ICANN has .xxx domain name?

Once again, I stole this clever blog post title from another site - found here: http://www.engadget.com/2011/03/18/icann-has-xxx-domain-names-yes/. Being an avid Icanhazcheeseburger follower, I thought it was perfect. It also happens to relate to my paper for this class.

Last Month, the Internet Corporation for Assigned Names and Numbers (ICANN) approved a new Internet domain name for the world's adult websites. These websites will have to be registered through the ICM registry with a .xxx domain name at $60/piece.

One of the most interesting things about the debate is that a lot of the opposition to the .xxx suffix has come from anti porn and Christian groups, because they think that a .xxx suffix will draw more attention to the porn industry and become an endorsement. On the other hand, supporters of the suffix say that it will make it easier for the government to track adult sites and enable parents to block them from their children.

The Internet is a Scary and Unknown Place

I came across a really interesting quote tonight while I was researching the balance between state laws that try to regulate the internet and congresses right to regulate interstate commerce. The quote is from 1829 - Martin Van Buren, the Governor of New York at the time, wrote to President Andrew in an effort to get him to forestall the development of a new form of transportation - the railroad:

"As you may well know, Mr. President, 'railroad' carriages are pulled at the enormous speed of 15 miles per hour by 'engines' which, in addition to endangering life and limb of passengers, roar and snort their way through the countryside, setting fire to crops, scaring the livestock, and frightening women and children. The Almighty certainly never intended that people should travel at such breakneck speed."

I think it is pretty crazy to think about the railroad that way, but I can imagine that it was a big deal back then. The book (on page 332) discusses that Van Buren's thoughts about the railroad are similar to how we see the internet today, especially in the Courts. It is true that society is becoming more and more comfortable with our lives on line, but there are still a lot of questions.

The Communications Decency Act

Most people know that porn is pretty easy to get on the internet. Right now, it seems as though it is almost just accepted for what it is, and not a lot is done to control it. There are some "filters" available that require users to verify that they are over 18, but that is usually done with a simple click. I am still not quite sure how all of this is happening without more regulation - but this does not mean that congress hasn't tried to regulate pornographic content on the internet. The first major attempt to do this was the Communications Decency Act (CDA).

The CDA was part of (title V) of the larger Telecommunications Act of 1996. It was an amendment made in an effort to make the internet "superhighway a safe place for our children and our families to travel on." According to an article that I read, the purpose of the CDA was to shield children from indecent material on the internet. The indecency portions of the Act made it a criminal violation to use the computer to transmit "any obscene, lewd, lascivious, filthy, or indecent communications, with the intent to annoy, abuse, threaten, or harass another person." President Clinton signed the Telecommunications Act into law, and on the same day, various groups that advocated for First Amendment rights moved for a temporary restraining order to enjoin enforcement of the indecency portion of the CDA. The case made its way up to the Supreme Court, who invalidated the indecency provisions of the CDA in Reno v. ACLU, 117 S.Ct. 2329 (1997).

The Court found that it lacked the precision required under the First Amendment to regulate speech content. The government tried to argue that the CDA was consitutional because it was designed to protect minors from speech that was no obscene by adult standards (See Gingsberg). The Court distinguished this case though, particularly because of the "non-invasive" nature of the internet and because the provisions of the CDA were too broad and vague.

Stay tuned for a summary of Congresses's second attempt, COPA.

Paris Adult Theatre I v. Slaton

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), was decided on the same day, and right after, the Miller case. This case further explains the Court's reasoning in creating the Miller standard, and was decided according to it.

A suit was brought to enjoin two Atlanta, Georgia Movie Theaters from showing allegedly obscene movies. The evidence at the trial court was limited to the movies themselves, which were pornographic, and simple pictures of the entrance of the theaters (which did not have any pictures, only a sign that said "Atlanta's Finest mature Feature Films"). There was no evidence that minors had entered the theaters. The trial judge dismissed the case, but the Georgia Supreme Court unanimously reversed because "the sale and delivery of obscene material to willing adults is not protected under the first amendment."

The United States Supreme Court vacated and remanded the lower court's decision for reconsideration in light of Miller. First, the Court made clear that "obscene material is not protected by the First Amendment as a limitation of the state police power by virtue of the Fourteenth Amendment." The Court also explained its opinion that obscene, pornographic films do NOT have constitutional immunity from state regulation if they are exhibited for consenting adults only and that the States have legitimate interest in "regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions."

In its reasoning, the Court also focused on the fact that the Theaters were in the public view, and had an effect on society. This, the Court articulated, is different from the showing/viewing of obscene materials in private. Although the state of Georgia could not produce and empirical data to suggest a connection between "antisocial behavior" and obscenity, the Court thought they could "quite reasonably determine that such a connection does or might exist." The Court also explained that there was no right to privacy interest in obscene material that was placed in commerce.

Miller v. California

In case anyone needs a refresher, the following is a summary of the Supreme Court's current obscenity test, also known as the Miller test. Miller v. California was decided on June 21, 2972

In Miller v. California, the defendant was convicted of mailing unsolicited sexually explicit material in violation of a California statute because he knowingly distributing a obscene matter. The Court began the opinion by articulating the legitimate interest held by states in prohibiting dissemination or exhibition of obscene material "when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Next, the court reviewed the two landmark cases in the history of its obscenity decisions: Roth v. United States and Memoirs v. Massachusetts .

The Court explained, "While Roth presumed 'obscenity' to be 'utterly without redeeming social importance,' Memoirs required that to prove obscenity it must be affirmatively established that the material is 'utterly without redeeming social value.' The Court also discussed the importance of 1st Amendment protections of speech and how difficult it was to draw any bright line rule.

Ultimately, the Court outlined the now infamous Miller Test. "The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a while, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a while, lacks serious literary, artistic, political, or scientific value."

Under the Miller holding, "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive hard core sexual conduct specifically defined by the regulating state law." Additionally, the Court explained that the community standard by which to judge whether something appeals to the prurient interest is not a national standard, but rather a local standard according to the "average" person in that community.

Are you really alone?

In light of my topic for my paper, I found the Data Mining section of today's readings very thought provoking. I think it is very easy to forget how not private your online activity can be. The law review article in the book in from 1999, so I am not sure how up to date it is, but I can't imagine that there a very many standards for limiting the collection and utilization of personal data on the internet are. This is especially apparent with gmail, Facebook and countless other social networking cites that are able to target ads according to your internet activities. So many people think that, if they are home alone and on the internet, nobody can see them - but, this does not seem to be the case.

I think a lot of people would be surprised to learn just how much information about themselves is out in cyberspace. More people know about the dangers of having too much information on their twitter or Facebook, but it seems that that is only the beginning. The data that can be collected, simply from what kinds of searches you do, or what kinds of site you visit can't possibly portray an accurate picture of a person's personality, but some people may try to argue that. Privacy on the internet is a big concern, and it appears that it is only going to become worse.

When is child pornography virtual?

Recently, in U.S. v. Hotaling, a federal appeals court in the Second Circuit upheld the child pornography conviction of a man who superimposed the faces of teenage girls onto sexually explicit photographs of nude adults and stored them on his computer. The Court held that the pictures, although digital alterations, were not expressive free speech protected under the First Amendment. Hotaling tried to argue that no minor were actually harmed in the production of the photos, but the Court said that the minors were still at risk because the pictures showed the faces of the girls, and therefore they were identifiable. The Court also cited the fact that the pictures had been formatted for possible internet distribution.

I think it is pretty safe to say that most people agree that child pornography should not be protected as free speech, but this case illustrates the FINE LINE that is drawn in these kinds of cases. In my never-ending question for the LINE that is drawn between protected and not protected speech, I think this case raises some really interesting issues.

I agree with the ruling, particularly because the faces of the six girls allowed them to be identified. It is also true however, that outside use of pictures of their faces, there was no any actual harm done. The U.S. Supreme Court previously ruled in Ashcroft v. Free Speech Coalition that computer generated images of child pornography was protected because it did not harm any children through its production and existence.

The question then, is how do we decide the difference between virtual and non virtual The sticking point in this case seems to be the fact that real pictures were used, but what if the guy had used cartoon bodies with real faces, or vice versa? And what if they were real pictures, but nobody could identify the minors, or they were never distributed?