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July 20, 2004
What You See Is Where You Are
We talk a lot here about copyright as the 800-pound gorilla of the Internet, but there are other forces with considerable power to influence its development. One of these is the effort to control access to obscene material online -- to keep what a particular community considers "harmful" away from children. The problem is that on the Internet, no one knows you're a dog, and the server doesn't know you're a child living in a certain community -- unless, of course, it does.
Annalee Newitz has a new post over @ Deep Links pointing out that a ruling in the Nitke v. Ashcroft case that upholds the constitutionality of the contested provisions in the Communications Decency Act (CDA) could lead to what Jonathan Zittrain calls a "zoned" Internet -- one in which an adult would be forced to give up her anonymity in order to access online materials that someone (or some software) considers obscene:
[The Miller test] made sense in the 1970s, when obscene materials were usually books, mail, or magazines -- all of which could be located in a specific geographical region with distinct community standards. But when the CDA proposes to use this same rubric to judge obscenity online, things get a little sticky. What, after all, is a "community" on the Internet? How can a speaker be held liable for disseminating obscene materials when she has no idea who is accessing her website or archive online?
Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities.
As Annalee points out, the Nitke case is about much more than obscenity -- it's about the future of anonymity on the Internet. We'll have a ruling in a few months from a federal court in New York City, but whatever the outcome, both sides will likely push for a Supreme Court showdown. Let's hope that the Court preserves the right to anonymous free speech and keeps decision-making about blocking potentially "obscene" materials in the home rather than the server or ISP.
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