Thursday, December 28, 2006

Dreamcatching -- horror fiction can provide a useful legal analogy


I coined this term, somewhat as a loose analogy to the knitted object in Stephen King’s horror novel “Dreamcatcher” (and associated movie), along with the process of “possession” of the Maine woods campers by alien spirits, with the idea that a website visitor or moviegoer for that matter can be “possessed” by experiencing the writer’s or filmmaker’s emotions in a piece when the artist portrays himself. (The film is indeed memorable also for the graphic "turd weasels".) I am digressing here somewhat the way Clive Barker does in the first paragraph of his epic 1991 fantasy novel "Imajica", when he postulates that any “fiction” has room for only three players at a time. Else, let there be contention, the dread of any database designer.

Seriously, there has been a lot of concern about the way people present themselves online. The most common remark in the media has been about teenagers and college students showing their rebellion in videos that the post on social networking sites (like Myspace) or on Youtube, and then employers check these for antisocial or illegal behavior (like underage drinking or drug use) and refuse to hire them, or fire them after the fact. This gets to expand to other forms of expression the web. In the past eighteen months, this has become a serious problem. Companies are popping up to offer the ability to monitor and fix online “reputations” like they could be cleaned like computers are cleaned from viruses.

This sounds far and away from COPA, but maybe not so far. Remember the problem posed by the military “don’t ask don’t tell” policy: a statement anywhere (President Bill Clinton had first, in 1993, proposed the wording “an open statement” – which would certainly include a statement on a blog or social networking profile) of a soldier’s homosexuality would create the “rebuttable presumption” that the soldier has a “propensity” to engage in (for the military) illegal homosexual acts. It is true that the consequences of this policy are civil only, and don't by themselves lead to UCMJ prosecutions or bad discharges (they can lead to discharge SPIN codes). There is the concept that in the environment of forced intimacy in the military, some kinds of personal statements and evocations will invade on the emotional space, socialization (and "unit cohesion") of other soldiers.

The analogy carries over into other areas, and some of the appellate court rulings on DADT so far could actually set legal precedents. It is important to note that for the military, the "presumption" is created by U.S. statute (passed in 1993), whereas in these other areas the presumption is more of a common law issue. For teachers, and for employees in other sensitive fields, there are other behaviors that are particularly problematic – teachers, after all, usually work with minors. So let’s say that one wants to make some political points about age of consent laws, and places online a fictitious script that makes the points, but uses himself (perhaps with a different name to escape the search engines, but still identifiable form the content of the story) as a character for demonstration purposes. It’s a convoluted subject, but the visitor (or principal or even a minor student) probably has the legal warrant to assume that the writer, if a teacher, has an unusual propensity to engage in some prohibited behavior. That’s because libel law in publishing (the “Bell Jar” and “Touching” cases) means that any identifiable person can be defamed even in fiction. Can a person defame himself? Maybe not in an intellectual narrative that disclaims any misinterpretation, but fiction, drama, screenplays, or film are supposed to “possess” the visitor and cause the visitor to apperceive the writer’s emotion. The speaker, legally, could be said to be trying to have it both ways.

If the visitor is a minor, you get back into COPA territory. The mapping is a bit complicated, with “implicit content” -- serious value, the whole, and the minor’s less mature idea of “prurience.” There could (because of “elimination reasoning”) also occur legal questions about enticement, although court opinions in some of the (such as NBC Dateline) chat room cases do seem to say that there has to be clear intention to start a contact with a specific minor. But it has gotten to become scary stuff in the past year or so.

I can envision that content labeling (as developed by ICRA and maybe augmented by other concepts in the semantic Web) could be developed (in conjunction with browsers) to the point that when one of these potentially “incriminating” content items is opened, the visitor is first served with a disclaimer that clear states that the content is for demonstration only. Of course, that won’t help with a video clearly showing the subject engaging in an illegal act like underage drinking.

The whole question, arising in the major media since about the middle of 2005 or so, of viewing content according to the motives of the speaker (instead of just its objective content) is quite disturbing and can chill speech on the web, if we start using it as a test of social conformity. When is speech “literature” and when is it “dress”?

Thursday, December 21, 2006

COPA: More on publication and distribution

There are a few concepts in the previous post that need further refinement.

Publication normally means, making something available to anyone in the public, either for free or for a fair market price, as with a book or periodical that may be purchased in retail or through e-commerce. The concept is still meaningful if prospective purchases are limited by age (for example, to those 18 and over).

There is another sense in defamation law where “publication” means giving information (either verbally, or in writing, such as in print or in an IM or email) to any other person who understands it. “Understanding” is itself a tricky concept, because it can invoke ideas like implicit content and the context provided by known external circumstances.
But the concept that is most important in COPA is the first one.

In the movie business, the roughly corresponding concept is called distribution, or sometimes, release. Most films are produced by companies distinct from the companies that release or distribute them. Movies can have different distributors in different countries and even different distributors for DVD’s. Rapid consolidation is common among these companies. However, sometimes a film producer can organize a theatrical showing himself, or sometimes his own DVD distribution through video retailers. But in that case, of self-distribution, the concept of distribution and production is the same.

Books also have distributors (like Ingram), that fill orders for bookstores and e-commerce outlets. But with books the important concept is publication.

With the web, and with a personal blog, social networking site profile, or even personally owned website, the concept of publication equates to posting the material on the web (through FTP or an interface like Microsoft Front Page, or perhaps through other products like Pust-Button Blogger, EasySite or Image Café).

Monday, December 18, 2006

COPA: The right to publish

The Dec 25 2006 Christmas Day issue of Time certainly comports with the concept of the "right to publish". Time named its person of the year as the "Us" or "Me", the Internetpublisher. It's upbeat, but then there are problems like COPA.

It’s well to go back and read the text of the First Amendment occasionally. Here is the Findlaw URL that I bookmark:

I’ve often noticed that “freedom of speech” and “freedom of the press” are enumerated separately. The right of peaceable assembly, and petition to the government are also listed specifically. In practical terms, freedom of speech has been more often associated with associative behavior (“expressive association”, as in the Dale v. Boy Scouts case) centered around sharing common values, and with collective speech through organizations and lobbyists. There are even some arcane issues for labor unions now with the mandatory union dues rebate issue (where individual workers object to specific political activity of unions).

“Freedom of the press” may be a more specific right than the generic “freedom of speech.” To a novice, it sounds like a rewording of “the right to publish,” which sounds like a critical concept in the age of the Internet, free entry, and search engines.

But the “press” is normally understood as an established institution, credentialed and qualified, with some formal controls on how information is disseminated to the public, and formal standards or journalistic objectivity. “Amateur” speakers on blogs and social networking sites are not part of the press as commonly understood, although there are debates about this. The Electronic Frontier Foundation maintains that bloggers may be journalists, and conversely. (Link: ). Many companies that enable self-publishing and cooperative publishing obviously publicly support the idea of a “right to publish.”

Literally, this train of thought could mean that only the established press has a constitutionally determined fundamental right “to publish.” In practice, the distinction has usually been applied in circumstances where ordinary “civilians” seek physical access to classified areas or combat areas, as in the case of the teenager who went to Iraq on his own. Only professional journalists with “press credentials” can get into certain areas legally.

It would seem possible, in COPA, to maintain that even amateur publishers should have the financial strength to provide the protections to prevent unauthorized open access from minors. The government made this suggestion in the trial a couple times. Perusal of Supreme Court COPA opinions from 2002 and 2004, however, suggest that the Court would look carefully at any excessive burden placed on small speakers in any “least restrictive means” analysis. Of course, literally, that could put smallfry without enough revenue down. It would seem plausible that share hosting ISPs could develop the methods to access geographic systems (quova), ID verification systems (Idology), or even content labeling, and offer them to subscribers, spreading the costs among many customers to make them reasonable. However, more software development and corporate project collaboration would have to occur to make this possible. ISP’s ought to start taking an increased interest like COPA. In general, their AUP’s contain terms that would prohibit subscribers from activity likely to result in prosecution, so even the abstract fear of prosecution, maintained by the COPA plaintiffs, can become a practical issue.

Related posting

Picture: Everwood stars "Ephram" and "Bright" in their Aug. 2005 appearance at King of Prussia Mall near Philadelphia (ironically, the COPA city). I got a chance to talk to both of them about "don't ask don't tell" and COPA, as I wore a black-and-red EFF T-shirt. They addressed their signatures on the picture page to "EFF".

Monday, December 11, 2006

Other laws and bills roam around COPA

There are several other bills to watch, such as S1505, the Internet Safety and Child Protection Act of 2005 (introduced by Senator Blanche Lincoln, D-AR. The bill would require age verification of "adult" websites, prohibit credit card companies from processing transactions without age verification tags, pass a 25% tax on pornographic transactions and establish an "Internet Safety and Child Protection Trust Fund." The Act so far is somewhat nonspecific as to how with would determine what is a pornographic web site in a gray area situation (I hope that does not include this site!!), and enforcement would be left with the Federal Trade Commission. There are troubling concerns that verification schemes could invite identity theft liability problems. The bill is supported by an adovacy organization called "Enough Is Enough."

There are other important bills such as S2426, the Cyber Safety for Kids Act, which would require adult domain names to be identifiable with the Top Level Domain names, and H5319-DOPA. An important law already in force is USC 2257, requiring detailed record keeping of models and actors in websites with visual adult material.

I have details about these (with other links) from my doaskdotell website, at this link.

Saturday, December 09, 2006

COPA: theories about teenage pruning

Nora Underwood has a detailed article "The Teenage Brain: Why adolescents sleep in, take risks, and won't listen to reason" in the blue-covered November 2006 issue of the Canadian publication, The Walrus. The link is here.

The article describes the process of brain neuorlogic pruning which starts roughly at puberty. Brain circuits have been added, but now they are fine tuned, with some redundant or unproductive circuits eliminated. It's a ruthless process, somewhat like corporate downsizing after mergers. People with gifts need to nurture them during this period; adolescence is a particularly important period for developing performance and memory skills, as in music, and thinking skills, like in mathematics, or athletic ability, as in team or individual sports. The brain is not fully grown until past legal age, until about age 25 (old enough to be well into law school or medical school).

Sexual orientation (especially in boys) seems largely underway even before the pruning starts, according to the best evidence. I have a blog discussion of that here., with a perspective from my own experience. Nevertheless, the whole concept of HTM seems subject to analysis according to emerging science about the growing child's and teenager's brain. Already, the law, in criminal areas, is questioning the concept of trying teens as adults and exacting maximum penalties for the same offenses.

COPA, according to most of the defense arguments offered by the government, focuses largely on "commercial pornography". I would be concerned if the "average person" raising kids will make such a sharp separation. (I haven't encountered any testimony about pruning in the trial record, but I could have misse it, because there is so much. This sounds like a "new" issue that could come up in Congress very suddenly.) There are many ideas that parents don't want their kids to know about too early. (Think back how long it takes parents to tell "the truth" about Santa Claus and the Easter Bunny.) There are also other problems where religion and science come into conflict (creationism, intelligent design, etc.) The "reason" or objectivist approach (especially in a globalized, individually competitive world) is to make all information available in open source equally, and let the chips fall where they may. Obviously, this does not sit well with many people and presents issues with respect to minors, which may or may not fall outside of the scope of COPA. The "free entry" issue with which people can enter the self-publishing field and reach minors (whether intentionally) by search engines complicates or enriches the issue (depending on how you look at it.) All of this remains to be seen.

There is a disturbing undertone to the "pruning" theory for speakers. That is, that certain subject matter or "implicit content" when uttered in a public space is harmful to the immature, and to the vulnerable. The vulnerability concept contages, especially given the extremely wide range of maturity and cognition at almost any (minor's) age: is that the "problem" of the immature person, of his parents, of society, or of the speaker who gains by public exposure or who perhaps just defends himself in public.

Thursday, December 07, 2006

COPA: Case Closed, and Cry Wolf

At the close of business today, Pearl Harbor Day, Dec. 7, the official trial record for the (Child Online Protection Act of 1998) COPA Trial in Philadelphia was to be closed, with all submissions due. Oral arguments had been made on Monday Nov 20, as noted in previous postings. As far as I know, my exhibit is still in the trail record. Several of the plaintiffs (including some, including me, with a lot of LGBT content) presented exhibits but did not testify and were not deposed.

I have heard various speculations about how long a ruling would take, but February 2007 certainly sounds reasonable. We have rehashed the various elements of the legal questions in the trial testimony, and various blogs of the plaintiffs, including me, as well as in earlier court papers from both sides in various presentations before the Third Circuit and the Supreme Court. Any well educated intelligent person can figure out what the fundamental questions are (without going to law school). But a judge will have detailed case law available to compare the questions to previous cases where similar questions would have been interpreted and answered. That, from the point of the law, is what we need courts to do.

Nevertheless, the positions of the plaintiffs need to be understood. The government seems, at times (even more so in earlier case papers), to be offering “reassurances” the kinds of sites the plaintiffs have are not what prosecutors would go after. To a point, I believe that. But we still have to go with the application of the law, as a court will determine. We have to base our actions on the idea that in some jurisdictions there could be cultural opponents and “enemies” who will try to use the law to shut us down if the law, applied literally, allows them to do so. And that is where there are real problems, in determining what some of the law really means.

There is, then, the “cry wolf” problem. (It's "Chicken Little" publishing that "the shy is falling" and bringing down his "family.") Isn’t it a little risky to give people (potential “enemies”) “ideas” (in such a public manner and space) about what your weaknesses are? Won’t that tempt them to come after us when they wouldn’t have noticed otherwise if we had not become plaintiffs? That’s a touch question. There is a tendency for people to call attention to themselves and to the idea that others object to what they have to say. We see that with “our” kids in the way they behave on social networking sites—to the chagrin of perspective employers. Nevertheless, people do object, and they objected to a lot of what some us did or the way we lived long before there was a World Wide Web with its “free entry.” The basic disagreements in our society go beyond the surface arguments about abortion and gay marriage. They have to do with unequal division of the responsibilities of and risks of raising kids. It’s about a lot more than what we playfully called “SIBM” (“sexual intercourse before marriage”) in the Army.

My situation is quite different from many of the other plaintiffs, who often have operations that are much more commercial, and much narrower in the material that they offer. In my case, most of the content is free, it ranges across a huge variety of issues and most of it arguably does not present a significant problem for minors. In particular, the visual materials have no nudity or explicit materials at all. But the text deals with sensitive topics and sometimes uses explicit language to get a point across in effective fashion. This is particularly true of some chapters from the first book. There are also screenplay scripts that set up troubling situations, such as those that might occur in an “R” film.

The book texts have been self-censored in a few places, and the screenplay scripts have been modified (one was removed) to be less explicit and to reduce the indirect risks that could come from what some people believe is “self-defamation.” (When I was a plaintiff in 1998, I was told that I was the only one who had self-censored._ The “whole” (Prong 3) in these cases would be whole chapters of the books or whole screenplays, some of which are short. The cooperative publisher has copies of the book on line, on individual pages, which reduces the whole, and the these are uncensored. The publisher is not a plaintiff. However, my own copies of the text have been left available to search engines (which can find “bad words” and words in misleading combinations – something that has already happened in a school system when I was substitute teaching), whereas the publisher’s text (any of those that could have been problematic) has not been made available to internal book text searches. Therefore, a quizzical or curious minor would have to do a lot of manual work to find the problematic text on the publisher’s site. Hopefully and arguably, that work would require an effort that would provide the cognitive learning experience that satisfies the “serious value” prong. If COPA were upheld, the hope is that this could continue; but I would not be able to tell without reading a detailed opinion as to the exact meaning of the prongs with respect to some of the more subjective and troubling points.

The COPA case, as do a few other issues such as spam-spoofing, new email retention requirements, the emergence of “reputation monitoring” companies in view of the “Myspace problem” all challenge the “free entry” process by which newbies have been able to promote themselves on the Internet and become fresh voices in political debate, possibly a threat to the turf of media interests (and politicians) that got there the old fashioned way, by competing “like men” and “paying their dues.” The trial record does not always show that. Some verification mechanisms or geographic screening and profiling might work all right for larger businesses with operational economies of scale (especially those provided by large corporate mergers and buyouts) and legitimate brand recognition. Newer technologies of content labeling (discussed in detail on this blog) and identity verification “intelligence” might in time prove workable for small speakers, but much collaborative project work would have to be done by such companies as software and browser vendors and shared hosting ISP’s.

State HTM laws for the Internet similar to COPA

Many states have laws regarding HTM that are simlar to COPA. Virginia extended its law to the Internet in 1999, and it is now in litigation. The appeals court was concerned about the vagueness of "commercial" in the Virginia law and I believe it has been before the Virginia Supreme Court in Richmond since 2003. Doubtless the Virginia court will be influence by whatever happens with COPA. There are more details at the end of the file at this link.

Friday, December 01, 2006

Communication retention rules: Could they affect speakers?

A new AP story by Christopher S. Ruganear, "Companies face new rules on keeping data", Dec 1, 2006, at this location, and also displayed on AOL News, raises concerns. The Supreme Court had approved these rules last April and they go into effect today, Dec.1. Employers must keep track of emails and IM's, even from laptops, blackberries, cell phones, etc. in an organizable way for legal discovery purposes should they face litigation. The rules would probibit "virtual shredding."

Yet, I recall in late September 2001, a meeting at work in which my employer's lawyers were advising ordinary individual contributor associates not to keep unnecessary emails or communications lying around!

The concern with respect to COPA would seem to come up if a company were prosecuted (or sued under the civil provisions) under it, and had to produce the information in the discovery process. But this raises another question, what about discovery requirements for very small speakers who do not have employees but who may have indirect commercial potential?

Remember, in the COPA trial, the "free entry" idea was always indirectly under the table as a potential issue, as some speakers do not have the economies of scale for clumsy credit-card verification schemes or to "protect" the public in a philosophical way.

The content labeling systems, as presented here in earlier blog entries and as mentioned by the ACLU in its closing argument exhibits, could require speakers to have much more automated systems of content management, and record keeping.

So far, industry has little handle on how to handle these potential issues for small speakers.

One concern could be that speakers could be forced to use their email associated with their domain accounts rather than personal emails, and might not be allowed to automatically delete spoofed-sender bounceback emails sent to them by viruses and spam (which can overwhelm mailboxes). However, the AP story emphasized that the government's concern seems to be with emails and IM's generated by employees.

Monday, November 27, 2006

COPA: Closing Arguments Heard Nov 20, now posted

The COPA Closing Arguments from Nov. 20, 2006 were posted today. They may be read here.

The parties have until Dec 7 for final submissions.

There is something interesting going on. The plaintiffs (including me, as an indirect plaintiff under EFF) seem to be inviting trouble by explaining why others will object to their materials. The government, in many places, is trying to say, “Oh you, we don’t mean material like yours.” But, of course, we have played the cards. Some people will think we should be good marks.

First, as far as I know, my own material (Exhibit 118) is still on the record, although it was not specifically named in the closing arguments. The government did say that many of us had no standing because we did not come forward to testify and explain how we had been harmed. But of course, the government had a right to depose us, and did not. If had, it could have challenged our concerns which led me to self-censorship, and also to fear possible prosecution or other adverse consequences in other scenarios tangential to COPA (possibly a dangerous thing to say in a deposition).

As often, there is a lot of quibbling about concepts, with the sides talking past one another. There is a lot of disagreement over the effectiveness of filters. The ACLU presents overwhelming charts that filters tend to be effective, and the government mounts the ironic argument that non-HTM sides are blocked, even sites containing political information about gay rights. On the credit card issue, there really is a lot of word salad. Right now, banks in general do not design their credit and debit cards to be used efficiently as identification outside of financial transactions. But it is possible to image new cards (like smart cards) to evolve that could solve problems with both transactions and identification efficiently and at little cost. That is a systems development and project conceptualization and management issue, as long as an understanding among publicly traded software companies that there is a legally-driven requirement and a bottom-line impact. It is possible that other new systems, like Idology, may be more cost-effective now than they could have been when COPA was written.

The government is right about one broad concept, that it is not unconstitutional to require agents who do business in public to incur reasonable expenses in protecting the public, especially minors. That observation has a potential huge impact in the free content area, with speakers with a lot of ideas but few financial resources to protect them. If I am going to expect a bank to protect me with due diligence when it gives credit, shouldn’t parents expect me to respect their difficulties in protecting their own kids?

Maybe. The government believes that COPA is aimed at large-scale commercial pornographers, and that there is a large volume of hard-core but non-obscene material to prosecute under COPA. This sounds like a dubious proposition, which Justice Breyer gave some credibility in his 2004 dissent. The social risk, with a “heard on the street” perspective, is that a person like me, not socialized by “competing” to provide in a “normal” way for a biological family, represents an enemy, putting dubious ideas within reach of kids and interfering with their own “socialization.” The majority of the Supreme Court in 2004 was not willing to go on a limb and narrow the law to the comfort of various speakers in our position.

When I look at COPA, I have to look at what the words in the three prongs really say, as if one were going to take a multiple choice SAT-style reading comprehension test on them. One reasonable interpretation, is that any material that depicts or “represents” sexual or excretory acts or body parts satisfies the first two prongs if it is presented in a gratuitous manner, beyond what is necessary to present a scientific concept. Dramatic presentations (as well, obviously, as images) might be more likely to be seen as “gratuitous,” as could “political self-incrimination,” a problem known from social networking sites. Mere subject matter (like gay rights as a political concept – especially when viewed as an issue of immutability) could not activate the prongs, but explicitness combined with gratuitous excess could. Then you look at the Third Prong, and here I have concerns that the school systems would seem to have an overriding influence on what is valuable to minors, in the minds of many juries. The government did emphasize, however, that the “older minor” standard is already well established in case law, but I don’t know what that is.

The ACLU, in talking about “taken as a whole” argued convincingly that the individual web page (individual file) is the “whole” and this is largely because the individual “page” is likely what will be found by a search engine. In my case, a book chapter or a screenplay script is likely to become the unit file “whole.”

In reading any law, a novice is left with the words and sentences themeselves, and must analyze them as literally as possible. A federal judge will be in a position to look at a long audit trail of case law to see how words like these have been interpreted in the past. It is true that over time, the law becomes comfortable with some literally nebulous ideas, such as Fair Use in the Copyright Law, which has generally become a pretty stable idea (outside of some specialized problem areas like the DMCA).

I do have another other issues tangential to COPA, many of them having to do with free entry associated issues, and I am likely to present more details as I can unravel them. They may be presented here, on other blogs, or on the doaskdotell site itself. The main page there is this.

More on Idology is at this blog thread.

Sunday, November 26, 2006

COPA: Serious Value (Third) Prong

Patricia Nell Warren's post last week (see a couple entries down) got me thinking also about the "serious value" prong. If there were a prosecution, and a website were found to have violated the first two prongs (discussed in other postings and often mentioned in the testimony), the publisher would have to show that the offening material "taken as a whole" has serious "literary, political, scientific or artistic value for minors."

Elsewhere I've mentioned the "Clark Kent Problem" where some government postings in the past suggest that it would sufficient if a reasonable minority of older minors could find value in the material. (Maybe this is the "Lana" or "Chloe" problem, for affaciandos of high school life in Smallville during the first three seasons). A lexical parsing of the sentence might suggest the idea that an "average minor" capable of some comprehension of the website would have to find "value" in the site, a very subjective idea.

On Oct 30, 2006, when I was present in the 17th floor courtroom as a viewer, I heard expert witnesses mention the standards of public school systems. I believe that the suggestion was that in a "serious value" analysis, public school curricula could provide a practical guide.

Of course, many of us (the plaintiffs) have material that public school boards, given political pressures from voting parents, could not approve for being part of normal curricula. There is a "heckler's veto" like problem, too, in that a large conservative block affects what is available to the public as a whole. The state of Texas, with normally more conservative social values, has a big influence on what textbook publishers normally include on more touchy subjects in social studies, health/PE, and perhaps biology.

Would public schools be viewed as arbiters of what is "valuable" to minors? I don't see that in the statute, but I fear that this could be a practical result. If a defendant could find material similar to his or hers in a public school course, that would probably add to the claim of serious value.

We have indeed had contentious debates, related to "abstinence education" promoted by the Bush administration, over whether certain kinds of information should be made available in school to teens, in the interest of pregnancy and STD (especially HIV) prevention. Logic tells me that such information is inherently valuable to minors, but it must always be applied with good judgment. Religious and cultural values of some people do not agree with that point of view. But compare this to curricula we normally consider relatively non-controversial. The contents of a chemistry course normally contain some information that is harmful if misused, but chemistry is taught in a supervised manner and usually to students who have proven that they have reached a certain level of intellectual and judgmental maturity.

Another question that might affect a "serious value" determination could be the reputation of the speaker. A well-established insitution or company might have more standing than a newbie like me. (This is the old "pay your dues" problem.) The "bricks and mortar" behavior of the speaker could affect his or her credibility to a jury. So the serious value question has the potential to raise deeper philosophical question about the "free entry" model so far promoted by ISPs and search engines.

An article by Paul Tough in The New York Times Magazine, Sunday, Nov 26, 2006, "What Ot Takes to Make a Student: Can teaching poor children to act more like middle-class children help close the education gap," p. 44, seems relevant to what has "serious value." Besides talking about the successful teaching methods of schools like KIPP, the author points out that middle and upper class kids are more likely to be encouraged by their parents to learn to think in abstraction, and like "apprentice adults." A minor who gets abstraction (as opposed to socialization and "fitting in") is less likely to find edgy material prurient, and more likely to get the intended purpose of "implicit content."

Wednesday, November 22, 2006

COPA: ACLU presents closing argument exhibits and mentions content rating

Although not all of the court testimony and arguments have yet been published on the web on PDF format, it appears that closing arguments were made in the COPA (Child Online Protection Act) case on Monday Nov. 20.

There is an account by Philadelphia Inquirer reporter Joseph A. Gambardello, "Internet porn trial ending: At issue during closing arguments was whether filtering offers effective ways to protect children," at this link.

The ACLU has an impressive exhibit list for closing arguments here.

The exhibits tend to suggest that filters are effective, and that the main problem in practice is the inability of many parents to learn how to use them. In some cases (such as Justin Berry's notorious case), very determined minors may bypass them. But the overriding issue here is a "haves" and "have nots" problem among parents; as I said in earlier blogs, "who picks up the tab".

The ACLU also has a chart presenting the argument that COPA is far from the least restrictive means to achieve a reasonable state goal, protection of less intact minors. It is interesting that the ACLU now mentions the idea that statutes requiring labeling of sites or web pages with HTM material, or a national rating system (comparable to movies) could be less restrictive means. The technology is something that I have been promoting on this blog.

You have to tread carefully, though, before passing a statute requiring ratings. The software companies would have to develop the software tools and infrastructure (both for web publishing and for browser settings). Right now, PDF files still can't be labeled, although images can be watermarked. Probably Congress would imagine that with legislation in place, the companies would do the job. I hope so. I guess it could provide employment for me in "retirement." But one has to be very careful about this, in the basic analysis. Right now, for example, ICRA requires every file on a site to be individually labeled, and every site belonging to one entity to be labeled before the ICRA seal can be used. One would need automation tools that don't really exist yet. WTC standards for browsers and XML to HTML come into play, but browsers would have to be much more consistent. (Consider the issue of XSL in browsers other than IE.) Source management techniques well known for two or more decades from the mainframe world (like Endeavor, CA-Librarian, Changeman, Harvest) would have to be applied to small business or personal business sites, perhaps. All of this would have to be thought through carefully with careful project management, among the companies involved in such a software development effort.

This is another iceberg to look at. But it is good to see other ideas being proposed.

Gambardello's story also indicates that the government believes that COPA is aimed only at "pornographic teasers" and not at sites with legitimate artistic content. (This agrees with the general tone of government briefs in the 2001 and 2004 appearances before the Supreme Court.) The problem here is the "eye of the beholder" problem, and the cultural problem that some parents do not want their kids exposed to certain ideas, whereas other parents do want their kids to learn about the same ideas. Remember the fracas on the show "Everwood" when Dr. Andy Brown tries to educate high school students about STD prevention.

We don't want to wind up with a "private" but bureaucratic rating system where it costs $15000 to get a site rated. Anyone seen "This Film Is Not Yet Rated"? The whole media world is becoming more and more seamless, even for the newbies.

It is important for us to see the actual text of the closing arguments as soon as possible.

The main page for ACLU coverage of the trial is this.

Tuesday, November 21, 2006

Reply to ACLU COPA blog entry by Patricia Nell Warren

This is also entered on the ACLU COPA blog at this address.

Here is my reply:

Have the closing arguments been completed? When will the PDF files be posted?

I do feel Ms. Warren's sentiments myself, but I am trying to get at the bottom of what really has been argued, with some sense of "objectivity."

The devil in all of this is in the details. Yet, I really do understand the philosophical perspective (on individualism, v. "socialization" by the family) that underlies the intention of a law like COPA (whatever the words in the act "literally" say).

You can email me if you like at JBoushka at or look up the contact info at my site and call.

I am hoping to see the closing arguments on the ACLU site soon (as PDF files) so that I can assess what was really said in detail. I believe that the arguments were completed Monday Nov 20, 2006, but I am still trying to find out. Anyone who knows is free to comment.

My concerns with this case are existential, beyond the letter of the law, and I have not depended on writing for a living, but in "retirement" I want to, and I don't want to be kept from talking about some things just because these matters, when public and easily found, make certain people uncomfortable in their own family or religious environments. Ultimately, we get down to that kind of a debate.

Warren's blog entry makes another subtle argument: since the Internet and Web are indispenable now to book marketing, and since publishers and search engines want to make books searchable online, enforcement of COPA (at the subject matter level) could make books that deal with sensitive subject matters unpublishable, even in hardcopy, as an indirect result of the way the Web markets hardcopies. As a whole, commercial book publishers and search engine companies have shown little interest in or concern about COPA (as potential plaintiffs).

Patricia Nell Warren has been well known for years for her novels, which include The Front Runner (1977) which has sometimes been sold in special printings as a collector's item. Her publishing company is Wildcat Press. shows an in-production listing for a film of this book. Her posting mentions her time in fascist Spain several decades ago, and there is a new film from Picturehouse (New Line Cinema) dealing with the fascist period in Spain, Pan's Labyrinth.

Another famous writer for comparison would be Patricia Highsmith, who wrote many suspense novels with wicked plots, some of which have been successful (if somewhat anti-social, in the minds of some people) films like Strangers on a Train and The Talented Mr. Ripley, often with homosexual characters and undertones.

Saturday, November 18, 2006

How I looked at censorship in 1997

When I wrote my first book (details here) and published it in 1997, I suggested the "renovation" of the Bill of Rights with a new constitutional amendment. (I know that "constitutional amendment" has become itself a "bad word" in view of all of the anti-gay marriage amendment referendums.) The text of the chapter in which I proposed it is here.

One section of the "Amendment" was a reaction to the Communications Decency Act (CDA), and it was written before the Supreme Court struck down the Act in June 1997.

The text read:

"Section 12.

When anyone is charged with an offense of making indecent or otherwise unsuitable material available to minors, a successful defense is made when the actor makes a good-faith effort to publish in an area not normally or immediately accessible to minors, or to use customer age-screening technologies available at reasonable effort and cost."

Obviously by today's debate this is overbroad. At least, credit cards and adult-id screening hasn't been shown to be available and effective at "reasonable effort and cost."

But in 1996-1997, I did have a different idea of how the Internet would play out. I perceived the book becoming known by word-of-mouth (to some extent this happened, as I got on television once with a university speech in early 1998 after moving to Minneapolis for a job transfer). I perceived the website (which at the time was called -- now all moved to doaskdotell) as maintaing the accuracy of the political and social research material as events continued to unfold -- for people who already had the book. Most of the site was arranged as "consolidated footnote files" when first put up in the summer of 1997, and it was duplicated on "Hometown AOL."

In fact, I added this footnote on one of the files:

Ch. 6 Page 306, Provision 12. I would now add the provision "without an unreasonable burden upon adult speakers and readers of electronic media."Ch. 6 Page 306, Provision 12. I would now add the provision "without an unreasonable burden upon adult speakers and readers of electronic media."

I was fortunate to have an ISP hosting owned by a coworker, who quickly educated me on the value of search engines and agressive presence. It turned out that the domain was much more stable and important than I had originally expected.

By late 1998, I realized the importance of search engines in being found by people, and that one could build up a public brand reputation with essentially "free entry" and passive marketing. When COPA was written, I realized that this model was at risk for newbies. It does seem that if a newbie has a book to sell and markets passively (with free content) to attract attention to a self-published book, this could fit the meaning of "commercial". (Maybe, however, the word "commercial" is narrower, such as conducting business transactions on the site.)

It is good to go back and read the slip opinion about the CDA in 1997, here.

In those days, commentators were referring to the "indecency" standard as too overbroad, and the "harmful to minors" standard (not used in the original CDA) as narrower. However, it is clear that this is not the case. We still don't know what an "average minor" is (across age ranges or across cognitive ability) or whether "minors" refers to average minors or the "best" minors (the "Clark Kent Problem"). We don't have a clear idea of what a national standard for "... with respect to minors" really would mean.

I do have to admit, however, that in 1997 I imagined that one could write a very narrow law (maybe Prong 2 without the word "represents") and require adult access technology, consistently and without discretion or subjectivity -- and that was partly because I saw Internet publishing as still a bit like book publishing. But it is not. Even in 1997, the Supreme Court indicated that First Amendment protections apply to online content, and content-based restrictions are presumptively invalid. I was, of course, concerned mainly with the implicit content and subject matter question, but even some explicit content is arguably very valuable socially to many minors (such as STD prevention, cancer detection, disability issues) and objection to the materials comes more from ideas about socialization of minors according to some peoples' religious and family values, than about anything objective.

My original 1998 affidavit is here.

I am not sure what happened Thursday, but to the best of my knowledge final closing arguments may occur on Monday Nov. 20. Please comment if you know differently.

Tuesday, November 14, 2006

Ad hoc conversation about labels and filters

I had a phone call from an IT recruiter today, and the conversation wandered away from mainframes to what I had been doing, and we wound up with a spirited conversation about the problems underlying COPA.

The mood out there is that parents want the tools to control what their kids do, and they don't want or need the government telling them how to do it.

One item came up in conversation quickly, about adult-id cards and credit cards. If a webmaster for an individual or small business kept these on its own server, it just would be adding to its own security and downstream liability problems. That point gets missed a lot.

We talked a bit about ICRA and labels. Content management software has been around and well established for something like a decade, and the label protocols ought to be set up in them, with some kind of consortium.

Then, however, webmasters might find themselves required to use purchase and use more modern systems of automated content management and change control, procedures well known in business systems that process consumer transactions, most of all with legacy mainframe systems where change control is well integrated into security to guarantee the integrity of the load modules that run in production.

Yet, that could be the direction that this heads eventually.

Recently ICRA announced that RuleSpace, a supplier of parental filtering software, had joined ICRA. The story is here. This kind of alliance could eventually result in real progress in really constructive technical, rather than moralistic and political, solutions to these problems associated with protecting minors. This is a direction our debate needs to go.

Saturday, November 11, 2006

Implicit content, filters and labels

An important concept introduced in the testimony of the COPA trial on Thursday Nov 9 is implicit content. This idea came up in testimony that discussed the way Internet filters (to protect kids from inappropriate content) have to parse sentences and language to deduce meaning. The concept would appear to refer to the meaning that a visitor gets from content based on the mindset of the viewer, context of the content and likely knowledge of the reader about the speaker. The concept also applies to ordinary verbal speech, as demonstrated in the testimony.

I have been concerned about this idea particularly with respect to the Second Prong of the HTM definition. Concept might not itself be explicit but might "reference" something that is explicit (this reminds me of the concept of "CALL BY CONTENT" or "CALL BY REFERENCE" in various computer programming languages; it is especially important in Object Oriented Programming). Therefore, the immature visitor might be disturbed by the referenced material being brought to mind and, given some sets of circumstances, might feel enticed to do something inappropriate. The "reference" wording might make dramatic or narrative writings more vulnerable to HTM classification than intellectual essays, and it might refer to the idea that the author went ("gratuituously") beyond what is necessary to communicate a legitimate intellectual concept. (However, the event or object "referenced" must be of an explicit nature itself; part-objects, it seems, would not trigger this prong.)

It's important to note that content labels would allow the web master to set up his/her own "filter" based on the belief that some content, because of a contextual meaning, is inappropriate for some age ranges. This idea is well known from movie rating systems, already discussed on Oct 30. Automated filters in common use may have much more difficulty doing this.

Again, let's reiterate that content-based regulation of speech in any media is presumptively invalid. What is so difficult to determine is what speech is really affected by any law, and the trial has a way to go in establishing that. It looks like it (the government) runs at least through Nov. 16.

I am particularly concerned over the idea that the HTM concept could involve "implicit content" as well as explicit items. I realize that this interpretation is open to dispute. This might have more effect on me than on others. I can imagine the Educational Testing Service or some similar agency making up an SAT test with the COPA text and then making up multiple choice alternatives in a reading test questions as to what HTM would mean in one situation or another.

My links are here.

Thursday, November 09, 2006

My ICRA label looks like this

Just for the record, I ran the ICRA label test on my domain The test worked, and here is what it returned:
This site gets a green light!

As far as we can tell, everything on this page is fully labelled.
green light

* No nudity
* Sexual material may be, but is not known to be, present
* No violence
* Mild expletives
* Content that creates feelings of fear, intimidation, horror, or psychological terror
* No user-generated content
* This material appears in an artistic context
* This material appears in an educational context
* This material appears in a news context

The label declares that it was issued on 2006-1-9

Now I can't legally put the ICRA label on my site because ALL files on a site have to be individually labeled. This is difficult with older sites and particularly sites that aren't generated dynamically, but that a lot of static files (I have over 900 files). Furthermore, I don't have a way to label my PDF files yet (including the screenplays generated from FINAL DRAFT). There are ways to watermark the image files (JPG's and presumably the MPG movie segments).

None of the image files on my domains have any nudity or explicit content. Many of the pictures are similar to what you can see on this blog. I have noticed that about once a month all of the MPG's are accessed 5 to 7 times a piece (with page requests) and maybe they are being checked for the COPA trial.

The URL with ICRA's information on labels is here.

The blog entries that follow this one are about the COPA trial, and they go back into October. I encourage the visitor to check the archives on the left side, for October particularly.

COPA: some important concepts need to be reiterated

A couple of points come up in reviewing the 2002 Supreme Court Opinion (which had sent COPA back to the Third Circuit after rejecting the Third Circuit's detour into the area of "community standards").

One of them is that the Court did seem to have a notion for what "pornography" means. It has often been said that this term is undefined in the law, and for that reason the three prongs of COPA are laid out the way they are ("with respect to minors").

If fact, in discussion the Communications Decency Act, much of which the Supreme Court threw out in 1997, the Court wrote in 2002:

" ...this Court found that the Communications Decency Act of 1996 (CDA)Congress first attempt to protect children from exposure to pornographic material on the Internetran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently offensive material."

This particular word, in some declension, appears over 25 times in the Opinion, so the Court obviously believes that the word has a relatively concrete meaning.

Later the Court writes

"It also forbade any individual from knowingly sending over or displaying on the Internet certain patently offensive material in a manner available to persons under 18 years of age. See 223(d). The prohibition specifically extended to any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describ[ed], in terms patently offensive as measured by contemporary community standards..."

Note that comments or suggestions could be invalidated or made illegal, as well as images or teasers themselves.


"In addition, because the CDA did not define the terms indecent and patently offensive, the statute cover[ed] large amounts of nonpornographic material with serious educational or other value. Ibid. As a result, regulated subject matter under the CDA extended to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library..."

What seems clear to me, it that the Court understands the meaning of the "p word" but that what is prohibited to be placed within the easy sight distance of minors could go beyond the "p concept". Conceivably it could include material that would disrupt the socialization of minors into the family unit. At least, a jury, encouraged by a politically ambitious prosecutor, could be manipulated to believe that COPA was intended to accomplish that, even if the Government maintains today that the HTM concept does not mean that.

Later the Court writes about the first COPA injunction in Fen 1999:

“The District Court granted respondents motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents claims could be adjudicated. 31 F.Supp. 2d, at 499. Focusing on respondents claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content-based regulation of sexual expression protected by the First Amendment, the statute, under this Courts precedents, was presumptively invalid and subject to strict scrutiny. Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing harmful to minors material.”

That is, content-based regulation, due to the prevelance of certain concepts or ways of assessing people, is itself presumptively unconstitutional, and legitimate state interest in protecting minors (or, say, at least indirectly, good order and discipline in public school systems) must be accomplished with the least restrictive means available with known or expected technology.

This is reiterated in the 2004 Supreme Court Opinion, where early in the document the Court writes

"When the plaintiffs challenge a content-based speech restriction, the Government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute."

It's important to note that restricting Internet content about certain topics because of the "free entry" and because of the ease with which minors will find it (given the practical policing ability of many parents), certain ideas (for example, faith-based ideas) will be disseminated within the culture more easily than others, and the integrity of political and social debate, at least with respect to intellectual honesty and objectivity, will become compromised.

All of this goes to the fear of many of the plaintiffs that valuable content (from a social and political viewpoint) can be lost from debate if Congress were allowed to use "the lowest common denominator" in protecting children. Again, there is the question, "who pays" and "am I my brother's keeper?" In a pluralistic society, for example, you have to accept the idea that information that helps prevent transmission of sexually transmitted diseases or information that enhances sexuality (including within marriage) of disabled persons or information about non-gender-based psychological polarity (in my sites) is valuable, even if this goes against notions of family, religious and social solidarity of many people.

In my case, as evident throughout the blogs and sites, the issue is even more subtle: it is about self-expression v. relationships in the definition of the human personality. It is the psychological chicken and egg.

This will turn up in other blogs soon, as one I will put up about teachers today.

Related post about COPA and teachers, here.

Tuesday, November 07, 2006

COPA: The government will present soon

I was working on the Elections today (as an official)--itself an interesting controversy with its own legal minefields. There was a last minute systems analysis drill in balancing and interpreting numbers. More about that some other time.

I see that the ACLU blog indicates that government testimony starts very soon. It will emphasize the "effectiveness" of credit card and adult-id cards, and the "ineffectiveness" of filters from a lexical point of view.

My general impression of the filters issue goes along with my interest in content labels, which I think are a more promising solution. But you have to sit down and figure out how much responsibility webmasters, software companies, and parents respectively will have. "Who picks up the tab." Who is his brother's keeper? We know that some of the plaintiffs are parents themselves and have no difficulty with teaching their own kids how to react to adult materials. So this is somewhat of a class and weatlh and education issue, as Justice Bryer noted in the 2004 dissent.

I see that I am apparently Exhibit 118 (I think those are probably materials from my "Do Ask Do Tell" books and from my experimental screenplays, especially "The Sub" where a substitute teacher gets into trouble when tempted. I note that on Nov 6 there is testimony to the effect of the continuity of concerns over prosecution, over a variety of materials presented by the plaintiffs that provde a variety of possible visitor responses. For example, some visitors, even minors, would find safer sex information (or info on condoms) helpful in preventing STDs (hence serious value), whereas some parents would view this as prurient and against their family values. Some parents would view materials such as mine prurient with respect to minors more as a result of cultural or situational context (including what is known about the author) and what may seem like shocking ideas of admissions of temptation, than anything like explicit sex, as my materials have little or no explicit sex but have sometimes greatly disturbed (or "offended") some people. (remember, by the way, that vulnerability to mental "Tempatation" is not itself defamatory; Jesus himself was tempted in the Bible, as are many religious right members every day, as we know from the news.) And some people need to be offended once in a while for their own good.

The idea of labeling content that is disturbing in nature (with metatags) make sense to me just the way movie ratings make sense (remove the bureaucracy, please). But credit cards and adult-id cards could not work at all. Again, most outright porn sites already put most of their material behind credit cards and make people pay for it. The sites that the plaintiffs have are totally different in nature from these.

I have not testified (at least not as of now) or been deposed. Anyone who wants to contact me can find cell phone the info here.

Friday, November 03, 2006

COPA: Photos from my trip to trial Oct 30

On Oct 30, 2006 I took the Amtrak from Washington to Philadelphia to sit in on the COPA trial. Before catching the return train, I visited the National Constitution Center and the surrounding area, that includes Independence Hall. There are 11 photos from my visith here: Look for "Philadephia" on the page. Pictures 3, 6, 10 and 11 show the James A. Byrne United States Court House, where the COPA trial is being held. The inscription on the building reads "The Guardian of Liberty," the same name (almost) as ACLU's newsletter.

Tuesday, October 31, 2006

COPA: I took it to Cato

I took the COPA show to a Cato Book Forum today, in the Fortress of Solitude, that crystal building (looks like a model of an ionic bond in a high school chemistry science fair project) on Massachusetts Ave in Washington DC, not far from where the Cirque du Soleil was setting up.

The occasion was a debate and book signing party for law professor (Florida International University) professor Elizabeth Price Foley, and her new book from Yale University Press, "Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality." Her basic thesis was that individual rights, including the free speech rights at issue in COPA, probably were applicable to the states as well as the federal government because of the Ninth Amendment and the way it can be read in terms of "individual sovereignty" despite the refusal of courts to recognize such in the early ninetheetn century over secession fears. The Penumbra clause would have supported the concept of unenumerated fundamental rights.

Now most states have their version of COPA, expanded from their own "harmful to minors" laws, and some of these have been struck down. Virginia passed its version of COPA in 1999, and it was struck down at the appeal level because of the lack of specificity as to what "commercial" means. My understanding is that it is still on appeal by the Commonwealth before the Virginia Supreme Court in Richmond, and the outcome is likely to depend on what happens in this trial.

The author was quite clear that the law should, even under a paradigm of the Harm Principle, protect minors, because by definition minors are not legally "competent." Of course, in all of the debates over the Third Prong, we have wondered about the differences between the mature minor, the average minor, and so on. From my own sub teaching experiences, I've noticed that teens who perform in public at anything (music, orchestra, piano, drama) seem to be a lot more mature in interpreting cultural distractions than others.

But I came back and asked her, from the audience floor, my question about Who Picks Up the Tab. It is, after all, primarily the responsibility of parents to protect their kids, and only parents know how mature their kids are. Many families seem just fine with dealing with the cultural pluralism out in the real world, in the media and on the Internet, and can deal with it properly--whether the filters or content labels work perfectly or not. But some parents obviously can't, because of lack of education, or economic disadvantage. When do I, as a speaker, have to "Be My Brother's Keeper."

That was my question from the floor. The answer was the usual one, that the government would have to find the least restrictive means possible. The moral question, though, is: I was raised and was protected when I was immature, so what do I owe back to the next generation? That seems to fit in to the broadest libertarian sense of personal responsibility, but it just seems outside the law the way we can apply it. The same question also came up at lunch Monday at the Philly Cheese Steak diner. But if there were ever a prosecution of a relatively "non corporate individual" and a singleton like me, this is what a jury would feel.

The Nerve blog, updated every day from the trial, is this.

Monday, October 30, 2006

My trip to the COPA trial, and more of the Big Picture

I did the Amtrak choo-choo trip to Center City Philadelphia today, and even got a Philly Cheesestake sandwich bought for my lunch (the catsup slip and ran all over my suit) in a restaurant featuring a photo of Ebbets Field, old home of the Dodgers with its short right field (why is this picture in Philly?)

I took a break to visit the National Constitution Center next door to the James A. Byrne U.S. Courthouse, but watched a few hours of the testimony on COPA, and they all cohered to make a big point that I will induce.

The witnesses today were history professor Henry Reichman (California State University, East Bay), author of Censorship and Selection: Issues and Answers for Schools, published 2001 by the American Library Association, ISBN 0838907989 (look it up on Amazon), Adam Glickman, CEO of, and Mitchell Tepper, a major operator of Dr. Reichman talked a lot about the selection and deselection of materials suitable in public schools, and, with excerpts from his book, discussed how sensitive school boards are to cultural complaints from sensitive parents. His reasoning is that school boards, as well as public funding for abstinence-only education, help create a mindset for what community standards might regard as HTM according to the prongs of COPA. This creates the fear of prosecution and chilling effects. Later Mr. Tepper mentioned a case where a teacher was dismissed for revealing “all that personal stuff” information at school, presumably to a student. But that situation raises the search engine question: what if a student finds from a teacher’s personal profile or blog personal information that could cause parents to lose confidence in the teacher. Mapping this problem out to the military “don’t ask don’t tell”, what happens, for example, if a student finds out that a physical education teacher (who might have some visual “forced intimacy”) is gay from a student’s statements on the Internet? This sounds outside of the direct literal legal scope of COPA’s prongs, but is certainly backs up the plaintiff’s claims of a chilling effect by fear of what a prosecutor could do. Legal consequences could invoke other laws besides COPA in certain situations.

Reichman also commented on the movie MPAA rating system, or least on the fact that it is "private" and not government-run, but it obviously does provide a paradigm for who Internet content might be rated, hopefully without the secret corporate bureaucracy in the movie "This Film Is Not Yet Rated."

I sat in the back, dead center, and although I am not scheduled to testify, I think most participants are aware of my association with the “don’t ask don’t tell” issue with respect to gays in the military, and to a lesser extent with gay marriage and with homosexuality and religion—as well as pinning down in public discourse exactly what we mean by “family values,” “family responsibility” and even the possible connection to future expansion of filial responsibility laws.

At one point today, Judge Reed commented that the "chilling effects" is an "elusive concept" related to state-of-mind about many related issues and problems.

In the family area, it’s well to reinforce here, that some of the plaintiffs are married with children (by testimony) and have no problem reconciling their business or cultural interest in these matters with raising kids. Mr. Tepper’s site is of particular value to disabled persons, or to legally married persons with medical or psychological issues in maintaining interest. The Song of Solomon in the Bible may well celebrate the sensual benefits of healthy marriage, but if so it is healthy to make this information available to couple in the public space.

What is so important, not so much about the case literally as the statute reads, but as the testimony unfolds and plaintiffs appear on scene, is how a free speech case like this brings so many other issues together onto the table and makes us “connect the dots.”

I have a chapter in a book in the Thomson-Gale Opposing Viewpoints seire, in which I discuss the arguments for presenting LGBT issues in public schools. Ken Wells is the editor, and the link is here.

Back to filters and labels technology on the next (or a future) posting.

Sunday, October 29, 2006

COPA--Who picks up the tab?

I suspect or daresay that most of my content is likely to be a lot less “explicit” that that of most of the other plaintiffs (even if I am the only plaintiff who “self-censored”), but nevertheless the feedback that comes back from some people points out the underlying psychological issue. (And, sorry, this blog won't itself have any obvious gratuitous COPA violations!)

People will say something like (and I do use some hyperbole here), “How dare you expose your fantasies and your own personal self-deprecating dirty laundry (one high school principal called it “all that personal stuff”) in a public space, for kids (often immature) to find, when you aren’t man enough to court a woman, make babies and have a family of your own to be responsible for? How dare you make a public spectacle when you don’t appear to be accountable to anyone?” (It would be a lot easier if I just signed on to the “conventient” collective notion that homosexuality is biological – whether true or not – and went away.)

I don’t know if this question has legal significance, except that the perceived public circumstances of the speaker arguably would affect whether impressionable or immature minors find the speech titillating, “prurient,” and affect their ability to gain “serious value” from the material which is, after all, controversial and emotionally provocative. In a practical sense, a prosecutor with an agenda to manipulate these perceptions about a speaker with a jury, even with a frivolous prosecution that would ultimately fail on appeal. In the mean time, the speaker picks up the tab.

Of course, this leads to discussion of a lot of other issues about shared citizenship responsibilities: gays in the military, gay marriage, gay adoption, and so on. That is one reason why the public display of the writings, even for free, is necessary.

The other point in responding to this sort of “argument” is to turn it upside down, like a pineapple cake. Someone who makes this “complaint” is admitting his or her own weaknesses, vulnerability, or victimization in an increasingly competitive world. He or she admits that it is impossible to have a stable family marriage and family life and raise kids without restricting the expressive freedom of others, at least without being protected from the ability of others to distract them "without accountability." (That's the heart of "don't ask don't tell" thinking.) Of course, part of the whole idea of political solidarity is to accept that one needs the support of others, that one cannot do everything alone (even with a website like mine). This is true no matter what the organization or issues.

Modern individualism has indeed put more responsibility back on parents. Most of the arguments we make about what parents can or should do, have a bit of objectivistic flavor. Many parents cope with all of this just fine. Indeed, I suspect that many or most of the plaintiffs have families of their own, as do many or most people in the movie business who make and distribute R (or even more adult) films. But some parents, because of economic or cultural disadvantage, can’t. So part of the underlying problem with COPA and related laws, is who picks up the tab for all of the practical difficulties in raising kids (or caring for other generations in general)?

One argument that will he hard to overcome, however, is the “pay your dues” one. Parents can reasonably expect that everyone (at least every free person in reasonable economic circumstabces) owes something back to their civilization to other generations for having been raised in a free society themselves. Without the expectation that this “debt” will be paid through shared family responsibility, raising families is simply impossible. This is a tough one to deal with.

I still maintain that there is a lot more we can do with just the technology – and without burdening speakers and readers – to protect parents. That “we” includes all the big software companies, that ought to be at this trial. That would make some of the philosophical questions moot, at least for this case.

Saturday, October 28, 2006

COPA: search engines and labels

I noticed in the testimony (I think it was day 3) some concerns about whether various verfication schemes could cause content to be dropped from search engines.

My experience with content labels (like ICRA) is that they do not affect search engine behavior at all. ICRA has told me this, also.

The availability of content to a search engine affects the likelihood that an "immature" minor could find it. To this end, the recent developments among search engine companies and book publishers to make a lot of content available online free could be COPA-relevant, as could caches from search engines, and even the Internet archive. Sometimes publishers block robots from visiting free content. That means that a minor would have to know that it was there first, and is more likely to get the "redeeming social value" if forced to read a lot of it first to find anything salacious.

At the same time, small publishers and newbies want to be found by search engines. It doesn't raise the objections of aggressive marketing (unwanted emails, for openers). It doesn't require "sales culture", which a lot of people see as virtuous (the "always be closing" mentality of the movie "100 Mile Rule"). In actuality, it is not necessary to pay for search engine placement. Well constructed material, rich with content and with terminology and proper nouns, tends to be picke up. Static pages (often more "amateurish") used to be picked up more easily than dynamic pages, but that has been changing.

Friday, October 27, 2006

COPA: Minors and the Clark Kent problem

COPA makes repeated use of the phrase "with respect to minors." This is particularly critical in the last prong, that establishes the idea of serious value for minors. It also invokes the idea of prurience with respect to minors.

What is a minor here? COPA defines it as someone under 17 years of age. But is the term to be applied with some kind of Boolean AND or OR logic? Does a passage need to have serious value to all minors? Or to the same minors who might otherwise be harmed?

Anyone who has taught school (I have substitute taught) knows that there is enormous range of congitive and moral development within any specific age. Generally, kids raised in homes with more advantages develop more rapidly, and despite all the horrors reported in the media these days, have learned how to use the Internet responsibly. I often say that learning to use it is analogous to learning to drive a car. But there is always a large range. There are kids (often those in special eduction) who might be tantalized by some materials on the Internet and not be able to grasp the cultural meaning of the same materials. (When I subbed, most of them just wanted to look at hip-hop online.)

The media has recognized this by presenting kids with a wide range of abilities, including super abilities. TheWB/CW's "Smallville" series started in 2001 with teenage Clark Kent (Tom Welling) as a freshman in high school, presumably at the age of 14. (Okay, in Sci-Fi, general relativity makes his real age unknown since he came from another planet.) But he is obviously cognitively way ahead of his peers. Ironically, his biggest personal problem is something like "don't ask don't tell"; he can't reveal his true identity to anyone. Therefore, in the Pilot he is pilloried and "crucified" Mel-Gibson-style on the Scarecrow, partly because his adoptive dad won't let him go out for football. But "Clark" would not be harmed by salacious material on the Internet, and he would obviously get its serious value.

So does "minor" mean an average minor (whatever that is)? Is it the vulnerable minor in special ed? Is it more like somebody like Clark, or the character Brendan (Joseph Gordon-Levitt) in the movie "Brick"?

I've seen very little about this question. The question may have been printed in the arguments. But there has been very little.

One other note: I did hear a lot of the oral arguments on March 2, 2004 at the Supreme Court. The account is here. I also heard some oral arguments about the original CDA in 1997.

COPA: A note about self-censorship

The ACLU audio broadcast about the arguments in the COPA trial (link -- look for "Resources" and "Audio" on this page))makes mention of the possibility of self-censorhsip by web speakers and publishers in view of COPA. This might happen because speakers fear the way the unpreductable definition of HTM could be applied, at least at an intellectual level.

When I became a sub-plaintiff under Electronic Frontier Foundation in 1998, I was told that I was the only plaintiff who had already self-censored. There is still a small amount of self-censorship on my site, explained at this link. This is mostly in the first three chapters of the online display of my first "Do Ask Do Tell" book, which can be scanned by search engines for "bad words." Generally, racy or literalily graphic language has been replaced by a more "professional" vocabulary to express a particular concept, but the "representation" (Prong II) of a "dangerous" idea is still there.

I have also self-censored some material in my online screenplay exhibits, but this is more for other considerations. At least one screenplay has been removed. There are potential legal considerations outside of the scope of COPA (as defined)but related to minor protection when one displays fictitious or dramatic works online. There are also international issues, since material can be viewed overseas.

It is possible that other plaintiffs have self-censored since 1998. That is what I was told by in late 1998.

One point to make here would concern content labeling. In a "voluntary" (or "pseudo-voluntary") content labeling system, given that all of the major software vendors had provided all the hooks needed (they still haven't yet), the publisher would have to self-apply the rating categories, which would be rather refined. There would be no bureaucratic and sheltered process as what happens with the movies and the MPAA (eg, the IFC film "This Film Is Not Yet Rated" about the movie rating process, which, after all, is organized and bureaucratized -- and secretive -- industry self-censorship).

Thursday, October 26, 2006

COPA is one of a group of related issues

I have been following the COPA trial in detail on the ACLU website, and so far the first two days' testimony have appeared. There are about 250 pages of PDF file per day. Much of the testimony is quite detailed as to the way filters work or may work, and how the public could interact with them. is having some fun with its "gratuitous" photos, and so on, while making many valuable points in the satirical text blog entries. One important point is that it is impossible to protect kids perfectly from some speculative threats that usually require more in the way of common sense from parents than anything else.

COPA is one of a number of laws that have been around to "protect children." I've described them in detail elsewhere on Some of the laws have to do with library filtering, some with artificial images, and the like. Many states (including Virginia) have laws that mimic COPA; as far as I know, Virginia's is still before the state Supreme Court, probably waiting for this trial.

But frankly, there are a whole lot of issues that have to do with the relationship of the writer, publisher, and the way the artist distributes his material to the public, and the myriad of ways that the writer could be accused of stepping on someone else's "turf." Even the Grokster case in 2005 has this element. Nerve talks about some of this in a blog post about free content. That hits at one point: free content is a way to become known, and to put out much more original material, but free content can also be perceived as disrupting other people's ability to make a living the old fashioned way. There is an underlying philosophical problem: do you have to "pay your dues" before you have a right to an audience as an individual? Many people seem to think so, because they perceive their own situations in life to be so precarious. I don't mind saying, I don't like to have to prove myself by other people's rules, because I am so bad at them.

Saturday, October 21, 2006

COPA Trial to Begin on Monday Oct 23, 2006 in Philadelphia

The ACLU has notified the press and litigants for COPA (the Child Online Protection Act) that the trial will begin on Monday, October 23, 2006. The trial will be held at the United States District Court House for the Eastern District of Pennsylvania, located at 601 Market Street in Philadelphia, PA. The case will be heard by Senior Judge Lowell A. Reed. The docket number is 2:98-CV-05591-LR, ACLU v. Gonzales.

The ACLU has asked that media inquiries be directed to it during the trial, rather than to plaintiffs. The contact points are (212) 549-2666 or media at

I am not yet certain (as on the afternoon of Sat Oct 21) if the public can attend, or if plaintiffs other than those who are scheduled to testify may attend. I am trying to find that out.

The ACLU has set up a website that lists the plaintiffs who will testify. The link is this. You can look at the upper left side of this web page for blogs accounting for the progress of the trial, and for audio discussions by the ACLU.

Generally, some of the points under trial are the exact meaning of the "harmful to minors" characterization of some speech (whether it is constitutionally overbroad), and whether the "adult id" or credit card verification is the least restrictive means available. There has been considerable practical debate over whether HTM is essentially synonymous with "pornography" but many of us feel that the term is broader. One particularly interesting question is the applicable universe of minors who may find an item online (the so-called "Clark Kent problem"). Another would be the effect of indexing, search engines, caching, and book content posting now more common with large search engine sites and publishers.

As I have indicated on this blog, content labeling may over time provide a much more cost-effective and efficient technology for protecting minors than other methods. But much of the work remains to be done.

I am a sub-plaintiff under the sponsorhip of Electronic Frontier Foundation. I have more details (including links related to this 2006 trial) here, and I have an account of the Supreme Court oral arguments in 2004 here, and an opinion discussion here.
My own detailed questions are here.

Sunday, October 01, 2006

Chilling effects

A creeping problem with all of these well-intended attempts to regulate abuse of the Internet, and to protect children, is the "chilling effect." That term refers to making a threat to sue or prosecute a speaker when the plaintiff or prosecutor knows that the defendant does not have the resources for effective defense -- that is, to bully the defendant from speaking because the defendant did not "compete by the rules" to achieve power.

There is a website that keeps track of abusive cease-and-desist letters, and that is .

Examples of legislation that could provoke a "chilling effects" fear of prosecution or of civil fines are the Child Online Protection Act of 1998 (COPA), and the earlier Communications Decency Act (CDA), part of which was struck down by the Supreme Court in 1997. I have sat in on Supreme Court oral arguments on both cases (the second event in 2004 summarized here).

The most complete summary of the status of COPA on my sites is here. You can follow the links to all of the court papers and opinions.

A new kind of chilling effects problem has crept into the media reports within the past year. Employers have been reported checking job applicants' social networking profiles and personal weblogs as part of informal "background investigations." Although their incentives seem justified for publicly visible jobs, these raise troubling concerns about trying to enforce social conformity. Employers have been particularly concerned when they find "self-defamation" on applicants' sites, where a person "brags" about rebellious behavior in order to protest rules or laws that he or she views as unjust. A couple of NBC "Law & Order" (fictitious) episodes have taken this further, pointing out that people could be prosecuted for enticing others to commit crimes with their writings on the web. Now, this raises still another question: when a crime novel is formally published or movie made, usually no one is concerned about copycats (there are exceptions), but an amateur could be accused of inciting a crime, given his circumstances. This raises new questions about freedom of speech that we have not seen before. Do individuals have fewer rights than established corporations or the established "press"? The answer seems to be, sometimes.

In prosecution, the chilling effect comes across partly because the accused has few rights until actually charged and brought to formal trial. Some states do not allow indictments in secret, but federal procedures do. A defendant can be charged, almost without warning and secretly (without the right to respond early in the investigation) and face ruinous expenses even if the prosecution is speculative or frivolous, and that is why the Supreme Court often is concerned that a law like COPA may be "overbroad" and invite frivolous prosecution from someone with a political agenda. In practice, however, most secret investigations occur only when the government can argue that there is a genuine public safety issue. Here is an American Bar Association (ABA) site with faq's on federal procedure. It is not that comforting.

All of this is well known to libertarians.

Tuesday, September 12, 2006

I have made ICRA work with my main site

I have gotten the ICRA label to give a green light for

I had to remove a comment line before the "head" statement in the HTML code. The comment line had been placed there automatically by a Windows 2003 server as a "site default redirection page" but that is unnecessary. That comment normally goes with active server page (.asp) made equivalent to the home page with an A-record. Since I am not using that technique for my index page, that is unnecessary. However, it may be that sites that do use .asp as their home page may run into difficulties.

I will look into properly displaying the ICRA label soon.