Deemed Obscene


WASHINGTON — Thanks, but no thanks. We don’t need new laws to bag members of the growing Internet pedophile community.

That’s what the FBI told the Senate Commerce Committee four months ago, pointing to its impressive arrest book for support.

“We have … arrested thousands of predators who would use the
Internet to entice children into exploitive situations,” James Burris, deputy assistant director of the FBI’s Criminal Investigative
Division, said.


Well, that’s not good enough, Attorney General Alberto Gonzales declared
Thursday.

The nation’s top cop signaled that the Bush administration is
prepared to launch an all-out First Amendment assault on the Internet during
its final two-and-a-half years in office.


Lumping protected free speech in with the already illegal trade in
child pornography — online or offline — Gonzales proposed new laws,
including one to “prevent people from inadvertently stumbling across
pornographic images on the Internet.”


Note he did not say “child pornographic” images.

In a Department of Justice
(DoJ) press release that followed Gonzales’s remarks, the DoJ stated it was
interested in going after the “scourge” of child porn and “obscenity
on the Internet.”


Child pornography is one thing, but your general run-of-the-mill obscenity,
tawdry though it may be, is quite another. The Supreme Court, after all, has
already decided pornography is protected free speech.


It’s not as if the Bush administration isn’t already actively engaged in
trying to change the law through its quixotic defense of the Child Online
Protection Act (COPA), the 1996 law that the Supreme Court has twice booted
back to the lower courts.


COPA would make it a crime for any for-profit Web site to display material
that is “harmful to minors.” To avoid jail time and/or considerable fines,
the Web site operator must pull the material even to adults or institute
adult access systems.


As you might imagine, what’s harmful to minors is an extremely legal sticky
wicket since much of the definition is based on “prurient interest” as
judged by the average person applying contemporary community standards.


On the Internet, just which average person from what community will
make that decision?


“Content-based prohibitions, enforced by severe criminal penalties, have the
constant potential to be a repressive force in the lives and thoughts of a
free people,” the Supreme Court ruled two years ago.

“To guard against that
threat, the Constitution demands that content-based restrictions on speech
be presumed invalid, and that the government bear the burden of showing
their constitutionality.”


The justices said the Bush administration fundamentally failed in that task,
particularly when alternatives such as filters might work better. Instead of
redrafting the law, the White House has now set out to prove filters don’t
work, preferring prison sentences to technological solutions.


To prove that dubious scenario, the DoJ was prepared to trample on your
privacy rights, demanding that the search industry turn over voluminous data
on their customers so the government could determine the effectiveness of
filters.


The DoJ said the data was important to assist “efforts to understand the
behavior of current Web users, to estimate how often Web users encounter
harmful-to-minors material in the course of their searches, and to measure
the effectiveness of filtering software in screening that material.”


There’s that pesky harmful-to-minors thing again, as judged by the DoJ. Thankfully, they reached a compromise. Nevertheless, the feds were able to get their foot
in the door of Internet privacy.


The DoJ plans to use the search data it obtained to make another run at
defending COPA. In October, the feds go to trial in Philadelphia in hopes of
proving that filters don’t work and putting COPA into the law.


Apparently that’s still not good enough for Gonzales and the morality cops
of the religious right.


Thursday, Gonzales called for warning labels on every page of a commercial
site that contains sexually explicit material and prohibitions against
“knowingly acting with the intent to deceive another individual into viewing
obscene materials.”


Punching up his speech with some of the most lurid descriptions of child
pornography to ever pass the lips of an attorney general, Gonzales wrapped
his proposals in a warm, fuzzy we-must-protect-the-children blanket.


Sadly, it was really all about misdirection and gutting the First Amendment
rights of Americans.


Now that’s obscene.

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