Either it’s an election year, or the Massachusetts Legislature and Governor don’t understand how the Internet works. Or both.
Close readers of this blog will remember my discussion back in February of a case in Massachusetts where some creep got off the hook for sending lewd text messages to a child, because the relevant statutory definition of “matter” not to be disseminated did not include text messages. At the time, I said that the definitional problem was easily remedied.
So the Commonwealth remedied it, by including not just text messages but the entire Internet. The new clause in the definition reads as follows:
any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network
This definition certainly plugs the legal loophole through which that creep escaped after sending little Johnny a text message. Unfortunately the clause also captures Johnny finding his way to the online edition of Fanny Hill, or Memoir of a Woman of Pleasure, or to a site such as Dr. Marty Klein’s “sexed.org,” which gives “Straight Talk on Sex, Love, and Intimacy.” It may also include this site, since I just linked to that 18th century novel and that 21st century advice site. And maybe it applies to any social networking site where someone posts a comment linking to any of the above.
The problem, as ArsTechnica explains, is that “disseminate” is a term carried over from the days when one obtained information by going into a bookstore and buying it. The clerk at the book store could look at Johnnie and tell he was 13, or ask him for an ID if he looked like he might be 17 rather than 18. It also nicely covered sending obscene stuff telephonically or by postal delivery, since those are person-to-person media. The way information flows through the Internet makes it impossible to know where it is going. And there is nothing in the statute that restricts the crime to cases in which you actually know that you’ve reached a minor. You just have to reach a minor, and to know that what you disseminated is harmful to minors.
Dr. Klein, the ACLU, Harvard Book Store, and several other plaintiffs have asked for an injunction blocking the law, which took effect yesterday. The complaint (pdf, 44 pages) makes a number of strong points, of which perhaps the most disturbing is this:
The United States Congress and the states of Arizona, Michigan, New Mexico, South Carolina, Vermont and Virginia previously enacted laws which, like Sections 2 and 3, applied the harmful to minors test to Internet speech. All of them were either held unconstitutional or enjoined on First Amendment grounds. Ohio and Utah also passed such laws. The Ohio statute has been narrowed by the courts to constitutional dimensions. The Utah statute is being challenged in federal court and has been preliminarily enjoined.
This is where I begin to wonder about the effect of the election cycle. Why enact a censorship law pretty much identical to others that have been ruled unconstitutional, if not because it will be politically popular to do so?
In the same vein, the National Review offers an article by Jonah Goldberg and Nick Schulz, Gated or X-Rated? The authors ridicule the open-Internet gurus, and defend Apple for its effort to create a walled garden with no porn. They encourage legislative measures that will support private-sector solutions to the problem of children seeing bad stuff–their particular proposal is the creation of a .kids domain, where only child-friendly stuff would appear. (And where apparently it would be impossible for any 17-year-old to find a link to sexed.org.) The authors specifically call out Free Press and Public Knowledge for transforming the Internet’s “sensible design principle into something approaching an ideology.” “… [T]he culture of the Internet is to oppose anything approaching actual culture. Strong cultures edit and constrict,” they say. Well, it depends what you mean by “culture.” What is the culture of paper, or of books? There isn’t any. Anything goes. Of course society can control what gets printed–except that the culture of the U.S., as defined in its constitution, is that it can’t be controlled very much–and not in ways, as the Supreme Court has repeatedly held, that would unreasonably restrict what adults can legally see.
Nonetheless, Goldberg and Schulz argue, we should have more edited, constricted, walled-off parts of the Internet. They use the metaphor of the “frontier” to describe the goal of the Internet utopians, suggesting that their real agenda–Noam Chomsky gets a shout, of all people–is anti-corporate.
In addition to the practical problems of keeping a big part of the webby structure sterile, the problem is that every attempt to legislate Internet safety has proved to be over-inclusive, to violate the plain language of the First Amendment. And relying on private parties would be a lot less frightening if the world were not converging on a few private information monopolies. If Google and Apple and a handful of media companies control all the content and all the pipes, the private sector “alternatives” become the sole sources.
Recommended reading: Closing the Digital Frontier, in the Atlantic, by Michael Hirschorn. It is an apt metaphor, but it leaves one thinking that Goldberg and Schulz have nothing to worry about. All the digital land is going to be owned and controlled by a few private players anyway, and they will make sure that the Internet provides just what best suits their business purposes.
It is always sad to see conservatives, who ought to be the biggest worriers about information freedom, find common cause with the nanny-staters such as our Massachusetts legislators.