Wrapping up the Google story and some more legalese
Some final comments about the “Google dropping lolicon sites from search results” story, and a quick look at related legal problems elsewhere.
As explained in the previous post, Google picked up on a complaint that loliero scanlation site Little White Butterflies was hosting child pornography, and pulled it from search results after filing a report to NCMEC. Pointing out that the material hosted there was clearly not child pornography under US law, the site owners asked on Google's webmaster support forum that the takedown be reviewed. The request has been ignored so far, and it appears that Google has no intention of addressing the site owners' concerns (not even by telling us that they won't overturn the takedown).
Indeed, the support forum thread in question has been silently erased by Google's moderators. The removal of that thread is understandable, considering that it had degenerated into name-calling and mudslinging between outraged third parties and 4chan trolls, some of it possibly actionable; but in view of their actions here, Little White Butterflies considers Google's lack of response to be final, and I would to.
This all makes it even harder to defend Google's conduct as “following proper procedures” that can easily be fixed after the fact when they go wrong. And it is somewhat ironic that this (and the Downfall affair!) pops up precisely as they launch a massive PR campaign advertising their transparency and respect for free speech. Google can do whatever they like with their search results (that's not exactly true, but for the most part, search results are first amendment-protected speech), and take down whomever they like. But it does sound a little disingenuous to pose as virtuous opponents of censorship afterwards.
They can take down whomever they like, but what are their legal obligations in these matters? It is not entirely fair to say that this removal is tantamount to dropping sites advocating gay marriage. The difference is that there are federal laws addressing the way content providers must handle child porn and child sex obscene material specifically. Let me clarify the points I glossed over in the previous post.
In a nutshell, when it is made aware of child pornography on its site, a content provider has a duty to file a CyberTipline report to NCMEC (18 U.S.C. § 2258A) including “any image of apparent child pornography relating to the incident such report is regarding” (§ 2258A(b)(4)) and other technical details, and to restrict access to the content of the report and the images of apparent child pornography submitted therewith (§ 2258A(h)(4) and § 2258B(c)(2)). The employees examining a complaint are immune from prosecution for all actions taken as part of this activity (§ 2258B).
A (singularly asinine) 2006 reform extended (§ 2258A(a)(2)(B)) those provisions to material apparently illegal under § 1466A, namely obscene fictional description of children engaged in sexual acts. As I said before, it is unclear to me how anything at all can be apparently illegal under § 1466A, seeing as obscenity hinges on where you live, on the mood of the jury, and on qualities of the material under consideration that go beyond appearance. But let's assume for the sake of argument that there is such a thing, and even that the material hosted on Little White Butterflies qualifies. Then it is indeed the case that, to be perfectly safe, Google had to file a report with the National Center for Missing and Exploited Children (see what I meant when I said “singularly asinine”?). But it doesn't follow that they had to block any material whatsoever, because none of the images they could have found on that site, namely drawings, could under any circumstance be considered apparent child pornography.
So yeah, the legal question is a bit more subtle than some make it out to be, but the steps taken by Google here went notably beyond what was required to prevent liability. And failure to even reply to a politely worded question on the issue by concerned parties is simply rude. I like Google's products and have a lot of respect for them as a company, but they do have a tendency to take a moral high ground on free speech-related issues, and I don't think it is unreasonable to call them out on their lapses.
On the other hand, I have to agree with Simon Jones that this particular site isn't the best example to dig up of protected speech disappearing from Google's search results. Not because the contents is unsavory to some, but because it is copyright infringement (contrary to what I was saying, the site does not only translate doujinshi, for which they could conceivably have obtained permission, but also commercially published manga chapters, for which the chance they did is zilch). While I take a dim view of scanlation in general, I don't necessarily think that scanlating manga that hardly has a snowball's chance in hell of ever hitting overseas markets officially is outright wrong (and manga authors themselves don't always either); but it's illegal, and not protected by the first amendment, so there goes the righteous argument. The folks at Little White Butterflies are probably right in deciding to lay low.
However, if Google intends to pursue this course of action for similar complaints in the future, I can see how a lone individual with an axe to grind can irrevocably expel a good chunk of the Japanese Internet out of search results (and perhaps Wikimedia Commons). Since takedowns apply globally, it is entirely possible for a Bible thumper in South Carolina to block users in Japan from accessing official sites of Japanese publishers or resellers through google.co.jp. And simultaneously flood NCMEC with reports of sexual abuse against drawings on paper, which they will surely be happy to process. I almost wish that someone would try it, just to witness the ensuing shitstorm.
In other news, ANN covers two news items regarding the hijitsuzai reform proposal. On the one hand, the Tokyo Office for Youth Affairs and Public Safety released an FAQ-like document regarding the proposal, containing pretty much the same statements as they have been making all along, like “this is not a free speech issue” and “the concerns of mangaka are unwarranted.” They ask everyone to trust them that the new provisions would be applied in a sensible manner (despite being dangerously broad). Sorry, no. Let me from quote Dan Kanemitsu's excellent reference page:
Mr. Takashi Yamaguchi, a Tokyo based lawyer very active in opposing efforts to censor manga and anime, has pointed out there is something fundamentally wrong with legislation that assumes that the enforcers of the provision will be benevolent.
On the other hand, due to continued disagreement between the Jimintō-led backers of the proposal and the Minshutō-led majority in the Metropolitan Assembly, voting on the text has apparently been pushed back to fall. This is good news. Unfortunately, I hear that both the Minshutō assemblymen and their allies from the Seikatsusha Network are under intense pressure by pro-censorship lobbyists to change their minds, and that these lobbies are making a dent.
I'm planning to attend an event on the subject at the Tokyo Central Japanese Language School next Saturday called “A speech restriction how-to: thinking on the use of democracy,” with Fujimoto Yukari and Hosaka Nobuto as the main guests. Both are great speakers, so it should be quite interesting (even though the pro-censorship camp has declined to show up as usual). Will report then.
Short final remark which is not news at all. Two weeks ago, Anime Vice posted a useful round-up of a number of national laws regarding lolicon material. I'm not familiar with most countries mentioned there, but I know about the French situation, and it is unfortunately not as nice as they think. It's nothing new, really, and I'd have corrected it there on the spot if they didn't require you to register to post comments. But they do, so I'll just put it here.
In 1998, the provisions of the French Penal Code prohibiting the production, distribution and possession of “images of a minor when those images are of a pornographic nature” were extended to include “representations” as well, and with the same penalties. Nobody really knew what this meant (most, I believe, assumed that it was about “photorealistic shops”) until a 2007 ruling by the Court of Cassation (the highest French court on civil and penal matters) which established that drawings and animation fell within the scope of the law, and that “minor” here could be anything looking young enough, even if the fictional setting says it's over 9000 years old. In fact, the material under consideration within that case was eroanime which a French distributor was trying to sell subtitled. To my knowledge, the provision has not been used in any other conviction, and the penalties in that one case were rather lenient (a $2000-or-so fine for each of the distributors), but that's a clear precedent indicating that loliero material is illegal in France.
There is still a higher recourse that hasn't been attempted, however. Prohibition of this kind of material may be a violation of Article 10 of the European Convention on Human Rights (and if it is, the similar UK law could be struck down as well). I wish the case law of the European Court on Human Rights was as well documented as that of SCOTUS to see if such a recourse would fly.