I’m more optimistic than the Wash. Post article on the transaction / payment front, actually. It’s unrealistic to think that child porn can be choked off. But it’s a good intermediate step to increase the transaction costs of accessing it. Jack Goldsmith has said that regulation is often about increasing the cost of information, and I think that’s right. The analogy I explore briefly in the paper is about access to pharmaceutical drugs online without a prescription: if you cut off the standard payment systems, you have placed a serious impediment in front of potential consumers.

And I agree with you that filtering is direct regulation; it’s just that regulation here has the Lessig “four forces” connotation rather than the mere legal code one.

So we are left with state action as the question for the constitutionality of this program.

Two further thoughts:

1. I agree that child porn is a hideous thing. But the regulatory responses here seem disproportionate. In this regard, the current round of filtering can be situated as part of a larger cultural narrative about smut on the Internet. The court in Mainstream Loudon (overruled by ALA), for example, pointed to the state’s failure to come up with more than two or three instances nationally of library patrons looking at pornography on publicly accessible internet terminals. Or, more generally, one might revisit the legislative history behind the CDA, where the (entirely bogus) Georgetown LR paper by Marty Rimm got picked up by Time Magazine and turned into the hurried passage of the CDA (for those who don’t know the narrative, I can’t figure out how to embed links as part of a comment, but the Wikipedia article on Rimm tells the basic story). I’m not sure what the cultural narrative that needs to be told exactly is, but I’m sure there is one…

2. The above point seems especially worth making in light of the following: the Washington Post is reporting this morning (http://www.washingtonpost.com/wp-dyn/content/article/2008/06/10/AR2008061002544.html) that a forthcoming report will question whether such tactics will reduce access to child porn as much as they will drive it underground and make it harder to track. The relevant cultural narrative here would probably refer back to the history of the RIAA and P2P downloading: they killed Napster, and from that, decentralized P2P emerged. Cyberlibertarians would conclude from this that the Internet is unregulable; I think a more interesting line of thought to pursue would be about the ways in which indirect regulation is more effective online than direct (thus, following Lessig and Zittrain). I also realize that it is odd to characterize a filtering regime as a direct regulation, but given the technical specifics of it – blocking, carte blanche, entire newsgroups, it might be appopriate.

Of course, this has become my talking point on the subject of filters: filtering regimes invariably both overblock (1st point, above; Derek seems right that this is driven by the economics of the situation: fine-grainedness is expensive), and simultaneously underblock (second point, although driving the material further underground isn’t how that point is usually articulated).