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.