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.