Cybersieves: Evaluating censorship and filtering

Cybersieves, Derek Bambauer.  Duke Law Journal, Vol 59, No 3, Page 377 (Dec 2009):

This Article proposes …  a process-oriented framework to evaluate the legitimacy of Internet filtering. The approach draws upon scholarship in deliberative democracy, health care decision making, labor and environmental law, and cyberlaw. To assess legitimacy, the Framework asks four questions. First, is the country open about its Internet censorship and why it restricts information? Second, is the state transparent about what material it filters and what it leaves untouched? Third, how narrow is the country’s filtering—that is, how well does the content actually blocked and not blocked by filtering correspond to the country’s filtering criteria? Finally, to what degree can citizens participate in decision making about these restrictions, such that censors are accountable? Legitimate censorship is open, transparent about banned content, effective yet narrowly targeted, and responsive to citizens’ preferences (but not overly so).

That’s an interesting approach and overall an interesting article.

As always, I like to consider these issues in a  converged fashion.  It strikes me that Bambauer’s analysis could also be applied to content regulation in the print and broadcast media.  My take with respect to Ofcom’s broadcast content regulation is that much of it rests on a very shaky foundation, relying on unknowns such as ‘what harms children‘, ‘what causes offence‘ or ‘what is due impartiality‘.  Thus, in the world of broadcasting it is almost impossible to make a meaningful assessment of whether the content that Ofcom censors (or more appropriately, censures) matches the types of inappropriate content envisioned by Parliament.  I suspect Ofcom is not very narrow in its approach because Parliament shifted its criteria from ‘taste and decency’ to ‘harm and offence’ and Ofcom is receiving more complaints than ever.

And the larger issue of whether any of it is effective?  Let’s just say:  IT AIN’T.  We cannot be sure, of course, but I have yet to see any evidence that broadcast content regulation beyond the criminal laws has social or economic benefits in excess of its costs.

I do have one quibble with the author:  (1)  Copyright enforcement is not really censorship.  The copyrighted material is still available (and usually available online).  If a government prohibits copyright infringement on say, a U2 song, that song is still available — uncensored — on the internet using iTunes or some other authorized distribution service.