Youth, Pornography, and the Internet (2002) / Chapter Skim
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9. Legal and Regulatory Tools
9. Legal and Regulatory Tools
Pages 201-217
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From page 201... ...
Federal and state obscenity laws impose criminal and civil penalties on the production, distribution, and sale of obscene matrial. In recent years, however, obscenity prosecutions have been relatively rare.
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From page 202... ...
202 YOUTH, PORNOGRAPHY, AND THE INTERNET TABLE 9.1 Examples of Advantages and Disadvantages of Various Public Policy Options for Protecting Children from Inappropriate Sexually Explicit Material on the Internet One Illustrative Advantage One Illustrative Disadvantage Vigorous prosecution of existing obscenity laws Imposition of civil liability for dissemination of obscene materials Required use of age verification systems by commercial suppliers of adult-oriented sexually explicit material Would clarify existing uncertainties about the feasibility of obscenity prosecutions Would enable private parties to take action through the court system when prosecutorial resources are limited Required use of "text-only" Would reduce front page to en-sure that inadvertent access to first page of Web site is the sexually explicit material "warning" page about from adult-oriented material in-side being for commercial Web sites adults only Required labeling of material that is obscene for minors Prohibitions on spam Would reduce unsoliccontaining material that is ited e-mailed advertiseobscene for minors meets for adult-oriented material Prohibitions on mouse- Would improve navigatrapping to Web sites tional experience for containing material that is Internet users obscene for minors Would place a minimal burden on content providers Stricter enforcement of record-keeping requirements Would require personnel and resources that might be used for other law enforcement activity that may be of higher priority Would generally require some showing of individualized harm, which may be difficult to demonstrate Currently under judicial review; see discussion in Section 4.2.4 Would not reduce access for children willing to lie about their ages Would require positive market response for success (e.g., browsers must be capable of recognizing labels, parents must configure browsers accordingly) Content-based restriction would make regulation more problematic on First Amendment grounds Regulatory target may be uncertain Would increase costs of compliance with such requirements; might reduce number of commercial entities unwilling to behave responsibly Would require personnel and resources that might be used for other law enforcement activity that may be of higher priority
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From page 203... ...
Would facilitate citizen reporting of child pornography; would reduce interagency impediments to cooperation in such prosecutions Would likely lead to faster "take down" of material posted in violation of terms of service (which generally includes material that is obscene or child pornography) Might increase false alarms and screening effort required Would require vigorous monitoring effort on part of ISP Internet, where community standards, jurisdictional, and international issues abound.
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From page 204... ...
More vigorous prosecution of federal and state obscenity laws regardless of the outcome would help to clarify whether the current state of affairs with respect to obscenity prosecutions is due to a liberalization in "community standards," a lack of willingness to undertake prosecutions, or some other factor or factors. Thus, such prosecution could help to establish more up-to-date benchmarks for the field, a development that would provide much-needed guidance for law enforcement professionals dealing with such issues.
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From page 205... ...
9.2 CIVIL LIABILITY FOR PRESENTING OBSCENE MATERIAL ON THE INTERNET Because prosecutors have not been inclined in recent years (i.e., throughout most of the 1990s) to commit substantial resources to obscenity prosecutions, an alternative is to allow private individuals to bring civil actions for damages against individuals or businesses that purvey obscenity on the Internet.
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From page 206... ...
COPA declares it unlawful to communicate on a commercial Web site material that is obscene for minors by means of the World Wide Web if the material is available to minors. COPA states that it will be an affirmative defense if the defendant, in good faith, takes reasonable measures to restrict access to the material by minors bv requiring a credit card, an adult access code, an adult personal identification number, or other appropriate proof of age.
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From page 207... ...
The concerns raised against COPA could at least arguably lead to the conclusion that it is insufficiently effective to justify its costs, whether or not it is consistent with the First Amendment. If the Supreme Court invalidates COPA because age verification procedures in the context of the Internet are too burdensome on the First Amendment rights of adults, this will make it very difficult to regulate material that is obscene for minors in this environment.
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From page 208... ...
This approach would reduce inadvertent access to teaser images on adult-oriented sites, and thus provide a greater level of denial of such access than is currently in place. Of course, this approach would not 2The reason for this approach (of granting immunity from prosecution under obscenity laws rather than obscene-for-minors laws in exchange for using age verification technologies and "plain brown wrappers")
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From page 209... ...
Indeed, in the cases of the CDA and COPA, the courts reviewing these acts found that these requirements were unreasonable given the current state of technology and that age verification measures impose significant burdens on Web sites because the verification measures require site visitors to provide personal information. Because users are reluctant to provide this information and are discouraged from accessing sites that require such disclosures, the imposition of age verification requirements may chill or inhibit adults from accessing non-obscene Web sites, both because they might not wish to give personal information and because they may not be able to prove their age.
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From page 210... ...
Thus, to the extent that the constitutionality of the alternatives noted above turns on the commercial speech doctrine, non-commercial spam or spam that does not consist of advertising could not be restricted. It is also worth noting that most spam concerning sexually explicit material does not consist of the sexually explicit material itself, but of links to Web sites that have such material embedded within them.
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From page 211... ...
Note that a variety of legislative proposals have appeared with the intent of reducing the problem of spam e-mails. For example, one federal proposal calls for prohibiting senders of unsolicited commercial electronic mail from disguising the source of their messages, and giving consumers the choice to cease receiving a sender's unsolicited commercial electronic mail messages.6 This proposed legislation prohibited senders from including materially false or misleading header information and deceptive subject headings in commercial e-mail, required the inclusion of a valid return address in commercial electronic mail so that the recipient could indicate a desire not to receive further messages from the sender, and penalized further transmissions of e-mail once such a desire had been indicated.
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From page 212... ...
Whether or not all mousetrapping can or should be restricted, a reasonable case can be made for prohibiting operators of Web sites from sending
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From page 213... ...
involves a record-keeping requirement intended to ensure that performers and models depicted in sexually explicit scenes are older than 18. More active enforcement of this provision may better protect minors from participation in the creation of child pornography.8 Assuming that strict enforcement of this provision can withstand constitutional scrutiny, such enforcement might also have the effect of increasing the rate at which the adult online Web industry consolidates.
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From page 214... ...
In an online environment, it would be much simpler and easier for the citizen to simply forward the image. 1lThe CyberTipline, operated by the NCMEC, is a national reporting mechanism for use by citizens to report to law enforcement authorities apparent instances of sexual exploitation of children; possession, manufacture, and distribution of child pornography; online enticement of children for sexual acts; child prostitution; child-sex tourism; and child sexual molestation.
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From page 215... ...
Under the INHOPE approach, European ISPs support a non-governmental organization, staffed by trained specialists to identify child pornography and funded by the ISPs, whose role is to advise Internet service providers of possible postings of child pornography.l2 (Through Internet "Hotlines," this organization takes tips from the public, but screens them for credibility.) Such advisories do not have any binding effect on ISPs, but in fact many ISPs cooperate with such advisories by taking down the offending material because these advisories provide more authoritative advice than that provided by members of the public.l3 In a U.S.
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From page 216... ...
However, in an online environment in which it is very difficult to differentiate between adults and minors, it is not clear whether this can be achieved in a way that does not unduly constrain the viewing rights of adults. Thus, as one illustrative example, the government might offer a grant of immunity from prosecution under obscenity laws to Web site operators who use age verification systems to prevent minors from accessing such material.
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From page 217... ...
· Obscenity prosecutions are often difficult to undertake, because community standards are often not knowable in advance of an actual trial. By contrast, child pornography is based on standards that are often easier to identify (e.g., is this material sexually explicit?
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