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Zoning the Internet: A New Approach to Protecting Children Online

Posted on: Wednesday, 12 March 2008, 03:00 CDT

By Preston, Cheryl B

I. INTRODUCTION Some movements generate a great deal of energy but seem to get no closer to their goal. The fight to save children and teens from Internet pornography has been one such endeavor. Weeks and years, impressive fortunes, and promising political careers have been consumed with good faith efforts to address this pressing problem. Statutes are drafted, passed, and litigated. Courts struggle to frame a proper test. The Supreme Court splits in pluralities. Statutes fail. All the while, academics, lawyers, and legislators churn arguments and ideas. Still, the problem grows. Pornographers find new and ingenious ways to circumvent filters, attract new categories of viewers, and build economic and political support. The number of sexually explicit Web pages multiplies. Younger and younger children learn to use the computer. Cheaper and smaller devices are engineered to be Web-enabled but not filtered. Unfiltered, unsecured WiFi hotspots pop up everywhere. In short, a generation of tech-sawy children is being exposed to sexually explicit material that is not age-appropriate, that they cannot fully process, and that they lack the judgment and experience to contextualize.

As Internet pornography metastasizes at an ever more alarming rate, many, like Justice Stevens in his concurring opinion in Ashcroft v. ACLU (Ashcroft III), express "a growing sense of unease" about any regulation of speech on the Internet.1 In fact, the track record of prior legislative schemes in the courts suggests that no legal mechanism for restricting children's access to Internet pornography will survive constitutional review. And, indeed, if approached again as an Internet-wide, transaction-based restriction, further attempts are likely doomed. The law, or East Coast Code as characterized by Larry Lessig,2 seems hopeless as a means of addressing speech on the Internet.

Rather than give up in despair or pretend that any teen with a decent public education cannot bypass a filter, it is time to step back from failed patterns of government regulation and consider how Internet architecture can be harnessed to create an environment where government regulation can be effective but not unreasonably burdensome.

This Article proposes a solution that engages programming and technology, or West Coast Code,3 in refocusing the point of regulation of Internet pornography, thereby reducing the burden of regulation on speech and increasing the ability to achieve constitutionally recognized governmental objectives. Part II briefly examines previous congressional attempts to restrict children's access to Internet pornography and the judicial responses. Part III explains the Internet Community Ports Concept, which relies on technology to zone Internet ports. Part IV then describes the Internet Community Ports Act (ICPA), which supports and enforces the zoning divisions. Thus, working together West Coast Code and East Coast Code can create safe places for children and families on the Internet. Part V responds to the issues raised by Professor Dawn Nunziato with respect to ICPA.4 Finally, Part VI concludes by explaining how this two-pronged solution provides a constitutionally acceptable solution to the problem of underage access to Internet pornography.

2. See LAWRENCE LESSIG, CODE: VERSION 2.0, at 72 (2006). In the Internet context, East Coast Code is a constraint on the Internet caused by law as enacted and enforced by Congress and the Supreme Court on the East Coast. West Coast Code is a constraint on the Internet caused by the technological architecture and software written and applied by geeks who are at least srereotypically identified with Silicon Valley, or the West Coast.

3. See id.

4. See Dawn C. Nunziato, Technology and Pornography, 2007 BYU L. REV. 1535, 1571-84.

II. LEARNING FROM THE PAST: EXAMINING PRIOR LEGISLATIVE SCHEMES

Congress has adopted two broad regulations aimed at protecting children from Internet pornography: the Communications Decency Act (CDA)5 in 1996 and the Child Online Protection Act (COPA)6 in 1998. The courts have effectively barred the application of both.

A. The Communications Decency Act of 1996

In perhaps a panicked response to the astonishing growth of pornography on the newly available Internet, Congress passed the poorly conceived CDA.7 The CDA prohibited (1) knowingly transmitting "obscene or indecent messages to any recipient under 18 years of age," and (2) "knowing[ly] sending or displaying . . . patently offensive messages in a manner that is available to a person under 18 years of age" over the Internet.8 Under the statute, a Web publisher who violated these provisions could be fined, imprisoned, or both.9 Additionally, the CDA provided defenses against prosecution, including "tak[ing] . . . reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in [the CDA]" or "restrict[ing] access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."10

Immediately after the CDA was signed into law, it was challenged on constitutional grounds.11 In ACLU v. Reno,12 a threejudge district court panel enjoined the government from enforcing the CDA. In response, the government directly appealed to the Supreme Court.13

The Supreme Court struck down the Internet pornography provisions of the CDA in Reno I,14 finding that the Act was a "content-based blanket restriction on speech" subject to strict scrutiny and thus could not be analyzed under intermediate scrutiny as a content- neutral "time, place, and manner regulation."15 The Court also found that the language restricting speech in "the CDA lackfed] the precision that the First Amendment requires when a statute regulates the content of speech."16 Because of this vagueness, the Court held that "the CDA effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another" and, as such, was not narrowly tailored to achieve the government's interest in protecting children from Internet pornography.17 Additionally, the Court held that the CDA was not the least restrictive means to achieve the government's compelling interest of protecting minors.18

B. The Child Online Protection Act of 1998

In the aftermath of the CDA, Congress, recognizing the continuing problem of children's access to Internet pornography, crafted another statute to address the flaws so apparent in the CDA. Congress' efforts resulted in the passage of COPA in 1998.19 COPA prohibits Web publishers with "commercial purposes" from knowingly making available on the Web material "harmful to minors."20 Congress intended COPA to cover adult material that does not qualify under the narrowly applied definition of "obscenity" from Miller v. California,21 which has no First Amendment protection. COPA includes a definition of material "harmful to minors" built on the framework of the "obscenity" definition from Miller22 but it changes the focus to measure the impact and value of the material against a standard of a person under age seventeen.23 The COPA definition of "material harmful to minors" is:

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.24

Violators of COPA face up to six months in prison, a $50,000 fine, or both for each violation.25 However, COPA provides a defense to Web publishers who make a good faith effort to restrict minors from accessing "material that is harmful to minors-(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology."26

A suit challenging COPA was prompdy filed.27 In Reno II, the court in the Eastern District of Pennsylvania enjoined the enforcement of COPA.28 On appeal, in ACLU v. Reno (Reno III),29 the Third Circuit affirmed the district court's injunction, ruling that COPA's use of "contemporary community standards" to define "material harmful to minors" is unconstitutionally broad.30 The Third Circuit reasoned that, unlike other oudets such as the mail or the telephone, the Internet could not be geographically constrained- that is, information published on the Internet could not be directed to specific communities.31 The court stated that because people who publish information on the Internet cannot control where that information goes, the use of contemporary community standards would require Web publishers "of material that may be harmful to minors [to] 'comply with the regulation imposed by the State with the most stringent standard or [entirely] forego Internet communication of the message that might or might not subject [the publisher] to prosecution.'"32 The Third Circuit concluded that this restriction would deprive adults of their constitutional right to view such materials.33 On appeal, in Ashcroft v. ACLU (Ashcroft I), the Supreme Court vacated the judgment in Reno III, ruling that the use of contemporary community standards to define what is harmful to minors did not, "by itself," make COPA unconstitutional.34 However, the Court remanded the case to determine if COPA passed strict scrutiny on other grounds.35

On remand, in Ashcroft v. ACLU (Ashcroft II), the Third Circuit again affirmed the district court's injunction because, after applying strict scrutiny to other aspects of COPA, the court still found it to be unconstitutional.36 The court held that COPA is not "narrowly tailored" to protecting minors because the statute's definitions of terms like "'material that is harmful to minors'" and "'commercial purposes'" would prohibit "a wide range of protected expression."37 The court also found that COPA is unconstitutionally overbroad.38 Furthermore, the court found that COPA does not "employ the 'least restrictive means' to effect the Government's compelling interest" because other means of protecting children from pornography, such as filters, are available.39

COPA was again sent to the Supreme Court.40 The Court's plurality ruling on appeal did not address the alleged overbreadth of COPA.41 However, after subjecting COPA to strict scrutiny, the Court found that the government had not met its burden of proof in showing that less restrictive alternatives, such as filters, would not achieve the government objective as effectively as the new statutory regime.42 The case was then remanded back to the district court to determine whether filters offer sufficient protection for children against Internet pornography, and, if not, whether other grounds exist for finding COPA unconstitutional.43

On remand in ACLU v. Gonzales, Judge Reed of the Eastern District of Pennsylvania issued a permanent injunction against the enforcement of COPA, ruling first that COPA is not narrowly tailored.44 In making this determination, the court found that COPA is both over- and under-inclusive because it prohibits more speech than necessary and fails to block a significant amount of sexually explicit Internet material originating from outside of the United States.45

The court also found that COPA is not the "least restrictive, most effective alternative in achieving the [government's] compelling interest" of protecting minors because "[filters] are at least as effective, and in fact, are more effective than COPA" in protecting children from sexually explicit material on the Web.46 Additionally, the court found that COPA is vague in several of its definitions, thus making COPA overbroad.47 The case has been appealed to the Third Circuit48 and will likely return again to the Supreme Court; however, commentators find it unlikely that COPA will survive.49

C. Smaller Bites and Band-Aids: Legislation after COPA

Since COPA, Congress has passed other laws more limited in reach, with particular focus on the problem of children's access to Internet pornography. The first, the Child Internet Protection Act (CIPA), provides economic incentives to libraries that filter their computers so children cannot use them to access Internet pornography.50 CIPA dictates that "a public library may not receive [certain kinds of] federal assistance to provide Internet access unless it installs software [1] to block images that constitute obscenity or child pornography, and [2] to prevent minors from obtaining access to material that is harmful to them."51 Another law, the Truth in Domain Names Act (TDNA), makes it illegal to knowingly use a misleading domain name to "deceive a person into viewing material constituting obscenity" or to "deceive a minor into viewing material that is harmful to minors."52

Although both of these laws are steps in the right direction and have not failed any constitutional challenges,53 they do not provide a sufficient solution to the problem of underage access to Internet pornography. CIPA only requires Internet filters in libraries. Filters are often ineffective because they are easily circumvented,54 and some libraries have chosen to forego the linked federal funding rather than comply. The TDNA may keep children from accessing pornography accidentally by misspelling a domain name, but it does not keep them from stumbling upon links of inappropriate material while searching innocent terms like "toys,""dolls," or "pets."55 Furthermore, the TDNA does not address the issue of minors who intentionally seek Internet pornography or children who access harmful material on sites with quite accurate domain names.

Notwithstanding Congress's good intentions in passing the CDA, COPA, CIPA, and the TDNA, none of these laws adequately account for the unique characteristics of the Internet and their implications for First Amendment analysis. Current efforts focus on only two possible technological approaches to a solution. First, Congress has required all Web sites to interactively monitor access with each hit- an expensive and impractical process. second, the Court is willing to rely on private filter companies to create software that appropriately distinguishes between innocent and harmful material, that keeps up with the rapid innovations in code and the massive influx of new Internet pages, and that creates a barrier sufficient to impede teenagers' explorative instincts. Neither approach promises to be an effective solution.

III. THE INTERNET COMMUNITY PORTS CONCEPT AND ACT

This section discusses a proposal that uses West Coast code and law, or East Coast Code, to address the problem of minors' access to Internet pornography. The core concept, consistent with regulation of hardcopy pornography, is zoning. In the virtual world, the Internet cannot be zoned geographically based on real world boundaries; however, it can be sorted horizontally, and each user can be given power to select which Internet ports or pathways are allowed into his or her home or business computer. The proposed solution discussed in this Article is sometimes called the Internet Community Ports Concept (the Ports Concept),56 and the statute that creates the regulatory scheme to support it is ICPA. The text of ICPA and an explanation of its provisions appear in a companion article in this symposium issue.57

Internet users who want an Internet service governed by the real, geographical world's decency standards can purchase Internet service limited to those ports that are subject to regulation of pornographic content, or "Community Ports," as described below. Internet users who do nothing in response to this port separation, or who specifically request access to all ports, will continue to receive all available ports. The designation and separation of ports will be completely transparent to these users, whose Internet experience will not change in any way. However, Internet users who affirmatively request only Community Port access may then enter Cyberspace with some assurance that the standards enforced in the real world will apply in the virtual space they access through their computers.

Fully understanding this Article's proposed solution depends on at least a basic level knowledge of how the Internet operates, and in particular, how users browse the Internet by looking at and requesting information from Web page publishers. The technical explanation of how this works with ports and packets follows in the next section.58 For purposes of an overview explanation for those with little exposure to the mechanics of Internet functioning, perhaps the best (although technically flawed) analogy is to cabletelevision channels. With content organized into channels, a parent can choose to block access to Internet pornography just as easily as he or she blocks unwanted cable-television channels-by simply calling his or her cable provider and requesting that the unwanted channel (or in this case the Open Port channels) be shut off from the digital feed to his or her receiver.

Of course, there will be opposition to such an approach, just as there is opposition to geographical zoning, television decency standards, fences, no trespassing signs, nuisance laws, and other limitations on the ability of some to impose sexually explicit material on others. The Ports Concept permits the freedom of those who want to speak and hear constitutionally protected adult speech while it recognizes the equally legitimate interests of those who do not want pornographic material in their homes and businesses. Most importandy, the Ports Concept also protects the right of parents to determine the means and materials by which their children are educated.

A. Understanding the Internet

Over 65,000 thousand ports or channels for the transmission of information currendy exist in cyberspace.59 Most traffic now travels over ten to twenty of these ports.60 The default, or primary, range includes port 80,61 over which the vast majority of current Web traffic passes, port 25, over which most e-mail traffic currently passes,62 and the secured socket layer, over which encrypted information, such as credit card numbers and personal information, passes. The government and military use a range of secured ports, and technology experts can redirect their Internet access to another range of ports designated by numbers. However, the vast majority of these ports are unused.

The Ports Concept assumes that ranges of ports could be assigned to different purposes. One port group would be designated as the general commercial range-the Ports Concept calls this range the Community Ports.63 The standards for this range of ports would be similar to the standards now applicable in the real world for areas of public traffic, such as streets, busses, and malls.64 Another range of ports would be designed as Open Ports.65 Any legal content could be transmitted over Open Ports under the Ports Concept.66 Internet Service Providers can easily sort the two types of ports with free software.67 In the broadest sense possible, the Internet is a massive knot of connected computers from around the globe.68 The World Wide Web consists of numerous computer networks linked together.69 Each computer70 attempting to access the Internet must become linked with the general Web of networks.71 Internet Service Providers (ISPs) facilitate this link by allowing users to connect to their networks, which in turn connect to the worldwide network.72 Upon connection, each computer receives a unique identifying number (known as an Internet Protocol Address or IP Address).73 This address functions much like a street address in that it gives a point of reference for sending or receiving information. No two computers share the same IP Address on this worldwide network.74

Once connected to the global network, information can be transferred between computers. Web browsing, e-mail, encrypted Web traffic, and file transfers are types of information transfers that take place on the Web. To facilitate efficiency, differing kinds of data transfers are assigned to separate Internet ports75 in much the same way that different cable television stations are assigned to separate cable channels. Currently, however, Internet ports categorize differently than cable channels in a variety of ways. Internet ports categorize largely according to function-e-mailing and browsing, for example-while cable channels categorize according to preselected programming content. Nonetheless, the technology exists to leverage Internet ports to categorize data according to both function and content.

When a user browses the Internet by clicking on a link or entering a Web site, the user's computer sends a request to and receives a response from the targeted Web site through the intermediary ISP.76 Port numbers facilitate this sending and receiving of information. When a request is sent to a computer, the Internet Protocol (IP) process determines the appropriate application to use based on the port number within the request. The protocol allows the computer to open, read, and respond to the request appropriately.77 When a computer sends a request to an ISP, the ISP uses an IP system to determine the appropriate applications to process the request.78

The IP system can be thought of as a sorting mechanism for linking up the correct application for processing information. Because each port contains a certain type of information, the IP process currently makes this determination based on the port number used for the request.79 For example, typical Web browsing uses the Hypertext Transfer Protocol (HTTP) to send and receive virtual packets. Because Web browsing uses HTTP, Web browsing content is now sent via port 80. Electronic mail transfers use the Simple Mail Transfer Protocol (SMTP) and are assigned to port 25. The combination of protocols and ports allows other applications using different protocols and ports to be on the system of fiber optic cables that form the infrastructure of the Internet without conflicting or interfering with each other.80

B. Creating Community Ports

While there are over 65,000 available ports on the Internet,81 only a small fraction are being used for general Internet traffic. As mentioned above, currendy all standard Web content uses the same port for transmission-port 80.82 Whether it is sport scores, financial information, news, children's programming, or pornography on the Web, the information packets are transmitted over port 80. Although there is plenty of capacity on port 80 for this kind of browsing, nothing requires that all of this information be conducted over a single port.83 A plain language analogy described in the New York Daily News, although not technically precise, is useful.84 Imagine having every possible cable program crammed simultaneously onto a single cable channel and subject to being sorted and selected by the user of the cable receiver in the home. Would we tolerate a single cable channel broadcasting critical research and health information, children's cartoons, and sexually explicit programming? Yet this is exacdy what happens on die Internet.

Fortunately, however, just as there are different cable channels to categorize and organize the different types of programming available to cable consumers, current technology exists that allows for the same effect of zoning or classification of Internet content. Thus, with Internet content zoned into different Internet ports, consumers can easily and definitively choose which channels (in this case, ports) they want to access or block through their Internet service in their home or office, just as they do with cable television. Equipment attached or wirelessly linked to a Community Ports-only service will never receive packets from any Open Port. Access is impossible, rather than subject to imperfect computer- installed filters, which users can hack past, circumvent, or disable, and which must be regularly updated and monitored.

Free programming code divides content by machine-readable port numbers at the Web server level through ISPs. The divisions would separate content into two basic categories of port ranges, in addition to diose ports that are now separated for governmental, military, and other uses. More sophisticated divisions could be implemented upon increased consumer demand and technological innovation. The initial categories are "Community Ports" and "Open Ports." ICPA imposes civil and criminal penalties, depending on the degree and nature of the violation, on those who Post or place content on a Community Port that is Obscene, Harmful to Minors, or consists of Child pornography.85 Open Ports may transmit all other legal content, including adult material that fits the definition of Harmful to Minors.

This proposed zoning of content regulates the means of delivery of Internet pornography by separating it rather than blocking it. All constitutionally protected content is available to adults who take no action, without any change in its appearance or method of delivery. The process will be entirely transparent to Internet users with a service that includes Open Ports. But, with content organized into ports, other consumers can then choose to opt out of the Open Ports and to receive only the Community Ports. Switching between ports takes place transparently to the consumer and can occur between any designated ports with no impact to network performance and no increased cost.86

The benefits of Internet zoning are not entirely without cost. Compliance with the division of content imposes a de minimis burden on Internet providers (who need only add the free programming code that effectuates the customer's purchase choice) and on those Web page publishers who wish to post adult content (who need only add free programming code to their servers once). Publishers of mature content are certainly not "banished" to the Open Ports. If a Web site contains both mature content and content appropriate for minors, the Web publisher can easily configure its server to transmit the information packets containing adult content over Open Ports, and the remainder may continue to be transmitted over Community Ports. An Internet user with only Community Port service will open a page with content acceptable for the entire family, but that has, rather than immediately visible adult images or text, links to such content. When such a user attempts to follow a link to the adult content, the computer screen will indicate that the page requested is not available. The Internet user whose service includes both categories of ports will be able to follow the link without delay. Thus, publishers of mature content can still publish the universally acceptable material on Community Ports with simple "click" links to the adult material.

Additionally, setup costs for Internet providers and publishers are minimal. The proposed zoning of Internet content regulates delivery of Internet pornography by separation rather than blocking. This separation takes place at the publisher's server when it serves material to a particular port depending on its content. Thus, Web publishers who wish to post adult content may comply with the regulation by configuring their servers with a simple code, like a zip code, that directs such content to Open Ports. This is an easy Web server setup procedure and is often accomplished with less than ten lines of additional configuration.87 This computer code is unseen and has no impact on the content of the material served. Indeed, Web publishers will suffer little to no additional costs associated with this proposed zoning of the Internet.

In sum, this concept of Community and Open Ports is a highly effective solution to the problems surrounding children's access to harmful Internet content. This solution is superior to prior regulatory attempts because (1) users are given the choice to "opt in" to the Community Ports program, (2) existing Internet providers and Web page publishers are only minimally burdened, and (3) establishing the electronic framework for the system is very inexpensive, causes no delays, and makes no change in the visible content or the meaning conveyed by the Internet speech.

C. Crafting Appropriate Legislation

In addition to the technological structures that make user choice possible, the solution to Internet pornography also requires legislation to enforce compliance with the Community Port criteria.88 Although such a law could take various forms, this Article assumes a statute similar to ICPA, which is described later in this symposium issue.89 Significantly, this proposed law does not prevent an adult from publishing or viewing any legal pornographic content. Rather, it only requires that adult content be published to transmit over a Port option that not all Internet Users need allow onto their computers. Thus, this legislation preserves the choices made by consumers who opt for only a Community Port-delivered Internet service. A statute, such as ICPA, must be adopted at the federal level and establish penalties for Web publishers who violate the law by Transmitting content that is illegal on any Port or content that is Harmful to Minors on Community Ports. Very briefly, the proposed statutory scheme of ICPA is as follows. First, ICPA contains numerous Congressional Findings regarding the need for the statute. Second, it asserts the offense: knowingly publishing content that is Child pornography, Obscene, or Harmful to Minors on Community Ports.90 The statutory language also prohibits creating Proxy sites that enable Internet Users on a Community Port-only service to access Open Ports. Third, the statute allows for a consumer reporting scheme by which Internet Users who find prohibited content on Community Ports may notify the FCC (or other regulatory entity) of the violation,91 much like the current reporting process for indecency on prime time, licensed television programming.92 After this Notification, an administrative process may be commenced by the FCC or the complaining consumer.93 Violation of a court order to cease posting certain content on a Community Port may support criminal penalties.

Under ICPA, private parties that receive prohibited Communications over a Community Port are also empowered to pursue civil remethes, with damages dependent on several factors, such as whether the violating Communication was Obscene or merely Harmful to Minors and whether the Communication was made for Commercial Purposes.94 In addition, the statute contains rules regarding attorneys' fees, class actions, and punitive damages.95

The statute provides safe harbors from liability for ISPs, so long as the ISPs keep a record of those individuals to whom they have issued IP Addresses so that information identifying offending Web publishers can be obtained by court order.96 The statute also requires Wireless Networks that broadcast an Open Port connection to use passwords or other reasonable methods to limit access to adult content over their networks by strangers.97 Finally, ICPA defines technical jargon and other critical terms, such as the standard for material that is "Harmful to Minors."98 When referring to IPCA in this Article, the terms defined therein are capitalized.

IV. THE INTERNET COMMUNITY PORTS CONCEPT AND CONSTITUTIONAL SCRUTINY

In addition to implicating several compelling governmental interests, the Ports Concept shifts the constitutional analysis from an onerous and universal burden applicable to every Internet User to a regulation applicable only to those who opt in to the regulatory scheme, and a minimal routing requirement on those who choose to publish low-value pornographic speech. Unlike COPA, which burdens "everyone" by requiring all Internet users-adults and kids-to identify themselves before accessing Web pages that contain material Harmful to Minors,99 under ICPA, only those who voluntarily opt in to a Community Ports plan face any restriction in accessing protected speech. Those who do not opt in to a Community Port-only service (e.g., those who do nodiing) keep the status quo and will observe no difference in their Internet experience. Thus, the Ports Concept and ICPA, which put discretion to opt into regulation in the hands of the speech recipient, are a much easier fit under the First Amendment's protections. Proponents of Internet pornography regulation need not conclude from past courtroom experiences with the CDA and COPA that such regulation can never survive even strict scrutiny.100

A. Compelling Governmental Interests

To survive strict scrutiny, a congressional enactment must be aimed at serving a compelling governmental interest.101 The change to an opt-in recipient regulation allows ICPA to serve not only the compelling interest of protecting minors but also two other compelling interests recognized in constitutional analyses.102 Although only a single compelling interest is necessary for strict scrutiny purposes, an act that may not be seen as the least- restrictive means of achieving one interest may indeed be the least- restrictive means of achieving another equally compelling interest.

ICPA serves three governmental objectives that the Supreme Court has upheld as compelling: (1) protecting children,103 (2) protecting the right of parents to raise their children according to their parental desires,104 and (3) protecting the right of property owners to be free from invasive speech.105

1. Protecting minors

Minors need the protection of society against Internet pornography. The law holds that "infants do not have the mental capacity and discretion to protect themselves from the artful designs of adults."106 Thus, many kinds of legislation have been enacted to protect minors from the dangers of the adult world and even from themselves. For instance, minors do not have the second Amendment right to bear arms, and a state may require adults to carry the burden of protecting children from guns.107 In Texas, a gun owner is criminally negligent if a child gains access to a readily dischargeable firearm and the gun owner failed to secure the firearm.108 The gun owner is guilty of a class C misdemeanor, or, if a person is killed or seriously injured, a class A misdemeanor.109

States also prohibit selling liquor to minors,110 alcohol consumption by minors,111 employing minors during school hours or in hazardous work,112 providing tobacco products to minors,113 permitting minors to use tobacco in a place of business,114 providing certain weapons to minors,115 body piercing or tattooing minors,116 and entering into contracts with minors.117 In Reno I, the Supreme Court reaffirmed that "'there is a compelling interest in protecting the physical and psychological well-being of minors' which extend[s] to shielding them from indecent messages that are not obscene by adult standards."118

The rationale for restricting the legal rights of, and demands on, minors is based in our social, cultural, and scientific understanding of adolescence. Adolescent brains are still developing and are not as well equipped as adult brains to weigh choices and exercise judgment.119 Under the law, children are considered differently than adults because of the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.120

Infancy, since common-law times and most likely long before, is a legal disability and an infant, in the absence of evidence to the contrary, is universally considered to be lacking in judgment, since his or her normal condition is that of incompetency. In addition, an infant is deemed to lack the adult's knowledge of the probable consequences of his or her acts or omissions and the capacity to make effective use of such knowledge as he or she has. It is the policy of the law to look after the interests of infants, who are considered incapable of looking after their own affairs, to protect them from their own folly and improvidence, and to prevent adults from taking advantage of them.121

The law recognizes a governmental interest in protecting children, regardless of the responsibilities of parents. Supreme Court precedent continues to firmly support this interest. "While the supervision of children's [access to material] may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of [pornographie] material to them."122 Parents are entided to "the support of laws" in maintaining an option for Internet access without pornography.123

In Reno I, the Court again rejected the idea that "'the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor.'"124 The Court held instead that the state has an "independent interest in the well- being of its youth,"125 which justifies regulating speech notwithstanding the responsibilities of parents.

2. Protecting the right of parents to decide

A second compelling governmental interest is also relevant to the discussion of regulating Internet pornography-that of parental rights in deciding how children learn. The Supreme Court has stated that the government has a compelling interest in supporting parents' authority to raise their children in the manner they see fit.126 The government acts on behalf of parents, not in place of them. In Ginsberg v. New York, the Supreme Court considered the appeal of a defendant convicted of violating a New York statute prohibiting the sale of materials harmful to individuals under the age of seventeen. The Supreme Court declared, "[Constitutional interpretation has consistendy recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."127 In Prince v. Massachusetts, the Court further added that it "is cardinal with us that die custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."128

Although in Reno I the Supreme Court distinguished the statute that was held constitutional in Ginsberg from the CDA, it did so not because the Court's views on parental rights had changed, but because the Ginsberg statute was more narrowly tailored than the CDA.129 In fact, the Court reaffirmed that parents have claim to the authority "to direct the rearing of their children," stating again that this authority "is basic in the structure of our society."130 For example, the state respects parents' decisions regarding placing their children in private sectarian schools rather than public schools,131 placing them in schools that teach in languages other than English,132 and, at times, taking them out of school altogether.133 "[P]arents should be the ones to choose whether to expose their children to certain people or ideas."134 To their downfall, the CDA and COPA relied on the government to decide what content all Internet users may access.135 Under the Ports Concept, however, the government does not decide what is acceptable on the Internet for everyone; instead, it allows users (and thus, parents) the option of choosing a pornography-free Internet and then supports that choice by providing a remedy when an outsider tries to override that choice by depositing unwanted material onto the user's computer screen.

Because the state respects parental authority, it must provide the "support of laws designed to aid [the] discharge of that responsibility."136 Further, the state assists when "parental control or guidance cannot always be provided."137 The government has a responsibility to protect the morals of children in a manner that does not impose its morality on children, but rather, that supports "the right of parents to deal with the morals of their children as they see fit."138 Thus, a statute that gives to parents the power to control what Internet materials are accessible by their children in the home maximizes this governmental interest.

3. Protecting the privacy of property owners

A third compelling interest is also at stake. Courts recognize a substantial governmental interest in protecting the right to privacy in homes and other private domains. The Supreme Court insists that "unwilling listeners may be protected when within their own homes."139 In Hill v. Colorado the Court reiterated: "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified" and protected.140 Further, "[t]he right to avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings."141

Recently, Congress enacted the Do-Not-Call Registry Act (the Registry),142 a statute prohibiting commercial telemarketers from making unsolicited calls to households that have placed their telephone numbers on a government-maintained registry. Its purpose was to "protect residential telephone subscriber privacy rights."143 When the constitutionality of the Registry was challenged in Mainstream Marketing Services, Inc. v. JFTC,144 the Tenth Circuit held that it was constitutional, stating, among other things, that the Registry "targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence."145 The Tendi Circuit went on to declare:

One important aspect of residential privacy is protection of the unwilling listener. . . . [A] special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.146

The Supreme Court denied the petitioners' request for certiorari.147

With respect to a similar statute, section 4009 of Tide III of the Postal Revenue and Federal Salary Act of 1967 (the Pandering Mail Act),148 the Supreme Court also discussed the state's interest in protecting the privacy of the home.149 This legislation allows homeowners to request that their names and addresses be removed from the mailing list of any mailer from whom they have once received material that, based on the homeowners' discretion, is erotically arousing or sexually provocative.150 In Rowan v. U.S. Post Office Department, the Supreme Court found that Congress's objective for enacting the Pandering Mail Act "was to protect minors and the privacy of homes from [sexually explicit] material."151 The Court then recognized that, even if the Pandering Mail Act did impede the flow of valid ideas into a home, "no one has a right to press even 'good' ideas on an unwilling recipient."152

The Fifth Amendment guarantees the right to control property. Notwithstanding the First Amendment, owners may pick and choose whom they invite onto their purely private property.

Although accommodations between the values protected by [the First, Fifth and Fourteenth] Amendments are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.153

When invited guests exceed the limits of permitted conduct or speech imposed by the property owner, such guests become trespassers and the state will assist the property owner with removing them.154

A similar right exists, of course, with respect to the private property of business owners. Employers are entitled to control their work environment. The Supreme Court held in Cornelius v. NAACP Legal Defense and Educational Fund, Inc.155 that even

the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs." It follows that the Government has the right to exercise control over access to the federal workplace in order to avoid interruptions to the performance of the duties of its employees.156

The Supreme Court has also recognized that speech can be limited in a nonpublic forum, such as a workplace or a home,

based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral [in the political sense]. . . . [A] speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum or if he is not a member of the class of speakers for whose especial benefit the forum was created . . . .157

The Supreme Court's recent characterization of the Internet emphasizes its characteristics at the point of delivery rather than somewhere in the exchange of packets along the fiber optic root system.158 The United States v. American Libraries Ass'n majority stated

Internet access in public libraries is neither a "traditional" nor a "designated" public forum. . . . As Congress recognized, "[t]he Internet is simply another method for making information available in a school or library." It is "no more than a technological extension of the book stack."159

Thus, if the Internet access point in a public library is not a public forum and no more than an extension of a book stack, then the Internet available on a consumer's personal computer is, for constitutional purposes, no more than an extension of the books on the shelf in his or her home. Further, the Internet in a workplace is no more than an extension of the reading material an employer chooses to stock in the employee lounge.

ICPA affords a solution that protects children, parental choice, property rights, and the ability of adults who do not opt-in to the regulatory scheme to continue to access legal pornographic material.

B. Narrowly Tailored to Address Compelling Interests

In First Amendment jurisprudence, once a compelling governmental interest is established, the Court then determines if the statute in question is over- or under-inclusive.160 To pass this strict scrutiny analysis, as proffered by the Supreme Court in Ashcroft III, any statute that regulates Internet speech must be narrowly tailored, meaning that it cannot "effectively [suppress] a large amount of speech that adults have a constitutional right to receive and to address to one another . . . if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."161 The Court explains that, "[i]n considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal."162 The Court employs this test "to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to ensure that legitimate speech is not chilled or punished."163

A number of factors are relevant to a determination of whether a statute is narrowly tailored.164 A review of prior Supreme Court cases suggests that statutes with the following characteristics are more likely to survive strict scrutiny: (1) statutes that are not "prior restraints" in that they do not prevent speech; (2) statutes that allow individuals to opt-in to the protections rather than imposing them on everyone; (3) statutes that impose minimum burdens; (4) statutes that cannot be replaced with a less restrictive but effective alternative; (5) statutes that provide sufficient procedural protections and are not overly vague or broad. The following subsections explore ICPA's likely inclusion of these factors, mitigating in favor of its constitutionality.

1. No prior restraint

The Supreme Court has declared that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights."165 By definition, prior restraints give "public officials the power to deny use of a forum in advance of actual expression."166 Indeed, prevention of such prior restraints is the primary purpose of the First Amendment.167

ICPA creates no regime of censorship and gives the government no right of prior review or screening of speech. Its enforcement depends on individual consumer identification and complaint following publication of speech, and then upon administrative and court authority. Under ICPA, an administrative agency168 that receives a complaint may only request removal of violating speech if a Web publisher Posts Obscene or Child Pornography content on an Open Port or if a Content Publisher Posts content Harmful to Minors on a Community Port.169 The speaker who knowingly and intentionally Posts the violating speech may be subject to penalties or damages following court direction.170 In the case of material that is Harmful to Minors-that is, constitutionally protected speech-the speaker has a fully viable alternative: to post the same material on an Open Port.171 2. Opt-in consumer choice

Under ICPA, individual Service Consumers may choose to continue to receive all Internet Ports as in the past.172 Alternatively, individual consumers may choose to receive only the Internet content found on the Community .Ports.173 In both Rowan and Mainstream Marketing Services, Inc., the courts recognized that optin regulations decrease government involvement, while still allowing individuals the choice to "erect a wall" that no one can "penetrate without. . . acquiescence."174

In Mainstream Marketing, the Tenth Circuit stated that the DoNot- Call Registry Act was narrowly tailored to serve the government's interest because "its opt-in character ensures that it does not inhibit any speech directed at the home of a willing listener."175 The idea that an opt-in regulation is less restrictive than a direct prohibition of speech applies not only to traditional door-to-door solicitation but also to regulations seeking to protect the privacy of the home from unwanted intrusions via telephone, television, or the Internet.176

ICPA's objective, as is the objective of the Pandering Mail Act (which was upheld in Rowan), is simply to "protect minors and the privacy of homes from [sexually explicit] material[s] and to place the judgment of what constitutes an offensive invasion . . . in the hands of the addressee."177 And, unlike previous attempts to regulate Internet pornography, which sought to criminalize the transmission on all Internet ports of all pornography, including speech that is legal for adults, ICPA seeks only to achieve the government's goal "of maximizing] user control over what information is received by individuals, families, and schools who use the Internet."178

3. ICPA imposes a minimal burden on speech

ICPA requires Web publishers of content that is Harmful to Minors179 to configure their Server to broadcast their content via Open Ports.180 The content is not altered in any way, the configuration is not visible to those who access the content, and all Internet users who have not affirmatively requested their ISP to limit their service to Community Ports may continue to access that content with no change in mediod or effort.181 ICPA does not include any bans on speech and does not prevent any willing adults from speaking or hearing protected speech (such as pornography).182 Channeling technology currently exists, is free, and requires only minimal effort in configuring a Server, much like designating pick up by UPS or by Federal Express. The configuration code for adult content is free;183 the burden in time and effort is negligible184 and may legitimately be placed on the speaker who chooses to make lowvalue speech.185

Because of this, the burdens on speech imposed by ICPA are minimal. Both the Supreme Court in Rowan and the Tendi Circuit in Mainstream Marketing recognized that property owners should not carry the burden of preventing the delivery of unwanted speech-if someone is burdened with the responsibility of directing speech only to willing listeners, it should be the sender.186

The court in Mainstream Marketing also noted that the new technology that allows people to program their phones in an attempt to detect or block telemarketers is the same technology that is allowing telemarketers to circumvent these efforts.187 The parallel to Internet filters and other recipient-driven screening devices is obvious. Americans who wish to avoid certain kinds of speech invading their private property should not have the burden of purchasing, installing, maintaining, and relying on filters, even if the filters are effective and available at any cost.

Similarly, rather than require individuals to demonstrate a legitimate interest in refusing to accept each particular item of mail under the Pandering Mail Act, the Supreme Court in Rowan ruled that a speech regulation can be broad enough to cover speech that may be perfectly harmless.188 The Act, discussed in Rowan, prohibits the sender from mailing any material to an addressee after the addressee asks to have his or her name removed from the sender's mailing list, even if subsequent mailings are harmless.189 The Court reasoned that "the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped."190

Take particular note of this last sentence. The Court, familiar with the world of accessible mailboxes on porches and streets, recognizes that children may easily stumble upon materials put into such boxes before the parent can intervene. The same is certainly true of the Internet. By conceptualizing one's computer as a repository of messages easily available to anyone in the house, the argument that a parent should be able to restrict outsiders' access to that repository becomes particularly persuasive.

The extent to which children today can access Web materials that their parents may never find suggests that the reasons for restricting placement in a family's computer repository are vastly more compelling than the reasons for restricting access to a family's mailbox. Parents lack effective tools to intervene and remove the material on the computer before a child intercepts it, and parents may never even know which messages their children are retrieving from the Internet. Thus, it is far more effective to sort content at the originating server than to attempt to sort it at the receiving end. The ICPA option is also more supportive of the constitutionally protected right of parental choice.

4. No reasonable less restrictive alternatives

Despite their recent approval in Gonzales, filters cannot serve as a less restrictive alternative to ICPA. Filters fail to adequately protect children for several reasons. First, filters underblock, failing to exclude a startling amount of pornography. Second, filters overblock, needlessly excluding useful content. Third, filters are expensive and intimidate parents. Fourth, filter companies may intentionally block harmless information. Finally, filters are easily circumvented by technologically-sawy children. Because of such shortcomings, filters are not an effective alternative.

First, filters inevitably underblock.191 Well-funded pornographers continue to develop new techniques, such as spelling deviations and "imaged" wording, to bypass even the best filters.192 The Gonzales court was satisfied with filters that are ninety-five percent effective. And while the court found such effectiveness comforting, most parents would be appalled to learn that, despite an expensive, commercial-grade, updated, and properly installed and maintained filter, up to thirty-five million pages of sexually explicit material remain unblocked on their home computer.193

Second, filters overblock.194 As parents increase the restrictive levels of their filters, the software inevitably blocks more and more innocuous material. "Filters generally cannot construe the context of the supposed objectionable term or phrase" and will therefore "deny access to innocuous web pages."195 An obvious example is a filter that uses textual analysis set to block pornographic Web sites using the word "breast." It would also deny access to Web pages with information on women and cancer ("breast" cancer), neonatal health ("breast" feeding), and chicken recipes (chicken "breast").196 Similarly, a block on the word "sex" blocks sites that have data on gender studies, dog breeding, and color blindness. Many filters needlessly block useful information such as medical sites, content dealing with homosexuality, safe sex material, and even educational material on the harms of pornography.197

Third, filters fail to protect a child if parents neglect to use a filter or if an unsecured, unfiltered wireless Internet connection enters the home from a neighboring house or business.198 Indeed, filter use in the United States is not uniform; nearly fifty percent of children live in homes where filters are not employed.199 Many parents are intimidated by the time, cost, and technical know-how associated with choosing among, purchasing, and installing a filter. And, many parents must then rely on the resident teenager to install and maintain the filter.

Fourth, filter companies may intentionally censor harmless information. Such a threat is described by Lawrence Lessig, a prominent scholar in free speech jurisprudence:

There is a lot of good evidence about how poorly this technology filters cyberspace: how it filters the wrong type of material. There are also more insidious examples of what the companies that release this software do. For example, if you become known as a critic of that software, mysteriously your Web site may appear on the list of blocked Web sites, which becomes an extraordinary blacklist of banned books. The problem with this blacklist of banned books is that the public cannot look at it.200

Private filtering companies refuse to provide lists of sites they block and why. Lessig maintains that government regulation is more effective and more appropriate than filters because the government may be held accountable. If you disagree with something Net Nanny blocks what can you do about it? The answer is nothing. You could complain to the company that produces Net Nanny but if they disagree with your complaint, too bad so sad. But if you disagree with a block that's imposed by the law, then that . . . block can be challenged in a court because any law, as it restricts speech, must be justifiable against the standards of the first amendment. So, unlike private blocks, which are imposed and difficult to discern, these public blocks, even though they're hard to figure out, would still be challengeable and testable according to the standards of the first amendment.201

Given the core First Amendment value-a citizen's right to access the information he or she wants to hear-it cannot be a superior approach to give control over Internet content to a private party subject to no oversight or standards and with an unknowable agenda. It is one thing for a speaker to choose not to speak on a Community Port, as it is for a speaker to choose not to speak at all; but it is quite another to delegate to an intermediary commercial entity the power to block speech without any obligation to disclose its reasons or criteria.

Finally, even children in protected environments can easily circumvent filters. While filters may be better than nothing and may help prevent most inadvertent forays into Internet pornography, they are little more than a speed bump in the way of those who seek pornography sites. "[T]he high level of computer literacy of children allows them to bypass filters through tricks that go undetected by their less computer savvy parents."202 The National Research Council identified various ways in which children can get around filtering software.203 For example, youth can uninstall the filter, disable the filter (in many homes, the "resident teenager serves as the de facto system administrator because of superior technical knowledge"), access the Web page indirectly through a proxy, find a different click route to the page, and "manipulate the reload/refresh and back/forward keys."204

Judge Reed in Gonzales concluded: "It is difficult for children to circumvent filters because of the technical ability and expertise necessary to do so by disabling the product on the actual computer or by accessing the Web through a proxy or intermediary computer and successfully avoiding a filter on the minor's computer."205 This may perhaps be true for very young children, but a child in junior high who has had any computer training or who has friends with such training is likely to be more than sufficiently technologically capable. In fact, a simple Google search of the word "proxy" (which almost any child can perform) returns multiple links to Web pages that explain how to use a proxy to bypass a filter to get to pornography.206 There are advertisements for proxy sites on pages children access and in "spam" e-mails. The teenagers interviewed by CP80 and Living Biography stated that they had never waited for more than a few minutes for a reply on the AOL or MSN discussion blog telling them how to access a pornography site through a proxy or around the filter.207 Thus, the only feasible way to stop a computer user from accessing Internet pornography is to prevent such materials from coming into the computer in the first place.208 A filter may prevent someone from accidentally stumbling into lurid pornography sites, but it will not stop someone who is looking for it.

ICPA solves many of the problems associated with filters. In fact, the very reasons the courts provide for finding filters less restrictive and more effective than COPA, support the argument that ICPA is a more reasonable alternative. For example, in Ashcroft III, the plurality opinion of the Supreme Court suggested that blocking and filtering software is an "alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them."209 The Court considered filters to be less restrictive because "they impose selective restrictions on speech at the receiving end, not universal restrictions at the source."210 ICPA also imposes restrictions by choices at the receiving end. The Ashcroft III Court considered filters more effective as a means to achieve the government's goal because filters could block pornography posted on the Internet both in the United States and in foreign countries.211 The problem of foreign pornography is overstated and the Ports Concept provides a scheme that permits more efficient blocking of foreign content.212 Also, the Court argued that filters could be applied to "all forms of Internet communication, including e-mail, [and] not just communications available via the World Wide Web."213 Again, ICPA covers all forms of Internet Communication.

With similar logic, the district court on remand in Gonzales agreed that filters were a less restrictive and more effective alternative to COPA.214 The court concluded that filters are less restrictive than COPA's provisions for three reasons: (1) filters "impose selective restrictions on speech at the receiving end, not universal restrictions at the source;" (2) filters preserve anonymity since adults, with or without children, "may gain access to speech they have a right to see without having to identify themselves or provide their credit card information;" and (3) filters cause little or no speech chilling because "promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."215 Judge Reed also faulted COPA for applying only to the "surface web," or transfers that occur over the "HTTP or a successor protocol,"216 and for failing to protect minors from a significant amount of Internet pornography originating outside the United States.

Source: Brigham Young University Law Review

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