Early next year, the US Supreme Court will be reviewing the COPA law, which among other things requires that sites with adult content must hide behind an adult verification screen unless their material has special social value for children.
There are many problems with this approach. First, the whole concept of AVS's is based on a false premise: the assumption that everyone with a credit card is an adult. In fact, many older teens in the US have credit cards, sometimes with a parent as cosigner but in some cases, in their own names. Further, mature teens can often "borrow" credit card numbers from friends or relatives who are of legal age. The US Third Circuit found that "children may be able to obtain credit cards — either their parents’ or their own — legitimately and so circumvent the screening contemplated by COPA’s affirmative defenses. See id. at 489 (Finding of Fact ¶ 48)."
Secondly, there is no mechanism to prevent a minor from obtaining an adult verification code number from an older friend or relative. Anyone, even a 6-year-old, can enter a valid code and receive access. It's no more difficult than password trading, in which some illegal users remain undetected for long periods of time. All that an AVS provides is a false sense of security for parents who are not interested enough to properly supervise their chidren's Internet usage.
Third, and most important, we have the problem of privacy. This has two dimensions: fraud protection, and anonymity.
An AVS requires that a user give a company a great deal of sensitive consumer information: credit card number, expiration date, name, address, and possibly more. This is precisely the kind of information that criminals want to obtain. It is one thing to share this information with a merchant, but another thing entirely to ALSO have to share this information with a middleman organization in an industry (erotic web sites) not especially known for having high business ethics.
Where will this information end up? How many web sites will have access to these private details of their visitors, including those who ultimately decide not to do business with the site? Remember, the AVS information would be needed even to visit the free preview areas of adult sites under COPA -- sometimes it is only after viewing the site that a consumer may feel uncomfortable doing business with that company. With AVS's, it would be too late.
Of course, every visit to an adult site would be tracked and logged by the verification service. There would be no value in using anonymizers or proxy servers to protect your privacy, because you would be forced to enter a user-specific ID code on each visit to a controversial site. This would create a de facto database of people who visit unpopular or socially disapproved sites ... how long will it be before the government begins to use this information for "auditing" purposes?
We were assured that the Brady gun law records would never be kept by the government ... then they changed the rules to keep the records for 18 months, and now want to extend it permanently due to national security concerns which have nothing to do with gun ownership. A centralized database of "kinky people" is something that law enforcement would love -- already, some law enforcement agencies are trying to monitor visits to controversial adult web sites, as reported this month by MSNBC.
Nobody should be forced to register his or her name and personally identifying information in order to view controversial material. As the US Third Circuit Court has stated, fear of governmental or other reprisals will have a chilling effect, intimidating people into avoiding socially daring, but non-obscene, sexuality sites:
"We agree with the District Court’s determination that COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial.20 People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.21
"The Supreme Court has disapproved of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech, because such restrictions can have an impermissible chilling effect on those would-be recipients.22"
(US Third Circuit Court of Appeals, Precedential No. 99-1324, 6 Mar 2003)
Some might ask, how do we keep the occasional young teen away from “evil” web sites? The simple answer is: parents!
Every ISP in the US requires that a customer be 18 or older to open an account, and they already require a credit card for billing and verification purposes. All of them require that a parent accept responsibility for a child’s online usage. Legally and morally, it is the duty of parents to decide what is appropriate for their children, based on the child’s age and maturity level. What is suitable for a 16-year-old is not necessarily suitable for a 6-year-old. Further, since public terminals no longer allow adult content even for adult users, the claim that children access adult sites from public libraries can no longer be taken seriously.
The COPA law establishes the dangerous -- and false -- presumption that every Internet user is a child unless proven otherwise. This is a major departure from established principles of American free-expression and obscenity law, which has always held that the adult population can NOT be restricted to material suitable for children. COPA requires that ALL web sites be judged by the standard of what is “harmful to minors,” even though, technically, on-line minors are supposedly supervised by their parents.
In sum, COPA would have the effect of reducing the Internet to, as one censorship advocate called it, “a safe cyber-playground for children.”
Heaven forbid.
Love and liberty,
Valerie Sonn
For more information:
http://www.aclu.org/Cyber-Liberties/Cyber-Liberties.cfm?ID=12039&c=59
http://www.adultindustryupdate.com/archives/MAY 2003 LEGAL UPDATE.doc
http://www.law-host.com/articles/lawrence_walters/chokehold.htm
http://www.eff.org/Legal/Cases/ACLU_v_Reno_II
