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."