Internet Minors

A judge has issued a temporary restraining order blocking a dangerous a provision of a recently-passed New Jersey statute that would have left online service providers legally on the hook for user-generated content. The restraining order blocks enforcement of the new law until the court hears additional arguments in support of a permanent injunction in early August.

EFF represents the Internet Archive in this legal challenge to the law, which aims to make online service providers criminally liable for publishing or disseminating certain third party materials. Backpage.com separately filed suit against the law.

The New Jersey law is the latest in well-intentioned but shortsighted attempts to combat online ads for child prostitution with overbroad and vague laws that could seriously constrict the free flow of information online. This statue of the Human Trafficking Prevention, Protection, and Treatment Act ) could impose stiff penalties, up to 20 years in prison and steep fines, on ISPs, Internet cafes, and libraries that indirectly cause the publication, dissemination, or display of content that contains even an implicit offer of a commercial sex act if the content includes an image of a minor.

One consequence of such vague language is that service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties. The Internet Archive, which currently maintains an archive of over 300 billion documents in support of its mission is to archive the World Wide Web and other digital materials, has particular reason to be concerned if online providers could be pressured in this way.

A federal judge has overturned part of a Utah law trying to target porn sites by making them responsible for limiting children's access to harmful or pornographic material.

U.S. District Judge Dee Benson ruled people cannot be prosecuted for posting adult content on generally accessible websites, and are not required by law to label the content that they post.

The ruling does not forbid prosecution of those who send inappropriate images or language directly to children via email, instant message or text.

A group of booksellers, artists, Internet service providers and the ACLU of Utah sued the state after the Legislature passed the Harmful to Minors Act in 2005, arguing it violated free speech rights. Benson had blocked enforcement of the law since the lawsuit was filed in 2006.

A federal judge in Alaska has struck down as unconstitutional a state law criminalizing the electronic distribution of adult material to minors.

The judge said the broadly written law could have a chilling effect on free speech. He said people communicating online have no reasonable way to know the age of those accessing their communications.

Beistline said the state has a compelling interest in protecting minors but said the government may not reduce the adult population to only what is fit for children.

The ruling came in a lawsuit filed by a group that included bookstores, a photographer, the American Booksellers Foundation for Free Expression and ACLU of Alaska.

A coalition of booksellers and Internet content providers will ask a judge to stop Massachusetts from enforcing an expansion of state obscenity law to include electronic communications that may be harmful to minors.

The content providers say recent changes to state law amount to broad censorship that effectively bans from the Internet anything that may be considered harmful to minors, including material adults have the right to view.

Supporters claim the new law closes a loophole . The state's highest court had overturned the conviction of a man accused of sending sexually explicit instant messages to someone he believed was a 13-year-old girl.

Update: Unconstitutional

29th October 2010. Based on article from  xbiz.com

A federal judge granted a preliminary injunction this week against a new Massachusetts law aimed at protecting children from online sexual predators by banning anything that may be considered harmful to minors, including adult material.

Internet content providers, the American Civil Liberties Union of Massachusetts and others sought to block enforcement of the law as it applies to broad-based Internet communications. They did not seek to bar enforcement against sexual predators or others who use the Internet to send harmful material to minors.

U.S. District Judge Rya Zobel ruled that the law, as it is now written, violates the 1st Amendment.

Attorney General Martha Coakley said that her office will draft an injunction that addresses the concerns raised in the ruling and will examine if the law needs to be changed to be sure law enforcement has the necessary tools to protect children online.

The content providers argue that the new amendments amount to a broad censorship law that would ban from the Internet a variety of information that could be seen as harmful to minors, including material about contraception, pregnancy, literature and art that adults have a 1st Amendment right to view.

They also argue that people who disseminate information through a generally accessible website cannot discern the ages of those who view the information and that, as a result, the law inhibits the free speech of adults.

An Alaskan law that goes into effect on July 1, and deals with the electronic distribution of indecent material to minors, has come under fire by free speech advocates.

Section 11.61.128 of the Alaska Statutes, signed into law by Governor Sean Parnell in May, calls for parties to be criminally liable for media transmissions (or hosting) of material that is considered harmful to minors. Additionally, violators can face up to two years in prison, could be forced to forfeit their business and would have to register as sex offenders.

Those in opposition label the law as broad censorship, and claim that it bans from the Internet anything that may be 'harmful to minors,' including material adults have a First Amendment right to view.

Hostility to the law has resulted in a lawsuit attempting to block it, brought forth by groups like the Entertainment Merchants Association (EMA), the American Booksellers Foundation for Free Expression, American Civil Liberties Union of Alaska, the Freedom To Read Foundation and the Association of American Publishers.

Citing the First and Fourteenth Amendments, in addition to the Constitution's Commerce Clause, the lawsuit seeks to have the law declared unconstitutional.

A seemingly small but very significant adjustment to Massachusetts' longstanding law against providing matter harmful to minors to anyone under the age of 18 has been challenged in federal court by a group of plaintiffs that includes the state chapter of the ACLU, the Association of American Booksellers, the Comic Book Legal Defense Fund, sex therapist Marty Klein and others.

The law, which went into effect Monday, changes the definition of matter, which used to include only handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.

The definition now includes any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

In other words, a law that once targeted the physical dissemination of harmful matter to minors has been extended to include virtually all of cyberspace, including communication done using email or instant messaging programs. According to the complaint, its breadth is nothing less than staggering.

Because Internet speakers have no means to restrict minors in Massachusetts from accessing their communications, says the complaint, the Act effectively requires almost all discourse on the Internet—whether among citizens of Massachusetts or among users anywhere in the world—to be at a level suitable for young children. The Act therefore bans an entire category of constitutionally protected speech between and among adults on the Internet.

Update: Challenged

18th July 2010. Based on article from  firstamendmentcenter.org

A coalition of booksellers and Internet content providers on July 13 filed a federal lawsuit challenging an expansion of Massachusetts' obscenity law to include electronic communications that may be harmful to minors.

The Supreme Judicial Court, ruling in a case in February, found that the state's obscenity law didn't apply to instant messages. The new law, passed quickly by the state Legislature after the ruling, added instant messages, text messages, e-mail and other electronic communications to the old law.

The changes amount to a broad censorship law that imposes severe content-based restrictions on the dissemination of constitutionally protected speech, the lawsuit argues. The plaintiffs include the American Civil Liberties Union of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund and other groups. They argue that the expanded law effectively bans from the Internet anything that may be considered harmful to minors, including material adults have a First Amendment right to view, including information about contraception, pregnancy, sexual health, literature and art.

For most communications over the Internet, it is not possible for a person sending or posting the communication to ensure that the communication will not be read or seen by a minor, the lawsuit states.

A federal appeals court has ruled that a 2002 Ohio law that attempts to shield minors from obscene material on the Internet is constitutional as interpreted by the state Supreme Court.

A three-judge panel of the 6th U.S. Circuit Court of Appeals on reversed a lower court ruling and found that O.R.C. ง 2907.31 does not violate free speech and other rights.

The law, titled Disseminating Matter Harmful to Juveniles, was later amended, and the state Supreme Court interpreted it to apply to personally directed communications and not public websites and chat rooms.

Ohio has an interest in preventing minors from potentially harmful materials and, as the statute applies only to personally directed communication between an adult and a person that the adult knows or should know is a minor, the statute is the least restrictive means of promoting this interest, the 6th Circuit panel ruled.

First Amendment attorney Michael A. Bamberger — who represents American Booksellers Foundation for Free Expression — argued that the law, meant to shield children from online pornography and predators, violates free speech and is vague.

A bill has been introduced in Congress that would impose prison sentences, fines and property seizures for online adult operators who make available any porn content, including content on splash pages, without an age-verification system.

The bill, HR 4059, also targets payment service providers, making them responsible to maintain internal policies to ensure that porn isn't displayed to web surfers who enter sites without first verifying that the user is at least 18.

The sweeping piece of legislation, known as the Online Age Verification and Child Safety Act, also swings jurisdiction over to the Federal Trade Commission, which would enforce age verification for all sites offering material defined as sexually explicit under 18 U.S.C.  2257.

Sponsored by Rep. Bart Stupak, the bill also would establish a system to create certification for approved sites and a blacklist for adult operators who are not in compliance with mandatory age verification.

Industry attorney Colin Hardacre told XBIZ Tuesday that the bill is frought with issues. But first and foremost is the serious constitutional implications of attaching criminal liability for failure to verify age where there is still no reliable way to verify age on the Internet, said Hardacre of the Los Angeles-based Kaufman Law Group.

The legislation, introduced earlier this month, already has been referred to the Committee on Financial Services and the Committee on Energy and Commerce for review

The US Supreme Court has upheld a lower court ruling that a law designed to shield children from pornography on the Internet violated the constitutional right to free speech.

The move by the highest court, which let the ruling stand without comment, would appear to mean the end of the road for the Child Online Protection Act (COPA), which was passed by Congress in 1998 but never enforced.

Rights groups welcomed the Supreme Court decision not to hear the Bush administration's appeal of the ban on COPA, with the American Civil Liberties Union (ACLU) describing it as a clear victory for free speech.

The court's decision not to review COPA for a third time affirms what we have been saying all along -- the government has no right to censor protected speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children, added ACLU legal director Steven Shapiro.

A panel of the Third Circuit U.S. Court of Appeals has affirmed Judge Lowell A. Reed, Jr.'s opinion that the Child Online Protection Act (COPA) is impermissibly overbroad and vague.

COPA was the "fix" to the 1996 Communications Decency Act, which banned all "indecent" and "obscene" speech from the Internet – and which was quickly found by the U.S. Supreme Court to be unconstitutionally vague. COPA, on the other hand, limited the banned speech to material that is harmful to minors posted only for commercial purposes, and incorporated a definition of material harmful to minors that has been widely copied by state legislatures attempting to craft anti-adult zoning and other censorious measures aimed at restricting adults' access to adult sexual speech.

The court found that age verification services and obtaining credit card numbers on sites are virtually useless in preventing minors from accessing explicit material since they can easily be circumvented by children who generally know the first and last name, street address and zip codes of their parents or another adult.

The District Court discussed Internet content filters at length in its Findings of Fact, Judge Greenburg stated. We will review these findings in detail, as the need to determine whether filters are more effective than COPA to effectuate Congress's purpose in enacting that statute was the primary reason the Supreme Court remanded the case.

Judge Reed also found that filtering programs are now harder for children to bypass; that filters will block foreign sexually-oriented sites that COPA can't; and also that the government had failed to show that COPA would be less restrictive than filtering because, unlike COPA there are no fines or prison sentences associated with filters which would chill speech. Also unlike COPA, . . . filters are fully customizable and may be set for different ages and for different categories of speech or may be disabled altogether for adult use.

The Third Circuit also perceptively noted, the circumstance that some parents choose not to use filters does not mean that filters are not an effective alternative to COPA. Though we recognize that some of those parents may be indifferent to what their children see, others may have decided to use other methods to protect their children – such as by placing the family computer in the living room, instead of their children's bedroom – or trust that their children will voluntarily avoid harmful material on the Internet. Studies have shown that the primary reason that parents do not use filters is that they think they are unnecessary because they trust their children and do not see a need to block content.

It seems almost a foregone conclusion that the Justice Department's next stop will be a petition to the U.S. Supreme Court.

Despite opponents' claims that the law is significantly outdated and blocks legal speech while not blocking much questionable content from overseas, government lawyers tried Tuesday to revive the 1998 Child Online Protection Act.

Representatives from the American Civil Liberties Union went before the 3rd U.S. Circuit Court, urging judges hearing the matter to uphold a ban on COPA, which would impose draconian criminal sanctions.

Under the law - which was created long before the days of chat rooms, YouTube and other interactive sites the law does not address - those convicted could face fines up to $50,000 per day and up to six months in prison for online material acknowledged as protected for adults but deemed "harmful to minors."

The judges hearing the case questioned the law's effectiveness, given estimates that half of all online porn is posted overseas, beyond the reach of U.S. law.

Lawyers with the American Civil Liberties Union argued that Internet filters block 95% of offensive content and can be set according to a child's age or a parent's judgment. Federal attorneys argued that only about half of all families use Internet filters.

The three-judge panel did not indicate when it would issue a ruling. A federal judge declared the law unconstitutional in 2007. The Department of Justice is hoping to overturn that ruling.