Tuesday, October 26, 2010

Internet censorship is not the answer

Perhaps I'm overly suspicious of the government, but it really burns me when lawmakers hide behind the guise of protecting our children to justify unnecessarily broad extensions of government power.

This is precisely what happened when the state legislature and Governor Deval Patrick passed a hastily-drawn statute that imposes up to five years in prison and a $10,000 fine for anyone who sends an email or text message, or posts on any listserv or any website, any material that a zealous prosecutor might construe as "harmful to minors."

What does that mean? Well, for one thing, the law could be used against booksellers, art outlets, medical websites and family therapists -- and a lot of private citizens like you and me -- who happen to post something online that might be considered by prosecutors to be "harmful to minors." It would potentially criminalize the posting of material that would be perfectly legal for an adult to view, whether we intended it to be read or seen by a minor or not.

The statute restricts "the dissemination on the Internet of any material which is 'harmful to minors'" -- a construction so broad that it criminalizes material posted on a website or sent out on a listserv that might possibly be read or seen by a minor -- not merely communications specifically directed at a minor.

Since there is no way you or I (or a bookseller or therapist) can either know or control who might visit our website or forward our listserv message, this law forces all of us to self-censor the information we post on topics like sexual health, adult literature, or art -- or else face up to five years in prison and a $10,000 fine.

Fortunately, some of these very same booksellers, art outlets and family therapists have stepped up to challenge this dangerously vague and overly broad law in federal court. Today I stopped by the federal courthouse to hear the arguments in the case, which confirmed my worst fears about this law.

The government lawyer argued that, despite what the statute says, prosecutors promise to prosecute only those cases involving "something more than posting to an audience that may or may not include a minor."

"'Just trust us' is not an appropriate response to an overly broad statute," said Michael Bamberger, lawyer for the booksellers.

Hmm – the government wants this broad power set forth in the statute, but they won't use it? Yeah, right.

Prosecutors insist that the law is necessary to stop bad guys, and point to a case involving a man who used the internet to solicit sex with an undercover police officer posing as a 13-year-old.

What prosecutors don't mention is that we already have criminal laws against solicitation of a minor; they don't need this extra power to get the bad guys. In particular, they don't need a law that isn't even limited to person-to-person communications but, rather, sweeps in all matter on the internet that might be construed as harmful to minors.

We can take some comfort from the fact that the U.S. Supreme Court recently struck down a federal law that similarly attempted to criminalize Internet speech, as did courts in nine states that tried to impose comparable content-based restrictions on Internet speech.

This case is a good reminder that we need to remain ever-vigilant in the defense of basic civil liberties against overzealous lawmakers who try to capitalize on specific cases involving children -- or cops posing as children -- to expand government power in ways that could be used to silence booksellers, artists, healthcare providers, and the rest of us.

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