10.2001 FYI France Essay: "'Everything has changed...': information filters and censorship, in the 'new' USA"

by Jack Kessler, kessler@well.sf.ca.us

Originally published in French in Bulletin des bibliothèques de France t. 47 n. 2 2002, pp. 12-20, ISSN: 0006-2006
-- online in French as, "'Tout a changé...' : le filtrage des informations et la censure, une actualité dans les nouveaux Etats-Unis d'Amérique", at

All this appears here as a feature of the FYI France ejournal, ISSN 1071-5916, which since 1992 has been distributed for free via email every month except August. Ejournal subscriptions may be obtained via email request to: kessler@well.sf.ca.us.

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--oOo--

"Everything has changed...": information filters and censorship,
in the 'new' USA

by Jack Kessler, kessler@well.sf.ca.us -- December 3, 2001

Summary:

A new national censorship law in the US requires Internet information filters on all school and public library computers, in use by either children or adults. US librarians are leading the fight against this, suing their own national government in open law court to prevent it. For unique and even eccentric political and legal reasons, the librarians may be successful, but in a very strange lawmaking procedure which no other nation may want to copy exactly as it is practiced in the US.

 

1) The United States has a new national censorship law...

The United States has a new national censorship law. It requires that all schools and public libraries install and maintain Internet information filters, on any computers in use by either children or adults. The "protection" for adults is to be removable by a librarian upon request by the adult, although it is difficult to imagine too many adults making such a request: "Please, madam, may I see the dirty books?..." The filters were supposed to have been in place as of last April -- but implementation of the law has been delayed until 2002, by ferocious reaction from the US civil liberties community.

In the US, as elsewhere, librarians are among the leading civil libertarians. But rarely are librarians anywhere as activist and indeed combative as are US librarians on "free speech" issues. In this instance, in fact, the leading professional library organization in the US is suing its own national government: the leading law court case against this new national censorship law is "The American Library Association versus The United States". "The case of ALA vs. US" currently is scheduled to be heard by a lower national court on March 25, 2002. Given the "child protection" and "terrorism" and "Everything Has Changed" atmosphere prevalent in the country now, the case may well end up in the United States Supreme Court.

Why all this noisy concern, and why now? How has a nation so proud of its civil libertarian heritage -- and so quick to criticize others on such issues -- suddenly apparently reversed itself, sponsoring one of the most restrictive censorship policies to be seen in the US since the wartime restrictions of the last century? And will the policy hold?... amid the unique complexities of the US political and legal system, will such a stark and drastic curtailment of traditional "free speech" liberties ever actually be implemented?

The new US censorship law is called "CIPA / The Children's Internet Protection Act": it was passed in 2000 by the Congress, printed in the December 15 2000 Congressional Record as "Title XVII of a major spending bill, H.R.4577", and signed by President Bush, as "Public Law 106-554", on December 21 of that same year. It prohibits participation in two major national government programs for computers in US libraries -- the Library Services and Technology Act (Title III of the Elementary and Secondary Education Act), and the important discount program known as "E-rate" -- by any library or school which fails both to have in place and to enforce, for both minors and adults,

-- and for definitions of the crucial terms "obscene", "child pornography" and "harmful to minors", the new law points to an enormous and ancient morass of controversial legislation, case law and social policy which never has succeeded, yet, in defining these three terms to the satisfaction of any of the parties periodically in contention over them in the US... so people are going to court... including the librarians...

 

2) Civil Libertarians

Why the librarians? In the US, the library community traditionally has been one of the chief defenders of civil liberties, particularly on issues of freedom of speech and censorship. But this is true elsewhere as well: in many other countries librarians -- whose chief concern is information -- become involved in struggles over the freedom of access to that information, and its censorship.

The US difference -- as dramatized by this new "ALA vs. US" controversy -- is the extent and character of librarian involvement. In the US situation, librarians appear at least to be more controversial, more combative, even confrontational, about civil liberties: it is not every national library association which sues its own national government in open law court. Why this difference?

The American Library Association, which is located in Chicago, for many years has maintained its own separate office in Washington D.C. devoted to what it calls "legislative issues" --

http://www.ala.org/washoff/

And when specific controversies arise, ALA organizes specific response: such as that provided by its "Office for Information Technology Policy", currently involved in issues such as "Copyright", "Internet Governance", and "The Digital Divide" --

http://www.ala.org/oitp/

For the current CIPA / censorship issue, ALA is a focal point for discussion and information on the law and the court battle now breaking over it --

http://www.ala.org/cipa/litigation.html

On censorship, ALA very simply is against it:

-- and even regarding children, ALA says,

Along with The Sierra Club for environmental concerns, and the ACLU / American Civil Liberties Union for general civil liberties issues, the American Library Association has become one of the leading NGO / Non-Governmental Organizations in the US, now. ALA is a responsible group, one to which US legislators and other decision-makers often turn for advice. But it also is an activist organization, which spends considerable time and effort, and money, openly fighting measures which it opposes. The "fighting" part is rare, for ALA, but it does happen; when it does, as in this CIPA / censorship case, librarians outside the US may wonder...

 

3) "Judicial Review" -- trial, and legislation, by combat...

The answer, to the question of "the combative and confrontational US librarian", may be found in the general procedures followed in the US for sorting out controversies like this one involving censorship. These procedures are unique. In most countries, valid legislation is valid law; in some, valid edicts by the authority in power are law, legislated or not. But in the US, nothing "really" becomes law until it is tested in the courts. Even if the Congress "passes" it, and the President "signs" it, and it is formally "published in The Congressional Record" -- even if the bureaucracies promulgate vast regulatory policies for its implementation and enforcement, and even if they actually begin enforcing -- still, a US law such as CIPA, under the very unique and to foreigners very strange US system, may be radically altered or even canceled entirely later on by a law court, so much so and so often that US lawyers say "the law is what the judges decide".

Into such a convoluted and lengthy process, in addition, the US has added an equally - unique "confrontational" approach. Unlike the consensus-building which characterizes most legal and political systems, unlike even the representative democracy which the US inherited from the British and the French and others -- in which the legislators legislate, not the people and certainly not the judges -- the US believes in a very eccentric approach, of arguing the matter out between equal parties.

In law courts this becomes the famous "adversarial justice", in which one party's attorney does verbal combat with the attorney for the other. Most curious, in foreign eyes, must be the US criminal law, in which even "the state" is no more than one of the two contending equal parties in the court, literally contesting with the criminal -- in what to Europeans must seem a scene from their own "Dark Ages" -- over questions of proof and guilt. Just so, when "The American Library Association" sues "The United States Government" over an issue such as censorship, the two equal parties will contend -- in US eyes and to the bafflement of foreigners -- and the judge will make the decision.

Even in England, where the US learned so many of its political and legal tricks, judges ultimately do not have such power. The "Law Lords in Parliament" can make a few very restricted decisions -- but in the UK, still, "Parliament is sovereign". Not so in the US where -- ever since Chief Justice John Marshall in the celebrated 1803 case of "Marbury vs. Madison" reminded certain elected officials that the US is a "government of laws and not of men" -- US courts have invited adversarial and confrontational behavior in a courtroom as the lawful means of validating US laws.

This may make no sense at all to a European, with memories of medieval armed knights in combat -- of "ordeals by fire and water:, of "champions". A European librarian might feel more comfortable working from "within", cajoling and convincing and only very occasionally pressuring administrators and government ministry people. But adversarial combat in a law court is how the US more often does these things -- and in the process the American Library Association becomes just one more chevalier out there, swinging a sword.

 

4) Real Problems

Why bother now, then? Censorship is a very old issue, fought out many times in US political and legal arenas as it has been fought in France and elsewhere. What are the specific current problems in the US which have caused this ugly Hydra to raise its many heads, once again, just now?

There are both real problems, and some profound underlying fears. First among the real problems is the increasing concern in the US for child endangerment. As in France and other Western countries, traditional family and gender roles are undergoing broad and deep change in the US now. Myriad statistics on marriage, divorce, teen pregnancy and delinquency, educational achievement, birth rates, all point toward a family structure and childhood experience very different, going forward, from anything which previous generations ever experienced.

Of greatest concern to many, amid all these changes, are the children -- the most defenseless, of all the interested parties. The current CIPA / censorship legislation is entitled "Children's Internet Protection Act": originally it was the work product of a very determined US senator, with young children of his own, who was horrified by the recent Columbine High School shootings and similar tragedies -- although in Congress his law was extended further to cover adults as well, effectively, a result which this particular senator himself perhaps did not anticipate and which ultimately may doom his legislation legally. The original thought was that children, at least, should be protected from anything that is "'obscene', 'child pornography', or 'harmful to minors'".

Another recent and very real problem is "terrorism". Most of us in the US who have opposed censorship and other repressive measures in the past have done so amid the luxuries of safe societies and situations. But those who remember the great wars of the last century recall situations which were not so safe. And those who have been living in war-torn or totalitarian or otherwise-brutalized societies -- as those of us in the US have not -- perhaps are more accustomed to repression, or resigned to it.

So censorship is "old news" to some, but it is something very new to the US: if only because we have had no real need for it, for a very long time -- not since a single morning of bombing in 1941, the war which ensued and the Great War which preceded, and a much earlier Civil War which nobody alive personally can remember any longer. Now suddenly, as of last September, the entire US population has had a memory of personal terror and insecurity burned permanently into the mind -- we all were transfixed before those television screens -- Europeans with longer memories of other tragedies need to remember how horrible "the first time" was for themselves.

 

5) Fears Real and Imagined

In addition to real problems, then, there are the fears. And fear, in the political arena, also creates opportunities for abuse. As the US pursues censorship and other repressive measures, down the necessary roads ostensibly toward protection against child endangerment and terrorism, increasingly questions are being asked whether such protection really will be the product, and even whether these fears on occasion have become a cloak for the personal agendas of some power brokers and politicians -- in the present case not of the original senator, but perhaps of some of the many others who become involved in these things.

Primary among the fears which motivate censorship now is fear of the new information technologies. No one knows these technologies better than those in the US do -- the Internet, Infotainment, computers and cdroms and information networks, viruses and worms and online pornography, encryption and e-commerce and e-snooping and other e-things -- most of this originated in the US, in fact US fathers and mothers have watched US teenagers invent and use and abuse it all.

The difficulty, however, in being a US father or mother nowadays -- like the senator who sponsored the original CIPA / censorship legislation -- is that you know very well that the kids are ahead of you on all this, and that you yourself never will catch up. Any "effective decision-maker" in the US political or legal arena, still, is too old to be able to boast that she or he fully understands the Internet: the mere kids who invented most of the techniques now in use online -- "Napster", and "popup windows", and "Yahoo !", and "EBay", finally are getting a little more long in the tooth, but none is yet a senior political or legal statesman with any input into those arenas -- elders Bill Gates and Steve Jobs are only 45 years old, AOL's Steve Case is only 42, Ebay's Pierre Omidyar is 33, Yahoo!'s Jerry Yang is 32, Mosaic's Marc Andreesen is 29, Napster's Shawn Fanning is 20... and these are the Internet's "old guys"...

So, if you are a 65 - year - old US senator with no place to turn among your respected "peers" for advice -- no father, anywhere, can ask his teenager for this -- and you are horrified by what you see at Columbine High School, the "safe" suburban Colorado high school in which two students recently shot their schoolmates and their teachers and themselves, you censor...

Fear of the "new" is one of the oldest primal fears -- fear of the unknown, the unfamiliar, the untested. Perhaps it is this fear which has motivated the "judicial review" principle in US legal thinking -- the need for constant testing, and re-testing, of any legislation prior to and even after enacting it as "law" -- the idea also being that the world changes, and that the law must change with it. Amazon's Jeff Bezos says that he "does not fear new ideas, only old ones": but then he is only 37 years old, and his young firm has not declared a profit yet -- an unlikely "peergroup advisor", for a 65 - year - old US senator...

The oldest response to fear is control. The quintessential US philosopher John Dewey made the point eloquently in the opening line of his classic The Quest for Certainty (1929): "Man who lives in a world of hazards is compelled to seek for security" -- and we find that security in certainty, or at least in the illusion of certainty, Dewey thought. Crucial to that certainty is control, many thinkers have decided -- "Homo Faber", in the formulation of Max Frisch, and of Johann Huizinga -- "For fifteen centuries we have been wrestling with Thy freedom, but now it is ended and over for good", Dostoyevsky's Grand Inquisitor tells Christ.

So censorship in the US -- this latest CIPA effort among several in US history -- is as much the product of fears as it is of more specific recent problems. Child endangerment and the recent terrorism cry for solutions, and there are those in the US -- as there would be in any country -- who feel, in their hearts if not necessarily in their heads, that repression and censorship are among the solutions which must be provided, quickly, for a society apparently in extremis from such dangers.

The effectiveness of such solutions is not so much the point, to their advocates: the remedy is to do something -- anything -- and above all to do it now, not later. Beneath such recent problems lurk ancient fears of uncertainty, insecurity, loss of control: nevermind that politically one person's loss of control is another's gain, and that the boundaries on personal freedom always are shifting in a democracy.

c) US Library "Internet Access Policies" -- policy and practice

US libraries officially have lined up behind the ALA in its civil libertarian stance toward the latest censorship legislation -- for a growing collection of formal "Internet Access Policies" adopted by US libraries, all of which will be illegal under CIPA, see

http://www.fyifrance.com/fy1275a.htm

-- although as in anything of this nature, local practice varies. Just as a small town in France may elect a right-wing extremist mayor who orders certain left wing periodicals off the local library shelves, so a small town in the US may -- perhaps more discreetly -- decide to lower its rate of acquisitions of "anti-globalization" materials, or Arabic language publications, or journals advocating the violent overthrow of anything, at a time when national flags are flying and the US Department of Justice has announced the enforcement of censorship and a national roundup of 5000 foreign nationals "on suspicion".

Of course in a society as large as the US, or France, the opposite effect may occur as well: other small towns may actually increase the same offerings of "subversive" and "leftwing" literature, in reaction to real or imagined extremes being pursued elsewhere. The city of Berkeley, in California, has been famous since the 1960s for this: one expects that Berkeley Public Library will be among the last to implement CIPA, if it ever implements it at all. Currently they declare simply that "The Berkeley Public Library does not monitor and has no control over the information accessed through the Internet and cannot be responsible for its content" --

http://www.infopeople.org/bpl/system/usepolicy.html

But one would expect that, unlike similar declarations made by more politically - conservative communities, this one by Berkeley perhaps is honored more in the observance than the breach: for example the public library catalog for Berkeley (pop. 102,743), contains 35 entries for the left-wing author Noam Chomsky, while the catalogs for the libraries of Costa Mesa California (pop. 103,864) and Boise Idaho (pop. 168,370) each show 25, that of Columbia South Carolina (pop. 111,821) only 16, that of Provo Utah (pop. 110,690) only 3 -- not that these various cities, or their libraries, are "equivalent" in any sense... although it might be very interesting to track, over time, how these holdings statistics change if and as the new censorship provisions of CIPA do get implemented, and enforced... Formal declarations of intent may be belied by behavior -- as librarians, like US senators and anyone else, react hastily to problems and fears and emergencies.

 

6) Continuity and Hysteria

The key to any civil liberties issue, including censorship implementation and enforcement, is "chilling effect" -- not the specifics of a particular law, but the extent to which that law in fact is obeyed, and even more the extent to which it compels conformity in areas entirely unconnected with the original problem. While a courageous and precise leader can inspire courage and good works in followers, a leader's ambiguity can cause unintended disasters -- "Will no one rid me of this meddlesome priest", groaned King Henry of Thomas Becket, and his knights overheard...

A censorship measure, aimed specifically at Internet use by children in school and public libraries, can spread to include adults, and grow to exert its "chilling effect": over journalists, publishers, schoolteachers, politicians, average citizens on the street. Already there are stories of US college professors being placed "on leave" for controversial classroom comments on the recent terrorism issue; and of Hollywood producers who have been meeting with "White House officials" -- "'Content' was not on the table", they assured the press...

US law recognized this problem long ago. The seminal legal article on the subject was written in 1951, by Harvard Law School's Paul Freund, who warned against the "chilling effect" of "an overbroad statute" -- unless the statute is specific, he reasoned, unintended abuses will be committed in its name ("The Supreme Court and Civil Liberties", 4 Vand. L. Rev. 533, 539). Ever since, in numerous US legal cases in the Supreme Court and elsewhere, "chilling effect" has been used to describe this insidious danger of civil liberties legislation and restriction -- that a law intended for narrow and specific application can "grow", to intimidate and restrict in unintended ways. From the law, "chilling effect" has passed into general US literature and society, so that now the thought of any restrictive legal or political measure literally sends a "chill" up the spine of US civil libertarians. By now the idea that government might impede personal liberty in any way at all is one which requires very strong justification, in the individualistic and civil libertarian US.

But hysteria is one thing that can supply such a justification easily, to anyone subject to the fit. Irrationality has no difficulty in reconciling opposites. And there are elements of hysteria in the current US situation. Any society needs continuity to preserve a strand, at least, of predictability upon which its citizens may rely. Change and innovation are all very well, but some form of assurance that the fire department still will be working, that the police still will be on patrol, that hospitals and doctors will continue to operate, that bridges will be open and school classes and jobs offered -- that "the sun will come up tomorrow" -- all is needed for even change and innovation to take place. Remove that assurance entirely, and the human psychological reaction is uncertainty, insecurity, panic, hysteria -- and too little change and innovation, or too much.

Take child endangerment, for example: certainly, reasoned arguments ought to and most often do prevail in US discussions of how best to raise and educate our children -- even amid the changed family structure and other strange new circumstances of the modern age. But as any parent can attest, reason instantly "flies out the window" once one's own child is involved. A US senator who has children of his own can sit patiently through hours, weeks, months of committee hearings on planned changes in national education policy: but give him one television view of students spraying other students with bullets, at Columbine High School, and he at once thinks of his own son or daughter and cries for instant action -- he is only a father, after all -- President Harry Truman, defending his daughter Margaret scathingly against music critics, reminded everyone that "I was a father before I got into this job, and I'll still be a father when I get out of it..."

But the heat of an emergency provides a bad climate in which to plan for anything but emergency legislation. The chief problem with so many of the measures taken in reaction to the Columbine High School shootings -- strengthened police security on school grounds, hidden cameras in school washrooms, increased "awareness" classes which served to make students more alarmed than aware -- was that they had no time limit put upon them. By the time the most immediate emergency was over -- the shootings, and the rash of "copycat" situations at other schools which followed them -- cooler thinking had prevailed, and more measured and long - term projects had been decided upon; but the on-campus police and hidden cameras and awareness classes had taken on a life of their own, and they continued, making the educational atmosphere oppressive and perhaps not even addressing the problem which they had been designed to solve in the first place.

Likewise with the more recent emergency, "terrorism": in the heat of the revulsion and reaction to the September 11 World Trade Center and Pentagon incidents, many things "changed" in the US, but not "everything". US government at all levels responded very quickly, enacting measures which it is hoped at last will answer the warnings recently given by many, both inside government and out, regarding new US exposures to terrorism from both domestic and foreign sources.

But the problem with these measures is, like those intended to respond to the shootings at Columbine High School, that they are emergency measures which will long outlast the specific emergency which they were designed to meet. Both "Columbine" and "September 11" were incidents concluded within an hour -- although commentators were quick to assess both long-term effects and long-term causes of each event, many years into the future and back many years into the past. As we find out more about each event now, then -- and as we cool down from the pressure of the moment -- we discover that the immediate measures taken may not have been the ones in fact which we want, long-term, after all. Perhaps sending armed city police into high school campuses is not such a good idea, on reflection; perhaps, also, giving guns to airline pilots does not address the "terrorism" problem adequately, or appropriately; perhaps instant kneejerk reactions of any sort, taken in a time of crisis, need to have a time limit put upon them -- at least, if we act, we thus might remind ourselves later on, in calmer times, to look back and reassess our actions.

Censorship is one of these long-term remedies too often implemented to achieve a short - term goal: too often, in its history, censorship has been implemented in an emergency only to be discovered lingering on well after the emergency has passed. Even if censorship is the effective remedy for a situation -- which arguably it is in a time of war, although situations sometimes are declared a "war" simply for the purpose of imposing censorship -- censorship itself, and the "chilling effect" of censorship, must not be allowed to extend unreviewed beyond the immediate emergency at hand.

This is one of the many problems with the "CIPA / Children's Internet Protection Act" censorship under consideration now in the US: designed and pushed by Senator McCain in a well - meaning effort to respond to Columbine High School and other recent child endangerment emergencies -- and greatly bolstered now by "war on terrorism" concerns and hysteria stemming from the tragedies of September 11 and the ensuing and macabre "anthrax" situation -- CIPA is a measure which, unless the world changes very greatly to one dominated by high school shootings and terrorism, will long outlast the emergencies which it has been designed to meet, and which may not even address those emergencies anyway.

He acts rashly who acts in haste: there are times for rash actions -- "when all else fails", and "in hot pursuit", and "in the face of danger", and so on -- but there is a heavy burden on those who say that child endangerment and terrorism and other emergencies have become so prevalent a factor of modern life that we now need censorship on a permanent basis. The current US president says that "everything has changed", that the US is "at war with terrorism": CIPA is one of a number of measures which will survive only if he can prove such allegations to the American people -- and prove them again and again, as time goes on -- and already, so soon after the initial "emergencies", there are sceptics...

 

7) A French-American view

To explain all of these recent US events and changes, one of the most acute observers of French-American relations, Tony Judt, recently has suggested,

 

Well, the shared history and intellectual debt of the US to France are clear, including the shared tendency to indulge in "l'universel": the US is as fond as are the French in making grand assertions of "human rights" and "civil liberties", ringing denunciations of the cynicism and small-mindedness -- particularly in international relations, at least since President Woodrow Wilson as the French no doubt remember -- in generalizing, Americans can be as abstract, and occasionally as sanctimonious, as anyone.

But universals can become very problematic in application. One man's "terrorist" can be another man's "freedom fighter"; the "human rights" of one can be the "imperialist oppression" of another; "liberty" can be seen as nothing more than "licence"; "ethics" as nothing more than "power". Universals also can conflict with one another: freedom of religion with freedom of the press, one person's right to privacy with another's right to speak. This is why legal and political philosophers long have distinguished between "substance" and "procedure": it is all very well to have "substantive" agreement -- but without "procedures", for implementing that agreement and enforcing its provisions and resolving the conflicts which inevitably arise in application, all the "substantive" agreement in the world comes to nothing -- this is why societies invented the necessary evil of lawyers, who are so in love with "procedures".

In the current context, then, Judt doubtless is correct that the US and France share greatly in the "substance" of their respective sets of "universal values": the Declaration of the Rights of Man and the US Bill of Rights have a great deal in common -- as both do with the Universal Declaration of Human Rights, in fact. But there are procedural differences, large ones: "adversarial justice" and "judicial review" and the role of civil libertarians and librarians in the respective societies are among these. The differences are not so great as to make disagreements any more than discussions and occasional quarrels among friends, as the French president recently reminded the US president, like the often-animated discussions among brothers reunited at the annual fjte of a large French family. The procedural differences can be important and instructive for all, however: an older brother may always be able to show the younger one a thing or two, but at some point he must realize that the cadet may no longer be just "strayed" but simply has grown up.

 

--oOo--

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