A suit against the Communications Decency Act filed by New York fetish photographer Barbara Nitke has finished testimony, with a December 17 deadline for written final arguments to be followed by a judge’s ruling.
“It’s going to the Supreme Court,” Nitke’s press representative, Janet Taylor, told AVNOnline.com. “Whoever loses will appeal. And it’ll go directly to the Supreme Court, which is how the case was set up.”
Taylor wasn’t willing to speculate which way the judge might rule. “I don’t know,” she said. “I’ve wanted to be able to tread judges’ minds for quite some time. It would be a marketable skill. But I just do not know. I have no sense of it. From our perspective, our case is strong, the points were well made, it seems pretty straightforward legally, but I just could not begin telling you what’s going to happen.”
The final day’s testimony concentrated on the reliability of geolocation software, critical because the Communications Decency Act allows for community standards to be applied in judging what is or is not obscene content on or offline. The Act also joins other laws in defining community by physical geography, and trial testimony divided “sharply,” Taylor said, over whether the accuracy of geolocation software is as low as 60 percent or as high as 99 percent.
Nitke herself testified that even with that software in place and highly accurate, the CDA would still leave her vulnerable to “just one government obscenity sting operation,” used “routinely” in Internet-involved criminal cases. “We actually think the software is around 70 percent [accurate],” she told AVNOnline.com. “But even if it’s 99 percent, it only takes one government sting and they could hire a 12-year-old kid to hack into the system and I’m in jail.”
Nitke said that, from her own “totally layperson point of view,” the government seems to be saying with community standards that most Netizens can determine which states to mail which kind of material to, and what not to mail. “So when you have a Web site, it becomes ‘How do you keep your Web site from going to those same states you wouldn’t want to mail something to?’” she said.
“The geolocation software supposedly identifies where a visitor’s coming from, and you can have it programmed to block out visitors from certain places,” she continued. “To do that, it’s a) highly costly, you’re talking about really expensive software designed for huge companies and not little mom and pop artists; and, b) the stuff is highly inaccurate. The programs are highly inaccurate. Their accuracy estimates – there was a lot of argument – the estimates ranged between 60 and 99 percent accurate depending on how you split hairs. The people who own the software think it’s extremely accurate, and a lot of tests show it’s extremely inaccurate. And I don’t want to have my liberty based on some nebulous projection of maybe this is 70 percent accurate.”
Nitke, too, didn’t want to speculate on the ultimate outcome. “My lawyer would kill me if I tried to speculate,” she said. “But I do think we presented an amazing case. I think we should win. But I really can’t speculate. And, you know, we don’t really know how long it’s going to take. And the question is, how long does it take for the judge to give a verdict, and none of us are going to sleep until we get the verdict.”
