For the past 10 years, the U.S. government has wrestled with ways to limit or expunge porn from the Internet. So far, these efforts have proved fruitless for two reasons. First, the U.S. Supreme Court has struck down critical elements of the laws as passed by Congress. Second, because the Internet is an international phenomenon, it's been deemed difficult or impossible, from a technology standpoint, to adequately censor.
However, the newly conservative Supreme Court is far more likely to rule in favor of Internet censorship than the previous court. At the same time, the Chinese government has proven that it's both possible and practical to censor wide swaths of Web content. As a result, the Internet porn industry may be standing on the brink of a disaster, a situation in which the United States no longer is a practical source for adult website subscriptions.
Courting disaster
First, a little history. Congress has made two attempts to radically reduce or eliminate the widespread access to porn in the United States.
The first try was the Communications Decency Act of 1996, which prohibited the "knowing" dissemination of pornography over computer networks. It was a fairly draconian law that might have landed the typical adult webmaster five years in jail and a $250,000 fine. The Supreme Court quickly struck it down with a 7-2 vote.
The second attempt was the Child Online Protection Act of 1998, which was intended to penalize commercial porn websites that disseminate material to minors. The penalties also were draconian, with a $150,000 fine for each day of violation and up to six months in prison for offenders. Unlike the CDA, COPA remains an issue for the industry because while the Supreme Court in 2004 allowed a court of appeals to block enforcement, it has not ruled COPA unconstitutional.
The voting pattern in the Supreme Court on censorship issues is not encouraging. When the CDA was overturned, there were only two dissenters: William Rehnquist and Sandra Day O'Connor, both of whom no longer are on the bench. With COPA, four justices dissented (O'Connor, Rehnquist, Stephen Breyer and Antonin Scalia) and five justices (Anthony Kennedy, John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg) upheld the blocking of enforcement. More importantly, none of the justices expressed the opinion that it was unconstitutional, which means COPA still could be enforced in the future.
With the justices who replaced O'Conner and Rehnquist (John Roberts and Samuel Alito) already establishing a track record for conservative rulings, if only one justice defected, COPA could be ruled constitutional. Since it's likely that at least one justice will be replaced in the next administration, a Republican presidency would practically guarantee that COPA would become the law of the land.
While COPA is targeted at minors, enforcement would have an immediate impact on adult webmasters because it's virtually impossible, using today's Internet, to determine whether a person viewing adult content is a minor. Credit card companies have targeted minors, so limiting content to paid subscribers still could result in violation of the law. Similarly, it's unclear whether self-screening like "click here if you're over 18" would provide sufficient legal protection.
In any case, there is a formidable array of anti-pornography groups that can be expected to use COPA to create a legal precedent for censoring Internet porn. An indication of how such legal challenges might play out can be found in the Pentagon's recent decision to allow the sale of Playboy and Penthouse at military bases. Numerous religious groups fought that decision, and even though they lost, the victory was mixed blessing for the porn industry. Rather than upholding servicemen's right to view porn, the Department of Defense ruled that the two magazines were not pornography.
In other words, any attempt to censor Internet porn is likely to be rendered socially and legally acceptable by differentiating between softcore and hardcore content. And that would immediately make much of the content on many adult websites illegal, unless a way could be found to absolutely determine the age of the viewer. In short, hardcore Web porn could become effectively, if not literally, illegal in the United States.
Blocking content
The obvious tactical response to active enforcement of COPA would be to relocate your business outside of the United States. The assumption, of course, is that U.S. law enforcement would only be able to prosecute content providers with businesses with the jurisdiction of the United States. In any case, a significant percentage of porn already is created in Asia, Europe and South America, and adult webmasters increasingly are filming content (or buying it) outside the San Fernando Valley.
However, while moving overseas may save content creators and webmasters from prosecution, it does not mean U.S. law enforcement wouldn't have somebody to prosecute. In the pre-Internet days, law enforcement often found it more convenient to go after the local "dirty bookstore" than after the porn publishers themselves, who often were located out of state. In the same manner, law enforcement is likely, if it balked at going after adult webmasters, to go after the Internet service providers by holding them accountable for the content that is channeled through their servers.
So far, ISPs have successfully resisted responsibility for the content that is transferred through their systems. Their argument is that they need a safe haven because it's impossible for them to monitor everything that goes through their networks. However, that argument is collapsing in the face of mounting evidence that censoring content at the ISP level is possible and entirely practical.
The case in point, of course, is the People's Republic of China, which has successfully forced ISPs and search engines to block content that is considered politically dangerous. To do this, they've employed a variety of techniques. The most common are IP blocking, which blocks access to the entire server that hosts an undesirable site; DNS filtering, which bars certain domain names from going through the server or changes the domain name so that it's incorrect; URL filtering, which is the same as domain filtering but applies only to the HTTP protocol; packet filtering, in which the ISP terminates TCP packet transmissions when a certain number of controversial keywords are detected; and reverse surveillance, in which computers accessing certain websites, including Google, are automatically exposed to reverse scanning from the ISP in an apparent attempt to extract further information from the "offending" system.
Primarily using these methods, the Chinese government has successfully kept vast areas of the Internet off-limits to Chinese citizens. While the censorship is not perfect, it's enough to make it extremely difficult to obtain certain kinds of information. What's important here isn't whether these censorship methods are perfect: It's whether they'd be sufficient to put a major dent in porn revenue generated from subscribers based in the United States.
If such censorship was even 50 percent effective, it would effectively wipe out the profit margins for nearly every adult website whose revenue comes primarily from within the United States. Unfortunately for the online erotica industry, the effectiveness of Chinese-style censorship probably is far higher than 50 percent.
What to do? Well, there really isn't much anyone can do. Helping elect a Democratic president might result in a more liberal court, but it's possible (and even likely) that if Hillary Clinton were elected, she'd appoint a radical feminist to the bench who probably would vote, along with the conservatives, to censor porn. So it would be up to Congress to change COPA in order to preserve the freedom to view pornographic content.
But that's not going to happen because pornography, while popular, lacks a vocal constituency. While the American Civil Liberties Union can be counted on to defend the First Amendment, a ruling that COPA is constitutional would make First Amendment challenges moot. And the best that can be expected from even a liberal member of Congress is the kind of attitude that says, "Sadly, we have to put up with filth to have a free society." That kind of political posturing is not likely to induce anybody to change COPA to allow adult content to be accessible to adults inside the United States.
Of course, all of this may never come to pass, and COPA may continue to be blocked in the lower courts without the Supreme Court intervening. However, it's sobering to note that our entire industry remains vulnerable to what could be a perfect storm of government regulation and technological innovation.
-Jack Morrison
This article originally appeared in the April 2008 edition of AVN Online magazine. To subscribe to AVN Online, visit AVNMediaNetwork.com/subscriptions/ .
