Technology and Pornography

Brigham Young University Law Review, 2007 by Nunziato, Dawn C

I. Introduction

Over the past decade, legislators and industry players have undertaken valiant efforts to employ technology to remedy a problem that technology has created-the increased availability to minors of sexually-themed content on the Internet. Legislative efforts to restrict minors' access to such content have relied on two types of technology: adult verification technology and user-based software filters.

Legislation relying upon adult verification technology, like the Communications Decency Act (CDA)1 and the Child Online Protection Act (COPA),2 attempts to zone Internet speech at its source into adult zones and minor zones by requiring content providers to ensure that minors are not granted access to harmful-tominors material. Such legislation requires that content providers (1) segregate out their harmful-to-minors content, and (2) employ adult verification tools like adult identification cards or credit cards to ensure that minors are not granted access to such material.

The constitutionality of such zoning schemes depends on (1) the level of sophistication, efficacy, and deployment of adult verification technology and (2) the burdens that the required use of such technology imposes on content providers and Internet end users.3 And, as with all content-based restrictions on speech, the constitutionality of such schemes depends on whether there are less restrictive but equally effective alternatives for achieving the government's interest. For example, challengers to both the CDA and COPA pointed to the availability of software filters as less restrictive and (at least) equally effective alternatives.4

Legislation relying upon software filters to restrict minors' access, like the Child Internet Protection Act (CIPA),5 does not regulate content providers at all, but instead regulates Internet end users (or intermediaries like public schools, libraries, or Internet service providers (ISPs)), and essentially requires that these entities employ filtering software to restrict minors' access to harmful Internet content. As discussed below, the constitutionality of such filtering schemes depends on the sophistication of the filtering software, the extent to which it underblocks and/or overblocks users' access to harmful content, and the burdens that the required use of such filtering technology imposes on Internet end users.

The existence and efficacy of filtering technology have presented a double-edged sword for legislators in their efforts to regulate minors' access to sexually-themed content. If technology like software filters is found to be less restrictive than the adult verification-based zoning schemes embodied in the CDA and COPA, then the Supreme Court will likely strike down such schemes because they are not sufficiently tailored to address the government interest. Indeed, given their availability and comparative effectiveness, COPA opponents have heralded software filters as a less restrictive alternative-reason alone to strike down the statute. If, as some have argued, software filters are less speech-restrictive than, and at least as effective as, the criminal prohibitions on speech embodied in Internet zoning schemes like COPA, then such legislation will fail strict scrutiny.

Recently, an organization called CP80 proposed a different means of using filtering-type technology to zone the Internet.6 Under this proposal, all Internet content would be classified by content providers into one of two categories: "Adult/Harmful to Minors" or "Not Harmful to Minors." Certain Internet "ports," the rough equivalent of channels on television, would be designated as Adult Ports and used for the transmission of adult content, while others would be designated as Community Ports and used for the dissemination of all other content. Individual Internet users would then direct their ISPs to provide Internet content to them either on all ports (Adult and Community) or only on Community Ports.7 Proponents contend that this legislative solution is superior not only to previous attempts at zoning the Internet but also to previous efforts relying on software filtering technology.8

This Article scrutinizes the various attempts to use technology to remedy the problem of minors' access to sexually-themed content on the Internet, with an emphasis on the relationship between the status of technology and the constitutionality of the government's efforts. The more effective user-based filtering technology becomes in restricting minors' access to sexually-themed content, the less likely courts are to uphold other legislative means of restricting minors' access to such content. In several leading cases, the Supreme Court has emphasized that the effectiveness of user-based filtering software as an alternative renders the government regulation under consideration constitutionally infirm. Part II of the Article analyzes the foundational First Amendment jurisprudence defining obscene speech and the regulation of minors' access to sexually-themed content. Part III then examines the fate of Congress's recent efforts to regulate in this area, emphasizing in particular the current status of COPA, the constitutionality of which has been under consideration by the courts for the past ten years. Part IV analyzes the constitutionality of the proposed Internet Community Ports Act (ICPA) in light of the constitutional scrutiny that courts have imposed upon prior efforts to regulate minors' access to sexuallythemed content and the burdens the Act would impose on content providers and Internet users.