Legal Issues 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. 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 The above standards have also been extended for the online medium. 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 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." 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] 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] 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] 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. 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: 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. 1. Lecture by Eric Roberts for Computers,
Ethics, and Social Responsibility at Stanford University. [back] |