Do adults have a right to view material online that may be sexually explicit, but not obscene, if that material is also available to minors? Many people, including me, would say yes--with qualifications. And it is precisely those qualifications that are being debated by the U.S. Supreme Court right now.
In early March, the Supreme Court again heard arguments concerning the 1998 Child Online Protection Act. That act was intended to protect children from viewing online what the law calls "material that is harmful to minors."
There are qualifications about how such material must also lack any redeeming scientific, artistic, political or literary value for minors. In other words, this shouldn't affect a teen's ability to see full-frontal pictures of Michelangelo's David or the armless and topless Venus de Milo, or even to read explicit excerpts from anatomy texts.
What COPA intends to target is pornography. We all know that the Web is full of it, and that it's fairly easy to access.
Aside from what's truly obscene--which the law and the courts have sort of, kind of, defined--what's classified as porn or material harmful to minors tends to differ depending on whom you ask and the age of the minor in question. But no matter how you define it, according to the First Amendment, adults have the right to create and to view sexually explicit material--even if that material may be deemed pornographic or harmful to minors.
So the question before the Supreme Court, lawmakers, and every parent is: How do we keep sexually explicit material available to adults but away from children?
Burden on Creators or Consumers?
Let me get a couple of disclaimers out of the way first: I'm not a parent; I'm also not a consumer of so-called adult entertainment.
But I like the HBO show Sex in the City, and discussing it is a lot of fun. There are chat rooms and sites devoted to the show, some of which may at various times include commentary that's naughty at best and harmful to minors at worst, offering little or no redeeming value for those minors. Do such sites have to require proof of age for access? You can argue that they do, according to COPA.
In large part, it's the proof-of-age requirement that has prompted the American Civil Liberties Union and other like-minded organizations to oppose COPA before the Supreme Court. Under the act, sites that have "prurient" (legalese for sexually explicit material that lacks redeeming value) material harmful to minors must require some form of ID--such as a credit card, an adult ID, a digital certificate, and so on--to prove that the person who wants access to the content is over 17 years old.
So what's the problem? Well, there are a couple issues.
First, requiring an ID removes anonymity, which would deter at least some people from going to a site. They may be concerned about the potential stigma because they don't trust the site to protect their privacy, or they may want to limit the number of sites that have personal information about them. COPA does include some privacy provisions, but whether they're sufficient is debatable.
Second, the people running such a site may decide to self-censor, avoiding a subject--even something they're legally allowed to discuss--because they don't want to risk running afoul of COPA or don't want to shoulder the additional cost of implementing an age-verification method.
The ACLU and other groups have persuaded lower federal courts (most recently the Third Circuit Court of Appeals) that reasons such as these are enough to shelve COPA or send it back to the congressional drawing board. And let's not forget that a too-broad definition of indecency helped in striking down the 1996 Computer Decency Act.
But most importantly, adult IDs are not the only way to protect children online. Other methods could be just as effective without triggering self-censorship or creating problems with free speech or privacy rights.
Other Methods of Protection
COPA required the creation of a commission to investigate and evaluate various child-protection methods, and to assess any adverse impact on adults who want to access adult materials. That commission made its report in October 2000.
Guess what? According to the report, no single protection method is best. And requiring IDs has a negative impact on adult access, our First Amendment rights, and privacy, among other things. However, user- and ISP-based filtering and "greenspaces" (domains or sites that are specifically kid-friendly, such as the recently approved .kid domains) scored better as protection mechanisms, while avoiding many of the negatives of requiring adult IDs.
Mixing It Up
The commission recommends a blend of techniques that includes public education, greater availability of and information about filtering technologies used by both users and ISPs, and more enforcement and prosecution under existing laws.
Financial realities make it hard for parents to be around their kids as much as they might want to be. And it's true that filters have real downsides, and can only be effective if they're turned on. Perhaps it is too simple for older children to disable them, as the government argues. It may also be too easy for a child to snatch a parent's credit card for ID purposes, especially if they know it won't be charged and they won't be caught. It all depends on the child, and the parent.
For me, that's the crux of the issue. What's harmful to children is a judgment that should be made by their parents, and I expect that these decisions will change as a child ages. Because of that, I believe methods that place control in the hands of parents should be our first choice for protecting minors. These methods may include using filtering software on the home PC, choosing an ISP with good server-side filtering or kid-safe zones, and frequent talks between family members to reinforce and make concrete the values they hold and clarify what is and isn't allowed online. Childless adults should stay out of this process.
For additional tips on protecting children online, see "The Great American Privacy Makeover," which includes tips for parents. Also check out "Should Parents Become Big Brother?" for a discussion of monitoring software and ways to use it.
MPAA on 321
Update: Some readers wrote in after my last column on DVD copying to ask whether the Motion Picture Association of America or its members would be filing suits against consumers who bought software from 321 Studios or similar vendors. So I asked Matthew Grossman, director of digital strategy for the MPAA.
Grossman says that while ultimately the association isn't ruling anything out, for the moment it is focusing prosecution on 321 Studios and other software publishers, along with large-scale pirates or high-profile pirates who post movies on the Web prior to release. Currently, education--including the ads you see along with trailers in movie theaters--is the MPAA's main initiative regarding users of DVD copying software. But if things get worse, the association may end up having to go after them as well, Grossman adds.
Got a question or comment? Write to Anush Yegyazarian.
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