Invading privacy in defense of a bad law

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January 26, 2006|By MIKE HIMOWITZ

When word got out that the Justice Department wants to know what you and I are typing into Internet search engines - and that only Google had the gumption to tell the G-men to get lost - it stirred up a caldron of resentment over government intrusion into our privacy.

But this was hardly news. We have a president who flouts a law designed to keep government snoops from tapping our phones willy-nilly. And his myrmidons have been fighting tooth and nail for the power to rifle through your library records to root out terrorist crimethink.

The latest army of Sherlocks wants to see how much pornography we're churning up on the Web. The only surprise is that W hasn't gone on TV to tell us his smut patrol is another weapon in the war on Osama.

But this probe of our collective consciousness is far more prosaic. It's a last-ditch attempt to defend a bad law that Congress enacted with the best intentions - protecting children from sexually explicit material online.

A little background:

In 1996, the Supreme Court granted the Internet the highest level of First Amendment protection. This has made it hard for the government to keep adult material out of the hands of children.

Unlike bookstores or video shops with adult sections, the Internet is wide open to everyone - including an unsupervised 9-year-old. So how do you keep kids away from material that adults have an established right to see?

One way is by being a good parent - monitor what your kids do online and talk to them. Another way is to install filtering software that blocks porn sites.

According to the Pew Internet & American Life Project, more than half of adults with teenage kids are already doing that - and their numbers are growing.

Large Internet service providers such as America Online and MSN provide members with free parental-control filters. None is perfect, but I've heard relatively few complaints about filters in recent years.

If anything, they tend to err on the side of blocking sites that aren't porn-related.

The worst possible solution is legislation, which always runs afoul of the Bill of Rights.

In this case, the courts have issued an injunction against a law that tries an end run around free speech and press guarantees - the Child Online Protection Act of 1998 (COPA).

COPA makes it a criminal and civil offense for any commercial Web site operator to give youngsters access to material that's "harmful to minors."

Notice that it doesn't mention "material showing explicit sexual conduct," or "full frontal nudity," or anything else understandable. Instead, it sets up a category of offensive material so vague that it covers everything from hard-core porn to the Sports Illustrated Swimsuit Issue.

Given the history of this administration, "harmful" material could well include information on birth control or abortion. Or maybe a best-selling book that some yokel school board bans from the library because it contains a few naughty words.

In fact, the way COPA is worded, a federal prosecutor in Alabama can arrest a Web operator in Seattle because his site offends someone back home.

Congress did give commercial Web site operators an out. All they have to do to stay legal is verify the age of their users. And exactly how do they do that online? Here's what COPA says:

"By requiring use of a credit card, debit account, adult access code, or adult personal identification number," or "by accepting a digital certificate that verifies age" or "by any other reasonable measures that are feasible."

Have you seen any digital age certificates out there? Is there one tucked away in your safe-deposit box? Of course not. What the law really means is this: To keep out of a federal prosecutor's gun sights, every commercial Web operator - including this one, if you're reading my column online - will have to ask for your credit-card number. Even if the Web site isn't selling anything and you aren't buying.

And that assumes, of course, that no one under 17 will have access to a parent's credit card. Now there's a recipe for an identity theft pandemic.

This is the kind of thing Congress does without adult supervision. When the American Civil Liberties Union sued to block COPA, a federal court in Philadelphia ultimately ruled that there were far less intrusive alternatives to an unwieldy law of doubtful constitutionality - namely existing Internet filtering technology. The Supreme Court, in turn, ordered a trial on the merits - which means the government has to prove that porn filters don't work.

Thus, the Justice Department decided to see what Americans were searching for on the Web, with the idea of testing the results against Internet porn filters. Toward that end, it asked the biggest search engines - Google, Yahoo, MSN and America Online - for samples of millions of actual searches.

Yahoo, MSN and America Online agreed, but Google balked very publicly - not on privacy grounds but because the request was too intrusive, hard to fulfill and might disclose trade secrets.

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