Technical, Business, and Legal Dimensions of Protecting Children from Pornography on the Internet Proceedings of a Workshop (2002) / Chapter Skim
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17 Constitutional Law and the Law of Cyberspace
17 Constitutional Law and the Law of Cyberspace
Pages 110-123
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From page 110... ...
The market, too, participates in this zoning of pornography from children; pornography costs money, and children obviously do not have a lot of money. Yet the most important thing facilitating this regulation is that, in real space, it is relatively difficult to hide the fact that you 110
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From page 111... ...
lust 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.
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From page 112... ...
For example, if you become known as a critic of that software, mysteriously your Web site may appear on the list of blocked Web sites, which becomes an extraordinary blacklist of banned books. The problem with this blacklist of banned books is that the public cannot look at it.
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From page 113... ...
It does not have the over-inclusiveness problem that the other solutions tend to have. Because the incentive is structured so that all we need to worry about is material harmful to minors, it does not create an incentive to block much more broadly than what the law legitimately can require.1 If Geoff Stone2 were here, he would say, "Yes, but aren't you forcing Web sites to speak, by forcing them to put these little tags on their systems?
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From page 114... ...
In my scenario, the burden is borne by Web site administrators, who already are spending extraordinary amounts of money developing their Web pages. It is just one more tag.
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From page 115... ...
Constitutionally, opting out clearly is different from opting in. The way to analyze the constitutional balancing test is as follows: is the additional burden placed on the 100 million people who do not have children and do not care about protecting children worth the advantage of making sure that the 60 million people who do want to protect children do not have to take any extra steps?
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From page 116... ...
PICS technology, the Platform for Internet Content Selection, enables site rating in a wide range of circumstances. PICS is the same technology as P3P, the Platform for Privacy Preferences Project, but is applied to material harmful to minors.
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From page 117... ...
If the parents believe that this material properly is considered harmful to minors, and the site refuses to label it as such, then there would be an adjudication of whether this is material harmful to minors. I am much happier to have this adjudication in the context of a First Amendment tradition, which does limit the degree to which you can restrict speech, as opposed to a cyberspace board meeting, where the real issue is, "How is this going to play in the market if people think we're accepting this kind of speech?
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From page 118... ...
The key point is to shift the burden, make it general enough that people have an incentive to cooperate, and enable bounty hunters so the marketplace can police it and you would not necessarily need law enforcement.
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From page 119... ...
Dick Thornburgh said that, in a qui tam case, the evidence brought forth as the basis of the action must be something peculiar to the individual. A person cannot walk in off the street and bring a qui tam claim by showing a simple fact such as a lack of a tag on a program.
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From page 120... ...
It will be blocked, so I'm not going to have that speech on this site (without labeling) ." Yet we often forget that, with the existing censorware, Web sites already make the same judgment.
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From page 121... ...
As the court said, the sort of sexually explicit speech that appropriately is kept from children is like obscenity to children. To date, "harmful to minors" has been interpreted by the Supreme Court to include sexually explicit speech only.
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From page 122... ...
Under the existing system, we have so many examples of overreaching and private censoring that some way to undermine it is needed. Given the international context for the Internet, this solution is not a Mob Schloss asked who would label orphan content, which is floating around on the Internet or on hard disks but whose publisher is dead or not paying attention, and how the binary indicator a yes or no answer to the question of whether something is harmful to minors would hold up over time as community standards changed.
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From page 123... ...
When you set up a simple system for people to comply with, and there is some threat that they will be attacked by the United States if they are not in compliance, then it will be easier for most people to comply. Tiny sanctions and tiny compliance costs actually have a significant effect on convincing people to obey.
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