Thursday, December 27, 2007

COPA: "as a whole" on the Internet is a vague concept in other legal concerns, too

The Opinion by Judge Lowell Reed striking down COPA, the Child Online Protection Act of 1998 (please see March 22, 2007 on this blog, links in the archives, for appropriate hyperlinks) addresses the ambiguous phrase “taken as a whole” with respect to Internet sites only once, in paragraph 44 on p. 78. He writes:

“COPA does not define the term “as a whole” and the plain language of the statute does not lend itself to obvious definition of “as a whole” as might be applied on the Internet. 47 U.S.C. &231. The Third Circuit concluded in a dictum that the language of COPA clearly demonstrated that each individual “communication, picture, image, graphic image file, article, recording, writing or other matter of any kind” should be considered without context. ACLU 322 F 3d at 252. But, as Justice Breyer noted in his dissent [2004], “as a whole” has been traditionally interpreted in obscenity cases to require an examination of the challenged material within the context of the book or magazine in which it is contained. Aschroft, 542 U.S. at 681 (citing Roth v. U.S. 354 U.S. 476, 490 (1957)). As Justice Kennedy noted in his concurring opinion, “The notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites.” 535 U.S. at 592-93. Thus, with the disparate views noted above, and as discussed below, in the context of the Web, I conclude that use in COPA of the phrase “as a whole” without any further definition, is vague.”

This “as a whole” or “context” problem becomes important in reputation-related issues that are now being reported by the media as a concern to employers. As I’ve noted on some other blogs (especially my main blog – look in December and July this year), employers sometimes have knee-jerk reactions to small amounts of unfavorable material that turn up on the web about an associate, sometimes written by others, sometimes placed there by the associate himself, believing that the material has some legitimate social or political value in a context that the associate believes other visitors will already know about. The name that is evolving for this problem is “implicit content” and it may also invoke what others know or believe about the speaker’s circumstances. It’s conceivable that in some cases this notion could cause isolated examples of speech to meet the definitions of legal enticement, a problem when minors access content that goes beyond COPA.

There are other reasons besides COPA, then, to decide when the whole is more than the sum of its parts. The Web is definitely non-Euclidean.

Friday, December 21, 2007

AOL augments its parental controls application

AOL has been advising subscribers who have screen names set up for minors (AOL has several different age categories) that they should download a package called AOL Parental Control. Any computer on which this application has been installed will require that anyone log on with a password before accessing the Internet on that computer (that anyone includes any adult, if a child has access on that computer.)

With regards to COPA, this is an example of where an ISP can provide controls managed by the parents within a family that are more precise and carefully tailored than those that could have been mandated by any law like COPA.

I received a certified email about this today, since I had set up a "young teen" account to test the effectiveness of their controls during the COPA trial last year.

COPA was struck down as unconstitutional in Philadelphia on March 22, but the DOJ has appealed the decision (see previous entries on this blog).

Saturday, December 15, 2007

Internet Safety Act bill -- a call for "manual labeling"

In the 110th Congress, another "Internet safety" bill was introduced, and this ought to provide fuel for concern. The text (PDF) is here. The short name of the bill is the Internet Safety Act of 2006, and the longer name is the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act of 2006," introduced by Sen. John Kyl (R-AZ). The act would require commercial website publishers of sites with "sexually explicit material" to provide a warning. It is not clear whether this is limited to included content or would invoke links. There are many other ambiguities. A good Ars Technica writeup by Tim Lee is "Congress: We want our porn labeled and our data retained" here. Lee points out that COPA originally passed 98-1 in the Senate in 1998, although it was finally ruled unconstitutional at a bench trial in Philadelphia in a ruling in March of this year (on this blog).

However, as I've noted on this particular blog, the pieces of effective labeling technology already exist (ICRA, etc) in the semantic web. However, making it mandatory would be burdensome until browsers and various other commercial publishing software (Microsoft Expression Web, for instance) have easy-to-use interfaces set up for routine use by publishers and parents. This is an industry wide issue.

Update: Jan. 18, 2008

A more relevant bill (currently in progress in the 110th Congress) appears to be S. 1086, introduced April 11, 2007. The govtrack reference is here. More details will be forthcoming soon on this blog. See the entry on this blog entered Jan. 18, 2008.

Update: Feb. 20

The Kyl bill was introduced in the House as H.R. 837 by Lamar Smith (R-TX). The Govtrack link is here.

Tuesday, December 11, 2007 will allow users to stop storage of search engine requests

The San Francisco and DC Examiner s (p 16 in the Tuesday Dec. 11, 2007 DC Examiner) carried a story today by Michael Liedtke, " to Unveil New Privacy Control," link here. The feature will enable users to have their search requests removed immediately so that they cannot be stored in data banks and requested by the government (or perhaps advertisers) later.

If you log on to today, you see a link button at the top "AskEraser" that, when brought up (in a sub-window) reads "When AskEraser is enabled your search activity will be deleted from servers."

Remember that during the COPA (Child Online Protection Act) trial, Google was asked by the government to cough up millions of search engine request strings so that the government could claim that minors tend to look for prurient material. The government (DOJ) says that it did not receive the identities of the web visitors from this request.

Picture (unrelated): from the "don't ask don't tell" prayer service Sunday Dec 2 on the Washington Mall. I was (am) a COPA plaintiff and much of my material deals with "don't ask don't tell." The domain name "" very much reminds us of "asking and telling."

Thursday, November 29, 2007

Just as with COPA, govt. goes after Amazon used-book records, then drops the matter

Back during the prequels to the COPA trial in 2006, the government asked for search engine records to see whether visitors were looking for “prurient” material on the plaintiffs’ sites. Eventually a modified request was granted (without identifying the visitors). In the past few years, however, as on a recent FBS Frontline and “America at a Crossroads” report, the government has obviously been tracking millions of online communications in order to try to identify terrorist threats, with some of the material going through super computers at the National Security Agency between Washington and Baltimore.

However, in a victory for privacy, federal prosecutors dropped a subpoena for the identities of people who bought used books from a certain Amazon reseller, in a case where the reseller was being pursued. The AP story by Ryan J. Foley is “Government Drops Pursuit of Used-Book Buyers,” p D3 of the Washington Post, Nov. 28, 2007, here . Similar concerns have been raised about Patriot Act provisions that would allow the government to seek library records and gag librarians from disclosing the requests.

What could be interesting if some other version of a COPA-like law (from the “Enough is Enough” effort (such as the Internet Safety and Child Protection Act of 2005, S1507), or “DOPA”, H5319, passes and then is challenged on grounds similar to that of COPA. The government is likely to need or want to fish for Internet records again.

Friday, November 02, 2007

ACLU files reply to government's appeal of March 2007 COPA ruling

The ACLU recently filed its brief in reply to the government’s appeal to the Third Circuit in Philadelphia on Judge Reed’s March 22, 2007 ruling striking down the Child Online Protection Act of 1998. The government will file a replay to the ACLU’s reply by the end of this month. Oral arguments could occur sometime in late winter or early spring of 2008. However, the Third Circuit has twice struck down COPA, once on a community standards argument that the Supreme Court nixed, and then on a topological argument.

The ACLU document was rather short and limited in pages (the length is 62 pages). It is signed by Aden Fine, dated Oct. 22, 2007. The ACLU has asked plaintiffs not to place this brief on the Internet yet, but says it will have a slightly revised version that can be uploaded soon. I would expect to see this happen within about a week.

The arguments are the same as we have already seen. Oddly, it argues that in some ways COPA is underinclusive (it picks on HTML, it doesn’t work overseas). It suggests several ways that other legislation could have been crafted that would make such a law less overbroad, such as restricting it to images, or restricting it to civil penalties, or by having a blacklist. But all of these proposals would generate their own objections. Individual rights activists and libertarians always say it is dangerous to give “the enemy” “ideas”, but one must sometimes do that in the interests of individual honesty.

Much of the document deals with the deficiencies of the proposed affirmative defenses (credit cards and adult-ids) which are becoming well known. One wonders what would happen if PC’s have the ability to accept biometric ID’s some day (like retinal scans).

The brief also acknowledges that Reed’s opinion did cite that at least three of the plaintiffs had material that might well have fit the definition of “harmful to minors” under the statute. The implication may be that (in the Judge’s beliefs) the material on many other sites (including mine) would not have been treated by the Department of Justice as harmful to minors. However, during the trial, when I was there (Oct 30), the judge acknowledged that the notion of implicit content could make future cases on the web difficult to resolve.

An appeal does not involve hearing more testimony. However, it might be possible for me to travel to Philadelphia to hear the oral arguments.

Update: Nov. 8, 2007

There is an image copy in PDF format of the ACLU brief here.

Thursday, October 25, 2007

FCC v Fox: Broadcast indecency case may go to Supreme Court

USA Today on Thursday Oct. 25, 2007 has a story by Joan Biskupic, “Fight over TV Indecency is on high court’s doorstep: Case to test FCC’s attempt to limit expletives,” on p A1. There is no online article on the site yet.

Last June, the 2nd Circuit had overrules the FCC’s rules (that date back to the ‘wardrobe manfuction” of Justin Timberlake and Janet Jackson at a superbowl), the CBS fine for which is still before the Third Circuit, and to earlier incidents involving Fox, Cher, and Nicole Richie.

An earlier story is here.

"Broadcasters Win Appeal Of FCC's Profanity Ruling," Frank Ahrens, June 5, 2007, p A7.

A discussion of the FCC appeal is here:

"FCC to Challenge Profanity Decision in Supreme Court: Department of Justice Solicitor General Asks for Extension Until Nov. 1", By John Eggerton -- Broadcasting & Cable, 9/26/2007.

At a conceptual level, the use of expletives may be misleading. In the COPA trial, discussed on this blog, much attention was paid to what fits the three prongs of HTM material, and in the earlier CDA trial in 1997, there had been concern over just what “indecency” means, although George Carlin’s seven bad words came up as a benchmark. In today’s world, it is “implicit content” (the likely interpretation of visitors and what they may feel motivated to do, especially minors) that will become the controversial concept.

The Fox and CBS cases cover another problem: Cable television channels do not face the same restrictions as do major broadcast networks, and neither (now at least) do Internet bloggers and publishers.

Wednesday, October 03, 2007

COPA -- ACLU receives government's brief for 3rd Circuit Appeal

The ACLU reported in a blog entry on Sept. 19, 2007 that it had received the government's brief of the appeal to the Third Circuit on Judge Lowell Reed's decision March 22, 2007 striking down the Child Online Protection Act (COPA). The blog entry is here.

The government is still trying to argue that COPA has a much narrower scope than what the words in the Act text themselves seem to imply. The argue that the Third Prong would apply only to older minors. They also argue that "commercial use" is really only commercial pornography (although the text of COPA clearly says otherwise).

So we seem to be running around in circles, quibbling about the scope of language. Whereas around us, the practical issue today is implicit content, a subtle issue that has surfaced with the social networking sites. There are legal risks in that concept that have barely been understood so far.

My journal continues....

Wednesday, September 12, 2007

Should online references use content labeling?

Should compendiums and online encyclopedias label their articles with ICRA (Family Online Safety Institute) labels or similar ratings labels?

Most reference information, like what one finds in a library in print, is general enough in nature that it is suitable for all audiences. However, online encyclopedias (like Wikipedia) are delving more deeply into controversies, as well they should. The recent emphasis (in Wikipedia, for example) to keep material objective or factual and documented with independent, external reference citations may seem to mitigate the question. Still, some parents might not want their kids (younger kids at least) to be able to reference certain articles.

The question comes up more seriously with proposals that I have advanced (on my main blog under my name) to categorize political arguments, cross-relate them, and link them to “incidents” and the incidents in turn back to objective, external (hopefully fact-checked in the journalism industry manner) sources in a professional manner. I have thought about the idea that “incident” records on such a database should have content labels, although programming this concept to work properly with current labeling systems could be a big deal. I expect to follow up later.

Saturday, September 08, 2007

S 49 would require webmaster to "label" sites with troublesome content

While waiting to see what happens with a possible appeal to the Third Circuit of Judge Reed’s March 22, 2007 on COPA, one may want to checkout a summary writeup by
Thelen Reid Brown Raysman & Steiner.

This article discusses a few other legislative efforts, like the Deleting OLP Act (H. R. 1120) and Protecting Children in the 21st Century Act (S 49). (Go to and key in “S 49” and fill in the radio button.) The bill would require websites do display warnings of explicit content on index pages of commercial websites, domains or subdomains, under regulation of the FTC. The bill could provide quite a headache in practice for sites with “legitimate” but explicit information, in terms of required “warnings”. I believe that the ICRA content labeling concept, already developed on this blog, is a more appropriate way to accomplish the goals of this provision, but it would require that parents know how to use label filters, as well as some more development in the software industry (especially with browsers). This bill does have a “safe harbor” provision regarding content posted by users, reminiscent of the old CDA “Section 230”.

Friday, August 24, 2007

Community Standards: Redux

One of the key concepts in all the COPA litigation (particularly with respect to the 2004 Supreme Court Opinion before the district court trial in Philadelphia in 2006) was “community standards.” Remember that Justice Breyer at one point suggested that there could even exist a “national standard.”

The concept of “community standards” usually applies to sexually explicit content, with respect to its acceptability and whether a community can find some reasonable purpose for it, as well as whether it is patently offensive in some way. In recent months, there have been a variety of situations around the country, most of them somehow involving “implicit content” where the public has objected in some way to Internet content that objectively seems “legal” but that may have been posted with nefarious intentions or in “bad faith.” This also mixes in with reports in the last two years of employer concerns about public postings of employees and job applicants.

One thing to remember that acceptable “community standards” as a whole have become much broader during the past few decades, as technology has caused media exposure of the average citizen to expand and as society has taken a much more individualistic approach to “morality.” Justice Breyer may have been suggesting that during the 2004 oral arguments when he remarked about a national standard from the bench.

A few decades ago, for example, Hollywood production standards were very strict, with twin beds being shown even for married couples. It’s interesting to think about that observation in conjunction with public lewdness laws. What’s the point of them? It seems to be to protect intimate sensibilities for more private moments and circumstances when otherwise consenting adults are free to carry them out. But it’s also to protect intimacy in marriage, and protect the incentive to raise and maintain families. That, in sum, is what used to be understood about “public morality,” as easily it is to object to it intellectually.

It’s that last part that gets pretty hard. As I recall, the first version of the 1996 Communications Decency Act (CDA), struck down by the Supreme Court in 1997 (and what COPA tried to replace or “fix”) tried to make it illegal to discuss abortion, even as subject matter, online as if it were “indecent.” Some people look at subject matter itself as inherently objectionable, and a concern about the subject a negative reflection on the speaker and others associated with him (family). Others will object when the speaker connects himself with the issue, to make a point, in some way as to mock guilt ("dreamcatching"). Some of this level of public sensitivity (at least at the subject matter level) seems excessive by today’s standards and may not have much legal weight, particularly when weighed against First Amendment concerns.

The Internet, to be sure, has presented, in a practical sense, the possibility (because of “free entry” and global dissemination) the problem that individuals can tease or disturb each other in various ways online (as is the case with immature kids on social networking sites) that would not be acceptable in the workplace, school, or campus in person-to-person situations. This sounds related to the “community standards” concept, although there may be torts (invasion of privacy, intrusion into seclusion) that might cover these. A comment that could not be made in person in a real world scenario about an identifiable (or searchable) person probably should not be made online, even in a chat room or on a message board, let alone blog or profile.

(This para added 9/14/2007). While community standards usually tend to become more acceptable over time, with the Internet and search engines, and the sudden attention that the media gives to certain serious problems (like security), sometimes individual Internet conduct that many people perceive as acceptable is quickly seen as unacceptable. It can be dangerous to engage in "dreamcatching" (see other postings) or to put others or even oneself in certain hypothetical scenarios. ("If I did it....".) That could be understand as extending the airport rule, "no jokes." Recently, some electronic privacy think tanks (like EPIC) have suggested that the "means of dissemination" can matter as to the ultimate legal consequences of content, or that maybe the legal system needs to be changed so that it does (see my main blog posting Sept. 10, 2007).

We migrate from concerns about speech and the law all the way back to social values and “family values.” When President Bush (in responding to gay marriage) speaks about protecting the “sanctity of marriage” with a constitutional amendment, he is really talking about the protection of average people to experience intimacy within the context of the traditional, child-rearing and caregiving family, where in practice marital partners may be far less than "perfect". One can ponder with more explicit language what that really means, and it does mean that. Many people with average means and heavily family responsibilities are easily distracted in an “anything goes” world.

Still, as a culture we have migrated toward individual sovereignty and personal autonomy. This seems to be very hard on some people, whose efforts we depended on. Bad karma? I wonder.

Saturday, August 04, 2007

Civil restraining order in CA against web author seems unprecedented

A recent story in the Los Angeles Times about a civil restraining order issued against a former website operator raises new serious concerns about capricious legal intervention in speech found objectionable by others. The restraining order, it is said, essentially places the person under civil “house arrest” if he remains in California. Here is my more detailed account of the story.

The situation concerns Jack McClellan, who reportedly ran websites which he described his heterosexual fantasies regarding under age persons. I have never seen the site, nor do I particularly want to, but multiple credible media reports do indicate that they were explicit. Since they were not commercial, they could not have been pursued under COPA even if COPA had been upheld. What is more legally objectionable is that the person photographed underage girls without their consent and posted the pictures on the web. The persons were clothed, but is certainly legally wrong to post a picture of an identifiable minor without parental consent. (Or is it? Some stories report that any photo of a person taken in a public place may be posted; but this, intuitively, seems to beg questions about stalking, causing someone to be targeted, false light, intrusion into seclusion, and the like; but these are probably civil torts, not crimes.)

But this does again raise the question of “implicit content.” Since minors congregate in so many public places, his listing of them would not seem to convey meaningful new information; his online conduct simply seems emotionally provocative. People refer to their “tastes” all of the time online. Many times one can infer a lot about someone by what they say even if their comments are not sexually explicit. For example, most adults mentally find younger members (of the same or opposite sex, depending on sexual orientation) much more attractive than old members. That is just common knowledge and a statement to that effect doesn’t convey any specific information. "Age of consent" laws are necessary but there is nothing wrong with saying that they should be changed through normal legislative processes. These laws do draw an arbitrary line in the sand; people look physically grown before they are socially and mentally (according to brain research, it seems) ready for full adult responsibilities that go with full consent. General or specific statements about people may become more provocative, for example, if they deal with secondary sexual characteristics, body build, part-objects, body image issues, etc. Parents are worried when they find statements like this made by adults who may be around their children (teachers, for example), that this is predictive of what may happen.

All of this happens in a free-wheeling culture where people express themselves, sometimes in ways that others find self-effacing or even self-defaming, in order to rebel against older social standards and norms of social propriety (for example, the idea of what makes a good competitive male "role model"). As noted, this has recently become a concern to employers since the explosion of social networking sites.

I hope that this situation in LA is just an aberration, as indeed the individual in question dared others to stop him, as he was determined to test the limits of the First Amendment just to toy with others in feline fashion. From all accounts, his behavior was outrageous by most standards of civility or "community standards" and his postings would have violated the AUP’s or TOS’s of most reputable ISP’s. Still, for a judge to issue a restraining order like this sets a dangerous example inviting excessive concerns over nebulous interpretations of "implicit content" by others ("what will the neighbors think?"), which has been considered in other states, like the “civil” s.o. registry in Ohio. Perhaps prosecutors can find more objective grounds to go after him in terms of laws dealing with obscenity, stalking, or making threats or solicitations (with many examples of enforcement during the past ten years in many states), for which there is more reliable judicial experience in respecting freedom of speech. In the world of instant self-publishing and discovery by others, the "meaning" of content is sometimes as much in the eye of the beholder as in the words of the speaker.

Thursday, July 05, 2007

Redux: COPA, teachers, schools, and student Internet use

In December I wrote several blog entries (main one here) summarizing my experiences as a substitute teacher. I resumed subbing in one district in January, and am considering again the whole subject of licensure, and in a couple of blog entries I want to revisit in more detail some of the points and concerns that I covered in earlier blogs.

On this blog, of course, the focus is on the suitability of content when found by minors. School districts have a new problem with the Internet. They may scratch and claw over politically and socially (from the viewpoint of parents) curricula on sensitive issues (like sexuality). For example, recently the state of Maryland approved a modest curriculum of education that includes discussion of homosexuality in public schools. The controversy is covered here:

Also, recall that I had contributed an essay on the subject to the Opposing Viewpoints series, discussion at this link or this blog entry.

Because of the open nature of the Internet and search engines, in practice kids will often be able to find material not in curricula, whatever the wishes of their parents. This information may comprise non-pornographic medical information (as about condom use) that goes against the cultural values of their parents. Teachers could have written these entries because of their own personal values, and students may recognize their names. This could, in the view of some, undermine the credibility of accepted public school curricula – but it is the new reality.

I’ve said that permanent teachers (those with the authority to grade kids) should avoid making themselves Internet celebrities without employer supervision, but that short-terms subs, paid less and with no real authority to make decisions about kids, should be able to say what they want (as long as what they publish is “objectively legal”).

I’ll come back to that in later entries again, but I wanted to emphasize here that I felt that by working in the school systems for a while, I could communicate to schools how technology really is “democratizing” the publishing and flow of information. This process seems profoundly important, and definitely should be presented to kids in conjunction to what they learn now in English (how to interpret literature in its original context, and compare it to context today) and social studies, especially government.

Again, one way this is democratizing is that it gives any individual or small party to reach the entire planet with new ways of linking information and drawing out new elements of “truth” about social and political problems. The potential is to reduce the dependence of ordinary people of “professional” lobbyists and unions to represent them, and to improve the intellectual level of citizen participation, beyond protests, strikes, boycotts, and form emails. One downside is that “professionalism” as a whole suffers (as described by Andrew Keen in his recent book “The Cult of the Amateur”, link here, , and people may value interpersonal interactions for their own sakes less.

In fact, as readers know, I took large advantage of this after publishing my first book (1997), letting search engines make me an “Internet pseudo-celebrity” with simple but large-in-content website, especially from 1998-2002. After about 2003, Internet self-promotion steered in somewhat different directions with social networking, a capacity that presents new issues (opportunities and dangers) for kids.

On one assignment, well before the “crisis” described on the aforementioned blog, I had the chance to present COPA (the Child Online Protection Act) to history and social studies teachers at a high school. During the planning period, I had them linking to various ACLU and government briefs, as well as court opinions as they were known by early 2005. They found all of this eye-opening, and could see there were many (not just two) facets to the issue.

I hoped, and still hope, that this would lead to a larger role for me in addressing the need for care in how students approach use of the Internet. I have been in classes where students used search engines all period long to look up technical answers (as in chemistry) to classwork. I’ve also seen students go to hip-hop. Many school districts have blocked access to many social networking and similar sites from their computers.

I’ve also maintained that schools should start teaching intellectual property law concepts, such as copyright, trademark, and especially defamation. It does not make sense to turn minors loose into developing a planet-wide audience without a sense of the legal responsibilities involved. Many teachers, even in history and social studies, do not have a modern understanding of these issues as the Internet mediates them.

Full-time public school teachers often seem to be living in a sheltered world, explained partly by the pressures they are under to get disadvantaged students to perform with basic skills, which seem mundane in the “outside world.” Much of the content seems aimed at the “lowest common denominator” and is based on hardcopy handouts and texts with carefully circumscribed content with more “traditional” interpretation of issues. (This slides with time; I can remember that in the 1950s, presenting “Brown v. Board of Education” was a big deal.) Teachers cannot assume that all students have Internet access at home (as many parents are squeamish, and limit computer use and place the computer is a public area), even though many students benefit from advanced Internet use.

The issue of “protecting minors” on the Internet reaches into many areas beyond what one usually hears (COPA – and the chat rooms). This includes intellectual property, socialization, family dynamics, and professionalism. This is certainly a big challenge for schools, and I would like to be able to do something about it.

Tuesday, June 26, 2007

School speech: Morse v. Frederick "Bong Hits 4 Jesus" Supreme Court opinion has some subtle hints

The case Morse v. Frederick, decided Monday June 25 by the United States Supreme Court in favor of the Juneau, Alaska school district, ruling that it had not violated the valid First Amendment rights of student Joseph Frederick when he displayed a banner that read “Bong Hits 4 Jesus” on a public street in front of the Olympic Team on the way to Salt Lake City for the 2002 Winter Olympics.

There is some irony in that now Mr. Frederick, now 24 and a young adult, himself teaches English as a second language in China. From all appearances, it sounds like he could teach high school English in the U.S. and, with or perhaps in spite of his politically libertarian ideas and expression of them, he might be very effective with many students in teaching the accepted curricula of composition, grammar, and generally recognized literature. At least, he would be in a position to know both sides of this argument.

The Court majority noted that, although the banner was displayed on a public street, it occurred in a school sanctioned event and was in close proximity to school and would be perceived by others as connected to school. But there are even more critical lessons from the opinion.

One is first recognition of the tenuous position of many high school administrators, who must protect students from threats to security and particularly from enticement to disobey the law. The next is to consider the responsibility of a speaker in assessing how an ambiguous bit of speech is likely to be interpreted by others, in this case other high school students who are not fully mature cognitively. The Court felt that the message could most reasonably be interpreted as enticement to use marijuana, a controlled substance. If so, administrators could reasonably perceive it as a safety threat and not legitimate speech. Mr. Frederick claimed that the sign was essentially a joke and meaningless gibberish. He seemed to admit that he liked the idea of showing up in the limelight on television. However, in assessing the possibility of disciplinary action, he needed to consider the possibility and practical likelihood that many people would interpret the sign as enticing.

A good question, raised in several places in both the majority and various supplements and dissents, is whether the sign constituted a valid argument for repeal of drug laws. The majority felt that it does not, but it seems to me reasonable that it does. People often use irony in expressing political ideas, especially in drama, film, and political or advocacy commercials. That seems reasonable here. There was also some discussion over whether the school is entitled to have its anti-drug educational message defended from challenge, but some court members, while defending Morse, maintained that it does not (which is what the Bush administration wanted). So the significance of the opinion as a legal precedent in other first amendment cases may be limited. Imagine, for example, how a broader ruling could affect gay groups in public schools if school boards were determined to push “abstinence only” messages. It’s ironic that some religious conservatives had sided with Frederick because they want the right to push anti-gay messages in public schools, and that idea probably was not what Mr. Frederick intended when he displayed the sign. So, ultimately, the Court is warning speakers, be careful of how others will perceive your speech and your motives, given the context of the display and even your circumstances, here as a student.

The Court did note that “offensiveness” of speech alone might not have justified administrative action against Frederick. Sometimes, the Court noted, genuine political speech will offend some people, especially when irony is involved. That comment would need to be considered in the context of the public outcry against Don Imus and other media hosts.

This ruling concerned a high school student and administrative, non-judicial discipline taken against him. It did not involve criminal prosecution (as for enticement). However, the case might have implications in other situations involving speech by teachers (including substitute teachers) as well as students. The Court discussed a lot of the previous audit trail of case law (Tinker, Hazlewood) etc., and it does seem that most of the cases have to do with speech that occurs at school, perhaps in school newspapers or yearbooks, and in close proximity to school property at sanctioned events. Nevertheless, the Internet and search engines, as we know from COPA, add a new dimension to this problem that has only been apparent for the past few years. A school district may set up an age appropriate and approved curriculum, only to have it undermined by comments that a teacher makes from home on the web, easily found by students from search engines. There is a risk that students may find some materials authored by a teacher that they know as enticing. The Court was careful to word the opinion so as not to box itself in for future cases of broader implications (as for teachers) that it knows are coming down the pike.

Text of opinion (PDF) at Supreme Court website, here.

Tuesday, June 05, 2007

COPA: the ambiguities parallel similar legal issues for the speech of teachers

In February I discussed a couple of textbooks that take up teacher free speech. Of particular concern was the notion that teachers may risk discipline and firing if they discuss their personal affairs in a public space (whether the Internet, magazines, television appearances) and if these disclosures could be perceived as encouraging disturbances in the school system. Along these lines, on December 6, the Dr. Phil show had (writeup) taken up the case of a teacher whose contact was not renewed because of having appeared in pornography ten years before, and this sort of incident has occurred numerous times around the country.

There are several legal concerns here the crisscross. One is a recent Supreme Court ruling that public employees do not necessarily have First Amendment protection when they blow the whistle as part of their official duties. But the main concern I have is off-the-job speech by teachers (or other public employees). Over time, the courts have become much more sympathetic to the idea that teachers may express their own opinions on their own initiative when not on the job. They have tended to draw the line when the speech poses a risk to good order and discipline within the schools that they work, and this must take into account the cognitive immaturity of some students when they access the speech. (Here we get closer to COPA – and after all, students go to school to learn the critical thinking skills – those four years of high school English -- that enable them to understand more ambiguous materials in the medai.) There has evolved a general notion or unwritten doctrine that public disclosures of a personal nature pose more risk of this.

In the Philadelphia COPA trial, on Oct. 30, (blog entry of visit) the role of schools came into play when one witness discussed the controversies school boards face in deciding what books or other materials, especially concerning sexuality, to be made available to students in public school curricular or libraries. Parents have deep differences in what they consider suitable for their kids, and these reflect subtle variations in cultural values regarding the family, religion, and personal motivation.

Another important concept is the media upon which content is placed. In general, as courts have said repeatedly, intellectual property law in both criminal and civil areas regarding the legality of content is independent of the media or manner of distribution, and in most cases (although not completely so in COPA) independent of whether the material is free or charged for or generates profits.

The March 22 COPA opinion by Judge Reed (writeup), on page 78, note the ambiguity in COPA caused by the topology of distribution of content through websites. It is impossible to say what “taken as a whole means” because of the practical likelihood that some content will be located by a search engine and a visitor may view only a small amount of content relative to the intended whole. On the other hand, with a book, a visitor, when browsing in a library or bricks-and-mortar bookstore, is likely to see much more of the author’s total work before encountering a troublesome subset of the work. Likewise, the definition of “minor” is ambiguous. A piece of writing might seem prurient to a thirteen year old and valuable to a sixteen year old. More troubling, a fourteen year old who is cognitively mature for his age might find something valuable that a less mature fourteen year old would find tempting or enticing as to harmful behavior. (This is the so-called “Smallville Problem” – the characters Clark, Lana, and Chloe, played by young adults, are more much “mature” than average for their fictitious ages). Courts do not look lightly on content-based restrictions on free speech, and restricting speech because it appears on the Internet or a profile or blog raises serious strict scrutiny problems.

All of this can apply to the way school systems build personnel policies regarding the speech of teachers, however. In general, school systems are very concerned that a less mature student could be provoked by a provocative body of content located out of context by a search engine. This translates very quickly into concerns from parents in a pluralistic community, as located above. This is why school boards do not like to see teachers broadcast controversial information about themselves on the web. And the COPA opinion gives some substance to the notion that school boards may rightly be concerned about what might happen when material is discovered out of context.

“Personal” is itself a loaded concept. Administrators may often look the other way unless they are sure that the material comes form a particular teacher, and they might encourage that teachers speak anonymously when addressing provocative problems and disclose their own experiences. This contradicts what other human resources experts have proposed when developing blogging policies. While the ACLU supports the right to anonymous speech, circumstances in a story or piece of writing often can identify the speaker anyway, invoking well known problems in publishing law, where someone can be defamed if he resembles a negatively-portrayed character even in a work of fiction with names changed (the “Touching” or “Bell Jar” cases). Furthermore, as a practical matter, anonymous (or pseudonymous) speech is often not as effective politically as is speech where the author self-identifies.

Furthermore, speech that simply relates to the idea that someone belongs to a minority group, perceived or real, is often no longer regarded as personal. In many communities, to say that one is LGBT would not be seen as personal, it would be seen as identifying with a particular group. But that paradigm does not encourage totally honest, non politically correct airing of issues that have personal consequences. Likewise, “family pictures” in a profile are usually not regarded as “personal” because they tend to be non-provocative, and furthermore the institutionalization of marriage gives some protection to the speech (just as it does with family photos in the workplace itself.)

Another issue of the context of Internet speech “taken as a whole” occurs when a teacher makes a revelation (direct or inferred) that compromises his or her credibility as an authority figure for minors, or suggests unfitness to be in that position. Generally, one would think a school system or any employer for that matter should look at everything as a whole rather than draw questionable “conclusions” from just one piece or page, but employers have, in general, expressed the same behavior in looking at pages on job applicants’ Myspace profiles. There are concerns of potential liability here. The underlying doctrines of the military policy “don’t ask don’t tell” for gays, which allows a command to take any isolated statement, public or private, as rebuttably presumptive evidence of a “propensity” to engage (in the military context) forbidden (homosexual) conduct, and the tendency for appeals courts to uphold the constitutionality of government to use this kind of presumptive doctrine in a sensitive job (the military) sets a legally disturbing precedent for other employers with sensitive jobs, and that would include school systems.

Tuesday, May 29, 2007

Government appeals Judge Reed's decision on COPA

The Justice Department, it has been learned, plans to appeal Judge Lowell A. Reed's March 22, 2007 Opinion striking down the Child Online Protection Act of 1998 (COPA) to the Third Circuit. This continues a judicial battle that has been going on for nine years. The schedule is not known yet, but it would be likely to be argued in the fall.

The Third Circuit, remember, overturned COPA (that is, upheld Judge Reed's 1999 injunction issued without trial) in 2000 using a community standards argument that the Supreme Court, in 2002, rejected on the theory that it would confound notions of obscenity laws (deferring to Miller and Hamburg). But the Third Circuit upheld the injunction again in 2003, using arguments similar to those of Reed's opinion in the full trial in 2007.

Third Circuit Opinion in 2003. (PDF)

Third Circuit 2000 opinion here.

Monday, May 21, 2007

McAfee Site Advisor fits the philosophy of labeling

On my Windows XP Dell Inspiron laptop I have noticed recently that McAfee Site Advisor provides a bar with any site that I go to. Moreover, in Google, at least, search engine results are flagged with Site Advisor test results from the specific reference when those results are known.

The Site Advisor so far seems mainly concerned with harmful practices from a security point of view, such as management of email, invitation to link to known troublesome sites ("online affiliations"), download management, sign up forms, excessive popups or attempts to make a browser's favorite home page ("annoyances"), or scripting practices known to cause security problems.

The Advisor also invites users to make comments, including the site owner.

This does not appear on my other machine (Dell 8300), with XP Home. I believe that the difference comes from the fact that recently on the laptop McAfee recently pushed the most up-to-date version of McAfee Security Center. comes up with a green light. has not yet been checked. Only the main billboushka blog has been checked, and it is green.

The site evaluation does not appear to check for dead links, or links that don't match text. Links often become obsolete. I have also had difficulty with an older version of Word (2002) which, when converting to HTML, would sometimes scramble the links so that the link that the visitor got was actually one that proceeds the one indicated by the link. This seemed to be a bug in the XSL logic in building the HTML web page with XML programming. When this happened, I had to fix the page manually. Microsoft advises replacing Word with the latest version, as older versions are not supported.

There is a problem right now with an Access database of political arguments, that does not seem to work properly in IE 7.0. I am working on that. Right now, the SiteAdvisor does not appear to be concerned with scripts or applications under development that may fail for technical or connectivity or software compatibility reasobns. In the past, I had another site with a Java Starter, that I discontinued when the small ISP failed to continue supporting its JVM, leading to constant internal server errors. I am working on the idea of a more stable kind of application with SQL server for the future.

Microsoft has, for some time, offered to check sites for known phishing problems. Vista will improve the ability to check for problems.

The logical extension of all of this would be to check sites for content againt user supplied labels, as discussed earlier in this blog. Site advisors could also rate sites on the reliability of content, eventually.

Update: (May 22)

This morning McAfee advised me that Site Advisor (and SiteAdvisor Plus) are available for Mozilla Firefox (2.0). I installed and I get a similar report now from Mozilla on my XP Home machine (at both sites and on searches).

When one goes to a specific file on a site (with the same root URL), it appears that the SiteAdvisor rating for the entire site is given, but I am not absolutely sure about this.

Update: July 15, 2007

I've noticed that Google sometimes returns warnings from search results that a search result could harm a computer with "bad ware". This seems to be linked to the stopbadware site. Some reputable corporate media sites come back with this warning, so there may be some "false positives" and the stop site seems to have an appeal process. This seems to be another evolving service for home users that will need more fine-tuning.

Wednesday, May 02, 2007

Fiction: It can be dangerous!

The school writings in English creative writing classes of Seung Hui Cho, as discovered by the media and published on the Internet by AOL after the Virginia Tech tragedy, do raise the ante in the debate about implicit content, mentioned in the COPA trial last fall.

At particular issue were two short screenplays (“Richard McBeef” and “Mr. Brownstone”), both violent and minimalist, and both sending the strong implicit message that the author could have been abused about the time of the start of adolescence. The staff had considered the plays “juvenile” in that they did very little to develop the material into anything of substance beyond angry rants. The staff had also, as the media reports now show, been concerned that the writings suggested a possible propensity for future violence. It’s important to note that so far, however, there have been no media reports that Cho posted these or other “anti-social” writings on the Internet. Apparently, however, he did have access to weapons information, and in Columbine and in some other destructive incidents certain websites had been an influence.

Publishing history reports disturbing cases of novels that have led to lawsuits (“Touching” “Bell Jar”) because characters in the novels too closely resembled real people who claimed they were falsely defamed or had their privacy invaded. In more recent times, social networking sites and other personal weblogs have contained videos or narratives that seem self-defamatory, but where the authors believe that they are protesting unfair laws (such as against underage drinking) or social conformity conventions. These have been of great concern to employers.

Cho was a mentally unstable adult, so none of the arguments made during COPA apply to him legally. The practical argument is how people who feel “disenfranchised” behave when they find nihilistic material in the media.

One problem comes up with fiction, however, when the author seems to be like one of the characters and the author is presented “unfavorably” or perhaps, in the view of the author, just “objectively.” If the material is self-posted, others may wonder what the author’s “motive” or “purpose” (that is, what does the writer "have to gain" from making the posting) is and be inclined to read intention between the lines, whereas the same material from an established commercial source (like a movie studio) might not raise such existential questions. This did not matter for COPA, but it could matter in other legal scenarios (like enticement), that bear a curious resemblance to the thinking that led to the “don’t ask don’t tell” policy for gays in the military. Behind all of this is the issue of socialization, and that familial relationships and appearances, as they affect social hierarchies, matter much more to some people than to others.

I suppose that one could even propose this kind of problem if the writer makes a speculative abstract argument (not in fiction) that would obviously be unfavorable to the writer personally given what is known personally about his or her circumstances. If the law starts to go beyond the "objective legality" of content "prima facie" to analysing what the writer has to gain from being publicly known for having written and published it, then the law enters into an uncertain area that bears a curious relection of the culture wars. Again, this kind of legal reasoning could follow from the "precedent" that allows the rebuttable presumption clause of the military 1993 "don't ask don't tell" law regarding gays; but I have never heard of a legal test of the idea outside of the military -- yet.


Visit an important story (May 1, 2007) on ABC "Good Morning America" about reported security risks for female bloggers, link here.

Picture: Amish one-room schoolhouse in Bird In Hand, PA, similar to that in Nickel Mines (Oct 2, 2006 tragedy).

Saturday, April 07, 2007

New site and blog:

ICRA has provided a link to a new site that will promote further industry standardization of content labeling. The standardization will be based on the W3C semantic web with the Resource Descriptor Framework, here.

The effort would appear to lead to industry standards for operating systems, browsers, and webmasters for properly labeling content so that parents and schools can parse content properly for different levels of maturity of minors. There would be special requirements for patently "adult" websites. Remember in the COPA trial, there was a lot of discussion of what the concept of "harmful to minors" could mean, and there was a fear that it could be much broader than this.

The new contentlabel site has a blog and message boards. I'll have more about this later.

Sunday, April 01, 2007

COPA: the bad adult-id idea: just review the technology history

Syndicated columnist Jacob Sullum (a senior editor at Reason magazine) furnished The Washington Times with a column, “Filters Better than Laws” in the Commentary Section, p A13, of The Washington Times, on March 31, 2007. Sullum summarized Judge Reed ‘s opinion on COPA, hitting particularly hard the ambiguity of the definition of minors, and of the actually meaning of “harmful to minors.” Sullum believes that the judge bought the idea (and he agrees) that the HTM definition could reasonably extend to subject matter when it has to be judge by the standards of any minor, so educational materials about STD’s, for example, could fall under it. He concurs that COPA was both too broad and too narrow (not applied to overseas sites) and that filters are reasonably effective if used properly.

The whole saga of COPA is a lesson in how quickly technology changes our perception of things. When the original Communications Decency Act was before the Supreme Court in 1997, I actually thought that an adult-id verification requirement for “adult” materials could be workable. I even said that in discussing my proposed “Bill of Rights 2” in the last chapter of my first book. At the time, I was finishing off my first “do ask do tell” book and I imagined a website as a supplement to a book, mainly to be used by purchasers of the book. I thought that “word of mouth” would spread the reputation of a book, which would then need to be kept up-to-date by a footnote website, possibly with a login for owners of the book. At the time (like 1997) the notion seemed credible. I got television exposure in the Twin Cities (MN) from my Hamline lecture (from crutches); I would meet other authors like Vince Flynn who promoted self-publishing of books. At the time, E-books and proposals like Softlock were circulating. Personally owned whole domain names still seemed a bit of a novelty, as I had purchased one from a coworker who ran his own company as an ISP. That was the nature of the early online world then.

What I didn’t see was how important search engines would get – simply because of the mathematics of binary searches (you don’t have to raise the number 2 to that high a power to get a billion – remember your logarithms in Algebra II?; search engines would provide a good critical thinking exercise for high school math students). By the end of 1998, they had obviously become the main way newbies on the web would get known. No longer did you need to code metatags on your web pages; the search engines picked them up anway. The trick to being found was to keep pages static (so that they load quickly) and use lots of proper names and technical buzzwords; search engines like less common words as keywords to identify a source, and engines prefer lots of content as opposed to gimmicks. I had all of this, so I started getting a lot of hits. By the end of 1998 I realized that COPA could shut down my whole future online.

Thursday, March 22, 2007

COPA: Judge Reed strikes it down, keeps injunction in force

Judge Lowell Reed, a federal district court judge of the Eastern District of Pennsylvania, ruled today in ACLU v. Gonzales, in the challenge to the Child Online Protection Act of 1998 (COPA), Civil Action 98-5591. Judge Reed has extended a permanent injunction against the enforcement of COPA. He has found that (1) at least some plaintiffs have standing (2) COPA is not narrowly enough tailored to meet strict scrutiny (3) the government (the defendant) did not show that COPA was the least restrictive means of achieving a legitimate state interest (4) COPA is impermissibly overbroad and vague.

CNN has a story “Court strikes down Internet porn law,” a characterization that is misleading, as understood by anyone who reads the Opinion.

There is a link now to the 84-page Opinion in PDF format at the ACLU site. Here is an alternate location for the document, at the US Courts site.

The Opinion discusses me on p. 12. “Plaintiff Electronic Frontier Foundation EFF sues in part on behalf of John W. “Bill” Boushka who has work on the Web site In the Amended Complaint, Mr. Boushka fears prosecution for his book “Do Ask Do Tell: A Gay Conservative Lashes Back,” which he describes as an “expose about gays in the military” that is a “politically-charged text” containing “subject matter and language that might be deemed harmful to minors.”

My book and website covers a lot more that that, but the military ban is really at the center of all that is argued. Ironically, I have found that I have had to go into very sensitive matters, with extreme candor, to show how many people reared and socialized in lineage-family-centered culture think and feel.

The judge, in conclusion, concurred with Congress that protecting children from some sexually explicit materials on the Web was an important aim, but it could not be constitutionally achieved with such a vague and overbroad statute. His conclusion mentions Justice Kennedy’s opinion in striking down a flag-burning statute.

The Judge seemed to concur that presently available filters were reasonably effective if used properly, and that existing adult-verification technologies, including credit cards and even Digital Verification Services currently would cause considerable costs to publishers who offer borderline (in terms of COPA) material for free, especially for political purposes. He concurred that many visitors would be driven away by security concerns over identity or age verification. He also concurred that the definition of “commercial” could ensnare plaintiffs with few practical financial resources compared to large corporate publishers or media companies. He concurred that, at face value, the definition of “minors” (with respect to older or immature minors – the “Smallville Problem” – was impermissibly vague, although in the physical world merchants usually can judge the likely maturity of individual minors at sight). He was unwilling to reach a conclusion as to what the “whole” of a web visit would be for a minor.

As to the question of explictness, his ruling named Corinna, Salon and Nerve as plaintiffs whose material was likely to fall within the prongs of COPA by most conceptual interpretations by a “reasonable person.” He did not say that about my work or about Patricia Nell Warren, and it is likely that he believes that prosecution of some of the rest of us would have been extremely unlikely (at least under COPA) had it been upheld.

There will be more details and refinements on this case as time goes by, and I am sure that there will be calls for other legislation (Visit this file now for a rundown..) I have not yet decided if this opinion will affect my display of book text on my site, if I will remove all of the self-censoring or not, as there are other business considerations now.

My chronology and link reference list for COPA is here.

Update: Dec. 27, 2007

A couple of other references:

(1) The Ruling on the Google subpoena. Link. This will download as a pdf file and ask the user if he/she wants so save on disk.

(2) Google's own blog and it's side of the search engine results subpoena controversy, link.

(3) Wikipedia entry. This topic certainly would meet Wikipedia's current "notability" standards!

Update: Jan 25, 2008

This bill, as passed and signed by the president, was Title XIV of H.R. 4328 (105th Congress), "Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999" (even though passed in 1998). The Govtrack reference is this. The related HR 3783 never actually became law (Govtrack).

Monday, March 19, 2007

Family Online Safety Institute

The Internet Content Rating Association (ICRA) now is known as (part of) the Family Online Safety Institute. The website for FOSI is this The ICRA is actually a subdirectory of fosi, here.

ICRA is still a small organization, which appears to be headquartered in Britain with offices around the world. The labeling system still works as it did before when testing, although the appearance of the website has changed somewhat.

I still believe that content labeling, in conjunction with big time cooperation from browser and operating system vendors, should be a major strategy in "having your cake and eating it too" -- making the Internet safer for minors when adults need full freedom of expression.

Wednesday, March 14, 2007

More on data retention - DeGette proposes draconian email and Internet surf retention requirements

Today Achim Schmillern wrote an editorial in The DC Examiner, p. 20, “Why data retention legislation would do more harm than good,” at this link.

This follows on new rules for employers to retain emails that went into effect Dec. 1. (See posting on that in December archives in this blog.)

Last September Alberto Gonzales proposed that all consumer emails and web-surfs be retained for two years, and Rep. Diane DeGette in Colorado may introduce a similar bill this spring. Here is her rationale from last June. It doesn’t take much imagination to realize that this could so burden ISP’s that they could stop offering the shared hosting that makes blogging and self-posting possible.

We need to see that this is fundamentally like COPA in that it asks when all of us must give up freedom to protect children from the crimes of others. This is “when am I my brother’s keeper” and we need to see this kind of question that way.

Of course, we all know that a subpoena before the COPA trial about search engines logs was controversial.

Pictures: The Tower of Ned from my screenplay “69 Minutes to Titan” and, someone thinks I have employees. I do

Wednesday, March 07, 2007

States consider age verification for social networking sites; FTC issues report on COPPA

Fox5 DC (Channel 5 in Washington DC) reported tonight that Connecticut has passed legislation requiring that social networking sites verify ages of minors (residing in its state) and obtain parental consent of persons who sign up with profiles. The story reported that up to twenty other states were considering similar legislation.

It is not clear whether this could affect other sites, for example those with message boards, such as those run by media companies (CW). There are profiles on these sites too, even though generally they don't attract as much controversy. Theoretically, any blogger who accepts comments could be required to verify the ages of posters. Similar concerns could exist for those who host activity by others in any fashion. Generally, the law has tended not to hold hosting companies responsible for content posted by users, and this sets up a dangerous legal "brother's keeper" type precedent.

The details on all of this are murky, and will surely develop with more specificity soon.

In fact, on Feb 27 2007 the Federal Trade Commission issued a report admitting that "age falsification" is relatively easy, and that issue, as we know, came up repeatedly in the COPA trial in Philadelphia (where age verification would provide a defense for "harmful to minors" material posting by commercial sites). The FTC was trying to offer general support for the 1998 law known as COPPA (the Children's Online Privacy Protection Act), which should not be confused with COPA. The AP story appeared in here.

A related permanent posting on other COPA-like legislation (and the group "Enough Is Enough") appears here.

Monday, March 05, 2007

COPA: redux on the cultural wars

It’s good to take a look back from all of the legal technicalities about the First Amendment (discussed at length by earlier entries in this blog and many other blogs on COPA) and keep a perspective on the “cultural war”.

Some people will demand of me, if I don’t have kids myself, how dare I raise my concerns and “fantasies” in front of kids and burden “grown up” parents who have a lot more “responsibility” than I have (through heterosexuality) with extra challenges in “protecting” their kids from getting “ideas”. All because of this new technology and search engines let non-men like me become famous without paying their dues. Get it? Is this really about "protecting kids" or pampering parents some of whom, admittedly, have trouble with raising their kids while keeping up in a society where technology can change "the rules" so quickly. It does sound like a calculus problem with "the derivative" doesn't it.

Of course, you can easily turn this argument around. It’s not just that these parents “chose” to have kids. It’s that kids themselves have a right to explore their entire culture once they are old and mature enough – and striking that balance is always tough.

Furthermore, some of the plaintiffs have kids, and certainly many other parties who ought to be plaintiffs (say executives at Amazon) are likely to be people with kids and families.

But courts – as with Justice Breyer’s remarks in the 2004 Supreme Court Opinion – have repeatedly expressed concern over the economic and educational lines. It’s not a battle between those with and without kids. It’s more that better-off parents believe that they can teach their kids to use the explosive new technology correctly (like teaching kids to drive cars) and less well-off parents don’t know to or can’t afford to do this. Of course, corporate vendors should have a lot of responsibility in making it easy for parents to install filters and labels. They have been pretty good about offering their tools free (despite Breyer’s concerns) and it is certainly good business to do so.

One philosophical point – you see this with ideological debates on gay marriage – is that, people with kids need deference from others, that is an admission of lack of full personal responsibility. On the other hand, society could cast this whole question differently: if everyone is expected to have a stake in inter-generational and family responsibility, regardless of having one’s own kids – this claim of unfairness goes away. But you have to have a certain openness in public speech to be able to make even an argument like that. So that’s another potential Catch 22.

Picture: Prettyman U.S. Courthouse in Washington DC on PA and Constitution Ave's, site of a scene from the upcoming film The Bourne Ultimatum, based on a Robert Ludlum novel; blogger entry here.

Monday, February 19, 2007

COPA: book searches and "taken as a whole"

Any business day now (that is not a federal holiday) we could learn of the Eastern District Court's ruling on the COPA trial, probably on a Monday to Thursday, probably before noon. The details of the opinion can be as important as simply the holding itself. Even if upheld, it is not known what the timeframes would be if the injunction were to be lifted, in whole or part, or how it would be interpreted in practice. If this blog has not been yet updated, the visitor can visit the ACLU master page here, or CNN Law or Technology pages immediately for the latest (including links to the opinion text, hopefully).

One issue that came up was what the "whole" is in "taken as a whole." Many legal scholars believe that the "whole" is the individual web page as the viewer sees it. But this can depend on many factors, such as whether the page is static or dynamic, where frames are used, etc. Some book publishers offer copies of pages to browse, as do some book search engines, and these "wholes" may be considerably smaller than a whole work or even a chapter of a whole work. If a publisher offers a page without allowing robots, presumably a minor could not find the page without doing considerable work and maybe learning something of serious scientific, artistic, social or political value (more like what happens when browsing a physical hardcopy in a bricks and mortar bookstore or public library, even in general stacks without any restriction).

As a whole, book vendors and publishers (other than specialties like Wildcat) have not been active as COPA plaintiffs, and I wish that they had been. They may have overlooked this whole concept.

Monday, February 05, 2007

COPA: Pediatrics study expresses concerns about accidental exposure

The Crimes Against Children Center at the University of New Hampshire in Durham, NH published a study in Pediatrics today (the February 2007 issue), “Unwanted and Wanted Exposure to Online Pornography in a National Survey of Internet Users.” The link for the abstract is this: To purchase the full text in PDF format, the visitor may go to this link.

Here is the UNH Media Relations link.

Here is a Washington Post blog on parenting, entry dated 2/9/2007 on the story.

USA Today, on February 5, 2007, summarized the study on page 3A. 42% of Internet users aged 10 to 17 had viewed such material in a twelve month period, 66% said they had not looked for it.

As a regular Internet user myself, I rarely encounter explicit material unexpectedly. Most emails that would point to such material are caught by AOL’s spam filter.

In the COPA litigation, discussed on this blog extensively, government has maintained that some companies deliberately use teasers to entice minors. I generally do not encounter this myself, and that has been discussed on other entries on this blog. On my own sites, there is a great deal of personal and psychological candor, but very little that is explicit in a manner of concern to the study cited above.

As a substitute teacher, I often notice an enormous range of maturity among high school students in Internet use. Some use it properly for academic work, as search engines can yield a lot of additional information on all kinds of topics, especially in math and science and how to work various kinds of problems. Others will want to go to a favorite games or hip-hop site.

Voluntary content labeling, in conjunction with browser modifications, could help prevent inadvertent exposure of minors to explicit materials.

However, an NBC4 (Washington DC televsion station) report on Feb. 5, 2007 indicated that most of the unwanted images came from peer-to-peer file sharing of images, not from conventional websites, social networking sites, or blogs.

Here is the CNN story. Compared to NBC, it emphasizes problems just with surfing and pop-ups. Computers that are well-maintained with anti-virus, anti-spyware and popup blockers (as well as upgrades with operating system -- especially Windows XP -- security fixes) seem to have many fewer incidents of unwanted or inappropriate content appearing. So the abilty of parents and older teens to properly maintain computers at home is also an issue.

Related blog on how illegal downloads by kids can threaten whole families:

Legitimate concerns by parents for safety of their teens can hinder their ability compete academically.

Tuesday, January 30, 2007

Folksonomy -- another idea for content labeling

Folksonomy is a term proposed by the “wiki” world to describe the capability of content customers to label the content, both in terms of quality, and particularly with respect to suitability for minors.

Taxonomy would, by contrast, comprise classification and labeling provided by the author, publisher, or distributor of content. Movie ratings would probably fall somewhere between these two concepts.

In a sense, the ability that Amazon and Netflix offer to rate books and movies (with numbers of stars) and then present the composite ratings, is a kind of folksonomy. Amazon even allows viewers of book reviews to rate the reviews as to helpfulness.

Content labeling, as described so far, would be applied by authors or publishers in a system of voluntary compliance. A more sophisticated mechanism could be proposed to allow visitors or parents to supply ratings to some kind of escrow company, which then might be able to apply the appropriate labels to sites of members.

This is another concept that could apply in the developing debate over reconciling the needs for free speech for adults with the protection of minors on the Internet.

Monday, January 29, 2007

Microsoft Vista and parental controls -- applicable to COPA?

Major media outlets are reporting the upcoming release of Microsoft Windows Vista on Tuesday Jan 31. Vista will offer a Parental Controls panel that will allow parents to monitor their kids' use of computers closely, 24x7, setting time limits, whitelisting or blacklisting various programs and specific websites. The URL for Microsoft's description of the facility is this.

Of course, it will be some time, maybe even years, before Vista is common in homes, and its provisions would not apply to Apple/Mac or to machines running Linux or any older PC operating systems. It is not clear how it would fit into the "least restrictive means" analysis of the COPA trial. It is also not clear whether it is specifically geared to content labels, although it sounds like it probably will be easy for Microsoft to tailor it to talk to ICRA, etc. It does appear that Microsoft uses java applets to supply the monitoring facilities.

One point noted by the Supreme Court even in 2004 was that technology is changing rapidly, and older least restrictive means analysis could become obsolete.

Friday, January 19, 2007

MySpace sued: could this set a "brother's keeper" precedent?

The AP reported on Jan 18, 2007 in a story by Jessica Mintz in the El Paso Times (Texas), that four families of female teenage victims had sued for not having sufficient safeguards for minors in the facilities of its social networking site. The story is at this link. The families are in New York, Texas, Pennsylvania, and South Carolina.

MySpace has recently developed restrictions on how adults can contact minors, and is expanding parental monitoring capabilities. It also (like Facebook) has been developing ways to let users restrict the audience that can see a profile (whitelisting). MySpace also has some age-related rules regarding funtionality of use. At least one of the perpetrators of the four incidents in the suit is serving a prison term in Texas.

The philosophical implications of the suit can be enormous: whether content providers or facilitators must take downstream responsibility for what customers or visitors may do. The underlying philosophical problem is also present in the debates in the COPA trial. I've often called laws requiring this "brother's keeper" laws.

Picture: A tourist Amish Village near Strasburg, PA, representative of a religious culture that eschews technology.

Update: Nov. 16, 2013

Myspace would probably be covered by Section 230 of the 1996 Telecommunications Act, the portion of the Communications Deceny Act that survived.  See my main blog for the label. 

Tuesday, January 02, 2007

COPA: Whitelisting -- relevant to "least restrictive means" analysis?

There was a lot of talk in the COPA trial about “least restrictive means” with most attention focused on the adequacy of Web content filters and on adult-id or credit card age verifications.

Within the past year, some blogging and social networking companies have been offering and promoting a technique called “whitelisting” where the publisher provides an explicit list of entities (by email or some other scheme) allowed access (even read-only) to the material. Security and privacy are among the reasons used for whitelisting. I’ve discussed in more detail here:

Would “whitelisting” be a way of audience restriction that fits the idea of “least restrictive means” analysis? Well, one obvious problem with this is philosophical. A writer publishes something on the web in order to be found (as by search engines) by the widest possible global audience, in order to have a personal effect on the debate about various problems. That would almost defeat the purpose of having a website.

Picture: from the exhibit at St Mary's City, Maryland, one of the earliest colones