Friday, January 18, 2008

S 1086 would combine COPA with content labeling, but run by the government!

Parties concerned about the appeal of COPA should also track some new proposed legislation introduced in April 2007. It would be the Cyber Safety for Kids Act of 2007, S. 1086, introduced by Senator Max Baucus (D-MT).

I have a Wordpress blog entry giving more facts here.

The bill uses the same concept of “harmful to minors” as did COPA. It would apparently require owners of commercial websites to shield material behind adult-id mechanisms, an HTM-free introductory page, and use of a content label to be administered by NTIA. The webmaster would also have to communicate with ICANN. It is not clear whether NTIA would work with companies or organizations with already developed content-labeling systems, including ICRA, Safesurf, and even AOL and Microsoft. Most reasonable people believe that private industry should develop and administer the means to do something like this. It is not clear if pages containing HTM content would have to be hidden from search engine robots so that the visitor would have to go through a warning introductory page.

Obviously, this bill will raise many troubling questions already familiar with COPA.

Wednesday, January 09, 2008

COPA: a paradox concerning the idea of "taken as a whole": a personal story

On December 27, I wrote on my this blog on the issue of “the whole” in COPA. In his March decision, Judge Reed was unwilling (based on previous Supreme Court opinions) to provide web speakers any reassurance that under COPA a speaker could reliably assume that the “whole” of a minor or immature visitor’s experience on the Web as anything more than the specific file or image that a visitor clicked on.

A troubling experience in my own background could shed light on this, and I’ve decided to say a little more about it. Back on July 27, 2007 I had written a blog entry (here) about a potentially serious incident when I was substitute teaching when a screenplay that I had written as apparently found by school administrators. The blog link is here.

From the viewpoint of COPA, and for purposes of this discussion, I’ll assume that a prosecutor could have claimed that the screenplay could appeal to the “prurient interest” of an immature minor. In fact, the work was mentioned in responses made to the Court during the trial. Some of the judge’s comments during the trial suggested a willingness to take seriously the possibility that COPA could intermingle with “implicit content” questions and could be applied to material like this. (There are other issues, though, like the “serious value prong,” and the range of ages and developmental maturities actually encompasses by the term “minor,” the so called “Clark Kent Problem” that I’ve mentioned before.)

To review what is relevant, in the screenplay an older gay man, employed as a substitute teacher, is accused of improper relations with a male student, prodded to plea bargain, labeled as an S.O., and dies in prison. The student plays the older man’s music in concert, a twist that I thought of as being like “Dorian Gray.” The man lives on through his music, despite the loss of his own life. The story is complicated from the fact that in the beginning, the student saves the teacher’s life with a defibrillator early in the story when the teacher has a cardiac arrest. (This has not happened in fact. This is one way you know the work is fiction.) Their lives intermingle after somewhat reckless behavior by both parties (it's important that the elderly man takes prescription medications that could impair his judgment), resulting in the boy’s parents bringing on a prosecution. However, relative to the fictitious universe of the screenplay, it is not clear that the teacher actually committed a crime, but he cannot defend himself against the accusations. Although there are scenes of some intimacy in the proposed film, there is nothing explicit; a film like this would probably receive an MPAA rating of “R”.

The problem at the school in the fall of 2005 was that the administrator apparently thought that the fictitious screenplay character mark was me, and that the screenplay amounted to an indirect “confession.” Had the fictitious incident been heterosexual in nature, then the character could not be me, and there would be no such problem. (The fictitious story, though, then could not work as an artistic matter.) This is the “Touching” problem discussed on the July blog. That comes from California, and would not be legally binding without a similar case in Virginia, although it could be considered “persuasive evidence” that Virginia could adopt it as a precedent.

But let me come back to the question of the “whole” in Internet literature. The administrator feels that a minor would be titillated by the belief that the character is apparently “me.” But in itself implies a paradox. The visitor minor would have to view many other files on the website to figure out that the character is “me”, if that is even true. There is the issue that the character is called “Bill” and my name is “John,” but, true, my given nickname was “Bill” (for “William”) and I’ve used it in my books as a pseudo-penname (a double take to be sure). The administrators actually viewed “about me” files on the site (I can tell from the IP addresses of the searches) to establish that it is me (they could have looked at WHOIS information, also, a more prudent thing to do). But, in any case, in viewing the other files, the visitor is supposed to develop a “context” that is larger than the universe of that one file or of the screenplay itself. So therein lies a paradox.

The administrators obviously must have believed that the material could prove enticing to a student who stumbled on it at home after googling my “pen name.” The administrators also probably believed that the circumstances could generate false accusations, that in practice could be difficult to defend (but that is the point of the screenplay!) From a practical viewpoint, there was tremendous media attention to Internet misconduct, but mainly in chat rooms (a different situation than this), some of it involving teachers, much of it from the sensational NBC Dateline TCAP series with Chris Hansen, whose broadcasts had just started. This caused legal attention to be focused on the “intent” behind Internet communications as well as its otherwise more objective legality, or the actual results of the conduct. State and federal “enticement” laws were used, one of the most sensational cases being one involving a rabbi, but the court opinion in that case, at least (U.S. v. Kaye – 2006 – must be downloaded from Pacer subscription) did place limits on how these laws could be applied outside the narrow situations where misconduct and personal contact had actually “started” (as in chat room cases); the use of the "fantasy defense" became quickly discredited. During the same time period, the media reported a continuous stream of teacher misconduct from around the country, making political climate on the issue dangerous. Little of this had happened when I posted the screenplay (in March 2005). I stopped teaching in December 2005, and removed the screenplay before starting another contract job with the school district in May 2006. There was only one case where a student made a remark in class that could reasonably be connected to having found the item (shortly before the problem with the administrators, and this was a different school). An unrelated problem involving spotting students who were in bars illegally occurred a year after the item was taken down (story here).

I see a lot of independent films that propose troubling “existential” questions, and I don’t take them as meaning that I am supposed to “do” anything. However, I live in an individualistic, adult world that accepts the idea of “thought experiments” (as Andrew Sullivan calls them). The world of public schools is one in which the “clients” (the students) live in a world of social hierarchy centered around the nuclear family (hopefully) and the then the authority structure set up by the school system with its teachers, who are supposed to represent the (balanced) interests of the parents. In retrospect, I can certainly understand how people who live in that emotional world would see such “works” as activity-provoking, Certainly, permanent teachers with real authority (including grading) over students must accept their responsibility this way and mediate their personal online behavior accordingly. I was, however, “just a sub.” Not more, at least not for now.

Of course, the other subject that this whole story brings to mind is “reputation defense”. Presumably, someone who is concerned with his “reputation” as a teacher wouldn’t voluntarily post material in public that could be misconstrued and undermine his effectiveness in the classroom. But, I was an interim, day-to-day “sub” with no authority. I don’t feel that “reputation” raises the same concern, but I see who others see it as a "social" concept. But one can see how these concepts about minors and Internet content blur: chat rooms, enticement, ads, “reputation”, as well as concerns about pornography or “adult content” (with the associated concerns about filters and labeling) in the sense of COPA.

It's interest that the FCPS school system had defibrillators in all the schools by 2007, although the plan had been announced in 2002. The school system even made a training video with live student subjects.

Visitors may want to compare this to a current case about a "fictitious blog" with respect to a divorce case, discussed recently on my main blog, here.

Saturday, January 05, 2008

"Virginia's COPA": 4th Circuit had ruled in 2004; status is uncertain

There is a Fourth Circuit ruling in PSINet et al and United States Internet Service Provider Association v. Chapman and Cambloss, Commonwealth of Virginia, regarding Virginia Statute 18.2-391 (link which might be considered “Virginia’s COPA.” The law, in a manner similar to COPA, would penalized the posting of (effectively) “harmful to minors” material for commercial purposes, in addition to existing sales of these materials in the print, video or “bricks and mortar” world. The Fourth Circuit decided the case on March 25, 2004, and the link is here.

The opinion is quite complicated to read (more complicated than Supreme Court or Judge Reed’s District Court ruling(s) on COPA, and it mentions COPA only once, in a dissent.

There is a lot of discussion of an earlier case Virginia Booksellers Association v. Virginia The Appeals Court disagrees that earlier law would automatically include regulation of the Internet, and it also reiterates the now familiar arguments that make laws like CDA and COPA overbroad from a First Amendment perspective.

The text of the law, as written, does not appear to offer the use of an adult ID as an affirmative defense, but the Commonwealth apparently argued that this is implied. The credibility of these as a defense in a law like COPA has been successfully challenged.

It is not immediately clear if the Virginia Supreme Court still has other matters to decide with 18.2-391, and I’m still trying to find out. With Judge Reed's opinion on the books for COPA, it is hard to see that the Virginia law could stand as long as COPA itself is invalid.