more on Editorial for IP: Fishing in Cyberspace (NY Times, 21 Jan 06)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: January 23, 2006 6:01:26 AM EST
To: "Lin, Herb" <HLin () nas edu>
Cc: ip () v2 listbox com, David Farber <dave () farber net>
Subject: Re: [IP] more on Editorial for IP: Fishing in Cyberspace (NY  
Times, 21 Jan 06)


> From: "Lin, Herb" <HLin () nas edu>
> Date: January 23, 2006 1:08:47 AM EST
> My question - why is the government running those tests NOW?  For
> them to have asserted the superiority of COPA over filters in
> protecting children, shouldn't they have run those tests BEFORE they
> made such an assertion?

        The original government arguments disfavoring censorware were
more about intrinsic properties, for example:

http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-0218.mer.aa.html

 "Filtering software is not nearly as effective as COPA's screening
  requirement in shielding minors from commercial domestic pornography
  on the Web.  Filtering software is voluntary, while COPA's screening
  requirement is mandatory.  Filtering software also blocks some sites
  that are not harmful; it fails to block some sites that are harmful;
  it can be expensive for parents to purchase; and it quickly becomes
  outdated.  Congress also did not view mandatory screening and
  blocking software as an either or choice. It mandated screening and
  encouraged the use of blocking software as well. That combined
  approach is far more effective than the use of voluntary blocking
  software alone."

        The Supreme Court opinion *required* more censorware evidence:

http://laws.findlaw.com/us/000/03-218.html

 "Second, there are substantial factual disputes remaining in the
  case. As mentioned above, there is a serious gap in the evidence as
  to the effectiveness of filtering software. See supra, at 9. For us
  to assume, without proof, that filters are less effective than COPA
  would usurp the District Court's factfinding role.  By allowing the
  preliminary injunction to stand and remanding for trial, we require
  the Government to shoulder its full constitutional burden of proof
  respecting the less restrictive alternative argument, rather than
  excuse it from doing so.

  Third, and on a related point, the factual record does not reflect
  current technological reality-a serious flaw in any case involving
  the Internet.  The technology of the Internet evolves at a rapid
  pace. Yet the factfindings of the District Court were entered in
  February 1999, over five years ago. Since then, certain facts about
  the Internet are known to have changed. [...]
  It is reasonable to assume that other technological developments
  important to the First Amendment analysis have also occurred during
  that time. More and better filtering alternatives may exist than
  when the District Court entered its findings. Indeed, we know that
  after the District Court entered its factfindings, a congressionally
  appointed commission issued a report that found that filters are
  more effective than verification screens. See supra, at 8."

        Practically, given the structure of the argument, one would
want to do tests as close to the trial as possible. The government has
an incentive to "talk down" censorware here. And if one tests a
censorware product, and finds it's garbage, the censorware company
often replies along the lines of "That was yesterday's version.
Today's version is perfect. And it's up to you to prove otherwise".
(this cycle can continue an exhausting number of times).

--
Seth Finkelstein  Consulting Programmer  http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php


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