FC: Cato: Free speech means nixing both censorship and "privacy" laws

From: Declan McCullagh (declanat_private)
Date: Thu Aug 09 2001 - 07:44:51 PDT

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    Date: Thu, 9 Aug 2001 09:27:57 -0400
    Subject: Cato study: Arguments used against censorship apply to privacy
    From: "Jerry Brito" <jbritoat_private>
    
    CATO INSTITUTE NEWS RELEASE
    
    August 9, 2001
    
    ARGUMENTS USED AGAINST CENSORSHIP APPLY TO PRIVACY, STUDY SAYS
    Pornography censorship, online privacy legislation unconstitutional for same
    reasons
    
    WASHINGTON—A number of prominent civil liberties organizations have fought
    for free speech rights by challenging and defeating laws aimed at censoring
    unsavory expression. Among these laws were the Communications Decency Act
    and the Child Online Protection Act. But a new Cato Institute study finds
    that these organizations are now advocating regulation of another kind of
    speech--commercial speech on the Internet.
    
    In the new Cato Institute study, "Internet Privacy and Self-Regulation:
    Lessons from the Porn Wars," Chapman University law professor Tom W. Bell
    shows how the winning arguments made about decency laws should also apply to
    proposed privacy legislation that seeks to regulate commercial speech,
    including the sharing of user data collected by Web sites.
    
    Bell writes that the American Civil Liberties Union, the Electronic Privacy
    Information Center, and the Center for Democracy and Technology successfully
    challenged the constitutionality of legislation restricting Internet speech
    classified as indecent or harmful to minors. They did that, he says, "by
    arguing that the availability of self-help alternatives disqualified such
    laws as the 'least restrictive means' of regulating constitutionally
    protected speech." Proposals to regulate Internet privacy merit the same
    scrutiny, he says.
    
    Arguments successfully used against decency legislation--for example, that
    private alternatives to state action exist--also apply to privacy
    legislation, Bell says. Much like the "self-help" software that allows
    parents to filter offensive content, a wide rage of free or low cost privacy
    protection software is available, he writes. "Such privacy-protecting
    services differ in one crucial regard from services that try to filter out
    offensive speech: they work better."
    
    In addition, Web site users often say one thing and do another, belying any
    real privacy crisis. According to Bell, polled Internet users indicate they
    are concerned about their online privacy and would act to protect their
    information. What they actually do is different, he says, supplying personal
    information in exchange for Web site access among other things. Impressed by
    the polls, however, Congress is entertaining several privacy bills and
    President Bush has indicated he would sign them.
    
    In both the communications decency and privacy debates, Bell says, "the
    availability of self-help alternatives renders state action suspect on
    constitutional and policy grounds. The same activist organizations that
    argue against legislation restricting Internet speech that is indecent or
    harmful to minors should reconsider their demands for privacy legislation
    that would restrict speech by commercial entities about Internet users."
    
    Cato Briefing Paper no. 65 (http://www.cato.org/pubs/briefs/bp-065es.html)
    
    Contact:
    Tom Bell, associate professor, Chapman University School of Law,
    718-628-2503, tomwbellat_private
    
    Adam D. Thierer, director of telecommunications policy studies,
    202-789-5211, athiererat_private
    
    Jerry Brito, manager of media relations, 202-218-4621, jbritoat_private
    
    The Cato Institute is a nonpartisan public policy research foundation
    dedicated to broadening policy debate consistent with the traditional
    American principles of individual liberty, limited government, free markets
    and peace.
    
    
    
    
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