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Porn War II: A Net Issue Reborn
by Drew Clark
Battles over online pornography that were hotly contested in the go-go years of the dot-com bubble seemed by the 21st century a quaint manifestation of an earlier era. Like the Clinton administration's doomed struggle to control strong encryption, the legal fight appeared to end as an unabashed victory for the libertarians within the technology industry -- and the sense that government could do little to control either cryptography or pornography on the Internet.
But just as pro-family advocates and free-speech advocates finally had agreed to stop fighting and work together on promoting voluntary education about software filters and stricter enforcement of child porn and obscenity laws, that consensus could be altered by two recent Supreme Court decisions and a third decision that appears destined to go before the high court next year.
For civil libertarians, the trio of decisions represents a mixed bag: In April's Ashcroft v. Free Speech Coalition, the Supreme Court overturned a section of a law against child porn on the grounds that it could have criminalized movies like Titanic and Traffic, both of which feature scenes of simulated sexual activity involving teen-agers. In Ashcroft v. American Civil Liberties Union, the court let the Child Online Protection Act (COPA) stand while still keeping it from taking effect. But the ACLU and their co-plaintiffs, the American Library Association (ALA), last week basked in an unabashed victory as a three-judge panel overturned the key provisions of a law requiring libraries to install Internet-filtering software.
In two cases consolidated before a special tribunal consisting of the chief judge of the 3rd Circuit Court of Appeals in Philadelphia and two district judges, the panel unanimously agreed that the Children's Internet Protection Act (CIPA) improperly burdens the First Amendment because it requires libraries to use filters that would block constitutionally protected speech. The decision was a black eye for filtering companies, which have played an ambivalent supporting role in the debate over how to screen objectionable content.
An Emerging Consensus Broken?
Most social conservatives who support COPA and CIPA as necessary to limit the widespread availability of pornography on the Web concede that the 1996 Communications Decency Act's focus on "indecency" was a clumsy attempt to limit communication on the Internet. The Supreme Court unanimously rejected that law in its 1997 ACLU v. Reno decision, which set the stage for the legislative and judicial battles that followed.
COPA required Web sites posting sexually explicit material that could be "harmful to minors" to make users verify that they are adults by, for example, providing a credit-card number. Operators of porn sites say they want to attract only paying customers, not browsing children. But the ACLU argues that the law forces other Web-site operators -- like ArtNet, an art site with some sexual material, and a sexual health network for people with disabilities -- to choose between censoring themselves and limiting the online reach of legal material. The high court's refusal to rule definitely leaves such sites in limbo.
Hard-core pornographers, on the other hand, unexpectedly won their case before the Supreme Court. Members of the Free Speech Coalition, a sex-industry trade association, challenged not only COPA but the Child Pornography Protection Act of 1996 -- which barred any visual depiction that "appears to be" a minor or is distributed in "such a manner that [it] conveys the impression" of being a minor. The group says that its members only depict adults in sex films and that those provisions subjected them to prosecution under laws against child porn.
The decision spurred outrage on Capitol Hill. "The high court sided with pedophiles over children," said Rep. Mark Foley, a Florida Republican and co-chairman of the bipartisan Congressional Caucus on Missing and Exploited Children. He said he wanted to "reverse the damage" with a bill, H.R. 4623, drafted and promoted by Attorney General John Ashcroft. The measure seeks a way for prosecutors to continue to bring child-porn cases.
The two high court rulings upset the sense -- widespread within the technology industry -- that child-porn prosecutions should be made easy while legislation with potentially far-reaching effects on the Internet should be shunned.
Whither Filtering?
The CIPA ruling, on the other hand, presents the technology industry with an acute dilemma about how hard it should promote filtering software.
In ACLU v. Reno, the ACLU and some technology companies defended the voluntary use of filters as a less-restrictive alternative to legislation aimed at keeping kids away from sexually explicit material. Civil liberties groups like the Center for Democracy and Technology actively promote filters through the GetNetWise site of its sister organization even as they oppose legislative mandates. But now the ACLU repeatedly criticizes the limitations of the technology.
Appeals court Judge Edward Becker, writing for the panel in the CIPA decision, repeatedly cited flaws in filtering software. "The plaintiffs adduced substantial evidence not only that filtering programs bar access to a substantial amount of speech on the Internet that is clearly constitutionally protected for adults and minors but also that these programs are intrinsically unable to block only illegal Internet content while simultaneously allowing access to all protected speech," he wrote.
The decision against CIPA's use in libraries -- it still applies to schools -- is so sweeping that it could make it difficult for libraries that want to use filters on all their terminals to continue to do so, said Eugene Volokh, a law professor at the University of California at Los Angeles.
Critics of filters seized on the decision's passages to argue that filters are "flawed" and "clumsy," in the words of the ACLU's Ann Beeson. Lynne Bradley, director of government relations for the ALA, added that although filters "may be a tool, they are overbroad and they provide a false sense of security."
But some filter manufacturers -- including many who opposed the law -- said such statements could backfire. "If you say that these things don't work, if you argue that they are completely hopeless, they undermine the case that gets made in the censorship case," said Mark Uncapher, senior vice president of the Information Technology Association of America, which formed a sub-group of its filtering-company members.
"We don't advocate legislating filtering, and I wouldn't presume to second guess the judges in Philadelphia who ruled on CIPA," said Susan Getgood, senior vice president of Surf Control. "But I do know that over the years, there have been some ineffective filtering products on the market. These tools combined with critics' use of outdated information about the state of the technology accounts for the majority of disinformation surrounding filtering and access-management software."
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