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PICS
``` [Larry Lessig is a very smart professor of cyberspace law at Harvard who refers to PICS (the Platform for Internet Content Selection) as "the devil" because it can readily be used for purposes far beyond the most commonly discussed parents-protecting-kids scenario and because it thereby builds censorship into the very architecture of the Internet (at the applications level, granted, but that's what most people will see). Larry has signed up for a flamefest of his own by suggesting that what he unwisely calls a "CDA-like" solution to Internet content issues would be preferable to PICS. So here is his letter of clarification. You're missing some context, e.g., a New York Times article on Lessig's views, and some of the material that Lessig is directly responding to. Also, back over the summer, my friend Paul Resnick, who coordinated the development of PICS while he was working for AT&T Labs, sent me the URL for his online list of Frequently Asked Questions on PICS. Here it is: http://www.si.umich.edu/~presnick/pics/intfree/FAQ.htm ]
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Date: Tue, 4 Nov 1997 10:52:55 -0800
From: "--Todd Lappin-->"
Professor Lessig sent me this clarification to my inquiries about his article on the virtues of a modified CDA vs. PICS, as described in Cybertimes at: http://www.nytimes.com/library/cyber/law/103097law.html
Forwarded with permission.
--Todd-->
Date: Tue, 4 Nov 97 08:12:54 -0500
From: larry lessig
Todd:
My article is trying to make a small, and what I thought, obvious point about which, between two strategies for dealing with "indecency" on the net, would be more protective of free speech values. The first point that should be clear, however, is that I would prefer that neither strategy be pursued by the government. My first preference is that the government do nothing. But the article proceeds on the assumption that the government will do something, and I was attempting to work out which, of two strategies, better protects free speech values.
PICS and private blocking are the first. The complaints against both are becoming well known, though my energy is focused against PICS. The essence of the point that I make against both is that they inevitably filter far more than the category of speech that the government has a "legitimate interest" in filtering. The argument against PICS is more targeted. In its present design, PICS (were it adopted generally) would lower the cost of centralized filtering. And, in its present design, it there is nothing to inhibit "blind" filtering - filtering that fails to report that material has been filtered. Both of these flaws in its present design are, it seems to me, fatal.
I contrasted that system with a modified CDA. The modifications were two. First, the speech targeted by this modified CDA would be much narrower that the speech targeted by the original CDA. In lawyers' talk, it would be the speech spoken of in a case called Ginsberg v. NY - roughly, speech that is legally "obscene as to minors" but not as to adults. As I argue, this is the only category of speech that the government can (in my view) legitimately regulate as to kids. And it is a category of speech that is already regulated by the laws of 48 states. This category of speech would not reach things like Carlin's 7 dirty words; or discussions of sex, etc. It would, again, be much narrower than the absurd category of speech regulated by the CDA. The second modification was about IDs. The government would subsidize, in some form, the production of IDs, which would simply be certificates to authenticate that the user was over the age of 17, without identifying necessarily who someone was. The modifications together would result in a system that would force providers of "Ginsberg Speech" to implement a screening device, that would verify the age of the user through this subsidized age verification system. My assumption is that the effective cost of such a system would have to be quite low for it to be constitutional, but that properly implemented, it could be made to be quite low.
This modified CDA would be more protective of free speech values, I argued, simply because the class of speech burdened by filtering devices would be much less than the class that could be expected to burdened by private blocking systems, or PICS. The latter would (if pushed or required by the government) certainly in effect filter much more speech than the modified CDA; and that, I suggested, was its problem.
The essay Kaplan wrote about was expressly characterized as a "first draft." I thought his reporting about it was extremely fair, and the simplification he added understandable. I obviously didn't see a draft of his article before he published it. Had I done so, I would have suggested he use a word other than "hard-core pornography" to refer the class of speech I called "regulable". When he and I spoke, I spoke of the class as "Ginsberg speech" but for understandable reasons, he apparently thought that was not a useful description. But on balance, I think his essay did fairly represent that the class of speech that could be regulated is far narrower than the class of speech the CDA tried to regulate, and more importantly, that governmental steps that bring about the regulation of a broader class of speech, whether directly or indirectly, are themselves suspect.
Mike Godwin's energetic responses to my article have helped me clarify the argument lots, and I appreciate the substance of his comments. In the next draft, I will certainly do more to make sure no one can believe that I believe that "indecency" is a category of speech that can be regulated; I tried to indicate that in the essay, but apparently failed. More importantly, an issue I didn't discuss but which should be discussed is the place of criminal penalties: I certainly don't think that any speech law should have criminal penalties attached. That was another fatal flaw in CDA.
But finally, Godwin asked whether a modified PICS wouldn't be better than this modified CDA. That is a great point. The whole point of my attacks on PICS has been to force the question of its implicit policy choices onto the table; to ask the question whether its design couldn't embrace different policy choices. A PICS that (whether technically or through licensing rules) required "truth in filtering" or that inhibited centralized filtering (at the ISP level or higher) would, in my view, be a kinder and gentler PICS. Or maybe just the sort of devil I could like. I certainly will explore this idea in greater depths, before I send the essay off to the depths of oblivion that we call "law reviews."
I hope this helps clarify things.
Lessig Harvard Law School, G502 1525 Massachusetts Ave Cambridge, MA 02138
617.495.8099 (w) 617.495.1110 (fx)
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