Keeping kids from online porn back to high court

BY LARRY MAGID
Special to the Mercury News
May 31, 2001

At the urging of the Justice Department, the Supreme Court is again on the verge of tackling the issue of protecting kids from online porn.

At issue is a 1998 congressional act that requires operators of commercial Web sites to keep kids out of sites that contain material deemed to be ``harmful to minors.'' The Children's Online Protection Act (COPA) was passed after the Supreme Court struck down the Communications Decency Act (CDA) of 1996 which was challenged by a broad coalition -- led by the American Civil Liberties Union -- on grounds that it inhibited free speech.

COPA, though not as far reaching as the Decency Act, has also been challenged by free speech groups and it too has been struck down by the courts.

The Clinton/Reno Justice Department defended the law against a challenge by the ACLU on behalf of several media companies and non-profit groups but a federal judge and, later, an appeals court, both ruled on the side of the ACLU. The Bush/Ashcroft Justice Department has appealed it to the United States Supreme Court, which will hear the case next year.

For the record, I was called by the ACLU to testify as an expert witness, without compensation, at the lower court trial.

Unlike the Decency Act, COPA doesn't prevent anyone from posting sexually explicit material. Instead, it requires operators of commercial adult Web sites to block access by children. On the face of it, it seems like a good law. Let the adults have their porn but keep the kids out. That's how it works in the non-cyber world where ``adults only'' establishments are allowed to operate as long as they are careful to make sure that they don't let in kids.

But as we've seen on so many situations, cyberspace and the ``analog world'' can't always play by the same rules. To begin with, on the Internet, it's not easy to figure out who is or isn't a kid. Congress addressed this issue by legislating that Web sites that contain material harmful to minors must put up a barrier to entry -- such as a credit card or an ``adult personal identification number'' that certifies that the visitor is over 17.

But even that raises some serious issues. To begin with, the mere possession of a credit card number doesn't really prove that you're an adult.

The bigger issue here is that the act of putting extra controls on Web sites could impose an undue infringement on freedom of speech. Mitchell Tepper, the operator of Sexualhealth.com, testified at the trial that his site -- which includes material dealing with health, abuse and sexual advice for the disabled -- could easily be construed by some people as ``harmful to minors.'' Yet, if he required visitors to submit a credit card or adult ID check, he feared that many adults would stay away from the site for fear that their identity would be known and possibly revealed. He was also rightfully concerned about the rights of teenagers who might have a need for the type of material he offers.

Another witness and co-plaintiff from PlanetOut.com, testified that an ID check could have a chilling effect on visitors to his gay, lesbian and transgender site who might be uncomfortable about having to identify themselves to enter the site. Although far from pornographic, PlanetOut does have personal ads and other areas that some people might consider to be ``harmful to minors.'' But, for that matter, so do the classified section and the movie ads in many newspapers.

If we could all agree about what is and isn't harmful to all minors, it might be possible to craft a child protection act that would work. But, the definition is far from universal.

Residents of Lake Afred, Fla., complained about a replica of Michelangelo's David because it depicted male genitals. Most of us would consider David to be art, but obviously some Floridians considered it offensive. Is David harmful to minors? Most people would say no, but it's obviously a subject of some debate.

Another problem with COPA is that it contributes to a false sense of security. It applies only to commercial Web sites so it doesn't cover sites run by students on university servers or non-profit groups. It certainly can't be enforced when it comes to the many sites operating from overseas and it's not even clear whether it would apply to non-commercial sites operated by individuals, even if they're hosted on commercial servers.

The law also doesn't apply to newsgroups, chat rooms, instant messages or other area of the Internet where the real dangers lurk.

So, as well meaning as COPA might be, it does very little to protect children. That isn't to say that I don't sympathize with those in Congress who are concerned about the effect of pornography on our children. It is an issue for many families and there is no question that there are many Internet sites that contain images clearly inappropriate for kids. Trying to control the situation via legislation, however, simply won't work, especially with a global medium like the Internet.

I don't claim to have an easy answer for protecting kids. As a parent, Family Tech columnist and operator of SafeKids.com, I struggle with these issues on an ongoing basis. In the mean time, we seem to be raising a generation of cyber-savvy kids who, despite the temptations of the seedier side of cyberspace, for the most part appear to be growing up relatively healthy. We need to explore alternative ways to keep our kids safe. Whether it's using filtering or monitoring software or checking in with our kids, it strikes me that parents -- not the government -- are the ones who need to regulate what are kids do online.

 

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Larry Magid is a technology journalist and commentator based in Palo Alto. Contact him at larry@safekids.com .