Parents, tech outdo lawmakers on Internet safety

Patricia Nell Warren has witnessed firsthand how futile government attempts to protect children on the Internet can be.

Warren, a novelist who frequently writes about gay and lesbian themes, was a plaintiff in a lawsuit filed in 1996 in Philadelphia to overturn the Communications Decency Act. She and the American Civil Liberties Union won when the U.S. Supreme Court eviscerated the CDA's prohibitions on "indecent" or "patently offensive" content online.

More than 11 years since that lawsuit was filed, however, the rules regarding Internet pornography are anything but settled. Warren is part of a second lawsuit, filed in 1998 against a second Net-censorship law, the Child Online Protection Act, but a lethargic court system has not delivered a final verdict. Appeals will take longer still.

The obstacles to politicians enacting sweeping online censorship laws--and having them actually be effective--are not merely procedural. They're also constitutional. Because of the First Amendment's potent free-speech guarantee, congressional attempts to shield young eyes from online prurience have routinely been foiled, and parents and schools have come to rely on technological solutions such as filtering or monitoring software.

Even the hardly reactionary justices on the U.S. Supreme Court recognized the merits in this approach. Filtering software can "limit a computer's access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features," they noted in the Communications Decency Act case. Another benefit: Software can block overseas sites that U.S. criminal laws couldn't hope to touch.

And in March of this year, Congress' efforts to muzzle pornography on the Web were dealt yet another setback when a federal judge ruled a 1998 law, the Child Online Protection Act, or COPA, was unconstitutional and violated Americans' First Amendment rights. In his decision, in response to a lawsuit filed by the ACLU, the judge said COPA was overly broad and would undoubtedly "chill a substantial amount of constitutionally protected speech for adults."

State child protection laws, too, have largely failed to pass constitutional muster. New Mexico, South Carolina, Ohio, Michigan, and Virginia are among the states that have unsuccessfully attempted to target Internet pornography or material deemed "harmful to minors." In the Virginia case, which is representative of the rest, the 4th Circuit Court of Appeals ruled that the state's censorship attempt would "unconstitutionally chill free speech."

Another source of legislative futility is Congress itself: innumerable proposals announced with a brief blaze of publicity ended up quietly fading into oblivion. Last year's proposal to require Web labeling fell into that category, as did a bill envisioning an Internet porn tax a year earlier. Another 2006 measure, which would have compelled schools and libraries to block access to social networking sites such as MySpace.com and Facebook.com, died after zooming through the House of Representatives but not the Senate.

It would be misleading, though, to suggest that all laws aimed at online raunch and ribaldry were forcibly incapacitated. One notable exception to that rule is the Children's Internet Protection Act, which (like the 2006 proposal) tried to force libraries and schools to filter their Net connections. After a bitter fight in lower courts, the Supreme Court upheld CIPA by a 6-to-3 vote. Because the law merely encouraged the use of the software by tying it to federal funds, the justices reasoned, libraries with objections could always opt out. "To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance," they said.

A few lesser-known bills have become law without much fuss. That means a ban is currently in place on using "misleading" domain names to trick minors into viewing racy material. And, according to the Child Protection and Safety Act, it's a crime for Webmasters to use innocent words such as "Barbie" or "Furby" but actually feature pornographic content on their sites.

But such examples are rare, and relatively few of those laws remain on the books today. Meanwhile, software companies such as Microsoft have pushed ahead with improved parental control features. Windows Vista provides additional options, including child monitoring and time-and-date restrictions. Apple's Mac OS X already sports many of these same features, and better time-and-date bans and remote configurability, are supposed to arrive this year with OS X Leopard.

Filtering software has its own problems, including overbreadth and programming mistakes. But at least those problems aren't likely to land someone in jail because a prosecutor deems Web sites that are legal elsewhere in the country to violate his or her community's standards.

That's what worried Warren, the novelist who writes about characters such as a 14-year-old geek who is questioning his own sexuality. "I'm concerned about people in this country who view the entire subject of writing about gay and lesbian life as patently offensive," she testified during the Communications Decency Act case. "My concern is with how some individual or group of individuals might choose to interpret that in the course of bringing charges against me with the Justice Department."

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