are a child. A kid might use stilts and put on a mustache and dark coat, but when the kid walks into a pornography store, the pornographer probably knows that this is a kid. In real space, age is relatively self-authenticating.
This is the single feature of the architecture of cyberspace that makes this form of regulation difficult to replicate there. Even if you have exactly the same laws, exactly the same norms, and a similar market structure, the character of the original architecture or technology of cyberspace is such that age is not relatively self-authenticating.
The question, then, is how to interact with this environment in a way that facilitates the legitimate state interest of making sure that parents have the ability to control their children’s access to this stuff, while continuing to preserve the extremely important First Amendment values that exist in cyberspace. The initial reaction of civil libertarian groups was to say the government should do nothing here—that if the government did something, it would be censorship, which is banned by the First Amendment. Instead, we should allow the private market to take care of this problem.
Although the U.S. Congress passed the Communications Decency Act (CDA) of 1996, there is fairly uniform support among civil liberty organizations to strike it down for that very reason. When Bruce Ennis argued this case before the Supreme Court, he said, “Private systems, these private technologies for blocking content, will serve this function just as well as law.” And the Court avers the fact that there exists private technology that could serve this purpose as well as law.
But the thing to keep in focus is that just as law regulates cyberspace, so does technology regulate cyberspace. Law and code together regulate cyberspace. Just as there is bad law so, too, there is bad code for regulating cyberspace. In my code-obsessive state of California, we say there is bad East Coast code—this is what happens in Congress—and bad West Coast code, which is what happens when people write poor technology for filtering cyberspace. The objective of someone who is worried about both free speech in cyberspace and giving parents the right type of control should be to find the mix between good East Coast and good West Coast code that gives parents this ability while preserving the maximum amount of freedom for people who should not be affected by this type of regulation.
In my view, when the civil liberties organizations said government should do nothing, they were wrong. They were wrong because it created a huge market for the development of bad West Coast code—block-