Ben Edelman's take on SCOTUS argument re: filtering

Berkman Student Fellow Ben Edelman offers this (and more) about what he heard during yesterday’s United States S Ct proceedings regarding the challenge to CIPA and related filtering laws:

“The government’s most successful argument yesterday seemed to be that, they allege, libraries and librarians have long made decisions as to which books to obtain and which to exclude — so filtering the Internet is, the government suggests, no different. Despite its intuitive appeal, I think this argument ultimately falls short: The Internet differs from books in the important respect that the Internet’s default is to make all content available, while the physical realities of purchasing and storing books inevitably require that only selected books can be made available. Some of the justices recognized this key difference, Justice Souter seemingly particularly troubled by the law’s disregard for the sense in which the Internet differs from books. But when Paul Smith (arguing for the ALA that CIPA is unconstitutional) invoked the more formal language of “public forum doctrine” — trying to argue that a library’s Internet connection creates a public forum, with every content provider invited in, such that the government cannot constitutionally exclude that content that it dislikes — the court was, I thought, surprisingly unreceptive. They seemed to view public forum doctrine with disdain — reflecting, I sense, that this area of the law isn’t as fresh or as crisp as they might like. But Smith presented this as his most important and best argument, and when the court seemed to turn a blind eye to it, he was left in a tough spot. I share Dahlia Lithwick’s sense that from here out things only got harder — for example, as the justices wondered whether overturning CIPA would prevent filtering in public school libraries.”

Ben served as an expert in the case.  See also his work with Prof. Jonathan Zittrain on filtering worldwide.

Our ISP liability regime is a mess

One of the things that bothers me about US Internet law and policy is the various definitions of “ISP” in law and policy (compare DMCA to CDA, e.g.).  Even within the DMCA there is discrepancy.  It will be interesting to see how this case impacts the ISP liability regime — interesting because of the facts (Star Trek, of course) but also because it’s a serious test of the limits on ISP liability.  Not surprising that the eBay lawyers are nervous.