What’s wrong with Lessig’s “Harmful To Minors” tag?

In Code v 2.0 Lessig advances an argument about how to deal with harmful content on the internet (i.e., how to help parents keep their kids from checking out the plethora of online porn).  You can find the argument in Chapter 12 on the wiki version of the book.  Search for “kids-mode-browsing”: page 253 in my old-fashioned printed book, with dog-eared page.

I do not follow the argument.  But it seems to me that it is so obviously objectionable that I must be missing something important here.  Probably there is some legal nuance I am not sensitive to.  Ah, the delicacies of the intelligence that ever elude.  I would be grateful if any random reader (or friend) who comes along might help me see the light.

Lessig’s argument is in service of his proposal for a “kids-mode-browsing” (KMB) based on a code-level implementation of a “harmful to minors” ([H2M]) tag.  The proposal is meant to address both the producer (speaker) and consumer (listener) sides of the speech transaction in a way that is consistent with both a viable interpretation of First Amendment rights and the perceived need to protect kids from content society deems harmful to them.  The implementation of the tag shifts the burden of identifying harmful content to content producers and purveyors (i.e., websites).  The implementation of the browsing functionality takes advantage of this tag to enable parents to configure their kids’ computers (or desktop profiles) such that content so-tagged will not be objectionable.

Lessig’s solution is swift and clear.  In only a few pages he solves the perceived problem of online porn.

But I don’t see how this is a solution.

Lessig positions his solution as part technological (Lessig calls it ‘architectural’), part legal, and part economic. (The economic aspect Lessig attributes to his solution seems to me important but epiphenomenal so I will disregard it.)

Technologically, the solution seems to me to fail because it depends on a code-level technological implementation of the [H2M] tag.  But the technology by itself clearly cannot rule out anti-[H2M] code (or hacks).  It is silly to believe that nobody would make anti-[H2M] code available.  Surely some of the very teenagers whose parents have implemented KMB/[H2M] are proficient enough coders to build such a hack.  If not, perhaps some of their slightly older teens.  Even if horny teens themselves can’t write the code and give it to their friends at school, there would be a clear market incentive for somebody to write code that instructed one’s browser (perhaps secretly, perhaps with a certain key combination) to override the [H2M] controls implemented by one’s desktop administrator, i.e. one’s Mommy and Daddy.  Some smart coder would be able to make an easy five dollars on hundreds of teens by writing efficient code that disabled [H2M] functionality in such a way as to override the parental controls.  If somebody wrote the code into the Desktop OS and the Browser to enable [H2M], then somebody else can write code to disable the very same functionality.  Some generalization of this ought to be understood as The First Law of Code: if you can build it, then someone else can build around it.

Legally, there is thus a requirement that law find some way not only to mandate that porn providers tag their content, but also to insure that nobody writes, or distributes, or installs anti-[H2M] code.  For if anti-[H2M] code is freely available and cannot be prevented by technology/code, then it must be barred by law/statute.  But it is not clear that any such law could be effectively designed, at least not under the U.S. Constitution.  It sounds as if it would be kind of like a law against making disguises for the reason that some kids purchase disguises so that they can go into porn shops posing as adults and purchase or rent porn.  (Lessig draws frequently on the way that kids-posing-as-adults to consume porn in the online world are analagous with disguised-kids-on-stilts consuming porn in the real world.)

Perhaps it might be argued that anti-[H2M] code is not like a disguise because while disguises are themselves not designed to enable kids to buy porn, this code explicitly is.  To this, I think the reply should be that it is not clear how anyone would be able to read intention out of the code itself.  In any event, one can imagine that there are plenty of lonely husbands and wives whose spouses have employed [H2M] to block them from late night porn, and that the coders are hacking around [H2M] for these adults.  So it turns out that the code is like a disguise because it has more than one use–its only use is not to enable kids to illegally route around [H2M].

Another similar objection to my line of thinking might be to suggest that anti-[H2M] code is itself [H2M] such that the original law ordering porn producers to label all [H2M] content brings with it the order to label anti-[H2M] code as [H2M].  To this, I think the reply should be that the objection relies on quite a long linguistic stretch.  For the code itself is surely not [H2M] even if one of its effects is to enable something that is [H2M].  If functional code itself must be labeled [H2M] then what about other code that routes around [H2M] but without disabling [H2M] functionality.  Perhaps the analogy are to keys and locks, or some other encryption hardware.  I confess to knowing almost nothing about the laws regulating these technologies.  Are there precedents here that make the original argument go through?

It seemas if the legal and technological implementation of [H2M]/KMB is bound to fail.

What am I missing here?  Lessig is too smart to make a mistake that seems so obvious to me.  I plead no contest but ask the court to show me exactly where I have gone wrong, anyway.

Thanks for any help!

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