[IP] more on Editorial for IP: Fishing in Cyberspace (NY Times, 21 Jan 06)
Begin forwarded message:
From: Seth Finkelstein <sethf@xxxxxxxxx>
Date: January 23, 2006 6:01:26 AM EST
To: "Lin, Herb" <HLin@xxxxxxx>
Cc: ip@xxxxxxxxxxxxxx, David Farber <dave@xxxxxxxxxx>
Subject: Re: [IP] more on Editorial for IP: Fishing in Cyberspace (NY
Times, 21 Jan 06)
From: "Lin, Herb" <HLin@xxxxxxx>
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outdated.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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