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 condomania.com, and Mitchell Tepper, a major operator of sexualhealth.com. 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.

Nerve.com 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 doaskdotell.com. 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 aclu.org.

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 Chillingeffects.org .

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.