Interesting...

[emmagrant01]

Court strikes down Internet porn law

From CNN.com

A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material. In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.


PHILADELPHIA, Pennsylvania (AP) -- A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.

In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.

"Perhaps we do the minors of this country harm if (free speech) protections, which they will with age inherit fully, are chipped away in the name of their protection," wrote Senior U.S. District Judge Lowell Reed Jr., who presided over a four-week trial last fall.

The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act was unconstitutionally vague and would have had a chilling effect on speech.

The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds the law was likely to be struck down and was perhaps outdated.

Technology experts said parents now have more serious concerns than Web sites with pornography. For instance, the threat of online predators has caused worries among parents whose children use social-networking sites such as News Corp.'s MySpace.

The case sparked a legal firestorm last year when Google challenged a Justice Department subpoena seeking information on what people search for online. Government lawyers had asked Google to turn over 1 million random Web addresses and a week's worth of Google search queries.

A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds.

To defend the nine-year-old Child Online Protection Act, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.

"It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," a government attorney, Peter D. Keisler, argued in a post-trial brief.

Critics of the law argued that filters work best because they let parents set limits based on their own values and their child's age.

The law addressed material accessed by children under 17, but applied only to content hosted in the United States.

The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of the U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.

The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

The newer law narrowed the restrictions to commercial Web sites and defined indecency more specifically.

In 2000, Congress passed a law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003.

Summary: The internet is not a babysitter, and it's the parents' job to limit kids' access to porn and other "harmful" material -- and not the responsibility of the owner of the website.

So what does this mean for fandom? Clearly there's no legal obligation (in the US, at least) to password protect your adult fan fiction or art in a futile attempt to keep minors from accessing it. If the ruling stands, will LJ change the TOS to reflect it? (As an aside, I do know that written material isn't technically considered "pornography" in the US, but the vagueness of the term "harmful material" has caused me to wonder in the past couple of years if fiction or podcasts could be included under that law. Hopefully it's a moot point now.)

Oh, and I'm not a lawyer by any means, so people with more knowledge of this stuff than me (*coughs* heidi8, chaeche *coughs*) please feel free to add some insights!

Comments

[anabellhenry.livejournal.com]

I was poking around looking at web hosting sites last week (talk about exercises in slime marketing!) anyway... two sites I looked at included written material alongside the pornographic images warning in the guidelines. Not that I think they'd ever know if someone had one or 25 pieces of NC-17 fiction buried within the 250 gig of space they were offering, but I thought it was interesting that they'd bother at all. It got me to wondering if they were covering their butts in case the law changed, or if they just don't want any type of "adult" material on their servers.

So yes, I wonder how LJ will respond or if they will. Clearly, there seems to be some selectiveness (at least) going on within the hosting world.

[emmagrant01.livejournal.com]

A lot of people claim to password-protect their stuff just to cover their ass, just in case there was ever an issue. Of course, under the law that just got struck down, password-protection wasn't considered to be enough (from what I understand). "Proof" of age, like a credit card number, was needed. I haven't heard of any fandom sites getting hassled about that, though. So password-protecting your site didn't offer any protection before, and it doesn't now.

But to me, the point is that I shouldn't have to take that kind of action to keep certain people away from my stuff. I label it truthfully and people click or don't click. If parents want to keep their kids away from adult fanfic, that's their prerogative -- but not my responsibility. Teenagers will jump through hoops to get to content they want, and there is nothing I can do about it (and frankly, I don't want to have to discriminate on the basis of an arbitrary age line anyway).

Wow, that turned into a rant. ;-)

[anabellhenry.livejournal.com]

Yes, yes! You're absolutely right about the hoops kids (or anyone, really) will jump through. And you're right about parents taking an active roll. It's not that difficult, either. I remember (150 years ago, now) my son leaving a post-it note with the porn site's url stuck to the keyboard! It led to some long, frank discussions and I realized that there's a time when you have to let a kid see what the fuss is about (my brother used to sneak Playboys home) and then make some decisions of his/her own. That's not to say that he had free reign, not at all, but I had to accept that he was going to be curious about some things and seek them out, and we talked about the dangers of over indulgence, exploitation, sexuality in general, etc. I know some parents are ignorant in the ways of computers, but I think there are other clues than checking histories.... as in, is the kid ALWAYS at the machine, does he keep the door closed (locked?), jump every time you walk by and race to change the window on the screen, etc.

We censor (or try to) the crap out of sex or material dealing with sexuality, but not violence - however, that's another discussion!

[lakrids404.livejournal.com]

let the porn flow free!

[emmagrant01.livejournal.com]

Be free, little pornos! Free! XD

Favor, please?

[vlredreign.livejournal.com]

Emma, I belong to another fandom, where one of our active participants is a defense lawyer. Would you mind if I link this to her? I'd like to get her thoughts on this, if it's okay.

Re: Favor, please?

[emmagrant01.livejournal.com]

Of course! It's not flocked, so there's no need to ask. ;-)

[ice-is-blue.livejournal.com]

It amuses me that on my flist, you broke this news nearly six full hours before yalsa_blog, which caters to librarians serving teenagers (http://www.ala.org/yalsa). So a Philadelphia federal court struck down COPA.

But has DOPA (and, more importantly) DOPA Jr. ever crossed your radar?

Back in 2006, Rep. Michael Fitzpatrick (R-PA) introduced legislation (H.R. 5319) called the Deleting Online Predators Act, which (among some other not-too-bad ideas) would have forced schools and libraries that receive federal funding (e-rate) to block ALL websites that have "social networking" components. Such restrictions would include the obvious MySpace and LiveJournal, but could also be greatly expanded to restrict a large quantity of other sites because of the vague wording and definitions. Under DOPA's definitions, sites like Amazon.com could be blocked, because there are profiles and interactive forums about items (books!) for sale.

The bill passed overwhelmingly in the House, but was never voted on by the Senate... so once the Senate changed over, that version of DOPA got nixed.

2007 - Enter: what's being called DOPA Jr. Official Federal Name: Protecting Children in the 21st Century Act, which re-introduces the same language with two additions. And, several states have begun the process of making state-wide laws. See the Feb. 16, 2007 - American Libraries article (http://www.ala.org/ala/alonline/currentnews/newsarchive/2007/february2007/socialnets.cfm).


I, personally, could see supporting the bill in schools (although some teachers have done some really neat things with Web 2.0 technology). But from a librarian's perspective... blocking interactive websites from a public library for ALL patrons (which include adults who may not have a computer and/or internet at home) is just flat-out wrong.

[emmagrant01.livejournal.com]

I often have CNN on in the background at work, and stories like that catch my attention, heh. ;-)

I do remember hearing about DOPA, but I don't think I ever thought very hard about it. I don't really know a lot about this stuff to be honest. I was hoping people would comment to inform me. So thanks!

The new version of DOPA sounds like it will also be difficult to get through. Access to information is being seen more and more as a fundamental right, it seems.

[ice-is-blue.livejournal.com]

Access to information is being seen more and more as a fundamental right, it seems.

Librarians have known this; thinking people have known this.

Legislators? Not so much. DOPA 2006 passed in the House with an overwhelming 410-15 vote (7 votes not cast). Because it's good to "protect" innocent little children from big, bad internet predators. (When what they really need to do is TEACH people, of all ages, safe/safer surfing.)

The only reason it didn't get passed in 2006 was because the Senate (smartly?) had better things to do than vote on a bill that encorporates wording that would restrict the public's rights in a way that puts further stress on socio-economically disadvantaged folks.

Seeing that, finally, some federal court has decided to take a swat at COPA is a good small step. But, COPA's defeat is more a long-delayed death throe. COPA, shortly after it was passed, was suspended because of claims of unconstitutionality. So no one ever took it seriously. Conversely, COPA's legislative offspring, <ahref="http://www.fcc.gov/cgb/consumerfacts/cipa.html">CIPA, is still alive and well as law. Thus, DOPA is still a threat and legislators in all states need to be educated about why it's unwise to restrict access to Web 2.0 technologies in schools and libraries.

*waves flag for preserving Net Neutrality while she's at it*

*puts away her soapbox*

[heidi8.livejournal.com]

I want to read the whole case tomorrow but I'm wondering if one possible implication would be that now, sites that host nc17 content *may* be able to have staffers under 18 view nc17 content if the parent and/or guardian gives permission for it. That's one very huge implication that could manifest with an impact on fandom.

[emmagrant01.livejournal.com]

Ah, interesting! I can see how that would make a big difference. It's hard to "police" that sort of thing anyway, but at least the archives wouldn't be opening themselves up to potential problems.

[heidi8.livejournal.com]

Still haven't read it but...

One other thing I'm cheery about is the Age Issue in general. I started college at 17 and didn't turn 18 til after 2nd semester started. I remember when COPPA and this CPA were passed, there was discussion from unis on barring under-18s from certain classes - and that the risk would be greater in rural schools or those in more conservative areas, regardless of what the school itself wanted. And I've *viscerally hated* this sort of potential restriction on education and the ability to learn and read. Yes, it's nice to be able to not be paranoid if a 17 year old clicks on your NWS Harry/Draco fanart, but it's more important to be able to read, say, Garp.

[jedirita.livejournal.com]

Woohoo! I feel so vindicated!

[emmagrant01.livejournal.com]

:-D

[rubymiene.livejournal.com]

Actually, written material does count as 'obscene' material, and back in Sept a woman was arrested for running a website containing fictional stories of adults having sex with minors. The irony is the website required a credit card to access. I don't know what happened to that case, but making virtual visual child pornography illegal is an unconstitutional restriction on free speech, I don't see how fictional written child pornography could be criminalized, but the fact that a warrant was even issued is terrifying.

[emmagrant01.livejournal.com]

Oh, yeah -- I remember that story, and I think I even posted about it at the time. Do you know whatever happened to that case?

At the time, I remember people saying that there just wasn't a case there. If she wasn't prosecuted, wouldn't that imply that written materials are actually not considered pornography under the law? Of course, she may have just given in and taken her site down without a fight, and so in that case, we still wouldn't know what it means.

[rubymiene.livejournal.com]

I don't know what happened in that case, but actually, if the case was dropped, the legal reason would be because pornography is legal. You can't prosecute someone for having a website with porn. There's plenty of porn out there using actors that are 18 or 19 dressed or airbrushed to look younger, and it's legal, as long as you document the IDs of the actors involved. With written materials, as long as an adult writes it, then it wasn't 'created' using children (which is the illegal part). It wouldn't have anything to do with whether written materials are or aren't pornography.

[emmagrant01.livejournal.com]

Seriously. :-)

[verdenia.livejournal.com]

Huh, lj really does have a short shelf-life...and my tabs can have a very long one!

VERY glad to see a ruling in favor of internet freedom! ;D