15.0 Wanton Women and Straightlaced Crusaders: Pornography on the Net

15.1 Introduction: Where pornography and the Net collide.

On the television every night, people watch other people shooting at yet other people and those people fall down and ooze blood and often never get up again.

A couple making slow gentle love by candlelight is an x-rated movie, condemned by all and sundry, and yet we see more and more people being killed and wounded and hurt on the tv with little moral condemnation.

Our world is messed up, and Internet providers are affected, oh yes we are. And it all begins with one disturbing fact: People get on the Internet because they want to take a peek at the dirty pictures, because they want to read about Tammy, the 14 year old horny teenage slut, because they want to express their sexual fantasies and read those of others.

So we start with a big gain: All those great Internet services, all the access we make available to museums and research facilities, all that great hobby information and social chatting and Kibology and what-not is subsidized by the legions of people who do nothing more enlightening or inspirational than downloading dirty pictures.

The same forces that make the Net useful for getting sexual materials are the same ones that make people fear the net. Normally, you'll get sex stuff by visiting your local porno shop, a place filled with high prices and rather dubious looking people. You wouldn't want your best friend to catch you there, would you? With alt.binaries.pictures.erotica and similar groups, you can see those same pictures in the comfort of your own home, without paying a frightful lot of money, and without much chance of embarassment. In this way, pornography is destigmatized in a way that dramatically increases its consumption.

So people flock to their Internet provider because it provides the fun stuff they want, in the most uncensored way. They're having their fun, and we're taking their money, and you'd think it was just another example of good ol' American ingenuity at work, eh?

Perhaps not. For one thing, the transmission of obscene material across state lines is illegal in the US, and much of USENET and FTP site material and WWW sites qualifies easily as that. There have been some truly ugly cases. For example, a California BBS operator was sentenced to jail for accepting a subscription for his adult BBS from a Southern state, and thereby allowing the subscriber to download an adult image judged illegal in that state.

The situation of alt.binaries.pictures.erotica and other USENET newsgroups dealing with porn is rather different and very unusual. The California BBS operator's system was dedicated exclusively to the distribution of adult images. An Internet provider offers so much material that the intent is much less clear. The provider can use what is called the Common Carrier defence - meaning that he just distributes stuff without looking at it, and so he is not responsible for the material.

The common carrier defense is used by the phone company and post office; they say that, since they don't listen in to your phone conversations or read your mail, they cannot be responsible for any material you send via phone or mail, even if they're making money off it. (900 numbers are a primary example of this). This could be logically extended to USENET news; nobody has enough time to monitor every news article written or every e-mail message sent.

In the case of the net, though, there have been no court tests of this argument. It might come to pass that we're not responsible , or it might not. In the case of alt.binaries.pictures.erotica, after all, we make a decision to carry it as part of our newsfeed, and we certainly have a reasonable idea of what it contains. I certainly know perfectly well that I am carrying this material on my system, and that it is of an adult nature. I especially know that people sign on to my system for the purpose of reading it!

Matthew B Landry was kind enough to dig up at least one precedent that appears to be in our favour. I'm collecting a bit more information on this, and I will issue a revised report soon.

Some people have considered all this and put forth the argument that the safest course of action is not to carry the adult material at all. Remove all alt.sex.*; remove all alt.binaries.pictures.*; read through the active file and eliminate anything even vaguely resembling sex.

Others note that this violates the classic big company principle of denying responsibility. If you remove alt.sex and its friends from your feed, you are effectively accepting responsibility for what remains; you are saying that you are not a common carrier who just distributes everything received regardless of content. This could be a very dangerous thing to do, because lawsuits will seek the easiest targets, those systems for which this does not apply. So if you remove alt.sex but don't remove news.answers, and if an obscene message (such as the alt.sex FAQ!) appears on the latter, you might get in trouble for it.

The worst thing to do is to remove the sex stuff and announce that you have a "child proof" system. Inventive children are rather frightfully good at finding ways around it, especially when USENET is on their side, not yours. (There is a document called "The Reading Banned Newsgroups FAQ", which explicitly lists the ways this can be done).

Most people who run USENET sites are very much against censorship of ANY material, whether adult or not. We aren't going to remove alt.binaries.pictures.erotica unless we're forced to do so. It has to be said that this is a fight about money, as well as principle; a large number of our subscribers would quit if they didn't have the binaries and the sex.stories to play around with. For once, principle and making money stand together, on the same side.

The Christian Right, unfortunately, are rather unhappy at this state of affairs. Certainly it's a very tough problem from their point of view. They believe sexual material to be abnormal, perverted and just plain wrong. Just as many of us believe in free speech as an absolute, they believe in respect for God and his anti-porn will. And, thanks to the Republican takeover of Congress (which I otherwise support), they have a good chance of winning some kind of tough penalties for the distribution of pornography on the Internet.

15.2 S.314, Senator Exon's bill

There has been a lot of fear and loathing surrounding Senator Exon's new bill, S.314. I was able to get a copy of the actual bill itself, together with reviews of the bill from various sources.

A superficial look at the bill's contents might make one wonder what the fuss is all about. The bill's actual content takes existing law on telephone harassment as its base, strikes out the word "telephone" and substitutes the words "telecommunications device". In short, it seems to bring laws on telephone harassment into the telecommunications era. If you are a woman, and I call you and terrorize you with obnoxious sexual expressions, that's against the law. If you are a woman, and I email you with similar expressions, it's not presently against the law. Senator Exon's bill changes that so that use of a computer is basically equivalent to use of a telephone. He also increases the penalties for such violations substantially, from $ 10k to $ 100k.

So far, this sounds pretty darn non-controversial. (Well, maybe the new penalties are a shade over-the-top, depending on the exact nature of the communication, but the goal of the bill is surely not unreasonable).

The most important question is the definition of "obscene or harassing communications". Does this refer to electronic mail, sent to a single party without her or his consent, or does it refer to someone reading messages on a random newsgroup? Certainly it would be quite easy to think of the contents of some newsgroups as obscene; indeed, they were meant to be that way. Does this group refer to them, or only to communications directed towards a single individual? Certainly the name of the bill, the "Communications Decency Act of 1995", does not inspire confidence on the part of the civil libertarian; it seems to imply that it's cleaning up a lot more than the online equivalent of harassing phone calls.

Some people have felt that this bill requires the operator to take a pro-active stance against harassment. This doesn't sound right to me. The full text of the bill does not mention telephone companies or on-line service providers even once; its provisions are aimed at those who initiate the communications. So one of your users might become liable under its provisions, but you as the service provider would not be. Indeed, since the bill equates telephones and "telecommunications devices" by subjecting them to the same laws, it might be a good piece of evidence for the "common carrier" defense mentioned above. I would suspect that the obligations of the service provider would be similar to the obligations of the phone company in a similar matter; you would have to identify the perpetrator by checking your records, or cooperating with another site in doing so. This is something sites already do on a volentary basis, so I doubt that it would mark much of a change.

Walter Vose Jeffries points out that S.314 as written does include transmission. "makes, transmits or otherwise makes available any comment, request, suggestion, proposal, image or other communication." He tells me that the bill has since been reworded to exclude common carriers, thus changing some of the most objectionable aspects of the bill. It wasn't clear from his remark, however, whether ISPs and BBSs are considered common carriers and thus outside the bill's reach.

However, a vital point is that the bill is completely silent on the question of precisely what an online service provider's duties are in this regard. In theory, they could extend to anything, as little as nothing, and as much as putting together a whole bureaucracy to monitor e-mail. Its job is merely to say that there are substantial penalties to the originators of obscene messages; it says nothing else, including whether it includes public messages as well as private.

One of the major questions here is what would happen to the operators of systems running anonymous remailers. They might be required to disclose the identity of people who used their service in good faith to broadcast controversial views. How can the rights of those people be reconciled with those of the victims on the other end? This is particulary interesting in view of the recent Church of Scientology case, where they are trying to prevent anonymous remailers from re-broadcasting CoS material.

S.314 is likely to be strongly opposed by the cable industry, since it requires the re-working of set-top boxes to fully scramble the audio (as well as the video) portions of pornographic material sent through cable systems. This is certainly its most clearly understandable provision.

If the bill is construed to apply to public as well as private communications, it may face significant hurdles in the courts. Traditionally, the courts have treated issues of nudity, indecency and obscenity separately; this bill attempts to combine them in a way that may fall foul of the First Amendment. The issues of Community Standards, at the heart of US law on pornography, are definitely thorny when applied to the Internet, which has global reach. What is legal in Los Angeles, California is not legal in Fargo, North Dakota; what standard can be used for a worldwide communications medium? At present, there are no guidelines, only guesses.

This bill has some valid ideas; surely we can all agree that people who harass others via email should be subject to the same penalties as those who harass by telephone. However, its provisions on electronic communications are murky to say the least. On the whole, it seems like a bill well worth opposing despite its innocuous surface. However, the industry might be able to support a bill that was less vaguely worded.

To check out a copy of the bill itself, visit the URL http://thomas.loc.gov/home/c104query.htmland ask for bill S 314 by number. This is a very nice search system and is an excellent way to get copies of any legislation that might affect you.

For another analysis of the bill, check out gopher://gopher.panix.com/vtw/exon. This analysis echoes most of the my concerns, but has a somewhat more unfriendly view of the proposed legislation. You can also obtain additional information by sending a message to s314-info@cdt.org.

15.3 Porn and you: The bottom line

I think you can tell that this is an amazingly controversial issue, with opinions literally all over the map. Some people think your safest course is to give everyone complete access to everything; others think a good faith effort to prevent minors from accessing porn is needed, and still others think porn is horribly immoral and should be removed from the net entirely. I think most Internet providers believe in their heart of hearts that "information should be free"; most of them would also rather not have their equipment seized by a rapacious Federal government.

I suspect the bottom line is something like this:

- Someone's going to become a test case on this. Unless you're a big system, worthy of an expensive lawsuit, it probably won't be you. Once the test case has been fought and won (or lost), everyone will no doubt change their system (or not change it) to conform to the result.

- The safest and most probable course is probably to do whatever other providers in your area are doing. In my experience, most of them offer a full newsfeed, including the sexual stuff, and require potential users to sign a paper saying they're of legal age or have permission of their parent or guardian to sign on. If you do the same, it's pretty unlikely you'll become a test case. There are juicier targets.

- Watch out if you promote your service heavily as having these pictures or stories. People who want them will ask or root around the system until they find them. If you promote your system or make it clear that the binaries groups are a major reason for its existance, I'd anticipate a legal problems, on either the obscenity or the copyright issue (see below for more on that). . As another example, you probably want to make UUDECODE available in your libraries, and make sure people know how to get to the FAQ, but it's not recommended to do the decoding for the customer; that would give you a higher level of responsibility for the images. (As long as you offer UUDECODE and carry image groups other than the sexual ones, you can say with reasonable legitimacy that this is a service to help people decode all pictures, not just pornographic ones).

- Stories are safer than pictures; verbal representations of things don't seem to scare off the morality police in the way pictures do. There seems to be a legal presumption that favors printed text as protected speech, even if the text is about things that would be distinctly illegal if done and photographed. So kiddie porn stories are OK (which is good, since alt.sex.stories is filled with them), but kiddie porn photographs are most definitely NOT OK at all.

More information on this would be appreciated from the legal folks on the list and elsewhere.

15.4 Copyright Issues

If the issues above sounded too confusing to you, you're not going to like this next section, either.

You may have wondered where the images on alt.binaries.pictures.erotica come from. "Surely," you must have thought, "there aren't too many teenage nymphomaniacs begging to show off their hot bodies on the net for free, when they could pose for Penthouse and make big bucks.""

Sadly, you are right. Most of the images showcased in the binaries group are scanned from commercial adult publications, or uploaded from adult CD ROMs, many of which are copyrighted.

As a result, virtually every post on alt.binaries.pictures.erotica is a copyright violation.

Karl Denninger has mounted a holy crusade against these images, mentioning the copyright issue as the basic reason. I don't have any quotes from him handy, but his arguments have the hefty force of a loaded bulldozer, or a COBRA Attack Helicopter. He says that, thanks to various clear court decisions he cites, the alt.binaries.etc images are clearly illegal and you're risking your site and your financial viability as a human being by letting the images appear. And, of course, the common carrier defence can hardly be valid, since these groups are labelled in the "official" group description list as "Gigabytes of copyright violations." It is your moral responsibility, says Karl, to take these groups off your system - as he has himself.

Counter-arguments bring up the common carrier defence, as well as a few other interesting facts.

(1) By removing alt.binaries.etc as copywrited material, you are risking that people will see other copyright violations on your system and be more inclined to think you took responsibility for them. Copyright violations occur every day in news, with people posting things such as Canter & Seigel articles in news.admin.misc.

(2) No copyright holder has yet come forward and attempted to enforce their rights to a USENET poster or site. In one particulary fascinating example, a user of CRL posted a scanned image from a Playboy video to the net. Despite his admission of having done the dirty deed, and his willingness to act as a test case, I don't believe he was ever prosecuted. Megabytes of discussion were created, of course, but hey, that's USENET for you.

In theory, the First Amendment should support our right to read porn. However, in the copyright issue, I don't think the law is on our side. Practicality may be, however; as long as it is basically the responsibility of individual posters to stay within copyright law, it's unlikely it would be worth Playboy's time to go after them. In the widely cited court cases involving Playboy and BBSs, the BBS had an active role in the creation of the site, in particular doing the actual scans of the images. However, if Playboy could somehow find an Internet provider liable, they'd probably do it.

Summary: Although the alt.binaries.etc groups are blatant copyright violations, it's quite unlikely that they'd choose your own site as a test case. As a result, I think it's fairly safe from a legal point of view to carry alt.binaries.pictures etc. The moral issue is rather more interesting.

15.5 Can minors be allowed to use unrestricted accounts?

With all the spicy stuff on TV, in movies and in books, all of which can be easily accessed by minors, it rather surprises me that there's so much fuss about a few pictures. But there is.

The answer appears to be, "Only if they have a note from their parents." But I'd like to hear all views on this issue.

Note that this is not confined to picture files; newsgroups like alt.sex and alt.sex.stories also contain questionable material. Even such a tame sounding group as news.answers is a time bomb; eventually that alt.sex.bondage FAQ is going to find its way in there.

15.6 How can I prevent minors from seeing the sex stuff?

You can certainly restrict a lot of it, but I doubt that you'll get it all. In particular, news.answers contains some sexual material. It would be possible to put together an automated kill-file mechanism that would put any group with the name 'sex' in its title, and hide messages with the name 'sex' in their subject lines.

My BBS-like software has an interface that gives another possible answer to this question. With my system, you can effectively lock people in to a specific list of newsgroups selected by the operator. Since there's no shell account, there's no way to fool with the active file or read the groups from the news spool.

A normal newsreader has so many security holes that it's not going to prevent the determined 13-year old from getting the access s/he wants.

I am very much afraid that protecting minors from sexual material on the net is just as hard as protecting them from sexual material in real life. That is to say, impossible. Even with my BBS-like software, they could still telnet to a site that has those groups. It is a great pity this opens up so many potential legal problems.

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