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Overblocking autonomy: the case of mandatory library filtering software

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Abstract

In U.S. v. American Library Association (2003), the Supreme Court upheld the Child Internet Protection Act (CIPA), which mandated that libraries receiving federal funding for public Internet access install content-filtering programs on computers which provide that access. These programs analyze incoming content, and block the receipt of objectionable material, in particular pornography. Thus, patrons at public libraries are protected from unintentionally (or intentionally) accessing objectionable material, and, in the case of minors, from accessing potentially damaging material. At least, that is the official story. In this paper, I develop three points. (1) I argue that CIPA and ALA are better read as examples of the enforcement of a regime of normative sexuality. The question of minors accessing pornography is only relevant to the official story insofar as it provides a rhetorically persuasive example of deviance from that normative regime. CIPAs full target includes information about topics such as homosexuality and contraception. (2) Rather than (or in addition to) punishing deviances directly, CIPA attempts to constitute a “public” in which such deviancy can never occur in the first place. Hence, the designation of a “public” space serves to domesticate alternative sexualities and to sanitize that space of sexual difference. (3) This interaction at the border of the public and private spheres offers an opportunity to reflect on and underscore the ways that subject formation and subjectivity are mediated through technological artifacts like the Internet.

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Notes

  1. Butler (2004, p. 124).

  2. U.S. v. American Library Association (2003). The district court decision provides a detailed legislative history of CIPA. See American Library Association v. United States (2002, p. 412).

  3. Connolly (2005).

  4. U.S. v. American Library Association (2003, p. 206). The Court’s discussion of these issues, couched as whether or not the decision to filter sites is analogous to a decision not to acquire a given print item, is unusually dismissive. For further critique of the real-space acquisition analogy, see Laughlin (2003, p. 259). For a critique of too-easy analogies between the Internet and real-space, see Lemley (2003).

  5. The theorist who has most consistently pursued these issues is Yochai Benkler. See Benkler (2006) and Benkler (2003).

  6. U.S. v. American Library Association (2003, p. 206) (internal citation omitted).

  7. For “latent ambiguities” in the context of the Internet, see Lessig (1999). Lessig makes extensive use of Sunstein (1995). For the history of public library censorship in the U.S., see Laughlin (2003, p. 222). For concerns about the Habermasian public sphere, see the essays collected in Calhoun (1992), especially McCarthy (1992), Benhabib (1992), and Fraser (1992). I pursue the question of the relation between the Internet and ex ante individuation of the “public” for issues of intellectual property in Hull (2003).

  8. For this, see, e.g., Cohen (1996).

  9. Reno v. ACLU (1997, pp. 864–866).

  10. Ibid. (p. 853).

  11. The following is for the U.S. only; it should be remembered that most of the world’s people have never used the Internet in any form, and are extremely unlikely to do so anytime soon. The best data on U.S. Internet access is collected by the Pew Internet and American Life Project (2009).

  12. This number is based on census data and Internet usage data. “As of August 2000, only 12.7% of households making under $18,000 per year had personal Internet access, but 18.9% of individuals in that range used the Internet. One in five individuals in this economic range who access the Internet from some place other than the home uses a library.” Goldstein (2002, pp. 1194–1195. The calculation with census data follows).

  13. Legally, they would thus fail the strict scrutiny evaluation to which restrictions on individual speech are subjected. See Doherty (1999, p. 297 and n. 281). Doherty downplays these risks as technologically surmountable. I address this claim in the final section. See also the lower court decisions ALA overrules, in particular, Mainstream Loudon v. Board of Trustees of Loudon County Library (1998).

  14. “The Government [was] not denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized” U.S. v. American Library Association (2003, p. 15) (quoting Rust v. Sullivan (1991, p. 194).

  15. McCreary v. ACLU Kentucky (2005).

  16. Lawrence v. Texas (2003). An analysis of ALA perhaps reveals the truth of Lawrence: not a validation of “homosexual identity” as such, but the partial validation of such identity in private, at the price of its radical exclusion from the public sphere. This exclusion achieves what the anti-sodomy statutes could not: if homosexuality is excluded from the public sphere, it becomes ipso facto an illegitimate form of public subjectivity. For example, the majority in Lawrence explicitly refused to extend the decision to protect same-sex marriage. Ibid. (p. 585).

  17. The cases are: affirming sodomy laws, Bowers v. Hardwick (1986); upholding the abortion right, Planned Parenthood v. Casey (1992).

  18. Lawrence v. Texas (2003, p. 589).

  19. Ibid.

  20. Board of Education v. Pico (1982, p. 914) (cited in Mainstream Loudoun v. Board of Trustees of Loudon County Library (1998, p. 561 n 10)).

  21. E-Rate and Filtering: A Review of the Children’s Internet Protection Act (2001).

  22. These constructions were common in the hearing. For example, Representative Charles Pickering, one of the act’s sponsors, opined that “this is a common-sense mainstream constitutional way to protect our children from child predators, from obscenity, from child pornography, that which is already illegal.” He added: “we believe that this is a very mainstream, common-sense approach, and that the agenda of the other side who opposes is out of the mainstream. It is extreme. It would put our children at risk.” Ibid.

  23. These alternative means were credited in the lower court decisions. It should also be stressed that this essay is not a defense of child pornography. The existence and nature of a problem and how one solves it are two different topics; their deliberate conflation is a strategy of power. The District Court in Mainstream Loudon, for example, both assumed that “minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment are compelling governmental interests” of the sort that would therefore survive judicial strict scrutiny (Mainstream Loudoun v. Board of Trustees of Loudon County Library (1998, p. 556)) (internal citations omitted), and struck down a filtering program policy on First Amendment grounds.

  24. The extent of such usage attempts is a matter of vicious debate. The “no more than four examples” is from Mainstream Loudon, ibid. (p. 565). The District Court in ALA credited a study of the Tacoma library indicating that 40% of filtering program blocks were at terminals used by 11–15 year old patrons. ALA v. US (2002, p. 423); on the other hand, the study’s conclusion—that this indicates that teens are attempting to access pornography—presupposes that they are not attempting to access overblocked material. The Court concluded its analysis of access attempts on a cautionary note: “We note, however, that none of the libraries proffered by the defendants presented any systematic records or quantitative comparison of the amount of criminal or otherwise inappropriate behavior that occurred in their libraries before they began using Internet filtering software compared to the amount that happened after they installed the software. The plaintiffs’ witnesses also testified that because public libraries are public places, incidents involving inappropriate behavior in libraries (sexual and otherwise) existed long before libraries provided access to the Internet. Ibid. (p. 424).

  25. See http://www.frc.org/.

  26. “Homosexuality and Child Sexual Abuse,” http://www.frc.org/?i=IS02E3 (on file with author); “How Lawrence v. Texas Will Impact Marriage Law,” http://www.frc.org/index.cfm?i=PV03F01 (on file with author). Other publications in “defense of the family” include a separate category for “How Divorce and Cohabitation Hurt Society,” and titles such as “Opposition to Gay Conduct is not Bigotry,” and “Keeping the Churches Marriage-Friendly: How Scripture and Tradition Refute Gay Theology.” For the list, see http://www.frc.org/get/n03g009.cfm (on file with author).

  27. The overturn was Reno v. ACLU (1997). Congress received the Dangerous Access report in 2000, prior to the passage of CIPA; the point here is that the report was not what caused the interest in filtering. For the summary of Congressional activity, see the government’s brief in ALA: Brief for the United States (2002, pp. 4–50).

  28. Rimm (1995). Rimm says, inter alia, that “83.5% of all images posted on the Usenet are pornographic” and that “Pedo/hebephilic and paraphilic imagery accounts for 2,685,777 downloads, or 48.4%, of all downloads from commercial ‘adult’ BBS.” Ibid. (pp. 1890 and 1892). The article itself takes a strange pleasure in reporting, in graphic detail, its efforts at categorization. Against Rimm’s speculations, the District Court in ALA credits (and the Supreme Court adopts) testimony that about 1–2% of the material online is pornographic. Of course, this amounts to a lot of material, given the size of the web; the court estimates a total of about 100,000 free sites offering sexually explicit material. ALA v. U.S. (2002, p. 420).

  29. Mackinnon (1995).

  30. See Cannon (1996, pp. 55–56, n 103 and accompanying text).

  31. Berkowitz (1999).

  32. Brief of Cities, Mayors and County Commissioners as Amicus Curiae in Support of Appellants (2002, p. 24).

  33. Ross (2000, pp. 504–505). Ross suggests that the studies linking violent speech are sometimes proposed to justify restricting sexual speech. Ibid (p. 505). Independently of whether the causality would function in the same way in both cases, the analogy implies that its proponents think that controversial sexuality is as great a harm as violence. For a more nuanced discussion of the available literature on the links between exposure to media sex and actual sexual behavior, see Levesque (2000, pp. 171–174). Although the picture is complicated, the studies do not support the straightforward causal link asserted by censorship advocates.

  34. E-Rate and Filtering: A Review of the Children’s Internet Protection Act (2001).

  35. Reno v. ACLU (1997, p. 854).

  36. Ross (2000, pp. 484–485).

  37. I do not claim originality for the first two especially, but they bear repeating. See note 11, supra.

  38. Unless otherwise noted, the statistics in this paragraph derive from Rideout, Richardson, and Resnick (2002). The general amount of over and underblocking is highly controversial. For some of the complications, see the District Court opinion: ALA v. U.S. (2002, pp. 437–500). The Court concludes that “we find that commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment. Any currently available filtering product that is reasonably effective in preventing users from accessing content within the filter’s category definitions will necessarily block countless thousands of Web pages, the content of which does not match the filtering company’s category definitions, much less the legal definitions of obscenity, child pornography, or harmful to minors.” Ibid. (p. 448).

  39. ALA v. U.S. (2002, pp. 445–446).

  40. Haselton (2000).

  41. ALA v. U.S. (2002, pp. 415–416).

  42. Ibid. (p. 427). Elisabeth Young-Breuhl suggests that prejudice against adolescents shares the same typologies as homophobia. See her (2002, pp. 263–273).

  43. Levesque (2000, pp. 65–66).

  44. Ross (2000, p. 484) (internal citations omitted).

  45. Levesque (2000, p. 170).

  46. Stein (2003, pp. 162–163) (internal citations omitted).

  47. Benkler (2003, p. 188).

  48. Chun (2006, p. 120).

  49. See Benkler (2003, pp. 180–195).

  50. The “complete subsumption” thesis is Antonio Negri’s; see Hardt and Negri (2000). I discuss this thesis of Empire in relation to Negri’s earlier writings in Hull (2005). It becomes evident in Hardt and Negri (2004), that complete subsumption and Foucault’s understanding of biopower are intimately related. I mention Foucault because of the resonance Foucault’s writings on disciplinary power have had in understanding the Internet. See, e.g., my Hull (2003), Boyle (1997), and the critical discussion in Hayles (1999, pp. 194–207). For a sample of the difficulties involved in this set of issues, see Terranova (2000), noting that, since the Internet’s value increases with its size, individual, private Webpage designers are providing a constant source of surplus value for commercial Internet entities.

  51. That law can and should be expected to regulate norms is explored in detail in Sunstein (1996). For the inefficiency of direct regulation, see Lessig (1999).

  52. Benkler (2006, p. 146).

  53. Ibid. (pp. 146–147).

  54. For more on the substantive (“descriptive”) and formal (“ascriptive”) distinction, see Benkler’s source, Fallon, Jr. (1994, pp. 875–905). The critique of excessive reliance on formal equality as undermining substantive autonomy also has a substantial lineage in feminist and critical race theories. See, for example, Bell (1996); and Riva Siegel on abortion, initially in Siegel (1992).

  55. See, e.g., Benkler (2006), Hayles (1999); and, from analytic philosophy of mind, Clark (2003). As Clark puts it, “we are our own best artifacts, and always have been.” Clark (2003, p. 194). One does not have to endorse left-wing French theory to support the claim I am making.

  56. This is not to repeat the myth of the “end of geography” as criticized in such texts as Mosco (2004). Geography—such as access to a library—clearly does matter; that is precisely why ALA is so problematic. But, pace Mosco, communities can nonetheless form online, largely independent of where their members are physically located. This fact is somewhat uncritically celebrated as an aspect of postmodernism in Turkle (1997). For a useful reminder of the importance of embodiment (and thus geography) to subjectivity, see Hayles (1999). Hayles is listed as one of the offending mythologizers by Mosco, though the tenor of her analysis runs entirely in the opposite direction.

  57. For a useful discussion of legitimation, see Judith Butler’s reminder that subjectivity, particularly a subjectivity that differs from prevailing social norms, is fragile. See Butler (2004).

  58. Lessig (1999, p. 179).

  59. The first reference is to Foucault’s discussion of the political dream behind medieval banishment of lepers: see Foucault (1979, p. 198). The second is to Introna and Nissenbaum (2000).

  60. For a more detailed argument, see, e.g., Doherty (1999).

  61. Latour (1992, p. 232).

  62. See, e.g., Latour (1992) for the point about artifacts in general; for internet-specific discussions, see also Benkler (2003) and Lessig (1999). Studies of particular artifacts have repeatedly refuted the “technology is neutral” thesis.

  63. For this thought, see Rancière (1999).

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Acknowledgement

I would like to thank Pierre Schlag, Nick Smith, and a reader with Continental Philosophy Review for their detailed comments and criticisms of an earlier version of this paper.

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    Gordon Hull

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Hull, G. Overblocking autonomy: the case of mandatory library filtering software. Cont Philos Rev 42, 81–100 (2009). https://doi.org/10.1007/s11007-009-9097-x

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