The Google Search Results Case - Government forcing us to reveal what we think about, as part of trying to prove that COPA is constitutional. Are we comfortable with this? If so, why?
Brief background about COPA and the legal struggles
In 1998 Bill Clinton signed a law called the Child Online Protection Act (COPA) - from the Wikipedia —-: COPA required all commercial distributors of “material harmful to minors” to protect their sites from access by minors. “Material harmful to minors” was defined as material that by “contemporary community standards” was judged to appeal to the “prurient interest” and that showed sexual acts or nudity (including female breasts). This is a much lower standard than obscenity and covers all hardcore and softcore pornography.
COPA has been subjected to intensive litigation ever since enacted. See Child Online Protection Act History of Litigation. Opponents of COPA argue that mandating filtering software is a better pro-freedom solution to protect children than imposing criminal penalites on people who engage in constitutionally protected speech, just because the speech might be harmful to minors.
The Supreme Court in 2004 upheld an injunction preventing enforcement of COPA while the case against the law proceeds through the lower courts. The roadblock is that pesky old First Amendment. The Court interprets the First Amendment to require that governmental restrictions on evil speech (such as pornography involving underage persons) must not overly burden other speech. The Supreme Court was skeptical of the COPA’s methodologies.
As reports the Wikipedia … :
“the court mentioned that “filtering’s superiority to COPA is confirmed by the explicit findings of the Commission on Child Online Protection, which Congress created to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the internet”. The court also wrote that it was five years since the district court had considered the effectiveness of filtering software …
Here are two of Justice John Paul Stevens’ descriptions of the offensive COPA provisions, showing that COPA actually criminalizes protected free speech:
First, Stevens said The Child Online Protection Act (COPA) restricts access by adults as well as children to materials that are “harmful to minors.”, in his dissent in the 2002 Ashcroft v ACLU case, number 00-1293. (Who decides what material is harmful to minors?)
Second, in Stevens’ concurrence in the 2004 Ashcorft v ACLU case, number No. 03—218, the Justice criticized COPA for imposing criminal penalties on the spreading by “Web Speakers” of constitutionally protected speech, just because the speech might be “harmful to minors”.
Here’s what Stevens said, from his concurrence in the 2004 Ashcorft v ACLU case, number No. 03—218:
“I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. 47 U.S.C. § 231(a). Speakers who “intentionally” violate COPA are punishable by a fine of up to $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, §231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction.
And so the case continues in the lower court, as the Government attempts to prove that filtering software is not as good as Government supervision of speech and criminal penalties on Web Speakers. So now, the Government decides it wants to know what we are thinking about, through our search engine queries.
As part of the Government’s continuing attempt to justify the law, the Government has been issuing subpoenas to search engines. A Judge is letting the Government force Google to tell the Government what is in our thoughts — :
As reports the Wikipedia … : The Department of Justice issued a subpoena to Google to obtain one million random Web addresses and records of all Google searches for a one week period in order to uphold the COPA in its appeal. The purpose of obtaining Google’s data as well as similiar data from other major search engines including Yahoo and MSN is to prove that filtering technology is not effective in stopping children from reaching pornographic sites. So far, only Google has not complied with the subpoena.
Google has been fighting the subpoena. A couple of days ago, Judge Ware granted much of the Government’s request for information from Google, but not all of it.
Should we care whether the Government can force us to disclose (indirectly through Google) what is in our thoughts? The Government is forcing Google to make the disclosures for us, rather than forcing us to disclose our thoughts directly - is that an important distinction?
Among free-speech advocates, who are pretty hard core in defending against Government tyranny, the answer is NO! It is not an important distinction. I don’t want to digress too much, but free speech advocates are extremely conservative about any governmental monitoring or regulation of speech. I suppose you could consider free speech advocates to be “fundamentalists” on speech issues.
[It’s a bit contradictory that free speech advocates on the political left are often activists for “politically correct” speech codes, and free speech advocates on the political right are on the forefront of the movement to punish those who engage in so-called Obscene speech.]
The government is using the Google subpoena case as a test of how far courts will let it go. And then the government will go further next time, and see how much farther the court will let it go. Big Brother wants to watch, yessir he does, very much.
If you doubt that the government will continue to incrementally push the envelope in monitoring our online activities, you are naive.
The government has incrementally been pushing its police powers for many decades, under the guise of fighting either the war on crime, the war on drugs, the war on terror, or the war on p $ r n. It’s in the natural order of things that governments tend to try to increase their power.
The government would LOVE to have daily access to Google search queries, including the address of the computer that performed the search. Then, agents could pay visits to people whose searches suggested they might not be the purest of mind. Is that a good power to give the government? That’s where we are heading.
Go back in time 30 years. We had computers and phones then. It would be inconceivable 30 years ago that we would have even thought that we might PERMIT government to scan our computer and telephone communications. But nowadays, the loudest voices in our society (the right wing radio stars) are preaching about how we should TRUST the government, and should let them monitor our electronic communications (without meaningful oversight).
How did it come to pass that we have become so trusting of governmental power? Our nation was founded on DISTRUST of governmental power, hence all the limits on that power in the Constitution.
Will the good outweigh the bad from the government having access to our thoughts through our search records?
Only time will tell for sure. But count me as a major skeptic. Search records are none of the government’s business, whether they are user specific or not.
We must be vigilent when the government chooses to officially monitor our speech.
When the government promises not to abuse its powers, we must disbelieve them and watch them as closely as an ICU nurse watches her patient.
As an aside, I’ll mention that even free speech fundamentalists are on board with the prohibition on creating and distributing child p-R–0—n. The COPA controversy isn’t about that issue, but I want to prevent any misconceptions.
Consider that libertarians believe that personal civil liberties do not include the freedom to harm others, and it’s clear that p—R- 00n involving minors is harmful to them. And so, libertarians don’t stand in the way of prohibition.
COPA’s primary goal, as stated in quoted excerpts above, is to prevent minors from accessing indecent material. Libertarians, and Supreme Court Justices, are concerned about the idea that the government would deny adults access to legal (but indecent) material, just because kids might be able to access the material too.
It isn’t easy for the government to justify its position that kids are being harmed, and further that the COPA’s mandates and huge criminal penalties are a least restrictive way to fight the perceived problem.
How much power do we give the government in its attempts to regulate or prohibit some speech and thoughts? Isn’t THAT the crux of the matter? We can harm our freedoms and our society, generally, when we go too far in our zeal to eradicate perceived evil - recent examples being the drug war and the war on terror.
Remember that the COPA dispute is over COPA’s shutting down adults’ access to legal things that kids shouldn’t see, through huge criminal penalties for inadvertent failure to comply with mandates. Fear and expense and prosecutions will close down web businesses that sell legal content to adults.
When Supreme Court Justices issue cautions, don’t dismiss them too lightly. Consider the caution issued by Justice Stevens in the 2004 Ashcroft v ACLU COPA case –: As a parent, grandparent, and great-grandparent, I endorse [the COPA goals] without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children’s viewing habits.
Consider that we have already given the government way too much power in the “war on drugs”. The drug war has done far more to erode our protections against tyranny, in my opinion, than any other threat we have faced as a society - and this is an evil byproduct of a seemingly good social policy of eradicating recreational drug use. pros and cons of our drug prohibition policy.
War on Terrorism
Also consider the vast expansion of governmental power in the “war on terrorism”. We are now subject to being monitored everywhere - our emails are subject to being scanned by the government, and our telephone calls are listened to by supercomputers. The government also can tap into the cell phone network and locate us at any time. A primer on modern Surveillance.
See your friendly neighborhood RadMod’s very own “Big Brother” category of articles for much more about the anti-freedom excesses in the War on Terror.
Concluding thoughts, and a suggestion, and a postscript:
I personally felt the “chill” toward my speech, even as I did research for this article
In writing this very article, I performed some Google searches for such concepts as obscenity and –p-r-*N, and also for some Supreme Court cases on the issue of ;p*R0-n. BUT, in order not to trigger any computer switches or alarms at Big Brother headquarters, I was very careful in the words I used. So, rather than search directly for the subjects by inputting their exact names, I searched indirectly with more vague descriptive language.
In other words, I am experiencing the “chill” in speech that comes from governmental intrusion into our free speech rights.
You might also notice that I have avoided the use of the P word. Now what in the world is wrong with the P word when used in the context of this article? Nothing at all! But in this era of governmental computerized monitoring and profiling, one can’t be too careful - it’s best to try to stay out of the government’s way, and stay off its lists. Jeez, Senator Ted Kennedy got on the no-fly list in 2004, so the government’s lists are often F’d up.
Suggestion - rather than impose criminal penalties on providers of legal content, mandate that after a certain date ISPs must make available a parent-configurable filtering service, ideally triggered by a child’s login password
The government can regulate commerce, and can issue safety rules. It is within the government’s power to mandate that Internet Service Providers take reasonable steps to make available to parents a filtering service of some sort, configurable by the parent.
For example, a parent should be able to tell the ISP NOT to display any web page that contains indecent language, or that appears on a third-party list of indecent websites, etc, or any website that has voluntarily registered with the government as being adult-oriented.
Ideally, the ISP could impose the filter, or not impose the filter, depending on the password used to log in to the ISP.
Issue: Isn’t this filtering easy to work around? Answer: Design it to be robust and hard to bypass. Deny access to hacker websites that help kids learn to bypass controls. You may not know this, but ISPs can deny access to any internet address they want. Some kids will find ways around it - just as resourceful kids have always been able to get their hands on taboo stuff - It’s gonna happen, but at least we protect most kids.
Issue: What if a parent just doesn’t care, and lets his children run wild on the internet? Answer: That’s gonna happen, just as some parents now let their children run wild on the streets, let them do dope in front of them, cover up for the kids’ crimes, etc. It’s part of living in a large society, that some people will not do the right thing. That’s not sufficient justification to trample on our free speech rights.
PostScript: The best justification for COPA I’ve thought of is this: As with liquor stores, the government can impose age-verification standards in order for businesses to continue servicing adults.
That’s not a bad justification, if I do say so myself. The problem is that the internet does not permit face to face communication and the passing of an ID across a counter.
And so the players are fighting about HOW the government can impose age verification standards.
Politicians have already decided to impose their own brand of age standards - “Deny everyone”, even though the ISP imposed filtering idea is a much better idea for freedom.