Reviewing the 2007 COPA opinion as to "megaphone without gatekeepers"

Let me go back for a moment to the March 22, 2007 decision by Lowell Reid in striking down COPA, the Child Online Protection Act of 1998. 

  

It is noteworthy that the Third Circuit upheld his opinion on July 22, 2008 (Wired story )

On January 21, 2009, the US Supreme Court refused to hear the case (ironically, one day after Obama’s inauguration). Is there any reason to wonder if the current Supreme Court, with its more conservative makeup, would ever want to reconsider it?  It is settled law.

There is a lingering question, in my mind at least, as to whether the First Amendment (in combination with the Fourteenth) automatically incorporates the right to use a megaphone to reach the entire planet without a gatekeeper controlling what gets published, for other considerations, especially such as controlling fakes news or propaganda manipulation.

The actual censorship and de-platforming is the result of the actions of large privately owned (often publicly traded) tech companies, not governments, in conjunction with cultural pressures, which can include international pressure.

Conceivably in the future bodies like ICANN might have to consider this question in a philosophical sense.

One problem is that the capability to broadcast (and bypass the practical economic supervision of the legacy trade publishing industry and literary agents) should be viewed as part of the free speech right since it did not exist in a practical sense until the late 1990s, when the WWW opened up to users after Congress passed Section 230 in 1996 (shielding downstream liability for platforms).  AOL opened up Hometown in October 1996 – I remember that Sunday afternoon well. 

  

Although the COPA opinion does seem to state that Congress cannot provide content-related restrictions on the speech itself (even “hate speech”) once a distribution method has been technologically enabled, the opinion does not preclude the possibility of restrictions on who can have this kind of enabled access based on other factors, like open financial accountability, which might be relevant to stopping fake news. 

One other historical fact is born out -- the "Smallville Problem" -- minors really do vary as to their maturity.  Look at the Parkland H.S. activists and what they have accomplished. 

Accusations against Kavanaugh do show the difficulty of dealing with events in the very distant past

The recent furor over allegations against Brett Kavanaugh, Trump’s appointment to fill Justice Kennedy’s vacancy on the Supreme Court, brings back the question of a statute of limitations.
   

In Maryland, felony charges have no statute of limitations. However, no one has asked Maryland law enforcement to investigate the purported acts in a way normally required by state law.  The fact that Ford was a minor in 1982 would matter, but so was Kavanaugh.

As a practical matter, it sounds very improbable that anyone could prove an act occurred beyond a legal doubt with an incident so old.

Dan Morse and Erin Cox explain in the Washington Post here. 

Susan Collins speech before the Senate on the facts needs to be listened to.

The remarks are important with regard to Kavanaugh on Roe v. Wade, on gay marriage, on privacy, and on the importance of legal precedent in general. 

Nevertheless, accusations from decades ago can be very hard to refute.

People can find themselves served with search warrants after clicking on URL's connected to child pornography

Electronic Frontier Foundation is warning users about the possibility of being subject to a search warrant after even clicking on a URL capable of taking users to child pornography, in a sting.

The EFF Press Release went out on Friday, August 31, here. EFF has submitted an amicus brief, noting that users often don't know what is in links they are clicking on (misspelling, hacks, tiny url's).  

The case is “USA v. Boysk” in Alexandria, VA.  

But the case seems also connected to P2P and to a practice called “rickrolling”.

   

  

Sometimes on YouTube I see softcore gay porn videos offered that might have been filmed overseas with legally underage actors. In one or two cases these videos have quickly been taken down.  

Woodhull Sexual Freedom Summit has forum on FOSTA, recalls history of COPA

I’ll have a more detailed post on the Woodhull Foundation’sSexual Freedom Summit’s forum on FOSTA/SESTA on Saturday, Aug. 4 from Alexandria, VA, watched online.

  

The forum can be watched retrospectively now from the Woodhull Facebook page, here.  I will review it in more detail on a newer Wordpress blog soon.

I wanted to mention that the early part of the presentation gave the history of the Communications Decency Act, the irony of how Section 230 got written and passed as a counterweight, and the repeal of the censorship portions of the CDA by the Supreme Court in 1997. The speakers predicted FOSTA could have a similar course, although it's hard to say how a more conservative Supreme Court will rule.  The panel discounted the idea that the law was really intended to stop trafficking, but instead wanted to target Internet adult content and undermine over individualized free speech -- and had curious, irresistible bipartisan support from populist bases that disregarded logic.  Free speech is simply not as important to millennials (the way we usually argue it) as it has been the previous generation. There is a curious, inconsistent communitarianism.  

   

It also gave a brief history of COPA, the Child Online Protection Act of 1998, and described that it made two trips to the Supreme Court (in 2002 and 2004) before it was finally overturned in a bench trial in Philadelphia, in late 2006 (I attended one day) with ruling in March 2007.

There was mention of Buffnet, an old case that gives some clues as to how platforms must deal with c.p. when Section 230 would not protect them. 

   

Stay tuned.

P2P provides opportunities for law enforcement stings for C.P.

Saturday, at Shenandoah Valley Gay Pride, inside a restaurant called Artful Dodger on Court Square in downtown Harrisonburg, VA, I was seated in a small lounge area where there were some newspapers on a small table.  One small local newspaper was open to a story about a local man who had been arrested for child pornography found on his home computer, about thirty images, simply when an undercover state police officer discovered them through a P2P connection.

I found it interesting that the printed article seemed to have been read and noticed by several people.  That’s a good thing.

People have used P2P for years (I don’t), but it may become even more popular soon as companies promote “the distributed web” and block chain use.

  

However users need to be aware of this.  CP can also be detected in cloud backups and email attachments and image or video uploads by automated screening for hashmarks.  And harshmark technology is rapidly developing.

It's well to review the CPPA and its replacement, the Protect Act of 2003

I generally try to keep up with news that happens in my own court, even small incidents that stay relatively private. That remains so even when the media is so filled with sensational international affairs.

  

This is a good time to review the CPPA of 1996 (presented here Aug/ 17, 2015), which would have made it a crime to put simulated c.p. online even when there is no actual minor.  It was struck down as unconstitutional in 2002 (after considerable outcry in the artistic community on First Amendment grounds), but replaced by a “Protect Act” of 2003 under the first Bush administration. It can be illegal when there is explicit sex shown, and/or when the item is legally obscene or lacks legitimate value.  Here is the Wikipedia reference (look for paragraph 1466A).

In many countries overseas,  simulated or hand-drawn c.p. is illegal.  People who have posted images or video that is legal in the U.S. should bear this in mind if they travel overseas and if their content is available in the country they visit. .

Ironically, possession of c.p. is legal in Russia (CNN story ).  That’s even more surprising given the tone of the 2013 “anti-gay propaganda law” and the Russian idea (even espoused by Putin) that homosexuality is connected to pedophilia.

Wikipedia link for  DOJ Protect our Children banner, was used against Backpage which was seized before FOSTA became law.

Police use K9 dogs to look for digitally stored child pornography (NBC story)

Scott MacFarlane et al have a story on NBC Washington about the use of K-9 dogs in police searches of homes or offices to look for child pornography.

  

The dogs can detect the scent of thumb drives, San disks, and the like, which could be hidden away from possible police searches. 

Of course, people may hide thumb drives or put them in safe deposit boxes as part of completely legitimate home security concerns.

  

A more important development might be the little reported practice of scanning email attachments (even when someone sends an email to self to move it to a different computer) and even cloud storage for watermarked child porn images matched against law enforcement databases.  This has resulted in spotty arrests (at least one in Houston, one in southern Maryland).

  

You wonder if this practice could extend to other illegal behavior, like even storying copyrighted images without publishing them.