Harvard Study Finds Significant Limits in the Ability of Current Technology Used by Social Networking Sites to Reduce Online Risks to Minors

In a report released on January 14, 2009, the Internet Safety Technical Task Force concluded that the technologies currently being used by digital media companies to address youth safety are “helpful in mitigating some risks to minors online, but none is fail-safe.” The study, which was conducted at the Berkman Center for Internet and Society at Harvard University for the 52 State Attorneys General, reviewed technologies such as age verification and identity authentication, filtering and auditing, text analysis and biometrics. (fn1) However, it found that these technologies do not even address the most common online threats faced by minors — harassment and bullying. Moreover, while the these technologies can be of use against other threats, such as preventing minor access to adult content, each can be circumvented.

The Task Force report identified three major categories of threats faced by minors online: (1) sexual solicitation, (2) online harassment and cyber-bullying, and (3) exposure to problematic content. Of these, the Task Force found that bullying and harassment, most often by peers, are the most frequent threats that minors face online. Bullying and harassment include acts designed to embarrass, humiliate or threaten a minor.

While sexual solicitation is a risk, the study found that “the image presented by the media of an older male deceiving and preying on a young child does not paint an accurate picture of the nature of the majority of sexual solicitations.” Rather, most solicitation is between minors, and even in most off-line encounters arranged through the Internet, the minor knows that he is being solicited by an adult. While there is a risk of exposure to unwanted harmful material, “those most likely to be exposed are those seeking it out, such as older male minors.”

U.S. v. Kilbride: 9th Circuit’s Holding that Internet Obscenity Laws Should Be Governed by a National Standard Rests on Shaky Grounds

Digital media law: The 9th Circuit has done it again. In its ruling last week in U.S. v. Kilbride, the 9th Circuit announced that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated by email.” (Case Nos. 07-10528, 07-10534, October 28, 2009). The 9th Circuit stated that its holding followed the view expressed by a majority of U.S. Supreme Court Justices in Ashcroft v ACLU, 535 U.S. 564 (2002) that application of a national community standard in Internet obscenity cases would not “generate serious constitutional concerns.”

The Justices said no such thing. To the contrary, Justice Kennedy, whom the 9th Circuit includes in the majority supposedly agreeing with its holding, wrote that “it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York” through a national obscenity law. Ashcroft v. ACLU, 535 U.S. at 597. If the U.S. Supreme Court takes the appeal of Kilbride, the 9th Circuit’s ruling here could well be reversed.

The Kilbride case involves the appeal of the criminal convictions of two spammers, Jeffrey Kilbride and James Schaffer, who distributed two sexually explicit images via email throughout the U.S. The Defendants’ spam operation was enormous and generated some 662,000 complaints to the FTC from persons around the country.

The Defendants were ultimately charged with violations of two Federal obscenity laws — 18 U.S.C. ยง 1462 and 1465, which prohibit the importation into the U.S., and the transportation in interstate commerce, of “obscene, lewd, lascivious, or filthy” books, pictures and other media. Both statutes apply to distribution of materials via the Internet, and specifically include distribution via an “interactive computer service,” as defined by the Communications Decency Act. A conviction under Section 1465 has been upheld for images sent from a computer bulletin board in one state to a personal computer in another state. U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996).

Prior U.S. Supreme Court decisions have held that obscenity is to be determined by the standards of the local communityin which the publication was made. However in Kilbride, the Defendants were prosecuted for their national distribution of obscene materials. As part of its case, the government called eight witnesses from various parts of the country who had filed complaints with the FTC about the Defendants’ emails. These witnesses testified about the circumstances under which they had received the Defendants’ emails, their reaction and attitudes towards these images and their views on pornography generally. The government also introduced evidence regarding the 662,000 other complaints they had received about the images. For its part, the defense introduced evidence regarding community attitudes towards pornography drawn solely from Arizona — the judicial district where the case was prosecuted.

At the close of evidence, the jury was instructed that it should use the standards of the “community as a whole, that is to say by society at large, or people in general” in determining whether the images distributed by the Defendants were obscene. This community was “not defined by a precise geographic area”, so the jury could consider evidence of standards existing outside Arizona. They were also told that they could consider their “own experience and judgment” as well as the evidence presented in making this determination. The jury ultimately returned a verdict finding the Defendants guilty under the two statutes.

On appeal to the 9th Circuit, the Defendants argued that these instructions were improper, because they asked the jury to apply a global or societal standard for obscenity. The Defendants claimed that because the distribution of the emails was made nationally, the District Court should have instructed the jury to apply a “national” obscenity standard.

The 9th Circuit agreed that the Defendants had a point. It cited a 2002 plurality U.S. Supreme Court decision regarding the Child Online Protection Act (COPA), in which two Justices, O’Connor and Breyer, had stated that a “national standard” should be used for laws involving distribution of obscene material over the Internet. Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700 (2002). Justice O’Connor stated that community standards for obscenity vary greatly throughout the country. However, persons using the Internet to publish materials are unable to control the geographic location of their audience. As a result, requiring Internet publishers to hold to a “local community” standard for obscenity, would require them to adopt the most restrictive view of obscenity taken by any community in the country. In Justice O’Connor’s view, this would “potentially suppress an inordinate amount of expression.” Id. at 587.