« Garnett, Berg et al. on the Ministerial Exception | Main | Doogie Howser, Law School Edition »

Tuesday, October 04, 2011

America Censors the Internet

If you're an on-line poker player, a fan of the Premier League, or someone who'd like to visit Cuba, you probably already know this. Most people, though, aren't aware that America censors the Internet. Lawyers tend to believe that a pair of Supreme Court cases, Reno v. ACLU (1997) and Ashcroft v. ACLU (2004), permanently interred government censorship of the Net in the U.S. Not so.

In a new paper, Orwell's Armchair (forthcoming in the University of Chicago Law Review), I argue that government censors retain a potent set of tools to block disfavored on-line content, from using unrelated laws (like civil forfeiture statutes) as a pretext to paying intermediaries to filter to pressuring private actors into blocking. These methods are not only indirect, they are less legitimate than overt, transparent regulation of Internet content. In the piece, I analyze the constraints that exist to check such soft censorship, and find that they are weak at best. So, I argue, if we're going to censor the Internet, let's be clear about it: the paper concludes by proposing elements of a prior restraint statute for on-line content that could both operate legitimately and survive constitutional scrutiny. 

Jerry Brito of George Mason University's Mercatus Center kindly interviewed me about the issues the article raises for his Surprisingly Free podcast. It's worth a listen, even though my voice is surprisingly annoying.

Cross-posted at Info/Law.

Posted by Derek Bambauer on October 4, 2011 at 06:14 PM in Civil Procedure, Constitutional thoughts, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Web/Tech | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef014e8c05f79e970d

Listed below are links to weblogs that reference America Censors the Internet:

Comments

There are others: criminal sanctions for producing or consuming material , taxes upon it , or campaigns to drive social disapprobation for it . Importantly, censorship is not binary, where information is either completely blocked or freely available: a state can succeed by raising the effective price of contraband information sufficiently. Content controls are never perfect.

Posted by: john | Oct 9, 2011 1:20:47 PM

Thanks, Orin. I take up exactly this question - defining censorship - at pages 8-12 of the paper. Let me quote from it to give you a sense of why I'm using "censorship," and how:

For this Article, censorship occurs when a government prevents communication between a willing speaker and a willing listener through interdiction rather than through post-communication sanctions. Filtering is a specific type of censorship, where the state uses technological methods to identify and block prohibited content. This usage of “censorship” is normatively neutral: the state censors equally when it seizes child pornography shipped via the postal service , and when it employs software to block access to a labor union’s Web site on a wi-fi network . Censorship is thus one means of increasing the cost of disfavored information. There are others: criminal sanctions for producing or consuming material , taxes upon it , or campaigns to drive social disapprobation for it . Importantly, censorship is not binary, where information is either completely blocked or freely available: a state can succeed by raising the effective price of contraband information sufficiently. Content controls are never perfect. China’s system of Internet censorship, popularly known as the Great Firewall, can be breached by users with sufficient technical skill, and yet is highly effective in controlling the information available to most Chinese citizens. Thus, censorship (as used in this Article) describes a process where a state uses ex ante measures to make information more difficult or expensive to access, with the goal of preventing its consumption or distribution... The virtue of this Article’s more technical definition of censorship is that it concentrates upon the method a government uses to control information, and defers analysis of the legitimacy of such measures to a separate step.

Posted by: Derek Bambauer | Oct 5, 2011 8:58:29 AM

If you'll let me ask a question without reading the paper, what is the difference between the scare-word "censoring" and the more commonly-used word "regulating"? Is your argument simply that the government regulates the Internet (which no one could deny), but using the word "censor" instead of "regulate"? Put another way, what do you mean by "censor"?

Posted by: Orin Kerr | Oct 4, 2011 11:08:01 PM

Post a comment