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A continuation of our May 10, 2002, issue...
Responses to questions from subscriber and grandmother Mary in North Carolina featured May 10. The comments are from Dan Armagh, NCMEC; Rob Courtney, CDT; and Anne Collier, NFN.
- Dan Armagh, chief legal counsel of the National Center for Missing & Exploited Children
"Why are the rights of porn operators more important than the safety and well-being of our children?"
Historically, the tension between the First Amendment of the Constitution and the need to protect children, especially in the context of pornographic materials, has always existed. What the so-called 'adult entertainment conglomerates' have always argued is that, if the Court takes reasonable steps to protect children from the harmful effects of adult and child pornography, one starts down a slippery slope of trampling the rights of all Americans. 'What will the government go after next?' is their battle cry. 'Will they outlaw chocolate because it harms children?'
Of course these arguments are spurious. No one in law enforcement wants to usurp the First Amendment rights of any person. In the early 1980s child pornography was almost non-existent in the United States. Effective laws in concert with aggressive law enforcement and prosecution of child pornographers had a demonstrative effect on the availability of child pornography in this country.
With the advent of computer technology and a significant number of families purchasing a personal computer and accessing the Internet, the commercial and criminal markets have exploded for both adult pornography and child pornography. There are tremendous amounts of money being made in the pornography industry. The lucrative business realized from this industry, coupled with what some argue was a lack of political will to investigate and prosecute the pornographers in the 1990s, have brought us to the most recent holding in Ashcroft v. Free Speech [for coverage of the Supreme Court decision, see our 4/19 issue].
This decision was extremely disappointing to the National Center for Missing and Exploited Children, as well as prosecutors and law enforcement across the nation. The National Center built the CyberTipline so the public and Internet Service Providers can report any apparent child pornography to the Center, whose trained analysts triage such images and forward to the appropriate law enforcement agency.
Congress passed the Child Pornography and Prevention Act in reaction to the alarming amount of child pornography produced, exchanged, and disseminated over the Internet in an effort to protect children. Out of five judicial circuits who considered the issue in the case, only the ninth circuit held the statute to be unconstitutional. The Supreme Court agreed with the holding in the ninth circuit. Unfortunately, the implications for effective enforcement of our child pornography laws are serious.
The Supreme Court held in a 6-3 opinion that the wording of the statute would allow the banning of all kinds of 'simulated sexual conduct' between actors who 'appear to be children,' thereby banning such movies as Traffic, Romeo and Juliet, and American Beauty. We think Justice O'Connor, in writing her dissent, had it right when she wrote that the entire statute did not have to be struck down to protect such movies. The legislative history of the statute clearly demonstrated that the Congress had intended to ban child pornography, not child erotica.
In the oral arguments before the Supreme Court the Solicitor General failed to make the distinction between child pornography and child erotica, thereby allowing the Court to wander off into a discussion of how this statute would ban such movies listed above that seemed to be the primary concern of the majority.
The National Center for Missing and Exploited Children is busy providing various Congressional staff with new drafts of a statute we have confidence can survive constitutional scrutiny and still protect children from the scourge of child pornography, whether such visual depictions are of actual children or virtual images that are virtually indistinguishable from child pornography depicting actual children. [The reworked legislation is on it way through Congress - a House of Representatives subcommittee this week passed the "Child Obscenity and Pornography Prevention Act of 2002" - see "Web News Briefs" in this week's issue] Citizen involvement in supporting such legislation is immensely important if we have any hope of bringing the availability of obscene and child pornography back to levels of near extinction.
Providing a safe place for children to realize their full potential without the very real dangers of the sexual predators lurking in our schools, churches, libraries or on the Internet is of paramount importance. Surely a law can be crafted to protect our children as well as our rights of free expression under the First Amendment. Hopefully next time the highest Court in the land will agree."
- Rob Courtney, policy analyst at the Center for Democracy and Technology
- "Why are the rights of porn operators more important than the safety and well-being of our children?"
Nothing is more important than our responsibility to our children, so we have to be sure that the steps we take to protect them are effective. A study recently released by the National Research Council, headed by former Attorney General Richard Thornburgh, found that three-quarters of the pornography on the Internet is generated overseas. That material falls outside the jurisdiction of US law - our domestic laws won't address that material. So potentially the law is ineffective, giving us a false sense that we've shielded our children when in fact we haven't.
The better approach is to arm families and children with sound information about the benefits and risks inherent in the Internet, and the tools and resources available to keep kids safe.
- "Why can't porn be moved out of '.com' to another domain such as '.xxx,' so that it's not so easy for kids to stumble upon?"
Moving objectionable material to a new Top-Level Domain is difficult and may not be effective. Coming up with one-size-fits-all definitions of material harmful to minors is controversial - what's considered harmful to one family or in one community may seem appropriate in another. Also, many objectionable sites are located offshore, outside of US jurisdiction. US laws requiring content publishers to categorize themselves wouldn't apply.
A better solution is for families to take control of the Internet at their end. Internet filters, monitors, and other safety tools put families in control of their own Internet experience in a way that's both powerful and tailored to their own particular needs. These tools permit families to approach the Internet on their own terms. Also, parents who are able to educate themselves about the Internet will find themselves better able to help their children be safe online.
GetNetWise.org is a comprehensive resource about family safety online. It provides links to more than a hundred tools, as well as plenty of content to help parents learn about the best paths to online safety.
- Anne Collier, editor, the SafeKids/NetFamilyNewsletter (responding to questions Mary emailed before they were revised and, with Mary's permission, put to Rob Courtney and Dan Armagh)
- "Why can't pornography be moved out of '.com' to another domain such as '.xxx' and filters be created to block them?"
As you know, although the Internet was invented by a number of individuals and institutions in the United States, the US government no longer has jurisdiction over the Net. Certainly, the world watches what laws we pass concerning the Internet and what our courts decide about the ones that are challenged because we're a little further down the road with all this than are many other countries. But if Congress passed a law requiring the creation of dot-kids and dot-xxx top-level domains, or TLDs, it could only really affect US-based publishers of either type of Web site, and the domains would be impossible to police because the Net is an international medium and no single government controls it.
The body that controls Web addresses/URLs and Internet Protocol numbers - the International Corporation for Assigned Names and Numbers (ICANN) - rejected both the .xxx and .kids TLDs in late 2000, but Congress decide it wanted to see a dot-kids domain happen anyway. CNET's News.com does a great job of summarizing what's happened since: "After ICANN passed on the idea in November 2000, several lawmakers introduced a bill that would force ICANN to set up a .kids domain. But sponsors backed off from that plan [to force the issue] last fall after witnesses told them it could be difficult to overrule ICANN, which is not under direct US government control. The revised bill approved [last month] directs the operator of the United States's own country-code domain [dot-us], NeuStar, to set up and police a .kids subdomain that would be overseen by the Commerce Department's National Telecommunications and Information Administration. NeuStar would be expected to police the domain to ensure that it remained free of inappropriate content. The company would be exempt from lawsuits filed by those whose Web sites it took offline."
The revised legislation is believed likely to pass this spring, so dot-kids will probably happen and will look like this: www.disney.kids.us. Here are transcripts of testimony to Congress on the dot-kids issue in the House Committee on Energy & Commerce's Web site.
So, as you knew before you even asked the question, just moving all the porn sites and all the kids sites out of dot-com and into their own areas is no simple task.
As for the filtering question, the result would be a double-edged sword. Dot-xxx would be easier to filter out, but it would also make porn, if possible, easier to find. And there are unscrupulous porn operators here and abroad who want people to stumble on their sites and would be delighted to "cover all their bases" and register them in both .xxx and .com domains. SafeKids.com's Larry Magid, looks at all the ins and outs quite thoroughly here.
- Why can't we define pornography if definition is a part of the problem?
I think our society has defined it in/for other media, and - even in its latest decision to overturn the Child Pornography Prevention Act (CPPA) - the Supreme Court justices said other laws already in place should be invoked in online-child-pornography cases. Even so, Congress has already started work on more narrowly worded legislation (the Supreme Court said the CPPA was too broadly worded and could inadvertently constrain legitimate art) that will get past the First Amendment hurdle. Congress's Missing & Exploited Children's Caucus said they're actually using Justice Sandra Day O'Connor's dissenting opinion to come up with the right wording for this new legislation. So it's in the works.
Definition is indeed a problem on the global Internet, though. Every country has its own definition for child pornography, for example (here's a page showing 10 countries' views at the Association for Internet Hotline Providers in Europe). And both the Supreme Court and a federal court in Philadelphia have really wrestled with Net-related laws that force the question of whether or not there can even be a national standard for obscenity or decency in the US. Whether or not to enforce the Child Online Protection Act (COPA) of 1998 has gone all the way to the Supreme Court (decision to come by the end of the Court's term this summer).
COPA "tests one of the 'bedrock principles' of obscenity law, Wired News (very ably) points out: local community standards. I think you'll find this really interesting, in light of your question about definitions/standards: The issue of local standards took up most of the hour-long discussion the Supreme Court gave COPA, with the justices wondering whether Congress should be allowed to establish a national standard for what is or isn't appropriate content for kids (instead of allowing local juries to decide what's appropriate for their communities). Wired reported that the Supreme Court doesn't appear ready yet to say that - with the Internet - the principle of local community standards has outlived its usefulness in First Amendment law. The Court has until the end of the term - late June or early July '02 - to decide the COPA case, Ashcroft v. ACLU, Wired added.
Here's an exchange that fascinated me, as reported by Wired, during the Supreme Court's hearing of COPA arguments:
" 'Doesn't any jury necessarily apply the standards of its own community?' asked Justice Antonin Scalia. 'What does someone who was raised his whole life in North Carolina know about Las Vegas?' Other justices wondered if Congress truly intended to craft a national standard for smut - or whether COPA might allow a Bible Belt prosecutor to shut down lurid websites located in far more permissive areas of the United States. 'I have a California jury," said Justice Anthony Kennedy. 'Is it proper or is it necessary for that jury to consider what the standards are in other parts of the country before it renders its verdict?' "
- Why are the rights of porn site owners more important than the safety and well being of our children?
I don't think they are - to the vast majority of people on this earth, anyway - but I can see why one would ask that after reading about the Supreme Court's decision last week on virtual child pornography. I don't think any medium before the Internet has ever caused such a direct clash between children's rights and free-speech rights or made judges' lives more interesting! The Christian Science Monitor frames the issue about the constitutionality of the Children's Internet Protection Act (CIPA) in the lead sentence of its report: "In a quiet courtroom tucked away in a federal building here, a titanic battle is pitting free speech against government efforts to protect children from the seemingly limitless pages of pornography in cyberspace."
In last month's virtual-child-porn decision, the justices indicated the decision was really about a flawed law, one that they said could constrain "expression with clear artistic and literary merit," and that it "violated the First Amendment in all the respects that the court considered," the New York Times reported. In other words, the decision was part of a process - in rejecting the law, the Court was telling Congress to do a better job of wording a law protecting children so that it protects free speech as well. Congress has started doing that.
Then there's the overall societal learning process all this represents. In his majority opinion in the 6-3 decision, Justice Kennedy pointed to modern versions of Romeo and Juliet and the movies "Traffic" and "American Beauty" as examples of what might be prosecuted under the virtual-child-porn law the Court struck down. Certainly, a lot of people object to the sexual depictions and erotica in those movies and wouldn't allow their children to see them, and that seems to be the message the Court keeps sending where the Internet is concerned - that, under the First Amendment, the onus needs to be on the consumer end rather than the publisher end. In fact, that was the question behind the very first attempt to legislate decency on the Net, the Communications Decency Act of '96, struck down by the Supreme Court in '97. One of the legislative aides who actually wrote the law later told us the laws' writers were testing the Court with it - they wrote it to ensure it would get all the way to the Supreme Court. They wanted to see what the Court would say about legislating Net decency at the publishing end. Two years later he told me they'd come to the conclusion that they couldn't tackle decency/obscenity on the Net from the producer end. After they arrived at that conclusion, they started working on CIPA - mandating schools and libraries using federal subsidies for Net connectivity to install filtering (more a consumer-end solution for protecting kids). But even that's being challenged in the courts - it's the one a federal court in Philadelphia will be deciding on soon - any appeal for which goes right to the Supreme Court.
These legislative efforts and court cases all illustrate the unprecedented challenge the Internet represents to the US in particular, with its First Amendment.
- We need laws to protect our children from being misdirected by a devious Web site.... Why can't this be done?
"Mousetrapping" is an excellent illustration of how legislation - especially the better enforcement of existing laws - can help in some cases. See "FTC's 'mousetrapping' crackdown" in our 10/5/01 issue. And more on this from a thoughtful subscriber in our 12/7/01 issue under "A subscriber writes: 'Porn-napping' sites." The item includes a link to a nonprofit cybersquatting watchdog organization that explains cybersquatting, porn-napping, and how to avoid getting "mouse-trapped" by a porn site.
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