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.

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