The DOJ's New Spin on Blocking Software

Bennett Haselton has writes "In recent arguments over the constitutionality of the Child Online Protection Act, both sides have argued over the efficiency of Internet blocking software. While COPA would prohibit commercial U.S. websites from publishing freely available material that is "harmful to minors", the ACLU has argued that blocking software is a far more effective alternative, since among other things it can block porn sites located overseas, non-commercial websites, and p2p programs, all of which are beyond the reach of COPA. On the other hand, we had the surreal experience of watching the Department of Justice lawyer arguing in favor of a censorship law by saying that the blocking software alternative was unfair to children -- because it blocked too much legitimate material." The rest of Bennett's essay follows.

"For example," said DOJ attorney Eric Beane during opening arguments, "one filter even blocked a website promoting a marathon to raise funds for breast cancer research. Part of the CIA's World Fact Book was blocked. And a page with an ACLU calendar. [Blocking software blocks] a significant portion of other materials on the World Wide Web, materials that in many cases are necessary for a child to complete his homework." (Opening arguments transcript, p. 37.) As someone who has been publishing critiques of blocking software for years, I read those words and felt like cheering, despite the fact that I'm sitting in the other side's fan section for this match. (Beane is right, but he's missing the point, which is that whatever problems exist with blocking software, are minor compared to the problems with COPA -- because blocking software raises no constitutional issues when it's used by a private party in their own house, whereas COPA affects everyone in the U.S.)

The irony, of course, is that three years ago, in the trial over the similarly-named Children's Internet Protection Act (CIPA) which required blocking software in all schools and libraries that receive federal funds, it was the ACLU pointing out the flaws in blocking software and the Department of Justice claiming that blocking software was accurate and effective.

At first it would seem that both sides are now guilty of flip-flopping. But reviewing what was said then and what was said now, my conclusion is that the ACLU did nothing more than shift their focus to a different set of facts, while the government did contradict themselves. And the source of this seeming flip-flop actually comes down to something pretty simple: two different ways of stating one set of numbers.

Now before going further I can't resist saying that I think the whole debate over "harmful to minors" material is pretty silly, because I don't think the pro-censorship side has ever put forth a reason why they think that pictures of naked people, or even people having sex with each other, are harmful to people under 18. I disagree with some people on matters like abortion and the death penalty, but I at least think they have some facts on their side; but I don't know of any facts supporting people who think that pornography is dangerous. Why is a woman's nipple harmful but a man's nipple isn't? How are the majority of high school students who have already had sex anyway, supposed to be harmed by pictures of other people having sex? And apart from the logical paradoxes, the pervasiveness of the Internet has now given us empirical data too: virtually all minors have now have access to anything they want to get on the Internet (either at home, or by sneaking to a friend's house), and where's the evidence that adolescents' brains have been hormonally turned to mush any more than they always have been?

But for the remainder of the discussion, suppose you're addressing people who believe that nudity and sexual material really are harmful to people under 18. (In any case, the judges probably believe it, and even if they don't, they're bound by legal precedents that assume as much.) The question is how accurately blocking software achieves this goal.

Blocking software has two types of error rates: underblocking (failure to block porn sites) and overblocking (blocking of non-pornographic sites). Underblocking errors are usually expressed one way: the percentage of porn sites in a given sample that are not blocked. But overblocking errors can be stated in two ways: the percentage of non-porn sites that are blocked, or the percentage of blocked sites that are not pornographic. (There are borderline cases like nude art sites, but it turns out they're not common enough to affect the margin of error much; the vast majority of sites are either clearly porn or clearly not.)

The key is that if you want the overblocking rate to sound low, you talk about the percentage of non-porn sites that are blocked. If you want it to sound high, you talk about the percentage of blocked sites that are non-porn.

For example, in the 2003 Supreme Court arguments over CIPA, Department of Justice attorney Theodore Olson downplayed the error rates of blocking software by saying:

"But even if it's tens of thousands of the -- of the 2 billion pages of material that is on the Internet, we're talking about one two-hundredths of 1 percent, even if it's 100,000, of materials would be blocked."

Here he's referring to the percentage of non-porn sites that are filtered. Attorney Paul Smith, arguing against the law, countered:

"And so we have -- on these lists is a proportion, a huge proportion, perhaps 25, perhaps 50 percent of the sites that are blocked that are not illegal even for children."

and:

"And the evidence is that there's about 11 million websites on the Internet, in --in the accessible part of the Internet and that 100,000 of those are the sexually explicit ones and that the --there are at least tens of thousands more that are on the list. So it's --the Government also says in their brief that about one percent of the Internet is over- blocked, which would be about 100,000 sites. So it is a substantial percentage. It is also a substantial amount. And most importantly, it's a very large percentage of what they're blocking is not what they intend to block."

-- that is, talking about the percentage of blocked sites that were non-pornographic. Both sides cited the same figure (100,000 non-pornographic sites blocked, apparently referring to an average across all blocking programs) -- but that same number could be seen as an "error rate" of either one hundredth of one percent, or 50%, depending on which formula you use.

Then in this year's COPA trial, the ACLU called CMU professor Lorrie Faith Cranor who testified that in tests that she reviewed,

"[blocking software programs] correctly blocked an average of approximately 92 percent of objectionable content. And they incorrectly blocked an average of 4 percent of content not matching the test criteria."

(Oct. 24th transcript, p. 57.) Back to talking about the percentage of non-porn sites that are blocked -- which, again, when you put it that way, sounds low. On the other hand, although I couldn't find exact numbers cited by the DOJ's lawyers on the number of sites that were incorrectly blocked, in the portions of his opening argument quoted above, Eric Beane focused on the sad fact of the sites that were blocked -- not the fact that they comprised only a tiny fraction of sites on the Web. The two sides simply swapped formulas.

As for Peacefire's own studies over the years of blocking software error rates, one of the legitimate criticisms that could be made about our efforts was that we focused almost exclusively on the second number, the percentage of blocked sites that were non-porn. If you were interested in how blocking software actually affects the surfing experience of minors who are forced to use it, perhaps you would focus more on the first number, the percentage of non-porn sites that are blocked. Perhaps, you might say, that as an organization addressing the blocking software issue specifically from a minors' rights point of view, we really should have focused on that number quite a bit! But I did get a bit preoccupied with playing "gotcha" with the blocking companies, focusing on the percentage of blocked sites that were obvious mistakes, because it was frankly too much fun publicizing the absurdly high error rates of their programs, which belied the claims made by most blocking companies that all sites on their blacklist were examined by a human at their company before being added. (Although it seems to have done some good -- as far as I know, no blocking company is making that claim about their product today.)

The error rates were indeed absurdly high; we took a sample of the first 1,000 .com domains in an alphabetical list, ran them through several programs, and found that of the sites blocked, between 20% and 80% (!) were errors. (The median error rate was about 50%, which corresponds to the figure given by Paul Smith in the CIPA trial oral arguments quoted above.) This surprised even critics of blocking software, and skeptics complained that we must have made mistakes or simply fudged the numbers. (The whole point of using the first 1,000 .com domains was that if we had used a random sample and gotten error rates like that, we could have been accused of "stacking the deck" and using a fake random sample that was loaded with known errors and not truly random.) Years later, it came out that the companies whose products we'd tested, had been following a policy that if they found an objectionable site on a given IP address, all sites on that IP would be blocked, on the theory that hosting companies often group porn sites together on the same machine. Trouble was, while this may have often been true for bona fide porn sites, it was not true for most sites that featured just an incidental shot of someone's bare breasts or a large amount of profanity -- but this would also be enough to get all sites blocked at a given IP. So the 80% error rate was about what you'd expect after all.

You might think that a product with an 80% error rate could never survive in the marketplace, but consider who was buying the software. On the one hand, you had schools and companies buying the programs -- but they didn't care whether it worked so much as they cared about being able to show, for liability reasons, that they did something. On the other hand, you had parents who really did care about keeping porn off their computer -- but how many parents really did any thorough testing of the product, other than making sure it blocks the obvious sites like Playboy.com? A serious test could take days. Their kids are the only ones who would end up doing any thorough "testing" of the product, and if they found a way around it, it's not likely that they would tell their parents. With no market pressure to fix problems, an 80% error rate wasn't really surprising.

But even the most vocal critics of blocking software only pointed out that blocking software sometimes blocked sites about plumbing, or soccer, or aluminum siding; we never claimed that most of those sites would be blocked. Even with our high numbers of wrongly blocked sites, if they had been expressed as a percentage of non-porn sites that are blocked, they would have still sounded like a "low error rate".

The moral is, always keep track of what the "error rate" refers to in these debates. By moving around a few variables in a formula, the Department of Justice was able to go from saying in 2003 that blocking software was minimally intrusive, to making a speech in 2006 that made blocking software sound so tragically limiting that you could practically hear the violins playing. (I know, people who live in glass houses... *ahem*)

And what about the ACLU? If the Department of Justice is guilty of flip-flopping, from saying in 2003 that blocking software is a reasonable and narrowly tailored solution, to saying in 2006 that it's clumsy, ineffective, and overbroad, is the ACLU guilty of flip-flopping in the opposite direction?

Actually, the ACLU's position has always been consistent: blocking software has First Amendment problems when used in a school or library, due to overblocking and underblocking errors, but if used in the home it is still a lot more effective than a law like COPA, which would score pathetically on the same scale. As ACLU attorney Chris Hansen stated in opening arguments:

"COPA does not reach the 50% of all speech that is overseas... Filters are the most effective. Almost all of the filters that [expert witness] Mr. Mewett tested were at least 95% effective. Think about the 5% ineffectiveness compared to where we start with COPA being 50% ineffective..."

(Opening arguments, p. 22. Note: Chris Hansen has confirmed that the official transcript is wrong; it has him saying "35%" instead of "95%", which wouldn't make any sense.) As for overbreadth, COPA would criminalize speech by adults, intended for adults, something that no blocking program could ever do -- and as for minimizing collateral damage to innocent sites, does anyone think that even if COPA is upheld, parents will throw out their blocking software?

Even though the ACLU focused on different statistics in the two trials, in both cases they were focusing on the numbers that were relevant to the issue. When talking about constitutional problems with blocking software in schools and libraries, the percentage of blocked sites that are incorrectly blocked, is important, because it's their First Amendment rights that are at issue. The DOJ lawyer talking about all the sites that weren't blocked, was missing the point. If your site is being blocked, it hardly matters to you that for every blocked site there are hundreds that are not. "Hey, your site is not accessible, but don't worry, your competitors' sites are!"

On the other hand, when talking about the use of blocking software in the home, the publisher's First Amendment rights are not at issue; the issues that most parents would care about, are how effective it is, and whether most clean sites are still accessible. Well of course most of them are. Blocking software is not that bad.

Confused? The option to just stop making a big deal out of porn on the Internet is looking better all the time, isn't it?

Lawyers can argue anything

[meburke (736645)]

Advocacy is good up until the point that you get to exclude relevant facts inimical to your argument. then it just becomes a matter of winning, justice, fairness and truth be damned.

Re:But that is how law works

[vertinox (846076)]

Advocacy is good up until the point that you get to exclude relevant facts inimical to your argument.

IANAL but if you are presenting an argument to a judge or jury, you are not responsible to provide information to them that incriminates your client or their cause. In fact if you did so you wouldn't be a good lawyer.

The responsibility of counter argument or evidence falls solely on the attorney's on the opposing side of the case be it corporate lawyers or attorney generals for the state.

Only the judge and/or jury are supposed to take both side's information into account before making a decision. Not the lawyers presenting their argument.

Outside court is a different story, but you often have to keep in mind that public opinion does creep into the courts. So it is in the best interest for lawyers to never present both sides at any time ever.

In a truly fair world, it would be nice, but unfortunately that isn't how things are.

Re:

[meburke (736645)]

Well, not all law. Military Justice, for example, works a bit differently. Neither side is allowed to ignore or hide relevant facts, although the individual's' rights under the Constitution are still protected, in theory. In actuality, of course, a Colonel's word carries more weight in testimony than a Private's word. Still, Military Justice tends to be a bit more objective with less "salesmanship" and misdirection than what you see in civilian criminal cases. Criminal Justice in Iceland, Denmark and Sweden

Governments May Try

[kidtux1 (896975)]

Does any one else think its not the purpose of the government to say what we can and cannot know, use and look at? Although I doubt the government will ever stop trying to do this, from trying to ban certain books to trying to ban how we use the internet. We just need to keep voicing our opinion and telling them we don't agree with this. --- http://www.iheartmygeek.com/ [iheartmygeek.com]

Religion+Government=Censorship

[by Anonymous Coward]

they'll keep trying to censor things so long as people keep pushing their religion into government

it isn't just religion

[Shivetya (243324)]

many in government are pushing stuff like this so that they can effectively control anything we can see. They start with the easy stuff, items likely to appeal to the broadest base, then then slowly add to it.

Of course they may try to wrap it up in pretty sounding names, fairness doctrine is a good one for anyone who has read about some plans for radio, and apply what worked in other areas to the internet.

After, do Nazi's offend you? They are censored in many areas of the world and its not religious based. Stuff like that will come to the US under the guise of "Hate speech / hate crimes". It won't be religious based. Even if it were it would only because it provides a convienent boost.

Re:

[OldeTimeGeek (725417)]

No, many in government aren't pushing it.

The pushing is coming from certain segments of the US public that are looking upon the US government to restrict certain types of information because it's easier than taking responsibility for it themselves. The folks that want sites/content banned have gotten organized and gotten legislation introduced and the initiatives in Congress are just government doing what it's supposed to do - the people's business.

Don't like it? Don't just cry "censorship, censorship" or

Yeah right

[77Punker (673758)]

Why don't they prevent kids from calling 900 phone sex numbers first?

Or walking in on their parents by accident? How's that for harmful?

Re:

[eln (21727)]

Ah, the circle of life. Beautiful in its own horrifying, horrifying way.

Would somebody please...

[Phu5ion (838043)]

think of the seventeen year old congressional pages!

Re:Would somebody please...

[Pojut (1027544)]

Anyone know why politicians don't use bookmarks?

Because they like their pages bent over!!!!

Why doesn't the government maintain a blacklist?

[AndyG314 (760442)]

Why don't they just maintain a blacklist of sights with "mature" content, and make the list freely avalable to people who whish to block such material. That sounds like a whole lot eaiser solution than what they are talking about.

Easy Solution

[daeg (828071)]

There is an easy solution to the problem. Blocking software with a central, and public, white list. Using a central process (with local overrides) allows small libraries to benefit and not have to maintain their own white lists, and opens the process to review. And by public/open, I mean that any citizen could look at approvals and rejections, time & date, and who is responsible for the white list request and who's decision it was to ultimately approve or deny it.

And you must allow the white list proces

Enforcement as an incentive

[Oriumpor (446718)]

Enforcement of CIPA (or CIPA compliance) is what gets public institutions the vaunted "Erate" monies that continues their low connection fees (+70% off phone company rates.) As such, organizations WANT to follow CIPA rules (including having a blocking filter) to maintain these monies.

COPA would be something for the courts, and legal associations to make money. Nothing more. At least with a Blocking filter on our end it's easy enough to toss a URL in that's being popularized by the media (myspace.com etc)

Disgusting

[Puls4r (724907)]

This is disgusting. We're having an argument that is primarily motivated by religion in front of the DOJ and trying to force that moral view on the rest of the country. Show me proof that nudity, or even showing sex to children, somehow scars them for life. Answer: You can't. In fact, you can look at european culture for proof if you like. Do we need to dig into the mounds of proof that only teaching abstinence doesn't work either? You can make the exact same analogy about Beer, and how the problems we have over here compared with the notable LACK of problems they have in Europe around college bingeing, etc. Beyond that, if the parents want to badly to prevent their children from seeing it, they have the ability to do so. It's called personally responsibility. Chaperoned play-dates. Unplug or password the computer etc etc. People go around putting latches on all their kitchen drawers and outlet covers on their plugs - and then they explain to the kids as they get older. Generally speaking, by the time their old enough to get around the simple safe guards, they've been taught about it. (Of course...... sexuality only seems to be deadly to Americans, but I digress). Hell, let's take this to the logical conclusion. Women and men need to be segregated lest they their lust overcome them. Women must wear veils and never show skin other than their eyes.... oh wait. I think there's a religion out there that does that already. I could go on and on and on regarding this issue. Russia tried to restrict the Western viewpoint. The Nazis burned books. The Middle East... and so on. This is one more form of clear repression, but what amounts to a very large group. America: Land of the Free and home of the Brave? Only if you're a good Christian.

Re:

[operagost (62405)]

Do we need to dig into the mounds of proof that only teaching abstinence doesn't work either? You can make the exact same analogy about Beer, and how the problems we have over here compared with the notable LACK of problems they have in Europe around college bingeing, etc.

While I agree that the drinking age in the USA is stupid, this is a total red herring.

(Of course...... sexuality only seems to be deadly to Americans, but I digress).

Yes, you do.

Hell, let's take this to the logical conclusion. Women

Re:Proof

[russotto (537200)]

Their sense of self is now defined by factors largely beyond their control - i.e. their appeal to the opposite sex.

This is NEW? No, this is old, older than the caveman.

100 years ago, heck, even 50 years ago, teenage girls prided themselves on their ability to do domestic duties - cooking, cleaning, social graces, etc.

And just what do you think all that cooking, cleaning, and social graces were in service of? That's right, landing a man.

Porn only reinforces the notion that a person's self worth is a matter not of their personality and intelligence, but of their sexual appeal to others

Even granting that for the sake of argument, it's insufficient reason to restrict it. Unless you also think it should be the government's job to restrict the bald statement "Your worth depends on how attractive you are to the opposite sex".

Re:

[Foobar of Borg (690622)]

The United States of America was founded by people who wanted a Godly nation, and there are still plenty of them around who want to keep it that way

Actually, it was begun by men who were adamantly for freedom of religion and freedom *from* religion. But I guess you don't let even basic history get in the way of your ideologies.

If you don't like it: move

So, I guess this whole "democracy" thing isn't really your cup of tea, is it? Instead of moving I could, say, express my discontent (see, e.g., th

Whatever means necessary?

[lawpoop (604919)]

Could it be that the ACLU is using this argument just to win this case? That they are only arguing for software blocking just to defeat COPA?

The submitter talks about flip-flopping, both on the side of the DOJ and the ACLU, but arguments you made in other court cases can't be brought up in later court cases, can they? I mean, the judge doesn't rule against you for flip-flopping, right? You base an argument on the facts of this case and this case alone? Even if the DOJ faces off down the road against the

.xxx .mat

[binkzz (779594)]

Isn't this something that a globally enforced .XXX domain name for erotica and .MAT for mature would fix?

Singling out the Internet

[wiz31337 (154231)]

Anyone else find it odd that they are singling out the internet?

I believe this snippet of the prosecution's opening remarks sum up what I'm trying to say nicely:

"There is no other medium of communication that has a federal criminal harmful to minors law. It is not a crime to engage in harmful to minors speech in books or magazines or leaflets. It is not a crime to engage in harmful to minors speech on radio, on records, on movies, on videos or even, indeed, on broadcasts or cable t.v. in all of those instances, there is either no federal law at all or the federal approach to has been regulatory, not criminal."

They are MY children

[houghi (78078)]

and I can censor them any way I like.

the blocking software alternative was unfair to children

I don't care if it is fair or unfair. I decide what is fair and unfair. If I want to block 100%, that is MY choice. If I want to block 1% that is MY choice.

Re:

[Beryllium Sphere(tm) (193358)]

You're not a public institution, which is what this law covers.

Re:

[RexRhino (769423)]

They are no longer your children... they are now the government's children, and you are given the revokable privledge of raising them.

Remember that it's not just porn

[Beryllium Sphere(tm) (193358)]

and that "children" is a pretty wide range of ages and abilities.

An adult on 17-year-old with mature critical thinking skills isn't going to be screwed up by a Holocaust denial site. An eight-year-old? You'd better have spent a lot of effort getting that eight-year-old to be skeptical, the effort might not work, and what school is going to train their students to question bad reasoning and arguments from authority? They'd put themselves out of business.

Anyone who gets their ideas about sex from mainstream porn will wind up seriously off the mark. Real women are based on carbon compounds, not silicon compounds(*). Real lovemaking has little in common with porn film activities. And I bet you wouldn't have to be on porn sites for long to find something genuinely contemptuous toward women. A line is crossed when the site starts calling them "bitches".

(*) Silicones, with an e, are silicon compounds. Specifically they're a chain of alternating silicon and oxygen atoms with alkyl side groups.