not your father's censorship

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http://chronicle.com/free/v55/i19/19b00901.htm

From the issue dated January 16, 2009

Not Your Father's Censorship

Quasi-monopolies and wary governments curb Web freedoms

By HARRY LEWIS

While my father was in the Army during World War II, he sent my mother letters and photos from Belgium. Each

document arrived with the censor's approval stamp, certifying that no harm would come to our nation if those

depictions of life at the front fell into enemy hands.

That was the censorship of another time. Everyone understood why it was important and knew that the governmentneeded to control the communication channel from the war zone. But Americans also understood that wartime

censorship was anomalous. Though the United States has a history of banning books, Americans generally don't like

having the government intercept their communications or decide what they are allowed to know.

Now, with almost everything digitized, new communication technologies have led to a global proliferation of censorship

agents, methods, and rationales. Ironically for the American pioneers who expected the Internet to foster unprecedented

information freedom, its rapid and ubiquitous adoption has created a flexible and effective mechanism for thought

control.

Governments love and fear the Internet. It's a cheap agent of economic growth, but it also delivers disturbing and

subversive ideas at very low cost. In reaction to that threat, North Korea offers essentially no broadband service. But

across the border, 93 percent of South Korean households are connected, according to a recent Gartner study.

U.S. connectivity is second-rate just over half of households have broadband service. The Federal Communications

Commission proposed to help the unconnected by diffusing universal wireless service with censored content, free of

anything inappropriate for children. But many people felt that limiting some Americans to grade-school content would

excessively abridge their freedom of speech, and late in 2008 the FCC dropped the proposal.

During the campaign, Barack Obama promised to extend broadband service to all Americans, but he may find, as Berin

Szoka a fellow at the Progress & Freedom Foundation wrote, that "what's constitutional is politically impossible

(unfiltered free Internet) and what's politically possible (filtered free Internet) is unconstitutional." The new

administration should expect strident protests against censored Internet service in the United States, much like those that

have recently occurred in Australia, where the government is planning to filter all Internet communications.

Bits are already filtered and monitored as they cross national borders. In China, if you want to visit www.xxxxxxxx.org

(the Web site of a XXXXXXXXXX group) orxxxxxxxx.org (the site of the banned xxxxxxx group XXXXXXX),

you will temporarily lose your Internet connection. The OpenNet Initiative, a partnership of Internet research centers at

Harvard University and the Universities of Cambridge, Oxford, and Toronto, documents technology-enabled,

fine-tuned censorship all over the world: no sex in Saudi Arabia, no Holocaust denials in Australia, no shocking images

of war dead in Germany, no insults to Mustafa Kemal Atatrk in Turkey. Some of those bans mimic pre-Internet

censorship laws, but authorities install harsh new ones in response to internationally significant events, such as the

monks' protests in Myanmar in 2007.

American publishers can be affected by the censorship practices of foreign governments. Australia's highest court found

Print: Not Your Father's Censorship - ChronicleReview.com

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the Web version ofBarron's, the financial newspaper, guilty of libel in a case brought by an Australian businessman,

Joseph Gutnick, even though the article would not have been considered defamatory under U.S. laws in New Jersey,

where the Web servers were located. Web publishers, cowed by threats of legal action, may adapt to the restrictions of

their major markets abroad. Happily, Congress has responded by prohibiting American courts from enforcing libel

judgments in nations lacking U.S. free-speech standards. But that won't prevent journalists from being detained or

publishers' property from being seized abroad to settle such claims.

Since the Internet and the tools that make it useful are mostly in corporate hands, digital censorship relies on the private

sector. In 2006, threatened with expulsion from the Chinese market, Google tailored the Chinese version of its search

engine to meet the demands of government censors there. You can get a sense of the difference by using Google.cn,

the Chinese version of Google, to search for "XXXXXX," and comparing the results with what you get using Google.

(Using Google.cn doesn't actually connect you to a server inside China. Try Baidu, the most popular Chinese search

engine, to get the door slammed in your face for asking the wrong question across the Chinese fire wall.)

Congress, enraged, toyed with legislation that might stiffen the spine of U.S. Internet companies doing business in

China. But so far, profit from the global information economy has trumped principles of information freedom. Google

acknowledged that "removing search results is inconsistent with Google's mission," which the company says is "to

organize the world's information and make it universally accessible and useful." But, it went on to say, "providing no

information ... is more inconsistent with our mission."

In America the distorting lens of censorship can be adjusted to satisfy various tastes. You can set your GoogleSafeSearch preferences to do strict, moderate, or no filtering of explicit images and text. But "explicit" has no meaning

in American law. When you turn on your Internet filter, the determination of which content gets blocked is purely a

matter of corporate judgment.

Google's business is to supply the information that most people want, most of the time. How the company decides

whether a particular result is No. 1 or No. 100,000 (hence nonexistent, for practical purposes) is part of Google's secret

recipe.

We have no control over how search engines inform us. To be sure, we know something about their methods. A

Web-site designer can "optimize" a search engine's estimation of the site's importance. In isolated cases, Google has

given a site the "death penalty" temporary removal from Google's index for trying to trick its ranking algorithm.

But charges of bribery or corruption are rarely heard.

Should we feel comfortable relying almost exclusively on private companies to help us find the truth, when we cannot

know what version of the truth they are showing us? The former president of France, Jacques Chirac, was so

concerned about American hegemony over the search-engine lens that in 2005 he worked with Gerhard Schrder, then

chancellor of Germany, to start a European Union search engine. The project failed. People are happy with the

commercial services that search engines provide, but it is hard to think of anything else that we depend on so heavily yet

know so little about.

Storing information and making it available are now service businesses, and therein lies another censorship opportunity.

Consider Bruce Wilson's video documentary of Gov. Sarah Palin's church in Wasilla, Alaska. Wilson whose Web

site, Talk to Action, criticizes what he calls "the religious right" posted the video on YouTube. It was viewed some

160,000 times, then disappeared. When Wilson contacted YouTube for an explanation, he was told only that the videocontained "inappropriate content." But it hadn't violated any of YouTube's rules against scenes of illegal acts,

copyrighted material, or images that are pornographic or gross.

YouTube owed no one an explanation of why it took down Wilson's video. It was operating within its corporate rights

and breached no deal with Wilson. Is "censorship" even the right concept when protection is never part of the

arrangement?

In this case, the answer is yes. YouTube is not the only place to share videos, but it is by far the most popular. Because

of "network effects" the more people who use something, the more others want to use it many information

services develop toward monopoly status. If YouTube is where almost everyone goes to find video content, then what

happened to Wilson's video walks and quacks like censorship, whatever we may choose to call it.


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Copyright law is the new frontier of censorship. In response to panic in the recording industry about music file sharing,

Congress passed the Digital Millennium Copyright Act in 1998. The DMCA seems to have made hardly a dent in the

sharing of songs and movies, but it has justified a nasty war between recording studios and the teenagers on whom the

industry depends. Other parties are being dragged into the fight. The recording and motion-picture industries are

pressuring colleges to screen everything that flows over their campus networks in order to stop the unauthorized

delivery of copyrighted songs and movies to students' rooms.

No one advocates breaking the law, but such screening is inconsistent with academic principles of open communication.

Suppose some students were acquiring unauthorized photocopies of textbooks. Would any university respond by

opening and inspecting every parcel delivered to a student's room? And yet such pre-emptive antipiracy measures have

become plausible, even on a grand scale. At the urging of the recording industry, the French government is making

plans to inspect every Internet communication in the nation before delivery even though France also affirms people's

basic right, as stated in the Universal Declaration of Human Rights, to "receive and impart information and ideas

through any media."

U.S. copyright law is such a heavy club that it can abet censorship by parties that simply object to what people are

saying about them. Under the DMCA, if Alice posts a video on YouTube and Bob claims that it infringes his copyright,

he can issue a takedown notice demanding that YouTube remove the video. YouTube need not comply with Bob's

demand, but if it does, it will enjoy a safe harbor from subsequent liability. Alice can lodge a counterclaim, but

YouTube has to wait 10 business days before restoring the material, to give Bob the opportunity to take Alice to court.

That regime sounds balanced but isn't. It provides immediate satisfaction for Bob and a substantial delay for Alice. If

Bob and Alice are unequal parties Bob is a studio and Alice an independent artist, for example hiring lawyers is

likely to be routine for Bob and a burden on Alice. If Bob demands that Alice's material be pulled, Alice, whatever the

merits of her case, may prefer to avoid a legal snarl.

And that is exactly the way things sometimes play out. Uri Geller, a performer who claims to be able to bend spoons by

mental exertion, used the DMCA to demand that YouTube remove a video in which the debunker James Randi

exposed Geller's trickery. Recently the Church of Scientology issued 4,000 takedown notices over a period of 12 hours

demanding the removal of videos critical of the church, even some lacking any footage on which it holds a copyright.

The Web site Chilling Effects documents such abuses, and the Electronic Frontier Foundation helps fight them.

Ironically, even the McCain-Palin campaign, which explicitly promised to "crack down on piracy," fell victim to theDMCA's censorial abuse. The campaign complained to YouTube that its videos and advertisements had repeatedly

"been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair-use doctrine,"

which allows noncommercial use of small amounts of copyrighted material for purposes of discussion and critique. (For

example, CBS objected to a McCain ad that contained a short clip from Katie Couric's news show.) McCain's attorney

argued that two weeks is an eternity during a political campaign, and that the takedown process might chill political

discourse. YouTube not unreasonably responded that it couldn't sort out disputes between disagreeing parties but would

look forward to working with either President or Senator McCain to improve the law.

The Internet is, for the most part, privately owned. So is the publishing business, where the free market has always

worked. If a publisher doesn't want my book, I can take my business elsewhere, but I can't cry censorship. We wouldn't

want government regulation of book publishers, and we don't need it. Is the Internet any different?

The Internet is different from publishing, in fact if not in theory. Were one publisher as dominant as Google or

YouTube, its corporate judgments might have a very big impact on the free flow of ideas. And the DMCA protocol

presents opportunities for the powerful to suppress speech by spurious invocation of copyright law. In the United

States, the Internet is still the "most participatory form of mass speech yet developed," as a federal judge, Stewart R.

Dalzell, wrote in overturning an early Internet-censorship law. For the Internet to remain so, more legislation will be

needed to guarantee its openness.

Harry Lewis is a professor of computer science at Harvard University and a fellow of the Berkman Center for

Internet and Society. He is a co-author ofBlown to Bits: Your Life, Liberty, and Happiness After the Digital

Explosion (Addison-Wesley, 2008).


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