Outline

Introduction

History of Acts and Laws Regulating Online Content

Laws to Protect Minors

Recent Cases

Statutory Rape

Online Adultery


Legal Issues

Introduction

The explosive growth of pornography on the Internet has raised significant legal issues. Whether distributed legally or illegally, pornography is harmful to children, especially on the Internet, where minors have easy access to these materials. What laws exist to regulate the spread of indecent materials on the net? How does the law protect children from online pornography?

While pornography is legally limited to adults, in the online world, children can easily access those materials. They can also be exposed to obscene material that is distributed illegally.
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History of Acts and Laws regulating online content

In 1996, the U.S. Congress passed the Communications Decency Act (CDA). Its purpose was to provide protections against harassment, obscenity and indecency to minors by means of telecommunications devices. "This act attempted to impose criminal sanctions on any person who knowingly 1) makes, creates, or solicits, and 2) initiates the transmission of any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person". [1] In 1997, the Supreme Court unanimously upheld a lower court's ruling that declared a portion of the CDA unconstitutional because it violated the freedom of speech protected by the First Amendment. However, certain provisions were left intact, including parts dealing with child pornography, child predators, and Internet obscenity, as discussed below. [2]

Obscenity

In Miller v. California (1973), the U.S. Supreme Court suggested that the Constitution does not protect "obscenity" and that the state and federal government can declare obscenity illegal if it meets the following three criteria:

"1. The average person, applying contemporary community standards finds the material as a whole is directed toward an unhealthy, abnormal, obsessive, morbid or shameful
interest in sex; and
2. The material depicts sexual conduct (ultimate sex acts, masturbation, torture, bondage, sex with animals, excretory functions or lewd exhibition of the genitals) in a patently
offensive manner substantially throughout the material.
3. The material, as a whole, lacks serious literary, artistic, political, or scientific value."

The above standards have also been extended for the online medium.
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Laws to Protect Minors

Through Ginsberg v. New York (1968), the U.S. Supreme Court established a three-part obscenity test to protect minors and define what is illegal for distribution to minors:

"1. The average person applying contemporary community standards would find that it has a predominate tendency to appeal to the unhealthy or shameful interest of minors in
sex.
2. The average person applying contemporary standards would find it patently offensive to adults to make this sexually explicit material available for minors.
3. It lacks serious literary, artistic, political or scientific value for minors."

Further, there are indecency laws that protect children from the harmful effects of pornography. It is illegal to use the telephone, radio or broadcast television to transmit indecent materials. In F.C.C. v Pacifica Foundation (1978), the U.S. Supreme Court defined indecency as "any language or material that depicts or describes in terms patently offensive as measured by [national] contemporary community standards for the [telephone or] broadcast medium, sexual or excretory activities or organs."

The Federal Communication Commission (FCC) had the responsibility of regulating and screening the content of broadcast media. Although indecent material is not illegal when distributed strictly to adults, it is illegal when broadcast over phone, radio, or television because it puts children at risk and exposes them harmful materials. However, it is currently legal to distribute, sell, or display indecent material over the Internet, as long as it is non-obscene.

On October 21, 1998, President Clinton signed The Child Online Protection Act (COPA). Its purpose was to restrict minors (children under 17) from accessing commercial Internet sites containing "harmful material." The bill seeks to direct commercial Web site operators to screen out harmful material, making it a federal crime to commercially distribute material considered harmful to minors, with up to $150,000 of penalties for each day of violation and a maximum sentence of six months in prison. It also required that web sites that can be accessed by children under 13 years of age must post their policy describing the information they would gather about site visitors. Furthermore, these sites would need to have a parental notification and approval system implemented. [3]

However, the same day it was suppose to go into effect, a US district judge ordered a preliminary injunction against it, stating that it threatened First Amendment free speech rights. [4]

Child Pornography

The laws concerning child pornography are more clear and direct. Child pornography is illegal. Depictions of minors (children under 18) engaging in sexual acts are strictly prohibited in the U.S. The supreme court upheld those laws in New York v. Ferber (1982) and Obsborne v. Ohio (1990). It stated that "child pornography, like obscenity, is unprotected by the First Amendment if it involves scienter and a visual depiction of sexual conduct by children without serious literary, artistic, political, or scientific value." Federal laws also prohibit the transmission of child pornography over the Internet. Child pornography is defined as a visual depiction of a child under the age of 18 years engaged in actual or simulated sexual conduct, including a lewd or lascivious exhibition of the genitals. This is an absolutely definition, and unlike the criteria for obscenity, is not up to community judgement. [5]
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Recent Cases

Despite the failure of laws such as the Communications Decency Act and Child Online Protection Act to get past the Supreme Court, other laws designed to regulate offensive online material have had some success.

Some pornographers insert meta tags (tags indicating the content of the site for use by search engines) of toy names into their web pages so when children do searches for Barbie or G.I. Joe, they end up getting pornographic sites. A UK company named Envisional that polices the Internet for trademark violations found 12,000 examples of this type of meta tag insertion. They believe that pornographers are diverting traffic to their site to increase hit rates so they can charge higher advertising rates.

Fortunately, in the UK, there are laws that protect against this. It is illegal to use registered trademarks or meta tags to lure children to obscene material. [6]

Furthermore, the US Supreme Court recently defended a 1996 Virginia state law which prohibits employees (including university staff and faculty) from using state computers to look at pornographic sites. Although a federal judge and several professors argued that the law violated First Amendment rights, the U.S. appeals court disagreed, saying that prohibiting access on state owned computers is consistent with the First Amendment. The Supreme Court agreed by refusing to review the decision. [7]

Laith Alsarraf, owner of AdultCheck, a company that verifies a person's age through means such as credit card numbers and other identification before allowing access to pornographic web sites, claims that "companies are becoming more aware of their responsibility to keep adult material away from children." And he has the numbers to prove it. AdultCheck services 46,000 sites, most of which display pornography. He stated that "3 million people pay $16.95 a year for the service, with about half the money going to Web site owners." [8]

However, in other recent cases such as Doe v America Online, the law has failed to protect minors. An eleven year old boy and two others were forced to perform sexual acts (which were being videotaped) with two adult males. The mother of the boy sued AOL because one of the men marketed the tapes through America Online chat rooms. The plaintiff claimed that since AOL knew of the man's use of its chat rooms, it violated Florida state statutes that made it illegal to distribute and sell obscene material. The plaintiff also accused AOL of common law negligence. The court ruled that AOL is not liable, stating, "The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law. To the contrary, once a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting." "If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement -- from any party, concerning any message. ..[T]he sheer number of postings on interactive computer services would create an impossible burden in the internet context." [9]
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Statutory Rape

With the growing popularity of online chat rooms, there have been a growing number of cases of sexual predators luring minors to meet with them and give up their address and person information online. [10]

Current statutory rape laws prohibit anyone who is of and or over the age of consent to have sex with someone who is under the age of consent. The age of consent varies from state to state and across nations. It is generally 16-18. [11] It does not matter if the sex is consensual because the younger person is too young to give legal consent. It also does not matter if the younger person lied about his or her age; the older person has the responsibility of making sure their actions are legal.

Therefore, online sexual predators who are caught having sex with minors are punished with terms in prison equivalent to regular (non-online) sexual predators. There are currently no laws against having cybersex with minors, as it is impossible to determine the actual age of chat room participants, and no physical acts are involved.
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Online Adultery

Adultery is when a married person has sexual relations with someone other than his or her spouse. In the physical world, committing adultery is grounds for divorce. But can one commit online adultery? Is having sexually explicit conversations online with someone who is not your spouse considered cheating? These are the questions we have to figure out in our modern world.

The article below discusses a man who has filed for divorce after discovering his wife's online relationship:
http://www.saferdating.com/netadultery.htm.

When asked about online adultery, a priest answered that, "adultery is adultery, even if it is virtual." Glenn Stanton, author of Why Marriage Matters, agrees saying "It's the matter of the heart and the matter of the soul that really does matter. It's about not being faithful to your partner in giving your heart, your feelings, your emotions to somebody else. Whether or not that's done physically is, in some ways, of small consequence." Indeed, this seems to be a popular view expressed by many. [12]

With advances in technology, and when activities such as virtual reality sex become more prevalent, society and the courts will be forced to evaluate existing standards and make further decisions on what should be acceptable or not. Meanwhile, it is up to couples to communicate and be open and understanding about things going on in each other's lives. And it is up to parents to protect their children from Internet predators. Sites such as http://www.family.org and http://internetwatch.hypermart.net/body.htm offer excellent safety information and advice.
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1. Lecture by Eric Roberts for Computers, Ethics, and Social Responsibility at Stanford University. [back]
2. For more information regarding the CDA, please see http://thomas.loc.gov and http://www.epic.org/CDA/exon_bill.html. For complete text of the Supreme Court ruling, please see http://laws.findlaw.com/us/000/96-511.html. [back]
3. Please see http://www.epic.org/free_speech/censorship/copa.html for the full text. [back]
4. Please see http://www.cnn.com/US/9902/02/internet.decency and http://www.epic.org/free_speech/censorship/final_hr3783.html for more on this ruling. [back]
5. Please see http://www.family.org for more general information on this topic. [back]
6. London Financial Times Limited. November 16, 2000, Thursday London Edition 1 [back]
7. Daily News. "Supreme Court upholds Internet anti-pornography law." By Martin Stone, January 10, 2001, Reported by Newsbytes.com, http://www.newsbytes.com. [back]
8. http://europe.cnn.com/TECH/computing/9901/23/internet.pornlaw/. [back]
9. Quoted from http://www.phillipsnizer.com/int-art113.htm. Please see http://techlawjournal.com/courts/zeran/70626opn.htm for more information on this case. [back]
10. For examples of such cases, see http://www.athensnewspapers.com/1997/100897/1008.a2rape.html
http://www.operationlookout.org/lookoutmag/girl_lured_over_internet_is_found.htm
http://www.savannahmorningnews.com/smn/stories/082298/LOCinternetrape.html [back]
11. Please see http://www.ageofconsent.com/ageofconsent.htm for the age of consent at various locations. [back]
12. Quoted from http://www.fotf.org/pastor/family/a0012236.html. Also see http://www.netaddiction.com/is_cybersex_cheating.htm and http://www.usatoday.com/life/cyber/tech/ctf531.htm for a further discussion of this topic. [back]