April 5, 1997
In Decency Case, Judge
Gets an Internet PrimerBy PAMELA MENDELS
NEW YORK -- Much of the testimony on the witness stand in a Manhattan courtroom on Friday was about mail and chat -- the virtual kind.
It's like any community. You help each other. You work with each other. Diane K. Kovacs, president
Kovacs Consulting
It was the second day of hearings in a case challenging a New York State law that would restrict indecent speech on the Internet by making it a crime for a person to use a computer to transmit sexually explicit material deemed "harmful to minors" to anyone under age 17.The plaintiffs in the case, a coalition of 15 library groups, artists, publishers and Internet-related businesses, argue that the law violates the free speech guarantees of the First Amendment. They say that the law could jeopardize not just material that is clearly pornographic but many other forms of expression, ranging from works of art to medical information published on the Net. The plaintiffs also compare the New York statute to the Communications Decency Act, a similar but more broadly worded federal law that is now the subject of a challenge in the United States Supreme Court.
Lawyers for the New York State Attorney General's office, which is defending the law, have argued in court papers that the statute is intended to target pedophiles who prey on children through the Internet. The problem occurs largely in a corner of cyberspace known as chat rooms, virtual spaces in which people type messages to each other with almost no delay, so that they can engage in a real conversation, albeit by typing words instead of speaking them.
Parents, prosecutors and others have been alarmed by cases in which adults, using chat rooms and private e-mail, have sought out minors, apparently for sexual encounters. In fact, an incident of this sort in 1994 in Westchester County, a northern suburb of New York City, helped spur passage of the law.
The sole witness to appear Friday before Judge Loretta A. Preska of the federal court for the southern district of New York, was Diane K. Kovacs, president of Kovacs Consulting of Brunswick, Ohio. Kovacs, whose company provides Internet training and Web design, was called to the stand by the plaintiffs to help Preska understand how the Internet works.
Equipped with a laptop computer and other gizmos, Kovacs did just that, as Preska watched a computer monitor that had been set up on her imposing bench.
Would filtering software have prevented the crime that prompted the law? Probably not.
Kovacs demonstrated how electronic mail worked and explained the popularity of e-mail discussion lists by noting that she administers one such group devoted to fans of the mystery writer Dorothy L. Sayers. She explained newsgroups, in which people can post messages or encoded images on an array of topics. She also demonstrated the Internet's graphical space, the World Wide Web, which, Kovacs noted, many people erroneously think is the Internet but is in fact just one component of it.Opponents of Internet decency laws commonly argue that censorship is not necessary to protect children because parents can employ "filtering" software to block their children's access to parts of the Internet they deem inappropriate. When her testimony turned to such software, Kovacs noted that one product, Net Nanny, allows parents not only to prevent their children from reaching improper sites but to ban their sending or receiving offensive words.
But on cross examination by New York State Assistant Attorney General James T. Hershler, Kovacs admitted that the blocking software is less than perfect. For one thing, she noted, it cannot "read" pictures, so that it would not necessarily block access to a sexually explicit photograph that contained no text indicating its content.
On the first day of testimony, a state investigator cited the case of an 11-year-old girl who had conversed with someone in chat room and had then received from that person two lewd photographs by e-mail. The investigator said that the new law was the only statute on the books under which such an incident could have been prosecuted.
Furthermore, Hershler said Friday, filtering software cannot always be counted on to prevent improper text from reaching minors. Couldn't an inappropriate but "artfully named" chat room, for example, be visited by children? he asked.
Later in the hearing, Kovacs acknowledged that screening software probably would not have blocked access to the sexually suggestive but carefully-worded e-mail message sent to a 14-year-old girl in the Westchester County incident.
Can the Internet be made any safer than the real world for children?
Hershler pressed the point by reading from Kovacs' pre-trial deposition. "Didn't you testify," he said, "that adult supervision was the only way to prevent pedophiles in a chat room?""Yes," Kovacs answered.
But, she added later, she believes that cyberspace is a safer environment for children than the real world. Furthermore, she said, chat rooms are often monitored by watchful adults. "It's like any community," she said. "You help each other. You work with each other."
Ann Beeson, a lawyer for the American Civil Liberties Union, one of the groups challenging the law, sought to show that filtering software can provide several degrees of protection against improper online dialogs. Under her questioning, Kovacs noted that Net Nanny can give parents a record of their children's e-mail messages. It can also prevent children from entering chat rooms altogether, from entering those deemed improper by Net Nanny or from entering rooms deemed inappropriate by parents.
State lawyers kept driving home the point, however, that there could be no absolute guarantee of safety on the Internet for children, suggesting that some sort of regulation of cyberspace, therefore, was necessary.
Toward the end of the session, Jeanne Lahiff, another assistant state attorney general, asked Kovacs if she was familiar with the term "netiquette." Kovacs said the word was used to describe commonly accepted rules of conduct in cyberspace.
"So people do censor their behavior on the Internet," Lahiff said. "You wouldn't give an obscene copy of a magazine to a child in the real world would you?"
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