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Monday, April 24, 2006

Double Live Gonzo: Porn to be vile

Alberto Gonzales wants to be able to see your porn. Why? For the children, of course.

It's long been true that when a politician or bureaucrat starts talking about "the children," you'd better keep a sharp eye on your wallet. Unfortunately, after years of using this alibi to get away with robbing the American people of their money, they've recently figured out that this same excuse can be used to rob the American people of their freedom.

As CNET News's Declan McCullagh reports, Gonzales and his puritanical brethren are calling for a federal law mandating that internet service providers (ISPs) retain data records for a "reasonable amount of time," and a mandatory, government-devised and -enforced ratings system under which "web site operators posting sexually explicit information must place official government warning labels on their pages or risk being imprisoned for up to five years." To justify these proposed laws, Gonzo brings up those meddling kids again:

The failure of some Internet service providers to retain user logs for a "reasonable amount of time" is hampering investigations into gruesome online sex crimes, U.S. Attorney General Alberto Gonzales said Thursday, indicating that new data retention rules may be on the way.

"The investigation and prosecution of child predators depends critically on the availability of evidence that is often in the hands of Internet service providers," Gonzales said in a morning speech to staff at the National Center for Missing and Exploited Children headquarters here.

It comes as no surprise that the Justice Department won't define what a "reasonable amount of time" is, but internet sex crimes investigators say that one year would be ideal.

Privacy advocates generally fear that such a law would allow police to obtain records of e-mail chatter, Web browsing or chat-room activity that normally would have been discarded after a few months--or not kept in the first place. Right now, Internet service providers typically discard any log file they don't need for business purposes, such as network monitoring, fraud prevention or billing disputes.

Proposals for mandatory data retention tend to follow one of two paths. One approach would require businesses to record only the Internet address that is assigned to a customer at a specific time. The second version, which is closer to what Europe adopted, would call for retention of more information including telephone numbers dialed, contents of Web pages visited, and recipients of e-mail messages.

The idea has drawn concern from the Internet service providers themselves, which worry about costs associated with storing the massive amounts of data and argue that existing laws give police sufficient tools to conduct investigations.

Raise your hand if you think that once a law like this is in place, the government will use it only to track child predators and pornographers. Remember that the government's drug of choice is PCP- Power, Control, and Prohibition - and that it's addicted. And like any addict, it constantly needs more and more of its drug to get the same rush, the same high, as that first one. This PCP addiction is how legislation regarding methamphetamines wormed its way into the PATRIOT Act, for example.

And I hope you liberals out there don't think the Democrats are any better. As McCullagh points out, the idea of a mandatory website rating system like the one Gonzales wants was first proposed under the Clinton administration:

In the mid-1990s, the then-nascent Internet industry began backing the Platform for Internet Content Selection, or PICS. The idea was simple: let Web sites self-rate, or let a third-party service offer ratings, and permit parents to set their browsers to never show certain types of content. Netscape and Microsoft soon agreed to support it in their browsers.

At a White House summit in July 1997 hosted by President Clinton and Vice President Al Gore, the head of the Lycos search engine proposed that only rated pages would be indexed. (Bob Davis, the president of Lycos at the time, said: "I threw a gauntlet to other search engines in today's meeting saying that collectively we should require a rating before we index pages.") Sen. Patty Murray, a Democrat from Washington state, suggested that misrating a Web site should be a federal crime.

The Bush administration wants to require websites that contain sexually explicit information to place "official government warning labels" on their web pages, with penalties of up to five years in prison for website operators who refuse to comply.

The Bush administration's proposal would require commercial Web sites to place "marks and notices" to be devised by the Federal Trade Commission on each sexually explicit page. The definition of sexually explicit broadly covers depictions of everything from sexual intercourse and masturbation to "sadistic abuse" and close-ups of fully clothed genital regions.

So what's the name of this proposal? Surprise, surprise, surprise, it's the "Child Pornography and Obscenity Prevention Amendments of 2006." (Should CPOPA be pronounced See Poppa? If so, does someone at DoJ have a sick mind?)

Past efforts at compulsory website ratings systems have failed largely because of the difficulties inherent in labeling news sites; e.g., does the news coverage of a sex crime deserve the same rating as a fictional depiction of that same type of crime, or should it have a more inclusive rating because of its perceived value? Indeed, First Amendment experts seem split on the constitutionality of CPOPA:

Eugene Volokh, a law professor at UCLA who has written a book on the First Amendment, said the Bush administration's proposal may be more likely to survive judicial scrutiny. Because the definitions of sexually explicit material have been used elsewhere in federal law, Volokh said, "it has the virtue of relative clarity. I think that's probably constitutional."

But David Greene, director of a free-speech advocacy group called The First Amendment Project, thinks it wouldn't survive a court challenge. "I believe the law would be struck down as impermissible compelled speech," Greene said. "The only times courts allow product labeling is with commercial speech--advertisements."

The clarity to which Volokh refers is the Bush Justice Department's use of existing federal law to define sexually explicit material:

It covers: sexual intercourse of all types; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.

However, McCullagh points out that as hard and fast* as these definitions appear,

In practice, courts have interpreted those definitions quite broadly. In one case, U.S. v. Knox, the Supreme Court and an appeals court ruled that the "lascivious exhibition" of the pubic area could include images of clothed people wearing bikini bathing suits, leotards and underwear. That suggests, for instance, that photos of people in leotards and bathing suits would have to be rated as sexually explicit if the commercial Web site owner wanted to avoid going to prison.

It's disheartening that Volokh thinks the proposed law is probably constitutional, but maybe this is one of those rare instances in which the good professor is wrong.

Interestingly, one of the main opponents of the Bush Justice Department is...the Bush Justice Department. Testifying before a Senate Committee this past January, a senior FBI official said that no new laws were necessary to deal with online kiddie porn, and insisted that the laws already on the books were more than up to the task of handling child pornographers.

"The laws are pretty well defined," James H. Burris, deputy assistant director of the FBI's Criminal Investigative Division told the Senate Commerce Committee. "We have…arrested thousands of predators who would use the Internet to entice children into exploitive situations."

On top of that, McCullagh adds this:

[T]he Justice Department has previously expressed (Click for PDF) "serious reservations about broad mandatory data retention regimes" such as the one that Gonzales proposed on Thursday.

So, which is it, Gonzo? Are the laws you're proposing really necessary to keep our kids safe and snug? Or are you using our kids - exploiting them, you might say - to get what you really want: power and control over the reading and viewing habits of consenting adults and the prohibition of those things you claim to find distasteful. Power, control, prohibition: PCP. It's an odd, though widespread, addicition, this need to run other people's lives. And "small government" conservatives are often no more immune to its charms than are nanny state liberals.

But exploiting the exploitation of children is pretty low - the moral equivalent of kiddie porn. It should go without saying that an adult having sex with a child is among the vilest, cruelest and most immoral acts known to man, and creating or trafficking in kiddie porn is right behind it. But most pornography is not child pornography, and it shouldn't be treated as though it were.

Porn has become a sort of equivalent to "the Jews": Don't like the state of your society and need something to blame? "The Jews" or "porn" works equally well as a scapegoat. But just as the Jews have never been the real reason for society's problems, pornography has never been the a prioi evil that some on the "I don't like it so it should be illegal" right and the "I'm doing this for your own good" left make it out to be. There's a reason why the adult entertaiment industry's 2005 revenues were in the neighborhood of $12.6 billion (with $2.5 billion of that coming* from the 'net). Anything making that kind of money is clearly bringing a lot of pleasure to a lot of people, and anything that provides that much consensual pleasure simply can't be evil in and of itself. If you find that offensive, deal with it. As Nigel Tufnel from the great band Spinal Tap once said, "What's wrong with being sexy?"

(Hat tip: The Agitator himself, Radley Balko, who explains why "Gonzo" is an unfortunate nickname for an anti-porn crusader, in case you didn't already know. The Cranky Insomniac already knew. The Cranky Insomniac accepts the fact that he's probably on many government lists.)


*Unless otherwise noted, all puns are intended.

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