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However surprisingly, there have been arguments for pornography and have stated that it encourages experimentation with new media and any act to censor it would go against the First Amendment which has not only intellectual, moral, political, and artistic value, but practical and economic value as well. It is believed that the First Amendment supports accepting adults, unrestrained by censorship, to search for innovative ways to use new media and find inventive ways to make money. Another reasonable argument is that censoring the Internet will only lead to complacency on the part of the parents who ought to be the first responsible censors of any unsuitable material. With no regulation by the government and the potential dangers of the Internet around, they will be forced to become computer-literate. A healthy discussion between parent and child on these matters is also expected, something which otherwise would probably be swept under the carpet. [Johnson, 1996]
The Child Online Protection Act
The Child Online Protection Act (COPA) was drafted by the Congress in response to Supreme Court ruling on the first ACLU. This Act came as part of the Omnibus Appropriations Act for Fiscal Year 1999, which President Bill Clinton signed into law on October 21, 1998. The basic definition of the COPA was as follows:
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both." [Author unknown, n.d.]
This act, which had a narrower approach compared to the CDA, was proposed to amend section 223 of the Communications Act of 1985 and be codified at 47 U.S.C. 231.86 the House of Representatives Commerce Committee stated in its report that the COPA "has been carefully drafted to respond to the Supreme Court's decision in [first ACLU case]." The COPA prohibited "knowingly and with knowledge of the character of the material... By means of the World Wide Web, mak[ing] any communication for commercial purposes... available to any minor... that includes any material that is harmful to minors...."
This act was to apply to Web communications and even in that case, only to communications used for commercial purposes. Also, it was to apply to communications that are harmful to minors unlike the CDA that contained application against indecent and patently offensive standards. However, the act was similar to the CDA in the sense that it consented defenses that were carried out in good faith, including "requiring use of a credit card, debit account, adult access code, or adult personal identification number;... accepting a digital certificate that verifies age; or... other reasonable measures that are feasible under available technology."
But again, the unconstitutionality of the COPA was challenged when the ACLU, along with sixteen other plaintiffs, filed a lawsuit against Attorney General Janet Reno in the U.S. District Court, for the Eastern District of Pennsylvania, on October 22, 1998, alleging that the COPA is unconstitutional under the First and Fifth Amendments. The allegations of the plaintiffs included that the COPA violated the First Amendment because it infringed upon the protected speech of adults and older minors and also that the Act violated the Fifth Amendment because it is unconstitutionally vague.
Then, on November 20, 1998, a temporary restraining order was granted by the district court to the plaintiffs' motion, and on February 1, 1999, the court granted the plaintiffs' motion for a preliminary injunction. However, despite the injunction, many commercial pornography Web sites began complying with the COPA.
There were many reasons for the constitutional failure of the COPA. Some of these failures are listed below [Miller, 1999]:
Probably the most important reasons for failure was the fact that there was no proper method of segregating minors and adults in cyberspace and hence the COPA's "harmful to minors" definition could not be readily adapted. It has also been noted that the definition itself was flawed.
Another ambiguity that the definition of "harmful to minors" brought in was that it did not mention how the community standards that required to be "taken as a whole" would apply in the Internet medium.
The first economical angle to the challenging of the Act came from the fact that its affirmative defenses were not economically and technologically available to many of the affected Web sites. Also, the definition of "commercial purpose" was so vast that it covered many web sites that could not economically utilize the COPA's affirmative defenses. The common gateway interface (CGI) capability that was required by many of the commercial online publishers were also unavailable to many website owners.
The second concern was regarding privacy and security. COPA required the Web site owners to authenticate the age of its visitors before posting material that was inappropriate to minors if they wanted to take advantage of the COPA's affirmative defenses. This procedure had to be carried out prior to the visitor being able to access any information. However, the Websites feared that many of the visitors, wary of online theft, would not produce such information. This would definitely lead to a decrease in potential traffic to their website.
The Congress had attempted to regulate the use of the Internet in the Communications Decency Act which however did not properly include the access of the Internet from public libraries. These public libraries, using government resources to purchase books and computer terminals, allowed users, both adults and children, to access the Internet. This unconditional access have rise to the Children's Internet Protection Act.
Children's Internet Protection Act
The issue of censoring children's access to internet at libraries had undergone much debate prior to the case. It was estimated that approximately 10% of the Americans who used the Internet accessed it at public libraries and approximately 95% of all public libraries in the United States provide public access to the Internet.
Public libraries, reacting to the easy access to unwanted material from their premises, have used a variety of means to ensure proper use of the internet, especially by children. While some libraries provided instructions to their patrons on how to safely use the internet, others directed them to "preferred" Web sites that librarians have previously reviewed. Other libraries that have found it uncomfortable to confront their users have either made use of commercial software that censors internet content (as predefined by the authorities) or have installed monitoring screens. To exert control over the use of the Internet, the Library has also had to place filters at the computer terminals as previously suggested in Reno v. ACLU, case where the Court had suggested such a course of action to parents concerned about sexually explicit material on the Internet. It had been estimated that 7% of American public libraries used blocking software for adult. Although they have proven useful in blocking bulk volumes of inappropriate content, they fail in certain instances, and sometimes also deny access to much needed information. All these measures taken by the Library were however involuntary prior to December 2000
The Congress, sharing the concerns of many library boards, consequently enacted the Children's Internet Protection Act ("CIPA"), Pub. L. No. 106-554, on December 21, 2000. More recently, in June this year, the Federal Communications Commission gave libraries until July 1, 2004, to comply with the Children's Internet Protection Act (CIPA).
This act made the use of filters by a public library mandatory in order for them to receive two kinds of important (and possibly critical) subsidies to the budgets-
Discounted rates for services under the E-Rate program.
Funding through Title III of the Elementary & Secondary Education Act, or the Library Services & Technology Act -- when those funds are used to purchase computers that access the Internet or to pay for direct costs associated with accessing the Internet.
Certain arguments regarding this Act have been raised in recent times, notably in the U.S. v. American Library Association, et al. [Author Unknown, n.d] case. As noted earlier, some technical limitations exist in the automated systems that filtering companies use to collect Web pages for classification. Basically, three types of filters are available. While the first one filters out content based on key words suggesting access to a blocked website, the second type that is more sophisticated makes use of algorithmic functions to find inappropriate content by searching for patterns or combinations of words to determine if a Web site is inappropriate. Both these systems either block the key word or the entire website. The third filter is user defined and blocks websites that have been assessed as inappropriate by the company.
One of the critical limitations is hence the fact that the system will be able to…[continue]
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