Problems with Censorship in the U.S.

The US is not typically seen as a major threat to internet freedom. The Open Net Initiative ranks it in its nominal categories, and Reporters Without Borders does not list it in its internet enemies list. However, the problems seen in US policy regarding internet censorship are among the most pronounced of any democratic nation, and each issue involves genuinely difficult trade-offs and definitional hurdles.

Content Filtering Software

In its efforts to block obscene or objectionable material from public access points, the US Government has advocated the use of any of a number of content filtering software packages. The problem posed by such software is that it generally performs poorly in the gray areas, either by blocking legitimate content or allowing illegitimate content through. Image filtering, for example, is especially ill-suited to this task, as it relies heavily on the text surrounding an image on a web page.

New filtering software might try to improve on its accuracy with human-verified performance checks and other techniques, but, to a great extent, the problem of content filtering software is rooted in the much harder problem of determining what constitutes offensive material to different people.

Presumption of Guilt

Another problem with internet censorship in the US is that content filtering and copyright enforcement practices on the web favor a presumption of guilt. Content filtering software for obscene or objectionable material will often err on the side of censorship, a practice which, critics argue, impinges on the free speech rights of web content producers.

In both the CDA and the DMCA, explicit provisions are made in defense of service providers who preemptively censor user content, even if such content is not, in fact, unlawful or offensive. Under the Good Samaritan provision of the Communications Decency Act, ISPs cannot be held liable for the following:

(A) action voluntarily taken in good faith to restrict access to... material that the provider or user considers to be... objectionable, whether or not such material is constitutionally protected; or (B) any action taken to... make available to... others the technical means to restrict access to [this] material.

Meanwhile, under the DMCA's OCILLA, ISPs cannot be held liable if they comply with content takedown requests from copyright holders before a court has established that copyright violation has actually occurred.

Critics charge that the Good Samaritan provision and OCILLA are emblematic of internet policy in the US which condones restrictive censorship by corporate interests at the expense of free speech and due process. Under these policies, ISPs will rarely resist unfair or abusive practices by advocacy groups like the RIAA and the MPAA for fear of costly and protracted litigation. Many networks (particularly Universities) will self-censor by banning services like peer-to-peer file sharing, even though these services are widely used and important for legitimate purposes. Such censorship efforts are said to have a chilling effect on digital media that travels through the net.

Community Standards

Community standards are often cited as a catchall criterion to distinguish between acceptable and unacceptable material on the web. The informal argument is that, when considering offensive material in a given community, “I'll know it when I see it.” This argument suffers not only from inherent ambiguity, but also from the fact that it jeopardizes the freedom of unpopular speech. Web 2.0, for example, has made user feedback widely available as a tool in regulating content on the web, but a poll of user sentiment may not help in determining when unpopular content truly merits censorship.

Also, implicit in the term “community standards” is the argument that members of a community have similar tastes, though this is never absolutely the case. After the announcement that BYU would be banning YouTube on its network, at least one student of the predominantly Mormon school expressed resigned disappointment: “It's BYU, and they block everything.” With no popular outcry, though, is BYU justified in citing community standards?