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April 12, 2007

COPA Down, Senate Tries Again

Senators Pryor (D-Arkansas) and Baucus (D-Montana) are proposing legislation that would require adding a tag to web sites that would identify pages as being harmful to minors.  The tag is a leftover proposal from the Clinton administration that would give web filters and browsers an easy identified to block harmful material, whatever that is.  The proposed act does define "harmful material:"

Material that is harmful to minors,--The term "material that is harmful to minors" means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene, or that a reasonable person would find--

(A) taking the material as a whole and with respect to minors, is designed to appeal to, or designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors--

(i) an actual or simulated sexual act or sexual content;

(ii) an actual or simulated normal or perverted sexual act; or

(iii) a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taking the material as a whole, lacks serious literary, artistic, political, or scientific value for minors.

If similar language conceptually did not work to save COPA when a federal judge finally issued a permanent injunction against that act, this one is going to have a lot of Constitutional problems if it ever passes.  The legislation purports to cover all of the Internet as did COPA.  Despite this, no one believes such an act would have extra-territorial application.  It won't stop foreign sites distributing pornographic materials from complying and could conceivably drive domestic adult material producers overseas.  Or they could add the tag and still make boatloads of money. 

Then there is the sticky issue of materials that qualify for the tag as a matter of judgment:  the online literary materials with adult themes that are appropriate for young adults; sex education material;  recognized artistic efforts (Mapplethorpe anyone?);  or even web video sites that share network television clips that some perceive to be rife with gross sexuality (Fox, anyone?).  There is no safe harbor for large publishing organizations that have adult-oriented material in their mix.

My prediction if Cyber Safety for Kinds Act of 2007 passes:  five years or more of litigation and an injunction against enforcement.

April 12, 2007 | Permalink

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Comments

How would you write structure a law aiming to protect minors against harmful material (what ever that is)? Ignoring the extra-territorial problem. Can you write such a law or are the first amendment issues simply in-compatible with the idea of protecting minors against harmful material?

Posted by: Simon Cast | Apr 13, 2007 9:08:50 AM

In my opinion the legislation is to onerous, vague, it would have too much side effects, and also it doesn't accomplish it's main purpose.

Posted by: Alexis Acevedo | Jun 14, 2007 3:17:41 PM

In my opinion, even though of the good faith and intention of the proposed legislation, I believe it lacks control over international websites. This bill as is written does not satisfy and includes all the necessary elements for its effective implementation. For example the proposed definition to “MATERIAL THAT IS HARMFUL TO MINORS” is broad and subject to misinterpretation.

I also believe that in such an important matter, the legislators that created this bill should not delegate on NTLA for the creation of the common content description tag that will provided consumer with advance warning and information about the content of the websites. Congress in the following bill should be responsible for creating these tags since they are the creators of the public policy.

This legislation piece could provide a good opportunity for round table discussion between Congress and the private industry in order to improve and avoid the same mistakes made in COPPA. This round table discussion could lead into agreements that could eventually make unnecessary this bill.

Posted by: E Candelaria | Jun 16, 2007 1:18:09 PM

There is a famous saying that goes: “beauty is in the eye of the beholder”. It is easy to believe that said quote has nothing to do with the topic at hand. I, however, think differently. If every person has a different perspective on what “beauty” is, how can we expect that every person in the United States alone will come to share the same views on what “harmful material for minors” is?

Of course, we must understand that this presents a terrible problem. It is obvious that it is necessary to create legislation that will protect our children from material that would rob them of their innocence, but how far is too far? Although children are said to be this country’s top priority, adults who don’t have children in their households or have different priorities in mind tend to think that their freedom of expression and their right to intimacy are more important. There is a fine line between protecting children from “harmful material for minors” and intruding in citizen’s intimacy.

In the past, legislations have been created to try to keep tabs on websites that have highly sexual content, or pornography. Most of these websites have been described as “obscene”; said term has been defined as: “offensive to morality or decency, indecent, depraved; causing uncontrolled sexual desire and/or abominable, disgusting and/or repulsive”. Not everyone agrees. Defenders of pornography argue that not all pornography is obscene. Detractors argue that all pornography is undoubtedly obscene. As I said earlier, “beauty is in the eye of the beholder”, hence, “whether pornography is obscene or not depends on the one who looks”.

Who should prevail?

During the course of President Clinton’s days in office, legislation was created in order to try and filter pornographic websites so that children would not have access to it. This legislation, known popularly as “COPA”, received a permanent injunction against it from Federal Courts. Now, in the year 2007, the Senate is once again trying to tackle this topic by creating the Cyber Safety for Kinds Act of 2007 (CSKA). The purpose of this act is to require websites to add a tag that would identify pages as being “harmful to minors”.

However, it is important to define what “harmful to minors”. According to this legislation, “material that is harmful to minors” is: “any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene, or that a reasonable person would find:
a. taking the material as a whole and with respect to minors, is designed to appeal to, or designed to pander to, the prurient interest;
b. depicts, describes, or represents, in a manner patently offensive with respect to minors—
i. an actual or simulated sexual act or sexual content;
ii. an actual or simulated normal or perverted sexual act; or
iii. a lewd exhibition of the genitals or post-pubescent female breast; and
iv. Taking the material as a whole, lacks serious literary, artistic, political, or scientific value for minors.”

Even though the senators have most certainly tried to define “material harmful to minors”, they still leave a few definitions behind. What exactly is “prurient interest”? Who determines what “manner patently offensive with respect to minors” is? These are just a couple of questions that arise from a simple reading of the proposed legislation. I am sure that many more questions could be asked after a thorough reading.

Personally, I believe that children should be our utmost priority. We should protect them, love them and raise them to be men and women that will guide our country into a better and brighter future. I don’t see how it can be beneficial to them to see any type of sexual encounter; I understand that seeing a man and a woman (or two men or two women) having sex before they understand what sex is may actually scar them. It takes a long time for parents to get enough courage to explain to their children where babies come from; how will they get the courage to explain to them why the act in which they are created is being broadcasted over the Internet or the television, for the world to see?

Nevertheless, I respect adult’s rights to see these types of programs, videos and pictures. I don’t understand them, and I don’t have to; it’s their choice.
So… what do I think about this legislation? It is quite simple: if it could be implemented without intruding on people’s intimacy rights then I am all for it. Parents should be able to have peace of mind in knowing that their children will not be able to access websites that are inappropriate for their tender ages. Children should not be able to see things that are too sensitive even for some adults. It is a good initiative of these senators to try and create this type of legislation.

However, their efforts fall a bit short. I don’t believe that these requests (asking websites to place tags to identify their material as being harmful to children) are exactly fair. Not only does the legislation fail to provide all the necessary definitions in order to determine what can be “harmful to minors”, but it tries to encompass many topics at once. It is impossible to ask every website in the world to tag their sites this way. Not only is it too onerous, but, who is going to determine whether the websites are harmful to minors or not? This piece of legislation fails to do so effectively, so we have to rely on someone to determine this. Who will it be? In whose interest will this person be working?

And also… who is going to enforce this law outside of the United States? We keep forgetting that we are not the center of the Universe and that there are many pornographic websites that have not been created by Americans. Who is going to tell Europeans that they should tag their websites? Will Asians even care? European, Asian, African and other cultures are different from ours. Who will determine what “material harmful to minors” to them is? And what purpose would the CSKA have if in the end, children will be able to access international pornographic sites that are not under United States jurisdiction?

Yes, it is important to protect our children. Yes, I do believe that the government should do its part to try and protect them. However, when it is done with legislation that is vague and almost impossible to enforce, then we must realize that we still have a long way to go. I am sure someday humanity will come up with some global way to protect children’s sensitivity without intruding in adult’s rights and in a way that it will be able to be enforced by anyone in the world.

Unfortunately, this day isn’t today.

Posted by: M.Figueroa | Jun 16, 2007 3:40:59 PM

Historically, this type of legislation had brought a lot of constitutional controversies. How this controversies had been resolved and how they will be resolved depends more on politics than in law interpretation (Patriot's Act).

As a matter of law, we should remember that constitutional rights are not absoluts. If there is a compeling interest, the state can regulate certain conducts and the constitutional rights have to yield a little. And we all know that there is not a perfect piece of law when it comes to talk about a matter of free speech. Like there's not a perfect medicine, they all try to minor the symptoms of the illnes, there won't be a perfect legislation that will protect all children from been exposed to obscene material; or will avoid that a person could make a lot of money even if he tags his web page. But, if the legislation at first sight seems to minor the probabilities that a child could be exposed to obscene material and does not produce a harmful chilling effect on free speech, it will have my bless.

About the arguments that some artistic or educational material could fall on the description of obscenity by this law, I have to repeat what we've learned in class; obscenity is an abstract term that could not be strictly define, but brother, for christ sake, we all know that something is obscene when we see it !!.

There's time that we as parents pay more attention on what our sons and daughters are been exposed. Instead of been worry on making a lot of money, or where I will hang out with my friends today, or if I'll go shopping or do my nails !!, it's time that somebody (parents) to spend more time with our kids. And that means to investigate what web sites really have an artistic or educational material, and which ones are clearly obscene. That's sensorship and we as parents have the right, no, the duty to check on what our sons and daughter are been exposed. Remember, they don't asked to be brought to this sorry world, you made that decision. So it's time to confront your decision and be responsible !!

Posted by: Moises Rodriguez | Jun 17, 2007 5:51:42 AM

This legislation intends to tag all "harmful material" for easy recognition, so people can effortlessly identify and block this type of material if they which.

The problem I see with this legislation is that it won’t be enforceable to foreign countries where a big percent of this material originates making the legislation useless.

In the other hand, I don’t think is feasible to implement or enforce this legislation, since the category of “harmful material” is very subjective and it would need people actively trying to establish which material is harmful or the courts will be overwhelm with the amount of workload coming fro this type of cases.

Posted by: LCuevas | Jun 17, 2007 8:42:42 AM

I think the propose legislation won’t pass the strict scrutiny of the United States judges. The restriction to freedom of expression is unnecessary to achieve the objectives of such legislation, there are other alternatives that are less restrictive, for example delegating in parents of the minors to acquire such filters an install them in the computers in their home, accordingly, the propose legislation is to broad and vague and violates first amendments constitutional rights. No to mention that it will be very difficult to complies with because it will be very expensive for certain website to fund technological cost of this implementation.

Posted by: Carolina Guzman | Jun 17, 2007 6:59:26 PM

Its a start....

The idea of the tag is not to control the content of the website nor to interfere with the promoter's constitutional rights. The tag is another idea towards the prevention of this kind of material, obscene as it is called, reaching sensitive audiences, such as minors. The tag would not only create awareness as soon as the website is reached, but it would also prevent the website to be opened if there is a filtering system enabled in order to prevent this type of material to reach the mentioned audience. It is a new way to arm homes (with minors), schools, or any other sensitive groups, with another weapon to attack this kind of obscene material.
It is true that producers will still come into the market and make "boatloads of money", because the tag will not prevent the production of the material but it will be another way to prevent it from reaching inappropriate audiences. The tag is more an aid for filtering systems than a production obstacle. The tag should have with it different specifications according to the website content in order to accomplish its purpose.
I see the positive side of the tag, first of all it would not infringe producers constitutional rights since it will not prevent them to distribute anything they want, and second, it will allow audiences to select which type of material to filter and which type of websites are appropriate.

Posted by: g.muratifernandez | Jun 17, 2007 10:36:26 PM

I think the Senators haven't realized the magnitude of the Internet. I don't think they have ever realize that with such infinite power and millions of users around the globe, that doest have the same conservative or cultural believes, this legislation will be a waste of time. I wonder if they took in consideration the fact that in many cultures, countries and societies pornography is legal, normal, and a great "business". Now, what I would like to know is how they are going to tag the millions of websites that are published every day? How they are going to prevent that a kiddo' with "moms" card or "big brothers Student Visa" enters to the websites? How are they going to talk and/or convince the billion-dollar industry to stop launching websites, funnier "tag" them? ? In theory it sounds great, the same as Communism sounds great! but!? Is it possible? Is it viable?
This kind of legislation remembers my country Puerto Rico, where Senators and Legislators trying to pass a law and have “something” in their “agenda” passes stupid and senseless legislation, which again, in theory are great but we have to be realistic and this “tag” thing is like trying to cover the sun with your hands.
The thing with the internet and technology, in my opinion, is that is so advanced that at the point you create a way to tag and block something, will be a “www.WareZsite.com” that will have a cracker to be able to see the contents. As the technology keeps evolving and moving forward, the harder to control and easier is for you to get a cracker, hack or simple command that will disable the “tag”, “lock”, password, etc.etc. etc. “limewire” anyone?
There are many verification agents, “netNanny”, parental filters provided by the ISP’s, and even routers have parental controls, but you have to teach them and tell them what sites can access and which ones can not or should not be accessed. Now, the new generation are raised with a computer in their hands, do you really believe that they aren’t aware or smarter than the simple instructions that comes with the router and disable them? I do so, I did it back with something that was called "DialUP", now with broadband it’s easier. There are as many password crackers as sites to be tagged.
Finally, what about Freedom of Speech? Lets take for example the erotic art, or digital art, both very popular, those are ways of expressions, its art, feelings, is that offensive material? Is nudity offensive? I think Its our “OEM” cloth, hard core images that’s another deal, but there are things and expressions that are not offensive, that for many is art, is a way of expressing themselves. For this and more, I think the legislation will end up in a drawer, it is vague and too general, who says what is offensive? What is soft or what is hard? When they answer that, then we can talk about “tagging” sites.

Posted by: OGonza | Jun 17, 2007 11:59:01 PM

This law sweeps too broadly & covers many areas that are not it's main objective. It is here where the law will suffer mosts of it attacks & where it will fail.

Posted by: Berrios | Jun 18, 2007 6:02:18 AM

1-This legislation intends to tag all harmful material for easy recognition, so people can effortlessly identify and block them if they which. By doing so, they are legislating based on the content of the expression which demands a strict scrutiny to pass the constitutional test.

2-The problem I see with this legislation is that it won’t be enforceable to foreign countries where a big percent of this material originates making the legislation useless.

3-Besides, I don’t think is feasible to implement or enforce this legislation since the category of “harmful material” is very subjective and it would need people actively trying to establish which material is harmful, or otherwise, the courts will be overwhelm with the amount of workload that will come from this type of cases.

4-In the other hand, this legislation also applies to virtual technology and I don’t see how this type of material is harmful for minors unless they look at it, and tagging the sites won’t stop minors from accessing these sites. I believe this legislation is unconstitutional, because, even though the government has a compelling interest in minors well being, the legislation is based on the content of the expression and since the legislation does not accomplish the goal that it was build for it won’t pass the strict scrutiny test. In addition, this legislation is intended for the internet which has the benefit of a greater freedom of expression.

Posted by: LCuevas | Jun 18, 2007 7:44:13 AM


Indispensable Legislation:

As times changes and technology keeps renewing everyday, every person in the globe is reach by necessity to use it or curiosity to understand it. Is no secret that a huge part of the ones curious enough to use it as is whole potential are our children. Families bought computers every day for many reasons, being the education aspect of technology one of the most important. Now danger is not outside our home’s doors any longer, now an even more dangerous situation is reaching our houses thru the web.
This legislation proposing the tag requires detecting a possible material that is harmful to minors is entirely necessary. Is impossible to just ignore the necessity for something that will protect in a secure manner the information or content that enter the computers. This legislation is intended to computers that have filter devices, that are commonly use by the government and the private sector. Other issue that could and definitely will impact this legislation is the definition of what is harmful material and the process and criteria to determine what passes and what not. The territorial application has to start as a local effort and continually spread to others jurisdiction; material that is harmful for children is a whole world problem. Cases like this have been raised before, like the explicit material seal that has to be in from of every record that contains explicit lyrics. The problem that this legislation faces is a matter of jurisdiction; how to enforce that every web master in the world complies. Is only a question of time, technology evolve and the legislation require to make it safer will develop eventually to create a safer environment for all.

CARLOS MORALES
CYBER LAW

Posted by: CARLOS MORALES | Jun 18, 2007 10:05:48 AM

Indispensable Legislation:

As times changes and technology keeps renewing everyday, every person in the globe is reach by necessity to use it or curiosity to understand it. Is no secret that a huge part of the ones curious enough to use It, are our children. Families bought computers every day for many reasons, being the education aspect of technology one of the most important. Now danger is not outside our home’s doors any longer, now an even more dangerous situation is reaching our houses thru the web.
This legislation proposing the tag requires detecting a possible material that is harmful to minors is entirely necessary, but extremely vague and onerous. Is impossible to just ignore the necessity for something that will protect in a secure manner the information or content that enter the computers. This legislation is intended to computers that have filter devices, that are commonly use by the government and the private sector. Other issue that could and definitely will impact this legislation is the definition of what are harmful material and the process and criteria to determine what passes and what not. The territorial application has to start as a local effort and continually spread to others jurisdiction; material that is harmful for children is a whole world problem. Legislation like this has been raised before, like the explicit material seal that has to be in from of every record that contains explicit lyrics. The problem that this legislation faces is a matter of jurisdiction; how to enforce that every web master in the world complies. Is only a question of time, technology evolve and the legislation require to make it safer will develop eventually to create a safer environment for all.

Posted by: CARLOS MORALES | Jun 18, 2007 10:28:24 AM

Copa , Cyber Safety Act for kids 2006, 2007, and tomorrow Cyber Safety Act for kids 2008?

It's not difficult to predict that the Cyber Safety Act for Kids 2007 as proposed by Senators Braucus and Pryor will face the same constitutional issues regarding the Free Speech amendment. I have no doubt that senators have the best of the intention to protect the children from the “in crescendo” on line pornography. It is clear too, that no parent wants their children to have access to pornographic websites. But we have to be realistic, this act would not resolve the problem and, in my opinion, it not even reduced it at all. First of all the higher percent of the pornography comes from the outside boundaries, so the pornography will still be available to everyone. Besides we have to consider the onerous that this act represents to the providers and the existence of less restrictives and onerous aternatives, for example the filters. I think this act will have the same end as Copa had.

When the court it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held that the statute's use of "contemporary community standards" to identify materials that are "harmful to minors" was a serious, and likely fatal, defect. American Civil Liberties Union v. Reno, 217 F.3d 162 (CA3 2000). The obscene and pornographic concepts are different and subjetives to each person and their beliefs. And last but not least a label, for example (L18) could bring just more curiosity by whom they are trying to protect. My opinion is that parents have better opportunities to achieve the government's goal, by getting out the computers from their children bedrooms, and to check them every time they are using it, those alternatives do not requiere a penny, and if that's not possible there is always the alternative of buying a filter.

Posted by: L.Ramis | Jun 18, 2007 10:40:10 AM

"Material that is harmful to minors"

A legislation protecting the minors from obscene material. We can say that the protection of minors (in every way)is always a priority for the STATE. The question is, puting the legislation in a balance, what rights are in jeopardy for the people that are not minors. In other words, is it worth it to sacrifice people's freedom of speech, in order to protect children from "harmful material"?

We know that minors have access to the internet in their homes and in their school. We know that almost every school have filters for their computers and are always supervised by their teachers, to protect them from "harmful material". In their homes, parents are the ones who are responsable for what their cildren sees. For example there are different television channels that as parent you don't want your kid to see. There are a lot of ways to do that, for expample:
1. Block the channel
2. Dont let him see television at that hour.

We are certain that a parent can control the access to the internet of their children. So we can say that these tags can help the parents know what sites are harmful to their children. If the minors have access to the internet without supervision they can know which site is harmful to them. Or, like it happened with the tagging of music, will this internet tagging help the unsupervised children find the obscene material? Tagging is not going to help the children from seeing obscene material, supervision does.

In the interenet there are millions of sites that in this legislation we can consider obscene to minors. I think there is going to be a problem enforcing this legislation on the web. A much more difficult problem is having the jurisdiction to enforce this legislation outside the United States. For example you can have tags on the pornographic sites made in US, but what are you going to do with the other million sites that are not made on the US. What happens when the parent or children dont see these tags and access non-US sites thinking that they are no "obscene".

I think this tag legislation may pass, but the problem is going to be enforcing it. We saw this in the music industry, but this is a different and much bigger industry.

G. Hernandez

Posted by: G. HERNANDEZ | Jun 18, 2007 12:31:16 PM

I honestly think that this new legislation by using the same definition of harmful material for children, will not subsist. This due to that said definition is a very subjective one, this being a common problem of this type of legislations. In addition to this, there is also the fact that it now adds an additional requirement to the websites to register pages before a Federal agency, so that it facilitates the task of content filters, so that it simplifies the parent task of monitoring what their children observe on the web. This results in a burdensome procedure for the people that have pages on the Internet, since is a requirement to be able to have a webpage available. By analyzing this I got to ask myself some questions.
I ask myself wasn’t the Internet free in it’s essence? What happens with all the content of your page that’s for example educational but at the same time might be considered by some to be "harmful"? Who says what is harmful and what is not? Will this definition vary according to the eyes by which it is looked upon? What happens with the cultures that do not consider certain things offensive as opposed to others? What happens with hypersentitive people, should they decide what’s harmful?
Would this open the door so that more people prefer to post their web pages underground instead of registering? What about all the companies that depend from the access through the Internet to its media and information? Are they affected, when educational content is included as "offensive or harmful" content? All this questions summon because clearly there is a problem between this legislation and freedom of speech.
In my opinion if the Internet began free, it was because there was a need for it to be that way. Harmful things exist in everyday life and the newspapers. The Internet is just another source of display of what happens in everyday life. In that sense, is the Internet responsible by third party actions? Aren’t we all considered third parties? In my opinion, harmful things should to be controlled and taught within each home. It is for these reasons that I consider that this legislation would not subsist before a strict scrutiny, because it raises certain issues by being “over breath” and vague at the same time.

Inter American University School of Law
Cyber Law

Posted by: Alexis Acevedo Colón | Jun 18, 2007 6:26:48 PM


Legislative Intention

Taking into consideration past legislation and how the courts had applied a Strict Scrutiny on First Amendment issues, the congressmen are now attempting to pass a law, for the safety of our children, making use of jurisprudence that had established the requirements for this type of regulation to ensure that this one could support this constitutional analysis.

They define what is harmful to minors, but they should establish a type of rating per age for the tag. What it’s harmful to a minor of 10 years is not necessary to a 15-16 year old health class student.

It does not matter if the site comes from outside the US, the task resides on who's going to determine whether that site is harmful to a minor or what type of rating give it. There are millions of pornography sites and millions more are added every day. The blocking companies had an enormous task analyzing every site to determine which to tag.

Remember that the controversy is what to "tag" for the safety of children not adults. Adults would have access to this type of sites.

I believe it’s a good start considering that the State had an ample margin in legislating for the general welfare and children safety is one of them.

II. Disclaimer

El disclaimer en su mayoría esta bien completo excepto lo relativo a editar o modificar lo que en este se escriba. La jurisprudencia nos ha dicho que esto crea causas de acción para aquellos que así se anuncien.

Elías Rivera

Posted by: Elias Rivera | Jun 18, 2007 8:29:13 PM

These days, the internet is our most used and most accesible method of expressing ourselves. It is also the best method in order to communicate with the rest of the world. In my opinion, this legislation is subject to many interpretations and many problems will surely arise. Primarily, the definition of obscene material is very vague and subject to many interpretations. In order to make this legislation more effective, the adaptation of the rest of the world is imminent due to the increasing amount of foreign material that is produced daily. Even though it is hard to see how this legislation will substantially reduce the amount of obscene material, it is necessary to take this first step and implement this legislation in order to protect minors from viewing these kinds of materials. The next step is to carry out legislations throughout the world and create a unified definition of what is obscene in order to create a uniform opinion in terms of jurisdiction. I do not think that this legislation violates any Constitutional rights because it does not stop you from expressing yourself or from producing the material, it only limits information that is carried to certain viewers.

H. Silen
Cyber law

Posted by: H Silen | Jun 19, 2007 8:57:57 AM


On the one hand, this legislation, which deals with two of the most cared about fundamental rights guaranteed by the U.S. Constitution, either implicitly or explicitly, (freedom of speech and right to intimacy), shall only prevail if and when it is compatible with the Constitution itself. It shouldn't be otherwise held constitutional.

On the other hand, there are many different, less expensive and even more secure means of preventing children under the age of 18 of accessing so-called "Harmful Material" Websites. What actually guarantees that children will never gain access to any one of these sites? There is no way. The best remedy to preventing children from accessing harmful material originates at home with their parents. It should be the parents' responsibility and only the parents'. It is presumed that parents will take better care of their children than anyone else would. Why then should there be such an onerous legislation that imposes economic burdens on website owners?

Also, we need to consider the applicability of this legislation. Does it apply to webpage owners whose webpage is registered in the US, and who live in the U.S. as well? Does it apply to webpage owners who live in another Jurisdiction, and whose webpage is registered in a jurisdiction other than U.S.'? How about if the webpage owner lives in the US but whose webpage, that which contains harmful material, is registered in another jurisdiction? Think about a kid who for some reason happens to access a webpage based in Spain in which there is Harmful Material, as defined by the Bill? How is this Bill supposed to address that? What I do know: It is up to Congress to pass the Bill into Law, or not; and up to us to continue the debate, and of course, to speculate, on such a HOT issue

Remember, what can be considered harmful material by some does not necessarily mean that it is considered harmful material by others.

Posted by: J Feliciano | Jun 19, 2007 10:39:01 AM

The legislation mentioned above has been proposed to keep certain control over material viewed by children. It consists of adding a tag to the pages that contain “harmful material” as described in order to identify it and this way preventing it from reaching minors. I personally believe that it is very good that legislators are seeking protection for children. It shows an act of humanity and consideration for all the families that try to teach their children certain values. On the other hand it seems to me that even though the good intentions are there, the legislation is not going to achieve what it seeks. The Internet has been evolving for many years now, and every single second it keeps evolving, and new things are constantly being created. I think that even if the legislation gets approved, it is an extremely difficult task to accomplish. One has to consider the fact that the Internet is a world wide web, and there are too many countries that will do what is in their hands to get this kind of material everywhere. So I personally believe that the continued advances in technology will not permit that this legislation work. Legislators and government officials need to work on different ways to achieve the goal of preventing these harmful materials of reaching children. And the area of Internet access has to be left to the parents and adults who are in charge of supervising their own children.

Posted by: AMonroig | Jun 19, 2007 3:04:21 PM

There is an old proverb that says: “We pay when old for the excesses of youth”. As a law student, now, perhaps more than ever, I’ve been fascinated with the belief on the term that paved the way to create the foundation of our modern judicial system. That is, of course, the Rule of Law. This concept, far from being labeled just a “mere abstract term” or a simple “Big Brother’s watching” stereotypic attempt, faces new challenges everyday and subsequently, in my humble opinion, should be looked as a beam of light against every shadowy intent of anarchy, specifically when such anarchy is evoked or stirred up to bring upon our children moral decay and depravation.

For those who confuse “Liberty” and instead advocate in favor of libertinism as an opportune tool to advance their own hidden agendas, let this “manifesto” or “short modern era blog” serve as a reminder of what’s at stake here. Let us not forget, that our Constitution is aimed to “serve the people”. Justice can’t and will not be manipulated to promote pornographic material that depicts children in obscene postures. Such conception should be considered an aberration of humanity. It should be opposed due to the clear contrast it represents, when compared to the values that gave birth to our very own judicial system and Constitutional Rights.

Rule of Law and the Internet

A simple description of the abovementioned “Rule of law” doctrine states that every person is subjected to the ordinary law within the jurisdiction; all persons within the United States are within the American rule of law. Don’t get me wrong, I know that this statement has many jurisdictional implications, however, the promotion of legislative pieces such as the Cyber Safety for Kids Act of 2007 (CSKA) are necessary steps and measures that aid and provide “a breather” to the long struggle, sometimes hopeless, fight against online child pornography.

Technology, by definition, forces changes. It is often described as the branch of knowledge that deals with the creation and use of technical means and their interrelation with life, society, and the environment, drawing upon such subjects as industrial arts, engineering, applied science, and pure science. It’s also believed to be the sum of the ways in which social groups provide themselves with the material objects of their civilization. The Internet is a powerful and useful tool. It is, like the stereotyped cliché suggests, a highway of information. Now that our generation has such a gift, it’s impossible not to ask ourselves how we ever got along without it. Nevertheless, we should not forget those masterful articulated words of a fictitious, but brilliant thought character called Ben Parker when he said: “with great power, comes great responsibility”.

So then, why such a gift is corrupted with so many sites that promote child pornography? Is there something we can do to stop it? Unfortunately, the answer isn’t simple. CSKA, like it’s predecessors, is an intent to eradicate this deadly cancer. Like all pieces of legislation, with the exception of the notorious “Patriot Act” of course (with intentional sarcasm), I believe that all proposed acts should be open to debate, careful analysis and discussion. The term "material that is harmful to minors", as discussed in CSKA means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene, or that a reasonable person would find.

(A) taking the material as a whole and with respect to minors, is designed to appeal to, or designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors--
(i) an actual or simulated sexual act or sexual content;
(ii) an actual or simulated normal or perverted sexual act; or
(iii) a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taking the material as a whole, lacks serious literary, artistic, political, or scientific value for minors.

When applying the provided definitions mentioned in the proposed Act, one has to carefully examine the specific implications that each disposition of the statute reflect. It is my opinion that points A and B of the proposed bill are quite specific in nature. However, point c is somehow vague in its face. “Serious literary” as well as “artistic” work broadens the issue at hand and opens the door for future litigation and injunctive relief.

It is my very own opinion that even though previous Acts, such as CSKA have been revoked, it is incorrect to affirm that all pieces of legislation that target such aberrations are doomed and destined to failure. If we would limit ourselves only to rise for the purpose of casting bad predictions or misfortunes over bills that some misinterpret or wrongly label to be “too conservative” then we ourselves are destined to perish. A short run or scrutiny of most of the decisions made by the Supreme Court of the United States as well as the Civil Rights movement may very well serve as vivid examples of how opinions that were once considered doomed, through time, are embraced and adopted by a majority.

Posted by: W. Reyes Miller | Jun 19, 2007 4:44:06 PM

It seems that the federal judges want to treat the internet as a self governed entity. They have demonstrated that they don’t want to open up a Pandora’s Box by approving legislation on certain aspects of the internet , because that could open the door for Congress to keep pushing for more legislation, meaning more control over the internet.

Some factors have to be considered for this stance. It seems that the judges don’t want to get into international conflicts, as witnessed in the Yahoo v. Licra cases. That case has been going on since 2000 and its resolution doesn’t seem near.
The State, in its Parens Patriae role, has the right and the obligation to protect the best interest of its young citizens. But it must prove that their parents aren’t behaving and acting as a common “head of the family” to assert their power. Maybe the judges would like the State to prove the negligence of the parents before approving such legislation.
Another arguments that the judges have used is that in regulating and controlling the content of the internet, Congress is invading the constitutional right of adults to seek information on the internet, that, although harmful for minors, it is not for adults.
The judges could also question if Congress has made any kind of tests as of how, as in this case, tagging certain web pages could make minors abstain from entering them.

Some could argue that it seems fair that a country could regulate internet content for its citizens. I think that the federal courts are waiting for the appropriate moment to let stand internet regulations on such controversial but equally important subjects as the one discussed in this blog. Maybe some new judges with experience in the cyber law field are needed to better understand this modern day controversies that will only get more difficult to analyze.

Posted by: E de la cruz | Jun 20, 2007 4:19:16 PM

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