updated by the software designers. If the government wanted to, it could buy SurfWatch (for a fraction of what it would cost to enforce the CDA) and give it away to parents. Could this be the "less restrictive alternative" that the government could use instead of CDA's total ban? Well, it depends on how much shielding of children you're willing to sacrifice. The SurfWatch solution is limited by the software designers' ability to keep up with the latest "dirty" places. Dozens of Web sites are being added daily, and you never know what will get posted tomorrow even on existing sites or newsgroups. Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective. The CDA, of course, won't be perfect, either--many will flout it, and Web sites in other countries won't be bound by it--but the ban plus the technological fix probably will shield children better than the technological fix alone. Does this extra protection justify the considerable spillover? The precedents don't answer this.' I. The Logical Requirements of the Paragraph Now, Robert, we first consider this paragraph's *logical* construction, beginning with its first sentence: "On the Internet, is it possible to shield children without restricting adults?" This is a categorical question. And the paragraph begins to wind up with a categorical answer: "Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective." Now, in order to bridge the space between the categorical question and the categorical answer, you need evidence that presents itself as categorical too. *No lesser statement -- no statement about a _subset_ of technological fixes, such as filters that rely on "black lists" -- will get you to that categorical conclusion about *all* technical fixes!* And in the context of the article as a whole -- an article whose thesis has a bit of the New Testament ring ("Ye shall have the spillover always with you.") -- Volokh's entire argument rests on whether he can categorically dismiss the effectiveness of "technical fixes." If he *can't* do so, then his thesis collapses, since effective technical fixes -- not even totally effective, but merely as effective as, or more effective than, the CDA (an easy hurdle to leap) -- might transmute his beloved "spillover" problem into a de minimis consideration, or may even eliminate it altogether, at least in this medium. Volokh is thus caught on the horns of a self-created dilemma. He must either a) claim that his categorical generalization is (essentially) accurate, which is the only way he can support his categorical conclusion, or b) admit that he was talking only about one (theoretical rather than actual) class of software, thus demolishing the link between his identification of the "spillover" problem and his broad conclusion about "[t]he technical fix." II. Factual Problems With the Paragraph. Ingeniously, Volokh tries to have it both ways, and once again it's worth looking at what he actually says in some detail: In describing the filtering systems--and SurfWatch was given just as a leading example--I did, in some measure, oversimplify them. This looks like an admission of sorts -- "in some measure" -- until you remember that the problem with Volokh's statement was not oversimplication: his statement was _essentially_ incorrect, both about Surfwatch and about filters generally. Remember what he wrote in the Slate original article: 'Parents can get software--SurfWatch is one popular brand--that keeps their computers from accessing any place that's on a list of "dirty" locations, a list selected and frequently updated by the software designers.' Despite Robert's attempt to characterize this as a true and narrower statement one filtering model, it's essentially a false and broader statement, considered in the context of the paragraph in which it is placed. Volokh doesn't "oversimplify" -- he mentions only one blocking mechanism, and it isn't even one that any of the filters primarily rely on. In short, Volokh got it wrong and is now arguing rather sophistically in a way that seems aimed at papering over his blunder. Some simplification is necessary for space reasons, and as I discuss below, I chose to focus on what I thought would be the most legally significant measures. The phrase "legally significant," which seems to say more than it actually does, is a dodge that allows Volokh to avoid acknowledging qualitative and quantitative *lack* of significance of the "black list" paradigm. Still, I should have made clearer that the "list of dirty sites" model is only (in my view) one of the most useful alternative approaches: There can be other shielding mechanisms also, such as key word filtering, a list of clean sites, a list of "dirty-site" patterns (e.g., alt.sex.* rather than just a list of all the alt.sex newsgroups), a list of dirty sites editable by each parent, and more. The phrase "should have made clearer" is excellent -- a near-apology that obscures any acknowledgement of ignorance on Volokh's part. (And let's go back to your theory, Robert -- that Volokh wasn't relying on his "intuition," but on impressions based on reading software reviews. *Your defense on that point was merely providing Volokh with a nicer explanation for having gotten it wrong.* ) Here Volokh is giving the impression that he knew about the other paradigms all along! Yet those of us who followed the exchange and who have some expertise in this area have reason to believe that Volokh learned about some of these alternative paradigms *only after we explained them to him*. He didn't even know about "Specs For Kids" -- he had to invent a new (and mathematically absurd) argument to explain how "Specs For Kids" flunks the least-restrictive-means test. And he still doesn't understand PICS. III. Mystery Math Entertainingly, Volokh's mystery-math approach to that argument (he confuses quantity with quality, as well as relative measurements with absolute ones) *was not even mentioned in the original article.* That's because, "in my view," he hadn't thought of it yet. But even if he had, it contradicts his whole analysis! After all, the whole point of the original article was this: The spillover harm associated with filters is that _any_ "technical fix" gives adults maximum freedom, but is *less than effective* at blocking "indecency." Thus, in drawing a line between adult freedom and protecting children, there's some unacceptable "spillover" of indecency into the zone of children's access. And drawing a line that "effectively" protects children will cause "spillover" problems for adult freedom. But Volokh's "Specs For Kids" argument is *just the opposite* -- there he says the tools are *too* effective. Thus, Volokh *himself* acknowledges that one can resolve the adult-freedom/child-protection without any resulting spillover. Since this more or less destroys the entire purpose of his Slate article, he has to create a new problem -- so he spontaneously generates a new Constitutional right for children (the right to have access to "innocent" content, over one's parent's wishes, before one turns 18 and can access it without regard to what one's parents want), shoehorns this new theory (with its utter lack of a "state action" element) into a least-restrictive-means analysis, and then (as near as I can sort it out) implies that this is a spillover problem too. Well, I suppose one could say it is: the two constitutionally established interests (adult freedom and child protection) weighed against the brandnew interest (children's right to defy their parents' wishes and enjoy "indecent" content), with spillover damaging the latter. But, you know, even if this mutation of Volokh's theory is true, the scene is already a bit rosier. Just by thinking a bit harder, we've turned a 50-50 problem into a 66-33 problem in which two interests that were seen as inherently in tension with each other (adult freedom and child protection) can be resolved without "spillover" problems as to each other, although there may be some spillover as to Volokh's invented new right for minors. I'm willing to bet that if we keep thinking about it (or if Volokh invents some more rights) we can even reach proportions of 80-20 or 90-10. Not a bad day's work for a constitutional lawyer. Which features SurfWatch and other filters currently provide isn't even specifically the issue: As my discussion of the hypothetical self-rating requirement suggests, the question is what less restrictive alternatives are possible, whether or not they are currently implemented in the most popular products. Except, of course, that Volokh wasn't purporting to discuss a *theoretical* version of Surfwatch. He represented himself as making a fact statement about the class of filtering products. There is no other credible reading of the passage in the context of the article. Remember the grammar of Volokh's original article? I remind you of the relevant paragraph: "On the Internet, is it possible to shield children without restricting adults? . . . Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective." Note the use of the present and future tenses: 1) "is it possible", 2) "will inevitably be", 3) "is less restrictive", and 4) "it's also less effective." In the absence of any introductory text indicating that Volokh's discussion of Surfwatch has to do with a hypothetical product and not a real one, *any given Slate reader* will interpret it as a fact statement. And the use of the definite article ("_The_ purely technical fix" [my emphasis]) means that Volokh is making a categorical statement as to all technical fixes, not just a particular fix involving a hypothetical-but-currently-nonexistent version of Surfwatch. Volokh continues in his response to Friedland: Nonetheless, the reason I didn't devote space to the other models is that I believe the two models I discussed--the dirty-site list and the self-rating requirement--will be the most relevant to the court's analysis. It seems to me extremely unlikely that the court will view the other methods as suitable "less restrictive alternatives. That's right -- the Supreme Court isn't really interested in *facts*, even when a trial court or two has taken pains to collect a bunch of them. Here he implies that they'll be more interested in Volokh's theoretical vision instead, since it is, Volokh asserts without a shred of factual or theoretical analysis, "most relevant." Parents' ability to edit the list of blocked sites is a valuable feature, but it certainly doesn't eliminate the problem of some indecent material remaining available to children; keeping up with new dirty sites is even harder for parents than for the software designers. Wait a minute. Now Volokh is talking about a solution that "doesn't eliminate the problem." Since when is 100-percent effectiveness required to protect *any* fundamental right or substantial government interest. This is mutant jurisprudence! (Nor does Volokh assert in either his original article or his response to the criticisms that his own solution--CDA plus required labels--would be 100-percent effective.) Likewise, key word filtering, like the list of dirty sites (or site patterns), will still involve some spillover--some indecent Web sites or indecent newsgroup conversations won't contain the key words. Implicitly: "IF (X solution has 'some spillover'), THEN (the Supremes won't accept it)." But which solutions are *perfect*? And when did perfection become an element of least-restrictive-means analysis? Anyone remember a little case called Erznoznik v. Jacksonville? One could diminish this spillover by having a huge list of prohibited key words, but this will radically lower the product's utility, because it risks excluding so many innocent sites that what remains will be much less useful to the child. Mystery math again. Here's another example of Volokh's mathematical method (as applied by me): Hypothetical: Imagine that Volokh and I are the last two human beings in the universe, and that, thanks to divine intervention, we are each able to travel anywhere in the universe, and we each are granted life spans of one million years. Now, imagine that God speaks to each of us, saying this: "The price for keeping these Gifts I have given you is that you must divide the entire universe between you, and each of you must not travel in the other's half of the universe. However, I will withdraw this restriction if you can show Me how, if I were the U.S. government (or if I were your U.S.-citizen parents) and operating under the U.S. Constitution, My Imposition of this restriction would be unconstitutional." Volokh's argument would be that God's imposition of the rule would "radically lower the universe's utility, because it excludes so many resources from [my] use." Half a universe would not be enough, since Volokh couldn't get into the other half. Never mind that Volokh's half of the universe (we'll name it "Space For Whiz Kids") is plenty big. (My argument: "Are You really amusing Yourself with Your bullshit?" My argument would lose, obviously, and I'd piss off God just the way I'm likely to piss off the Supremes, according to Robert.) Still, Volokh wins, I think, only if God is lousy at math. >One could argue that Eugene's statement "implies" that SurfWatch ONLY uses a >black list and does nothing else. I don't think that is a fair reading of his >statement, but in any event this is a valid concern really only to the makers >of SurfWatch who feel their product has been shortchanged. It is not an >indictment of Eugene's discussion of the inherent limitation of black list >filtering technology. Except that if Volokh's argument is only about "black list filtering technology," how does he reach the following conclusion? "Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective." Robert, are you saying that Volokh has adequately supported these sentences, as a conclusion of fact? >If Friedland (or Mike) thinks that Eugene's main point regarding the >effectiveness of black list filtering technology is wrong, they have yet to >demonstrate that error to me. Robert, you didn't understand the nature of either Friedland's or my criticisms. If black-listing isn't relied on to any significant degree, then Volokh's discussion of it is irrelevant. And it certainly doesn't support his conclusion about *the* technical fix, does it? >I am not personally familiar >with how SurfWatch builds its default white lists (before they are added to by >the user), but the concept of pre-approved sites for your kids' online accounts >makes the need for government bans like the CDA less than compelling in my >judgment. Eugene has expressed his disagreement with that judgment on this >list, but the disagreement is, in the end, one based on differences of value >(and legal analysis) ... Interstellar differences in legal analysis! I mean, Volokh's is light-years away from any other Constitutional analysis I've read -- or at least since the last time I visited a tax resister's Web page. Your defense of the charge that he's got his facts wrong amounts to a statement that he advances incomplete and inept constitutional arguments. I use "inept" because you and I both know that no competent constitutional lawyer can take some of the arguments he advanced here, in his article, or in his reply very seriously. If your position is that Volokh is not unethical (as I had charged), but merely ignorant (as to filtering technology) and inept (as to constitutional analysis), then perhaps I should apologize for assuming the former rather than considering the latter. I urge you to make clear which advice you're suggesting to me. In either scenario, however, one thing is clear to me -- that Volokh's article, his defense of it, his refusal to acknowledge his errors in this forum (even though he seems to have chosen to hint at a quasi-apology in his letter to Slate), and, finally, his letter in response to Jay Friedland have convinced me that he simply cannot be trusted to give competent advice or opinions as to the Constitutional issues raised by the CDA, and perhaps as to any other Constitutional matters. > not one that is caused by false factual predicates >(unless Eugene really thinks that the white list technology is inherently ca >pable of permitting kids access to "only a few" sites....) Interestingly, Specs For Kids, which numbered 147,000 screened and rated kid-friendly sites a couple of days ago, was at 152,000 today. I wonder if anyone has given thought to how long it takes to visit 152,000 Web sites. I hope you'll pardon me if I don't trust Volokh's math. --Mike ------------------------------------------------------------------------------- Law Professor Volokh Errs In Slate Article About Communications Decency Act. Set your browser to the following URL to read a critique of the Slate article by EFF's Mike Godwin and MIT's Hal Abelson: . Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org or at his office, 510-548-3290. ---------------------------------------------------------------------------- --- Message-Id: Date: Fri, 2 Aug 1996 04:48:22 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: Response to Hamilton's defense of Volokh/criticism of Surfwatch' To: Multiple recipients of list CYBERIA-L Robert Hamilton writes: >1. I continue to believe that Eugene did not directly state, nor did he intend >to imply, that "all" filtering products rely solely, or even primarily, on >"black list" technology. Okay, Robert, let's assume, arguendo, that this is what Volokh meant. Now please explain how his statement, when limited to black-list technology, supports the point Volokh attempts to make in this paragraph: 'On the Internet, is it possible to shield children without restricting adults? Parents can get software--SurfWatch is one popular brand--that keeps their computers from accessing any place that's on a list of "dirty" locations, a list selected and frequently updated by the software designers. If the government wanted to, it could buy SurfWatch (for a fraction of what it would cost to enforce the CDA) and give it away to parents. Could this be the "less restrictive alternative" that the government could use instead of CDA's total ban? Well, it depends on how much shielding of children you're willing to sacrifice. The SurfWatch solution is limited by the software designers' ability to keep up with the latest "dirty" places. Dozens of Web sites are being added daily, and you never know what will get posted tomorrow even on existing sites or newsgroups. Some things will inevitably be missed. The purely technological fix, then, is less restrictive than the CDA, but it's also less effective. The CDA, of course, won't be perfect, either--many will flout it, and Web sites in other countries won't be bound by it--but the ban plus the technological fix probably will shield children better than the technological fix alone. Does this extra protection justify the considerable spillover? The precedents don't answer this.' One of the things I routinely do, Robert, is outline a paragraph or even an article if I want to understand better the logical structure of the paragraph or article. Try outlining this paragraph and seeing how the "black list" sentences support his conclusions about "spillover," if those sentences are as narrow in scope as you say they are. Or, to put it another way, consider this sentence from the quoted Volokh paragraph, supra: 'The purely technological fix, then, is less restrictive than the CDA, but it's also less effective.' Does Volokh lay the factual predicate for this conclusion? Furthermore, if your interpretation is correct, Robert, how is the following sentence, which appears near the end of Volokh's article, consistent with your view that Volokh was self-consciously choosing to discuss only one kind of filter? 'My guess is that the marginal benefit of the CDA over the technological alternatives is small enough, and the burden that the law creates is large enough, that the CDA will be overturned.' (Note the definite article and the plural in "the technological alternatives.") Since we are now discussing what Volokh meant, let us adduce his reply to Friedland, in its entirely and without interlinear comments upon, right here: ----------------------------------------------------------------- Eugene Volokh Replies: I appreciate Jay Friedland's comments, with which I agree to some extent and disagree to some extent. In describing the filtering systems--and SurfWatch was given just as a leading example--I did, in some measure, oversimplify them. Some simplification is necessary for space reasons, and as I discuss below, I chose to focus on what I thought would be the most legally significant measures. Still, I should have made clearer that the "list of dirty sites" model is only (in my view) one of the most useful alternative approaches: There can be other shielding mechanisms also, such as key word filtering, a list of clean sites, a list of "dirty-site" patterns (e.g., alt.sex.* rather than just a list of all the alt.sex newsgroups), a list of dirty sites editable by each parent, and more. Which features SurfWatch and other filters currently provide isn't even specifically the issue: As my discussion of the hypothetical self-rating requirement suggests, the question is what less restrictive alternatives are possible, whether or not they are currently implemented in the most popular products. I thank Friedland for calling the readers' attention to my oversimplification, and apologize for any misunderstanding it may have caused about the features that SurfWatch supports. Nonetheless, the reason I didn't devote space to the other models is that I believe the two models I discussed--the dirty-site list and the self-rating requirement--will be the most relevant to the court's analysis. It seems to me extremely unlikely that the court will view the other methods as suitable "less restrictive alternatives." Parents' ability to edit the list of blocked sites is a valuable feature, but it certainly doesn't eliminate the problem of some indecent material remaining available to children; keeping up with new dirty sites is even harder for parents than for the software designers. Likewise, key word filtering, like the list of dirty sites (or site patterns), will still involve some spillover--some indecent Web sites or indecent newsgroup conversations won't contain the key words. One could diminish this spillover by having a huge list of prohibited key words, but this will radically lower the product's utility, because it risks excluding so many innocent sites that what remains will be much less useful to the child. A pure list-of-clean-sites approach--where a child is allowed access to only the limited list of allowed sites--might almost entirely shield children from indecent material. (I say "almost" because even with the limited-list model, there's still some risk of children getting access, for instance, when they visit friends whose computers don't use the blocking software.) But this shielding involves blocking children from a truly vast amount of non-indecent material that hasn't yet been screened for the clean-sites list. Again, it buys protection only at the cost of making the program much less useful, especially where older children are involved. If the compelling government interest is in shielding children from indecency while still allowing them access to non-indecent matter--and I believe the court will indeed accept this as a compelling interest, though some commentators may disagree--then these alternatives just won't do a perfect job of serving that interest. They might, of course, still do a pretty good job. SurfWatch and its cousins are doubtless very valuable to consumers; I hope I've never suggested the contrary. Moreover, as my article mentioned, the courts might well conclude that some spillover of indecent material must be tolerated, that it's better to let some such matter remain available to children than to block all such matter from adults. This is why my article predicted that the court will probably indeed strike down the CDA, due in large measure to the feasibility of fairly good (though imperfect) technological alternatives. But the feasible technological alternatives, at least as they appear today, would not completely eliminate the spillover problem. The CDA plus those technological fixes would provide somewhat more shielding than just those fixes alone. And, as the original article concluded, this means that "[u]ltimately ... the justices will have to make a hard choice: sacrifice some shielding of children in order to protect grownups, or sacrifice some access by grownups in order to shield children." ----------------------------------------------------------------- Study Question (1) for Robert: In Volokh's self-exegesis, supra, does this sentence-- "But the feasible technological alternatives, at least as they appear today, would not completely eliminate the spillover problem." --seem to be referring only to black-list filters, or to filters as a class? Study Question (2): First, read this paragraph: 'A pure list-of-clean-sites approach--where a child is allowed access to only the limited list of allowed sites--might almost entirely shield children from indecent material. (I say "almost" because even with the limited-list model, there's still some risk of children getting access, for instance, when they visit friends whose computers don't use the blocking software.) But this shielding involves blocking children from a truly vast amount of non-indecent material that hasn't yet been screened for the clean-sites list. Again, it buys protection only at the cost of making the program much less useful, especially where older children are involved. If the compelling government interest is in shielding children from indecency while still allowing them access to non-indecent matter--and I believe the court will indeed accept this as a compelling interest, though some commentators may disagree--then these alternatives just won't do a perfect job of serving that interest.' (a) Is Volokh's second sentence -- the one in parentheses -- inapplicable to *his* suggested solution (CDA plus labelling), given that a large proportion of the content of the Net originates outside of the territorial boundaries of the United States? (b) The final sentence in the paragraph refers to "a perfect job of serving that interest." Is the question of whether the "job" is "perfect" normally a threshold question in a least-restrictive-means analysis? Would Volokh's own suggested solution (CDA plus labelling) do "a perfect job of serving that interest"? Would it do "a perfect job of serving" _any_ interest? Please show your work. --Mike ------------------------------------------------------------------------------- Law Professor Volokh Errs In Slate Article About Communications Decency Act. Set your browser to the following URL to read a critique of the Slate article by EFF's Mike Godwin and MIT's Hal Abelson: . Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org or at his office, 510-548-3290. ---------------------------------------------------------------------------- --- Message-Id: Date: Sat, 3 Aug 1996 05:05:44 -0700 Reply-To: Law & Policy of Computer Communications Sender: Law & Policy of Computer Communications From: Mike Godwin Subject: Re: By the way... To: Multiple recipients of list CYBERIA-L At 3:03 AM 8/3/96, Bill Stewart wrote: >At 07:26 PM 8/1/96 -0600, William T. Quick wrote: >>Did anyone notice that the District Court in Manhatten handed down a >>decision in Shea v. Reno this week---striking down the CDA's >>"patently offensive" provision as unconstitutionally overbroad (but >>not vague)? So much for all the hand-wringing over Joe Shea's >>separate suit... > >Yeah! Wonder which one the Feds will appeal? Will they risk >going for both, or try to guess which one is the broader >decision (and hence more important to attack) or which one >is more likely to be overturned (weakening the other one)? ># Thanks; Bill ># Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com ># Defuse Authority! The government will appeal both cases. For sure. The sets of claims and issues in each case are not coterminous. --Mike ------------------------------------------------------------------------------- Law Professor Volokh Errs In Slate Article About Communications Decency Act. Set your browser to the following URL to read a critique of the Slate article by EFF's Mike Godwin and MIT's Hal Abelson: . Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org or at his office, 510-548-3290. ---------------------------------------------------------------------------