RSSInternet Child User 'Protection' Law Struck Down
By Scott M. Fulton, III | Published March 22, 2007, 4:56 PM
A controversial 1998 law that set a minimum federal penalty of $50,000 in fines and six months' imprisonment for anyone providing minors with access to "harmful" material via the Internet, was soundly struck down this morning in US District Court in Philadelphia. Judge Lowell Reed, Jr., affirmed in his decision today that Web filtering programs may do a better job of protecting minors from objectionable content than federal regulations.
"[The government's] own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web," wrote Judge Reed in his decision this morning.
The judge's ruling may bring to a close the ACLU v. Gonzales case brought by the American Civil Liberties Union last October, challenging the federal government's assertion in the Child Online Protection Act of 1998 that it's the responsibility of Internet access providers to block any material that could conceivably harm a youngster. While proponents of COPA generally referred to it as an anti-pornography law, pornography per se was only one qualifier for material that could be deemed "harmful." Another was any kind of content that "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest."
US Code may not adequately define "the average person," legal scholars have argued.
But the third qualifier was perhaps the most vague, referring in very broad strokes to content that was just plain bad, or that "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
At one time, enforcement of COPA was ordered suspended, in a preliminary injunction emerging from the ACLU Pennsylvania case. An appeals court upheld the injunction, but then the US Supreme Court overturned it, remanding the case back to the district level for further review. At that point, it was argued that technological measures would perhaps be more effective than legislation, in an argument that tipped the burden over to the government to prove why legislation was the best course of action.
The Supreme Court then ruled the government had provided insufficient evidence that technological measures could not do the job better than legislation. It then decided to uphold the injunction, clearing the way for the ACLU to focus on the effectiveness of Web blocking tools as central to its new argument. The AP reports that the ACLU called on experts from adult entertainment content providers, among others, for demonstrations to the court.
In a statement this afternoon, ACLU staff attorney Chris Hansen wrote, "Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up...Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation."
The New York Times cites US attorney Peter D. Keisler as having responded this morning, "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."
Today's ruling may have an effect on federal investigative policy that may have nothing whatsoever to do with children or pornography: The Justice Dept. will now have one less foundation stone against which to leverage the issuance of investigative subpoenas, such as a series of January 2006 orders for Google, MSN, Yahoo and others to provide access to their databases of user search information. Those subpoenas were ostensibly issued in a massive search for subjects who could later be prosecuted under the COPA law.
MSN and Yahoo reportedly complied with the DOJ's demands, though Google chose to contest its subpoena. In March of that year, US District Judge James Ware ruled Google would have to turn over some, though not all, of the information the DOJ requested. In his ruling then, Judge Ware addressed some of the skepticism about the DOJ's possible motives for requesting the scope of information it was seeking, saying, "Any information sought by means of a subpoena must be relevant to the claims and defenses in the underlying case."
For its own investigation, the government agreed to only sample 50,000 URLs from a given week, Judge Ware noted, and produce aggregate data based on that sample. The DOJ said it would use this data to ascertain the relative value of filtering software, in either affirming or contesting the ACLU's arguments.
But the judge wondered whether the value of the data obtained from such a sample, in the suggested manner, would be relevant to COPA or any case whatsoever. "In such a study, the Court imagines, the URLs would be categorized, run through the filtering software, and the effectiveness of the filtering software ascertained as to the various categories of URLs," the judge wrote in March 2006. "The Government does not even provide this rudimentary level of general detail as to what it intends to do with the sample of URLs to evaluate the effectiveness of filtering software, and at the hearing neither confirmed nor denied the Court's speculations about the study. In fact, the Government seems to indicate that such a study is not what it has in mind," he continued, citing a DOJ statement that the data would only be used to ascertain trends and not yield evidence that could be used at trial.
In a footnote, Judge Ware also noted the government had a difficult time explaining how it planned to determine whether filtering software could distinguish real-world terms from sexually-connotative colloquialisms, and provided a few choice examples. He even implied the DOJ could not make references to these terms without apparently giggling.
In this morning's decision, Judge Reed alluded to the government's apparent inadequacy in defining what it was looking for in any or all the data it was sampling, saying, "The fact that Web publishers are faced with criminal prosecution for an alleged violation of COPA only serves to exacerbate the chilling effect resultant from the vagueness of the terms employed in COPA."
Instead of replying to each of the last couple responses - which were thoughtful and well expressed if misguided (imo) I will respond with another post.
There is clearly a fundamental split in primary philosophy held betweeen us that we will never see eye to eye on some specific issues. Let me explain. I believe that the inspiration and bedrock basis of our constitition and in fact the rights of man upon which that constitution is placed derive directly from a judeo-christian ethos. Now I am talking about philosophy and worldview and not merely doctrine or religion. That worldview is expressed through the belief that human rights spring from the fact that mankind is a created being. Our value and uniqueness come from a creator and the rules that he put on the universe. If you accept this (and it is necessary to do so unless you can find some other basis upon which to place instrinsic value upon human beings over any other carbon based life).
By and large, those that hold to an Christian-Absolutist philosophy believe that there are things which are right and things which are wrong, and this regardless of our feelings on the matter. We could get lost in the details and move from here easily into religion, but one of the basic principals that hold true within this philosophy is that human sexuality is intended for 2 purposes: procreation and recreation, both of these expressed in private between married adults. The fact that most religions in the world understand this is no surprise if it fact this value statement lines up with the reality of the universe we live in. This may be where our beliefs diverge.
CS Lewis had an excellent series of lectures in which he drew out the fact that across thousands of cultures and thousands of years of recorded history, humankind has had a very consistent and inborn idea of morality and fair dealing. That from the earliest recorded civilizations the marriage family model was the basis of society. I find it interesting that if you look further the breakdown of the family unit and the lowering of the sexual mores of a society to a level near what we have today invariably preceded the end of that civilization. Now I don't pretend to know if that was a symptom or a cause, but it is consistently expressed throught history if you look for it. I also don't pretend to predict any sort of future event other than that borne out in the patterns of history. I am not a seer or a prophet.
We already have restrictions placed upon speech and that simply for safety and expediency. You cannot shout fire in a crowded theatre to name a well known example. You cannot post pictures of children engaged in sexual acts.
Tell me those of you who reject the Christian-Absolutist philosophy...why are those things wrong (not why is it illegal, why is it wrong)?
Is it wrong because someone could be hurt? (in that case we should have far more limits placed upon free speech and even so why would it be wrong to hurt someone if there is no right and wrong?).
Is it wrong because society says it is wrong? If that is the case then give it a few decades and society will probably change to accept this behavior.
I would like to hear a coherent and non-circular logical explanation of why it is right and good to restrict speech in those cases and not others?
In my own mind pornography (in a very simplistic parallel) is like feeding a child only candy. You withhold what is good and give them what is bad. The child does not know that they are dying inside. They like it...they want more candy. How can you say you are victimizing them when they beg for it. I believe that it is similar (I realize it is not the same and that most of these are adults and more accountable) with porn. These people are being paid to give away that which they cannot get back. If you look at the lives of porn actors and prostitutes these are people with broken lives and abandoned dreams. I have met x-prostitutes although not many porn actors and their stories are tragic. With very very few exceptions these people will not ever have a very stable marriage or family life. They hate themselves and most of them hate sex (although you do have nyphomaniacs out there but I don't feel that this is a healthy sexual expression either). I know that there are those out there that you can point to that are currently happy, but if you study the entireity of the picture you see a pattern of pain.
Most parents would not want this for their children...why is that? Is it just religious or cultural sexual repression? No, I don't believe so. It has been demonstrated by more than one peer reviewed study what when asked to self-evaluate their own level of satisfaction with thier sex life the most satisfied were married christian women followed by other groups. Nowhere near the top were there any porn actors or prostitutes. Why is that if these people are the most sexually liberated...they are getting it daily and have no shortage of partners? Could it be that there is something after all to these seemingly obsolete and hopelessly religious rules?
I know i have gone OT somewhat and been very loose with the thread but I believe that this law is bad, but not for same reason others do.
I know you cannot legislate good behaviour (morals if you will) but our laws should reflect our values. Our values have s***ed far from where I believe they should be. We cannot fix it with law. How can you fix it? Well that is a topic for another thread or for something offline.
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|If you accept this (and it is necessary to do so unless you can find some other basis upon which to place instrinsic value upon human beings over any other carbon based life
Why does value of human life have to equate to "creation"? One cannot simply see the intrinsic value of the Human entity based upon it's accomplishments, abilities, and potential?
I believe that the inspiration and bedrock basis of our constitition and in fact the rights of man upon which that constitution is placed derive directly from a judeo-christian ethos.
...kind of leaves us in a pinch as I am 100% agnostic.
The fact that most religions in the world understand this is no surprise if it fact this value statement lines up with the reality of the universe we live in. This may be where our beliefs diverge.
You've got that right. ;) I think that pretty much puts the cork back in the bottle. It's very hard to argue ethics/morals/values with one who believes they are dictated and instilled by The Creator.
For instance:
Tell me those of you who reject the Christian-Absolutist philosophy...why are those things wrong (not why is it illegal, why is it wrong)?
They ain't. Both of those are reactionary and to not solve the problem at it's roots, which is an alarming lack of responsibility.
I don't think speech needs to be censored in any way. I cannot honestly think of one reason why logical, thinking, responsible people cannot communicate, express, and socialize without causing harm to others. A lot of that involves a bit of common sense.
The guy in the theater? He won't be allowed in there anymore. Problem solved. The folks who got trampled? It sucks. Perhaps a bit of education in avoiding mass-panic would be much wiser than throwing some idiot in jail and costing everyone even more.
The website? There are plenty of ways to protect children from such sights if one chooses to use them, aside from simply "being there". Such options increase daily.
The question should never be, 'How can we prevent this from happening again?', because this is an impossibility.
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|I thought this was a bad law and a band-aid anyway. My opinion is radical in two different directions. I believe that the Government needs to stay out of our lives in all respects except that absolutely required to keep the country running (regulation of commerce, defense, enforcing civil and criminal law), but I also believe that having obsenity (Hard core porn) protected by the 1st ammendment is a gross misuse of the freedom we have been given. The first ammendment spells out the idea that the expression of your opinions and thoughts is a human right. It does not mean that we can freely debase what is wonderful and good without consequences. Human sexuality is extremely powerful and is to be excercised in private in whatever fashion you choose.
Our society has changed much in that we no longer consider the publishing of sexualy explicit material to be obscene (well some folks feel that way - I certainly hold that it still is) I certainly don't care what folks do in their house, but when you publish it, it becomes public and children are going to be exposed. Porn is not harmless both to the actors and the consumers. I know that many will disagree with me and I may get flamed, but there it is. Just as I think that prostitution victimizes women, I believe that the pornography industry does. Not in as overt a fashion and as obvious a way as a pimp beating up his prostitutes but it strips away thier innocence in return for money. They can never buy it back no matter how much they make. They are giving up some of the most profoundly joyful aspects of human existence (the amazing thing called sex) in exchange for currency. After all, who hates sex more than a prostitute.
Sorry to delve so deeply into the moral aspects of this and inflict my radical opinions on your innocent minds, but I really think that the debate needs to s*** far enough that we can honestly ask ourselves some important questions about why we think it is ok for us to let young women (and men) sell themselves when a camera is rolling and yet it is illegal for them to do it on a streetcorner. Should it be legal? or should the hardcore porn be illegal? That is an interesting question. Is the current law against prostitution simply stodgy and closedminded people inflicting their narrow morality on others, or is it a reflection of our compassion that we prevent the preying upon of our vulnerable young people by perverts, even if they are willing to pay for the priveledge? I guess that really depends upon how you view the world and if you believe there is an arbitrary standard of right and wrong or is right and wrong decided by the individual or society?
I also agree with those that put the responsibility squarely on the parent to do what is necessary to protect the children.
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|Hello again.
It does not mean that we can freely debase what is wonderful and good without consequences.
So who gets to decide what is debasement, and what is art?
Human sexuality is extremely powerful and is to be excercised in private in whatever fashion you choose.
Human sexuality is little different than any other sexuality other than the hang-ups and taboo's we've placed on them due to our own misguided sense of shame (thanks, Catholicism).
Just as I think that prostitution victimizes women, I believe that the pornography industry does...
I'll forgive you for this one. It ain't just women any more. Hasn't been for a long time. This argument falls flat after you've actually spoken or worked with anyone who's been in "the industry". Sure, there are horror stories. The Library's full of horror stories as well, but we don't ban them.
After all, who hates sex more than a prostitute.
lmao... Nice assumption. It'd be better if it were right. (The proper answer is Catholics) :p
I also agree with those that put the responsibility squarely on the parent to do what is necessary to protect the children.
Agreed. This is not the governments duty.
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|Let's boil it down. There exists a simple fact, and this fact is causing you distress. You are not alone in feeling distressed about this fact. Many people over the centuries have struggled with it. Many are unable to accept it and constantly wish it weren't a fact. But facts are facts, and you can't make them into anything else.
The fact I'm speaking of is this:
Good laws can lead to unintended, sometimes harmful consequences.
There it is. You may rail against it. You may pound it with your fist. You may stick it in the microwave and hope it blows up like a bad gremlin. But it won't. It won't blow up, nor will it even get warm. It will just sit there and smile at you - not laugh at you - just smile, because truly indestructible things don't feel the need to taunt. They just exist in their own sublime indestructibility, completely secure in just being themselves.
The good law in this case is, of course, the First Amendment. One might say it's one of our best, maybe even THE best. If someone wants to argue against the goodness of this law, they can stick themselves in the microwave. We (you included, I'm sure) have already decided that it's a good law, allowing people to express themselves and all that. It's good, and I'm glad we agree.
But the argument you've made goes against this good law, perhaps unintentionally. You are arguing against a specific type of expression. Many others have made similar arguments regarding other types of expression. i.e. Would it be so bad if we outlawed Nazi hate speech? How about bomb-making instructions? Should people who choose to put themselves on film while having sex take priority over Nazis and terrorists?
Where do we draw the line between distasteful and dangerous? When do we stand up and scream at the good law and blame it for its unintended consequences? You may not realize this, but porn has existed since before our country's founding in the form of literature and painting and sculpture, but back then it was called art. Many found it distasteful, even dangerous, but still we got stuck with the First Amendment which makes no exception for depictions of sexual acts. You can blame Jefferson and Adams, those perverts.
No one knows why any single individual is willing to have sex on film. It could be money, revenge on their parents, or some sick need for attention, but we don't know, and we don't get to force an answer out of them. It's their choice. They choose to do it, and other people enjoy their work, people like me and likely the majority of everyone you see when you walk outside. Yes, we may be slightly sick for enjoying it, but we're not about to make them or ourselves into criminals. We accept the unintended consequences of our healthy interest in sex combined with our good First Amendment.
There may come a day when nobody chooses to involve themselves in this debasement, and I will be right with you in celebrating. I will celebrate, and then I will sit down and watch some good CG porn. Probably alone, in the dark, with my Constitution.
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|You may stick it in the microwave and hope it blows up like a bad gremlin.
ROFLMAO!!!
I'm definitely going to have to watch Gremlins again now....
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|Here's an even simpler method that allows individuals both freedom and responsibility without the government or anyone else having to do their job.
You limit the kid's exposure to the Internet to specific times of the afternoon or evening when parents are available. You place the computer in an area where others are available to scrutinize the sites visited. Just like the idea of controlling the use of the TV.
And you teach your entitled kids the meaning of the word "no".
I know you poor traumatized victims won't understand.
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|A very sensible and practical solution. Unfortunately, that would mean parents would actually have to act like parents and it seems most would rather have someone else assume their responsibility for them.
In days past, when parents acted as you suggest, we had far less major problems involving kids.
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|There is a system out there already that works with the blocking software. If the adult webmasters are legit then they use the. http://www.fosi.org/icra/ standards!
Shivers
And libs suck a** (just had to say that...lol)
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|Yet another loss for the congressional repups who controlled congress when this was passed. If you can't be enough of a parent to your kid online, then throw out the TV, the computer, and buy the kid a print encyclopedia. At least someday he might grow up to be a Jeopardy champion. Last time I checked, kids spend their time playing games on the computer, not surfing for porn. That happens, but it's not an obsession like it is for conservative politicians.
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|I'm sorry, but last I checked, wasn't Mrs. Hilary Clinton a Dem?
I could have *sworn* she headed up *multiple* pushes for "Save the children" BS.
Hate to break it to ya, but most of the "nanny state" BS is brought on by your beloved Dems, not conservatives.
And please, if you do respond to this, try and be mature about it? mmmKay?
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|...As far as taking a village...
They called.
Evidently you are missing.
And its not the gubermint's job.
Some of us are conservatives - libertarian conservatives who believe in a strictly defined and limited federal government, and not the religious right wing liberals or the left wing liberals who Both feel that social engineering and Big Brother is a legitimate function of the gubermint.
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|And its not the gubermint's job.
Ed? Ed Gruberman?
(sorry, ancient reference, I can't honestly expect anyone to actually get this one)
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|I heard the biggest reason that the ACLU was on this case was that they were afraid their site would be deemed harmful to minors (not to mention adults) and that they would be blocked.
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|Probably so. After all, any individual or organization which defends and supports the Constitution certainly must be considered "harmful" or at the very least, "giving comfort to terrorists." Just ask anyone in the Bush Administration, if you doubt it.
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|Funny how the same things can be said about the democrats.
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|Interesting how differently some people perceive the world, isn't it?
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|They should be.
O.O
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|I always find it interesting that the ACLU and similar organizations are so often blamed for court decisions. After all, the ACLU neither rules, clarifies nor interprets the constitutionality of an act.
At most, they will represent an individual or a group in presenting their claim before a court (and that is almost always a federal court or the Supreme Court). Many of those same individuals could not afford to have their complaint heard using their own resources. Likewise, the issue is one which affects a number of people...not just one specifically.
It is the courts, not the ACLU, who defines and clarifies and rules on the matter, yet the ACLU gets the blame.
Far and away, there are many of those decisions I find disagreeable, however I still find comfort that someone is willing to represent the voices of those who otherwise might not be heard at all.
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|They also FILE law suite, dont forget that!
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|I believe that is part of what I stated, if not using the exact word, "file."
"At most, they will represent an individual or a group in presenting their claim before a court (and that is almost always a federal court or the Supreme Court). Many of those same individuals could not afford to have their complaint heard using their own resources."
Filing is not making a legal ruling, but merely bringing a question before the court.
In a democracy, when there is a question of law, we can bring it forth to be answered by a court, even if some may not like the answer. In a dictatorship, the question cannot even be asked out of fear and no legal remedy exists. I'll stay with the democracy, even if I don't agree with every decision.
Show me one single case where the ACLU ruled and made a decision on a constitutional question. They have not. The decision lies in the hands of the court.
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|Yeah I am sorry but kids lie their socks off online and especially about their age, so if someone give them porn and s*** under those circumstances they should not be punished, the parents should raise their kids not to lie ever.
It is not a fair law, those people have no idea how clever todays kids are pretending they are adults online.
Maybe we should divide the Internet into 2 parts, one for kids younger than 18 and one for adults, maybe then we could prevent their young eyes from seeing bad things.
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|OMG. I can just see some MBA/CEO reading that and coming away thinking "wow! that's a great idea...I'm going to call my senator and push this through..." Scarry.
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|"Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up...Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation."
EXACTLY.
The New York Times cites US attorney Peter D. Keisler as having responded this morning, "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."
How dare the gov't ask parents to parent their children. How UNREASONABLE.
Alberto Gonzales needs to be fired immediately.
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|Gonzales needs to be fired for a law passed under Clinton's watch? You logic is as incorrect as this judge's decision.
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|Would somebody please just think about the children.
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|Indeed, it's ludicrous. ISPs can't effectively block that material anyway, so cases like this are moot when it comes to the crunch.
When will people start accepting responsibility for themselves? The whole world is moving to a freakin' 'nanny state'. Get a grip, people. - it's your fault if you trip over someone's letterbox, not the person who owns the letterbox. :P
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|That can get you arrested.
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|http://www.npr.org/templ...ory.php?storyId=9075923
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|Having raised four children and being a grandparent and great-grandparent, I'll just say that the ones who need to "think about the children," are their parents. You had them....you be responsible for supervising them. It's not the job of government nor society to be nannies.
Chalk one up for free speech. The ruling had nothing to do with illegal porn, but rather legal porn, to which an adult is entitled, if they so choose to access it. There are many things not suitable for children, but that should not deny legal access by adults.
Parents, start raising the children you decided to have.
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|Which has exactly what to do with the original story?
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|not even the children are that innocent online anymore.
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|I think there should be an easer way to control what my kids might see by mistake or accident. Like making all porn sites use .xxx insted of .com , etc . That way a parent can just block everywebsite with .xxx from a family computer ....... just a thought.
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|That would be a very reasonable approach, I agree. I don't think anyone would object to that sort of system.
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|I think there should be an easer way to control what my kids might see by mistake or accident.
Many programs exist already to accomplish such things.
If the parents don't care enough, or take enough responsibility to learn how to use them, why should it be us who pay for it in taxes to fund these stupid little laws?
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|I used to think the same way but then I think about each time a new top level domain is opened..
http://technology.guardi...tory/0,,1997492,00.html
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|Or parents can treat the internet like the real world, where they don't let there children go places that they don't know for sure are safe.
Imagine this in the real world, "Hey mommy/daddy, I am going to go play around that unmarked black van, okay?" That is exactly what happens on the internet everyday.
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|If you know so much about logic, why don't you explain the logical flaw(s) in the judge's reasoning?
Or do you believe that logical decisions can also be incorrect?
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|Excellent point!
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|it wasnt based on the story, it was based on your comment... ace.
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|well, you know, he heard someone say something with the word "liberals" in a condescending manner and he thought that person was cool. ever since then its been slander and trolling.
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|