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The
Wicked Web We’ve Woven
After
previous attempts were bounced by courts for 12 years, a law
“protecting” us from child porn has been blessed by the Supreme
Court. After a law that tried to force Internet filters on
us, and another that outlawed computer generated fake porn,
were declared unconstitutional, the Supreme Court this week
OK’d a law that makes it a crime for one that “knowingly advertises,
promotes, presents, distributes, or solicits” material that
is presented as involving a minor engaged in sexually-explicit
conduct.
Commentators, even some free-speech advocates, have noted
that the Court’s opinion instructed that the statute should
be interpreted sufficiently narrowly, and that it doesn’t
threaten free expression a great deal. While it could have
been worse, there are issues. Even given the Supreme Court’s
“narrow view,” the law will give overzealous prosecutors ammunition
to go after parents who take bathtub snapshots of their kids
or artists who use kids in their work. And you just know that’s
gonna happen. Could somebody go after Annie Liebovitz and
Vanity Fair for those Miley Cyrus pictures? Were those
“sexually explicit” enough that a prosecutor, looking for
votes and a few more notches on the belt, might make a play
for the cheap seats with an indictment and a press conference?
How about the art student who decides to riff on the Renaissance
erotica of Botticelli or Correggio and decides to throw a
few kids in the mix like the old masters did?
Another problem highlighted in the dissenting opinion is that
the law criminalizes the mere offering of child porn,
even if there is no actual child porn. Someone would be guilty
of this law for putting up a scam site offering to sell stuff
that didn’t exist, or maybe by misrepresenting a bunch of
pictures that were completely innocuous. This person would
already be guilty of fraud (and perhaps performing a public
service by ripping off the scumbags who really want to own
child porn), so does it make sense to knock them over the
head with a federal felony?
In other sort of related news, a federal appeals court dismissed
another lawsuit against MySpace brought by the parents of
a teenage girl who allegedly hooked up with an older boy on
the site and got sexually abused. Simply put, MySpace is protected
by the law because it’s a neutral portal. Despite the anti-Web
hysteria the media likes to perpetuate every time some hideous
crime is committed with the help of the Internet, MySpace
shouldn’t, and so far hasn’t been, held accountable for what
happens to people using the site. If this girl had met the
boy at her school, would we consider, even for a minute, holding
the school responsible? To put it in perspective, here’s a
quote from the trial transcript of this most recent case:
THE COURT: I want to get this straight. You have a 13-year-old
girl who lies, disobeys all of the instructions, later on
disobeys the warning not to give personal information, obviously,
[and] does not communicate with the parent. More important,
the parent does not exercise the parental control over the
minor. The minor gets sexually abused, and you want somebody
else to pay for it? This is the lawsuit that you filed?
MR. ITKIN [Counsel for the Plaintiff]: Yes, your Honor.
The world can be a mean, vicious, and unforgiving place. And
the Internet is part of the world.
Finally, I’ve mentioned before about the ubiquity of surveillance
cameras, and how it’s gotten to the point where if you are
outside in the city there’s every reason to believe that your
movements are being tracked by somebody. This is nowhere more
true than in England, where there are millions of cameras
that have been put up in public spaces by public authorities.
British band Get Out Clause, combining the sensibilities of
OK Go and the Yes Men, decided to put the system to work for
them: They set up and performed in front of some 80 surveillance
cameras around London, in the middle of streets, on buses,
on sidewalks. Then, using the U.K. equivalent of the Freedom
of Information Act, they got the footage of their performances
for free from the government, and spliced everything together
to make an incredibly entertaining, even compelling, music
video that’s burning up the Internet as we speak. Google “Get
Out Clause” and it’s everywhere.
—Paul
Rapp
Paul
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMC’s Vox Pop. Contact info can
be found at www.paul rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.
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