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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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