Technology May Boost Internet Smut Law

New age-verification technology may make the anti-smut law easier to defend in court, observers say

Emerging age-verification technology will help the stalled cyberspace-censorship law vault legal obstacles imposed June 11 by a Philadelphia court, say supporters of the anti-smut measure.


The free or inexpensive age-verification and identification technology that is needed for on-line commerce will allow even the smallest Internet provider to easily keep pornographic or indecent information away from kids, said Bruce Taylor, president of the National Law Center for Children and Families, Fairfax, Va.

"Some of the technology is already there... and many of these devices could easily be developed," said Taylor, who supports the measure, sponsored Sen. James Exon, D-Neb.

In its landmark decision, the three-person court ruled that Exon's Communications Decency Act was unconstitutional, partly because reliable and free age-verification does not exist. Also, existing methods of age-verification and identification are unconstitutionally burdensome for companies and groups disseminating information via the Internet, the court ruled.

The judges also ruled that the law's curbs on information that is "indecent [or] patently offensive as measured by community standards" are too vague for companies, citizens or law enforcement officials to comply with fairly and consistently. One of the judges also said the government has no right whatsoever to curb speech on the Internet, except speech that is obscene or involves child pornography.

Infotech executives and civil libertarians cheered the court's decision as a victory for commerce and free speech in cyberspace. Infotech executives feared that the law would strangle the Internet with legal red tape as local prosecutors and judges sought to impose a variety of legal penalties on people and companies using the Internet.

If the law has not been stopped, "it would have been the death of the Internet," said Ann Beeson, a lawyer with the New York office of the American Civil Liberties Union, which allied with infotech companies such as Microsoft Corp. and America Online Inc., Vienna, Va., to fight the Exon law.

The anti-smut law, which was passed in February as part of the landmark 1996 telecommunications reform act, allowed courts to jail and fine people who use the Internet to disseminate indecent information to youths under 18. Company and individuals could shield themselves from punishment if they used technical means to keep indecent material away from minors, said the law.

Justice Department officials must decide by July 2 whether to abandon their support of the Exon law, appeal the case to a larger panel of judges in Philadelphia, or bring the case before the Supreme Court. The June 11 decision was handed down by the U.S. District Court for the eastern district of Pennsylvania.

"The Supreme Court will reverse [the Philadelphia court] flat-out.... no other medium [such as radio, TV or newspapers] has had this immunity" from government's effort to curb indecent information, such as non-obscene pornography, said Taylor, who supports the Exon law.

"We're being hopeful... that the Supreme Court will go with its long-standing precedents" on the indecency issue and will declare the act constitutional, said Mike Kangior, an Exon legislative aide who helped craft the law.

The Supreme Court could issue a ruling this week on a dispute over whether the government can curb indecent cable TV programming. That decision will influence whether the Exon case is appealed to the Supreme Court, said David Sobel, an attorney with the Washington-based Electronic Privacy Information Center, which fought the anti-smut law.

If the Supreme Court confirms that the government has some right to curb indecent information, "the issue will [then] be technological," said Kangior. For example, the Philadelphia Court will then be directed by the Supreme Court to debate what smut-filtering technology is adequate to shield on-line companies from any charge of disseminating indecent information to minors, so ending industry's claims that age-verification is unconstitutionally burdensome, said Kangior.

In its judgment, the Philadelphia court declared that reliable age-verification technology does not exist, and may pose an unconstitutional burden on non-profit groups using the Internet. For example, non-profit groups such as the Carnegie Library would be forced to tag its on-line content "at an extremely high cost to its limited budget," the judges wrote.

A variety of companies have begun developing, or already fielded, low-cost or free techniques for showing whether an Internet user is older than 18, said Taylor and Kangior. On-line companies and non-profit groups can use the age-verification technology to avoid Exon-related lawsuits when disseminating information potentially deemed indecent, they said.

On-line companies and Internet providers, schools and universities can protect themselves by attaching electronic tags to the electronic messages of their subscribers, showing which are younger than 18, Taylor said. Also, companies can protect themselves by using technology developed for on-line transactions, such as credit card checks, to protect themselves from Exon-related lawsuits, he said.

Kangior said three companies are developing new age-verification technology but that company executives asked him not to identify them or their technology.

Groups opposed to the Exon amendment also challenged the capability of age-verification technology. "The biggest problem with the CDA [Exon law] is that it is impossible to know somebody's age in cyberspace," thus making the law's provisions unconstitutionally burdensome, said Beeson.

"Even if the technology exists, I don't see it being cheap to implement... nor easy," said Brian Muys, a spokesman for PSINet Inc., Herndon, Va.

It is much easier for parents to buy already developed Internet-filtering software that can keep indecent material away from their children, Beeson said. These companies include the Net Nanny software developed by Net Nanny Ltd., Vancouver, Canada, and the Surfwatch service provided by Spyglass Inc., Naperville, Ill. These filtering systems are being upgraded to work with the industry-backed, Platform-Independent Content Standard, which can be used to tag Internet content, such as an image, as indecent, violent or obscene. If free and reliable age-verification technology is developed, it would become more difficult to defeat the Exon law, or similar laws already passed by 15 states, including Connecticut and Maryland, Beeson said.

However, any debate about age-verification technology is moot unless the Supreme Court overrules the Philadelphia court's decision that the government can't curb indecent communications, Beeson said. Because of the Philadelphia court's decision, the government "can't put any burden on anyone's ability to communicate indecent material to another adult," Beeson said.

None of the warring parties in the legal fight predicted a quick end to the dispute over the Exon law or similar laws adopted in the states. Even one of the judges in the Philadelphia case said some additional curbs on Internet speech may win approval from the courts. "It is too early in the development of this new medium [the Internet] to conclude that other attempts to regulate protected speech... will fail a challenge," such as the industry-led lawsuit against the Exon law, said Judge Ronald Buckwalter, one of the three Philadelphia judges who ruled against the law.


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