Tuesday, February 24, 2009

Bill would require ISP's, Wi-Fi users to keep detailed records for possible use by cops later

There is a proposal in Congress called the Internet Safety Act, by U.S. Senator John Cornyn and Representative Lamar Smith (both Texas Republicans), which would require ISP’s to keep detailed records of each subscriber’s access for up to two years, on the theory that the subscriber could later be accused of a crime involving children (as on the recent Dateline sting). Telephone companies keep records for limited times (you can check your long distance and local usage for wireless online) but these are not normally used by police. Some legal observers say that the law would require home Wi-Fi networks to keep track of their own usage. The story, on NetworkWorld, by Stephen Lawson is “Proposed Law Might Make Wi-Fi Users Help Cops”, link here.

The Senate Bill is S. 436 (111th Congress), with the govtrack reference here.

Saturday, February 21, 2009

CA: Ninth Circuit strikes down law restricting sale or rental of violent video games to minors

The Ninth Circuit has struck down a California law that bans the sale or rental of violent video games to minors (under 18) and requires labeling. The AP story is by Samantha Young, here. A three judge panel unanimously upheld an earlier ruling by a District court. The law never took effect.

The text of the Opinion on the Ninth Circuit Website is here (PDF format). The Opinion was by Judge Callahan, and cites the First and Fourteenth Amendments. The case is called “Video Software Dealers Association and Entertainment Software Association v. California" (naming Arnold Schwarzenegger, governor, and Edmund G. Brown, Attorney General for the State of California.

Tuesday, February 17, 2009

Does old ruling Ginsberg v. New York matter to COPA?

There is a twist in the recently revised “Bloggers’ Legal Guide” published this month by the Electronic Frontier Foundation. In talking about students’ rights, EFF poses a question about a minor student’s posting “adult” materials on his or her own (off school) blog. EFF says that obscenity law is interpreted differently with respect to minors. It appears in context that the law may be taken differently when posted by a minor, as well as when sold to a minor or given away to a minor.

Of course, COPA (the Child Online Protection Act of 1998) was all about this issue on the Internet and the Web, and it has been overturned and the free speech victory has been upheld all the way to the Supreme Court, as covered already. EFF refers to a 1968 case in New York State, Ginsberg v. New York, about the sale of girlie magazines to a teenager. There is a slightly simpler definition of “harmful to minors” than in COPA, specifically: “(1) appeals to the prurient, shameful, or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors.”

It’s still not clear to me what the relevance of Ginsberg is to the recent COPA litigation and opinions, because Ginsberg occurs in the physical world, but EFF here is still talking primarily about blogging on the Web. The EFF reference is here, and the Findlaw copy of the 1968 Supreme Court Opinion is here.

In fact, the Opinion (see the link from the March 22, 2007 entry on this blog) Judge Reed discusses Ginsberg on p 77, in paragraph 43. Here the judge distinguishes between the physical world and the paradigm of the Web.

My Feb. 14 longer posting on the EFF Legal Guide is on my main blog, here.

Sunday, February 01, 2009

COPA: my own previous self-censorship

Since the plaintiffs have won in the COPA case and prevailed against attempts to appeal by the government, I thought I would make a note about the minor amount of “self-censorship” that I did in the online version of my 1997 “Do Ask Do Tell” book. The Affidavit that I submitted in December 1998, point 19, explains some of the self-censorship. The link is here (follow the additional links at the end of the page to my book). I had been told by one of the EFF attorneys (back in December 1998) that I was the only plaintiff who had self-censored.

I see that I did restore some self-censored items (as the item in Chapter 3, the “fallen male” reference), but a few of the most explicit passages (in Chapters 1 and 2) remain “self-censored” more or less back to “PG-13” language. They can be found by searching for the “++” strings in the Chapter 1 and 2 text.

I have thought about restoring the original text here. For the time being, I’m leaving the censored items as they are. The concerns are practical. There could occur some restructuring of circumstances in my life and strategy, so I would prefer, if for reputational reasons if none other, to leave this in place for the time being. Furthermore, there is at least some incentive to actually buy the book, to see the full original text.