Geotargeting And The Slippery Slope To Fragmenting The Internet With Localized Censorship

from the the-internet-is-global dept

For years we've talked about the challenges a global internet creates for legal questions that are based on more limited jurisdictions. As different countries start to deal with this, there has been some fragmenting of a global internet in the form of country-wide censorship, such as those seen in the Great Firewall of China. However, what's to stop it from fragmenting further and further? Eric Goldman points me to a recent academic paper arguing that US courts could start enforcing local obscenity laws on the internet by use of geotargeting. As you probably know, disseminating obscenity is illegal in the US, but the "know it when I see it" rule for determining what is "obscene" has generally focused on "community standards." For the most part, that's meant "local" community standards. That works (somewhat) when you're talking about physical distribution and you can try to determine the local community. But on a global internet? As the paper notes, the Supreme Court has mostly punted on this issue. However, the paper suggests that a solution could be to use geotargeting to re-establish local boundaries, jurisdictions and community standards on a global internet:

The line between obscenity and eroticism is hard to pinpoint, and varies from community to community. In general, the process of analyzing whether a work is obscene includes asking whether the content violates the community standards of the local geographic area where the material was published. Thus, for most media, publishers of potentially obscene content must choose the communities into which they publish, or face criminal charges from the least tolerant communities. But for online media, the Supreme Court remains undecided whether the obscenity analysis should use the local community standard. The Court’s doubts stem from the Internet’s global reach and lack of control over who receives free online content. For example, if a work is nationally-available online, and is judged using the same legal standard as in other traditional media, any local community offended by the content has the power of a heckler’s veto to make the publisher liable for distributing obscenity.

This Article explains why the use of a new online technology resolves the question of whether local community standards should be used to judge online content. Called geotargeting, the technology creates borders on the previously borderless Internet, which allows publishers to specifically target geographically localized communities, thereby excluding areas where the material might lead to criminal charges. This new power to publish potentially obscene materials only to selected communities drastically reduces the constitutional concerns of applying traditional obscenity law to online content.

There are a number of problems I can see with this approach -- some of which are addressed in the paper. However, what troubles me more is the larger issue. There's nothing that says this kind of approach needs to be limited to obscenity. Focusing on something like this opens up a fragmented internet ruled by local jurisdictions, where suddenly all sorts of geotargeting requirements start popping up to create a patchwork censorship regime down to very localized regions.

Many of us consider the global nature of the internet a feature rather than a problem. It allows people stuck in regressive communities to access the outside world and find out that their "community norms" may not be what's considered normal elsewhere. An approach that looks to open up censorship on local standards by use of geotargeting, while unlikely to be effective for those who really do wish to get around it, would almost certainly cause problems for those who have legitimate reasons to reach out beyond their local community.

Filed Under: censorship, geotargeting, jurisdiction, obscenity, scotus