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net.wars: Crossfire

The Sky News anchorman on the bulletin looked horrified. How, he asked, could anyone claim that getting rid of child pornography online had anything to do with freedom of speech? Surely, he added, anyone would know child pornography when they see it. "Of course," he added, "I've never seen any…"

We are all against child abuse.

The occasion for this discussion, which also included John Carr[pic right], from the NCH, was an anniversary. Ten years ago this week, a bunch of us sat in a room somewhere in Central London while Peter Dawe explained his back-of-the-envelope scheme for combating child pornography online. Most of us thought it was a bad idea, and against Net freedoms, but the (then) very real threat of regulation was worse. Carr and I were both there, arguing on opposite sides.

In honour of the tenth anniversary, the Internet Watch Foundation released a bunch of statistics.

The IWF includes a note at the end of the press release to the effect that it doesn't like the term "child pornography" because it "can act to legitimise images which are not pornography." IWF prefers the term "child abuse", because, it says, "they are permanent records of children being sexually abused."

But that isn't necessarily so: digital composites do not document anything at all. No one, as far as I'm aware, has compiled – or legally been able to compile – a study of the images of this type that circulate. It would be valuable to know what percentage are images from known cases, for example, or how many can be identified as not children at all, either because they are clearly digital composites or because they use young-seeming adults.

I am willing to stipulate that the images the IWF inspects are, as I have been told they are, horrendously upsetting to look at. But we will never really know; there can be no transparency in this situation. I am also willing to stipulate that in spite of our fears in 1996, other than a few wobbles of purpose, the IWF seems to have stuck to its very narrow remit. It has not, as it has a couple of times suggested it might, branched out into hate speech and copyright violations. It has stuck, basically, to the one thing most people agree is wrong, though of course there is no external review of what's being removed.

Carr noted two things I didn't know. First, that the US is now the world leader in child pornography sites. Second, that Congress is now considering initiatives to change that. Until now, there's been this little problem of the First Amendment which, Carr said, is sacred to Americans. This was the moment when our host looked so horrified.

But I'm not sure the First Amendment, which includes freedoms of assembly, religion, and the press as well as free speech, is as sacred as it used to be.

For one thing, freedom of speech is one of those things that everyone wants for themselves but not so much for other people. For another, it's commonly misunderstood. The First Amendment doesn't guarantee free speech of all types and in all circumstances. What it actually says is that "Congress shall make no law… abridging the freedom of speech."

It may well be that had the Founding Fathers lived in a time where giant corporations were as much of a threat as governments, then they would have drafted that differently. But the Constitution, like the Bible or Shakespeare, lives on interpretation and textual analysis. What the First Amendment bans, therefore, is legislation that limits free speech.

Which is why, when I went to look up the Congressional moves mentioned by Carr (which I've been unable to find and which even he suggested might be just midterm election posturing), I discovered that this week the ACLU is in court with the government over the 1998 COPA (Child Online Protection Act). In its action, ACLU is representing a host of well-respected plaintiffs, including Salon, Dictionary.com, and Powell's Bookstores

The point of the ACLU's action is not to defend child abuse – we are all against child abuse. The point is that it is very, very difficult to draft a law that only, narrowly, bans child pornography and therefore could pass the First Amendment test in court. And COPA didn't manage it; instead, it banned material that might be "harmful to minors", whether or not that material might be valuable to adults. Clinton, who signed it into law in 2000, ought to be ashamed of himself.

But I suppose politically it's a valid strategy: win votes for your party by creating a law that looks like you're doing something to protect children; let the ACLU be the bad guy later and by getting it overturned.

So what I should have said to our host is this: it's freedom of speech that's allowing us to have this discussion. But freedom of speech does not mean condoning child abuse.