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The wrong answer to child porn on the Net

Attorney Doug Isenberg says the authors of a new online child protection law have fallen into the same trap as other well-minded proponents who attempt to take on this issue.

Legislation recently signed by President Bush that creates the national "AMBER Alert" system also includes two little-noticed sections on law and technology, each of which is likely to be challenged by First Amendment advocates.

The new law is formally known as the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003" (and casually as the PROTECT Act). It has received widespread publicity for its coordination of nationwide efforts to locate missing children and their abductors, an effort that gained momentum thanks in part to the work of Ed Smart, father of formerly missing Salt Lake City teenager Elizabeth Smart. Elizabeth and her family attended a White House signing ceremony for the new law on April 30.

The PROTECT Act does much more than simply coordinate the America?s Missing: Broadcast Emergency Response (AMBER) alert system. It also includes a section titled "Truth in Domain Names" and a new ban on so-called virtual child pornography.

The provision relating to domain names makes it illegal to use a "misleading domain name" with the intent to deceive a person into viewing obscenity or to deceive a minor into viewing "material that is harmful to minors" on the Internet. The law provides for fines and imprisonment for up to four years.

Like so many of our lawmakers' attempts to protect children online, this new law is understandable but also perhaps unconstitutional. First of all, what is a "misleading domain name"? It is not defined in the new law. One can imagine, for example, many domain names with the words "girls" or "boys," that could be used for Web sites that might contain illegal child pornography or innocuous fashion, sports and entertainment information for high school students. If the law is not precise, it may violate the First Amendment.

In addition, the phrase "harmful to minors," while defined in the PROTECT Act, has proven problematic in an Internet context. Last year, the U.S. Supreme Court refused to lift a ban on enforcement of the Child Online Protection Act, which a lower court had said contained an unconstitutionally vague definition of material that is harmful to minors.

Though not identical, the new law contains a similar definition, part of which references "prevailing standards in the adult community as a whole."

On the Internet, which has no geographic boundaries, it's quite uncertain whether such prevailing standards can really exist. As a result, this section of the PROTECT Act is likely to face a First Amendment challenge.

Further, it's unclear whether these new restrictions on domain names are even necessary, given that obscenity and child pornography already are illegal in the United States, regardless of what domain name is used to identify a Web site with that type of content. Another federal law on domain names--the Dot Kids Name Act of 2001, which later this year will establish a second-level domain for child-friendly content--will likely prove more effective in creating safe Internet zones, and it avoids the First Amendment issues of the PROTECT Act.

The PROTECT Act also expands the criminal definition of "child pornography" under U.S. law by including digital images, computer images or computer-generated images that are "indistinguishable from" minors engaging in sexually explicit conduct, even if no minors were involved the creation of the images.

This new ban on virtual child pornography comes after last year's ruling by the U.S. Supreme Court against the Child Pornography and Prevention Act of 1996 (the CPPA).

If the law is not precise, it may violate the First Amendment.
That law expanded the definition of child pornography to include images that only "appear to be" minors. In finding that the CPPA violated the First Amendment, the court said the law was overly broad because it "prohibits speech despite its serious literary, artistic, political, or scientific value," such as, potentially, performances of "Romeo and Juliet" and the acclaimed movies "Traffic" and "American Beauty."

Immediately after last year's ruling on the CPPA, lawmakers went to work drafting a new law that, they hoped, would withstand a First Amendment challenge. "Since the Supreme Court's decision...defendants in child pornography cases have almost universally raised the contention that the images in question could be virtual, thereby requiring the government, in nearly every child pornography prosecution, to find proof that the child is real," according to congressional findings in the PROTECT Act.

That child pornography, on the Internet and elsewhere, is a real problem is clear, but whether the new law will be effective--and enforceable--is not.