Technology and Pornography by Dawn C. Nunziato [Brigham Young University Law Review]

Abstract: Over the past decade, legislators and industry players have attempted to employ technology to restrict the availability to minors of sexually-themed Internet content. Legislative efforts have relied on adult verification and software filtering technology. The constitutionality of such schemes generally depends on the level of sophistication, efficacy, and deployment of adult verification technology, the burdens that the required use of such technology imposes on content providers and Internet end users, and availability of less restrictive but equally effective alternatives for achieving the government’s interest. In the case of both the CDA and COPA, challengers pointed to the less restrictive alternative of software filters in convincing the Court to strike down these statutes as constitutionally infirm. Recently, an organization called CP80 has proposed legislation (Internet Community Ports Act) that would require that all Internet content be classified by content providers into one of two categories – Adult/Inappropriate for Minors or Appropriate for Minors. This proposed legislation relies on port-filtering technology to restrict minors’ access to the former category of content. Under this proposed scheme, certain Internet ports would be designated as Adult Ports to transmit adult content while others would be designated as Community Ports to be used for all other content. Individual users would then direct their ISPs to provide content to them on all ports or only on Community Ports.In this Article, Professor Nunziato scrutinises attempts to use technology to remedy the problem of minors’ access to harmful Internet content, focusing on the relationship between the efficacy of the technology and the constitutionality of the legislation at issue. The more effective software filtering becomes in restricting minors’ access to harmful content, the less likely the courts will uphold other legislative means. She then analyses the foundational First Amendment jurisprudence regarding the regulation of minors’ access to sexually-themed content. Next, I examine the fate of Congress’s recent efforts to regulate in this area, with particular emphasis on the current status of COPA. Finally, she analyses the constitutionality of the proposed Internet Community Ports Act in light of the scrutiny courts have imposed upon prior legislative efforts and the burdens the Act would impose on content providers and Internet users.
http://ssrn.com/abstract=1003394

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