Barriers to the voluntary adoption of Internet tagging proposals.

• Author: Kahn, Daniel H.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND ON CONVENTIONAL FILTERING III. TAG-BASED FILTERING AND TAGGING PROPOSALS IV. IMPORTANCE OF VOLUNTARY TAGGING A. Importance for Effectiveness B. Importance in First Amendment Review V. WIDESPREAD VOLUNTARY COMPLIANCE WITH A TAGGING STATUTE IS UNLIKELY A. Review of the Argument that Widespread Compliance Is Likely B. Insufficient Incentives to Tag C. Incentives for Adult Foreign Websites to Mislabel VI. CONCLUSION I. INTRODUCTION

One of the best qualities of the World Wide Web ("Web") is the staggering quantity and diversity of available content. Not all content, however, is suitable for all users. In particular, many parents worry about the exposure of children to pornography on the Web. (1) Given the rapid growth in the amount of online sexual content, this concern is unlikely to abate. (2)

Congress has been and continues to be interested in protecting children from online pornography. (3) At first, Congress enacted heavy* handed statutes, which were struck down by courts as unconstitutional censorship. (4) More recently, Congress has sought to encourage and, in some contexts, require the use of filtering software. (5) Filtering software allows the user to control what content he or others view when online. (6) For instance, parents may install a filter on their home computer in order to prevent their children from viewing Web content they deem inappropriate.

In their recent attempt to aid filtering, members of Congress have introduced legislation that would require websites containing sexually explicit material to include government-mandated labels, known as "tags," on each web page containing such material. (7) Tagging proposals such as these are designed to assist consumers who employ filtering software by encouraging content providers to rate their content in a manner that facilitates detection of harmful material. (8) Some proposals require content providers to place tags in the code of their websites, while others would merely encourage content providers to tag voluntarily. (9)

However, tagging cannot succeed simply by congressional fiat. The willingness of content providers to implement the tags that Congress selects affects the success and, in some cases, the constitutionality of the tagging proposals. Even congressional proposals that mandate tagging for certain websites cannot succeed without voluntary compliance by content providers who are not subject to U.S. law. (10) Several scholars have argued that market forces are likely to promote voluntary foreign compliance with U.S. tagging laws. (11) They believe that adoption of a tagging standard by the United States could serve as a tipping point, and ultimately promote widespread international coordination around that standard. (12)

This Note takes a more skeptical view. It argues that a tagging standard given legal effect only by the U.S. government is unlikely to lead to widespread voluntary adoption of tags by content providers. This Note also argues that any tagging scheme will give foreign providers of sexual content incentives to mislabel their websites. Part II describes how Internet filtering software works. Part III examines and compares tagging proposals put forth in Congress and in the academic literature. Part IV first analyzes the importance of voluntariness to the success of all tagging proposals, with particular attention to the inability of the United States to impose tagging requirements on broad classes of online sexual content. This Part then examines how courts have analyzed the First Amendment questions raised by tagging proposals. In Part V, after assessing the contention that tagging would occur voluntarily if tagging legislation were enacted in the United States, this Note argues that voluntary tagging is unlikely to occur because domestic content providers will still lack the economic incentives to tag and foreign content providers will have a heightened incentive to mislabel.

2. BACKGROUND ON CONVENTIONAL FILTERING

   Conventional Internet filters prevent computer users from accessing certain content online. (13) Filters can be limited to Web browsing, or they can extend to other Internet programs, such as e-mail and instant messaging programs. (14) Parents can install a filter on their home computer that allows the parents to limit the content their children can receive while allowing themselves unrestricted Internet access. (15) Most filters are customizable and allow parents to choose the level of protection and the types of content to be blocked.16 Filters are also used by employers in the workplace to shield employees, and by adults in the home to protect themselves. (17)

   Filters, when enabled, typically determine which content to block through a combination of several methods. They typically screen content against a "black list" of websites that are known to contain objectionable material. (18) They also ordinarily screen content against a "white list" of websites known to be safe for children. (19)

   Given the staggering amount of content available on the Web, (20) black and white lists alone are not sufficient to screen out objectionable material. To overcome the limitations of black and white lists, users typically have two options. The more secure, but more limiting, option is the "walled garden" approach. The walled garden limits the user's access to material on the filter's white list. (21) The less secure, but more flexible, option is "dynamic filtering." A dynamic filter quickly analyzes Internet content when the user seeks to access it. If the dynamic filter determines that the material is appropriate, the user is allowed to view the webpage. If the webpage is found to be inappropriate, the filter prevents the user from viewing it. (22) While dynamic filtering is fairly new, (23) most filters today have this feature. (24)

   Filters are not perfect. They block material that users might deem acceptable and fail to screen out content that users might find objectionable. (25) Estimates and views of their effectiveness vary. (26) One district court found, based on estimates provided by the parties, that filters on average blocked 95% of sexually explicit material. (27)

   Even ignoring its error rate, filtering software is controversial even if there are no attendant tagging requirements. On one hand, many members of the public, including parents and politicians, favor the availability and use of filters. (28) By enabling concerned Internet users to choose their level of exposure to sexually explicit material while otherwise preserving unrestricted access to such content, some free speech advocates view filters as a good way to accommodate the desires of parents and the goal of maintaining free discourse online. (29) On the other hand, some free speech advocates argue that filtering is not an acceptable solution, even if parents have a strong interest in protecting their children. (30) In support of their position, such advocates cite incidents in which filters have been used for purposes other than those designated by the user; (31) for example, the filter produced by one company blocked users of its filter from accessing websites critical of its products. (32) Thus, these critics fear that filters will block content (that users might wish to see) without users' knowledge.

3. TAG-BASED FILTERING AND TAGGING PROPOSALS

   Proponents of tagging argue that widespread tagging would help users filter out unwanted material on the Web. Although tagging proposals vary significantly in form, they share certain functional similarities. They typically focus on Web content rather than on private exchanges, such as e-mail or instant messaging, that occur via nonweb browser programs. In all proposals, a content provider would place a tag in the code of each webpage it intends to make detectable by tag-enabled filters. (33) Tags would not, by themselves, block content from any users. Instead, a user, such as a parent, would have to use tag-detecting filtration software and instruct it to block out websites that contained a particular tag. Such software could be included in web browsers or could operate independently, as is the case with conventional filters. Users could use tag-based filtering independently or in combination with conventional filtering software.

   The typical user would never see the tags, which are designed to communicate directly with the filtering or browsing software. Some proponents of tag-based regimes believe that the invisibility of tags from typical users avoids some concerns that tagging legislation undercuts First Amendment values. For instance, Professor Lawrence Lessig believes that the invisibility of tags from users would avert criticisms that the government is branding certain speech with a "digital scarlet letter." (34)

   The idea of tagging websites has been around since at least 1996, when the World Wide Web Consortium introduced the Platform for Internet Content Selection ("PICS"). (35) Anyone can develop a PICS-compatible ratings scheme; websites can then incorporate those schemes and rate themselves. (36) Commentators quickly recognized that, in the absence of government support, tagging would not be widely implemented. (37) Proponents of tagging recognize that because no rating system has yet gained a foothold, any ratings vocabulary remains costly for users to learn and not very useful. (38) However, these proponents also believe that a government-backed tagging regime will make widespread implementation possible because it will eliminate the costs associated with duplicative schemes. (39)

   This Note introduces a new categorization system for tagging proposals. The system divides the proposals into four basic forms, which can vary in two significant ways. First, in some proposals, the government mandates tagging, while in others the government makes tagging voluntary but acts in other ways to encourage it. Second, in some proposals, the...