Context note: This article appeared on pages 1849 through 1915, and the appendicies on pages 1916 through 1934. Page numbers will be added as HTML anchors at a later date.
Finally, Reader Advisory: Due to the nature of the studied material, Minors and Those Who Are Going To Be Easily Offended are hereby warned of strong language and sexual content. Leave now if dealing with such things is going to be a problem for you.
Last updated 7/11/95 8:35pm
Researcher and Principal Investigator, College of Engineering, Carnegie Mellon University. This interdisciplinary project was made possible by four
grants from Carnegie Mellon University. The author [hereinafter "principal investigator" wishes to thank members of the research team for their
encouragement, patience, and support. Principal faculty advisor: Dr. Marvin Sirbu, Department of Engineering and Public Policy. Faculty advisors: Dr. David
Banks, Department of Statistics; Dr. Timothy McGuire, Dean, Charles H. Lundquist School of Business, University of Oregon; Dr. Nancy Melone, Associate
Professor of Management, Charles H. Lundquist School of Business, University of Oregon; Carolyn Speranza, Artist/Lecturer, Department of Art; Dr. Edward
Zuckerman, Department of Psychology. Senior Programmer: Hal Wine. Programmers: Adam Epstein, Ted Irani. Research Assistants: Patrick Abouyon, Paul Bordallo,
G. Alexander Flett, Christopher Reeve, Melissa Rosenstock. Administrative Assistant: Timothy J. Burritt. Administrative Support: Dr. Chris Hendrickson,
Associate Dean, Carnegie Institute of Technology; Robert P. Kail, Associate Dean, Carnegie Institute of Technology; Barbara Lazarus, Ph.D., Associate
Provost for Academic Projects; Jessie Ramey, Director, SURG. Contributors: Lisa Sigel, C.J. Taylor, Erikas Napjas, John Gardner Myers. Special thanks to Ron
Rohrer, Wilkoff University Professor, Department of Electrical and Computer Engineering; and Daniel Weitzner, Deputy Director, Center for Democracy and
Technology, for review of the legal notes.
In an effort to present an informative and balanced report, members of the Carnegie Mellon research team (the principal investigator, his faculty advisors, and research assistants) have consulted with organizations and experts who hold a wide variety of viewpoints about pornography, although the overwhelming majority of contacts have been with the pornography industry itself. While this article discusses a number of different viewpoints on significant legal and policy issues related to the regulation of pornographic material, the research team does not advocate or endorse any particular viewpoint or course of action concerning pornography on the Information Superhighway.
The courts and numerous statutes concur with the distinction presented here between "hard-core" and "soft-core." See, e.g., Miller v.
California, 413 U.S. 15, 24 (1973); Ballew v. Georgia, 435 U.S. 223, 228 (1978); Ark. Code Ann. +s 5-68-302(2)
(Michie 1987); La. Rev. Stat. Ann. +s 106 (West 1994). By this definition, not all pornography meets the legal test for obscenity, nor should
all depictions of sexual activity be construed as pornographic. Accordingly, data was collected for this article only from bulletin board systems (BBS)
which clearly marketed their image portfolios as "adult" rather than "artistic." Any BBS or World Wide Web site which made even a modest attempt to
promote itself as "artistic" or "informational" was excluded.
"Pornographer" is defined to include BBS operators who do any of the following: commission photographers to provide new pornographic images; scan pornographic images from magazines; pirate pornographic images from other boards; or purchase adult CD-ROMs for distribution via modem to their customers. "Adult" is the term used by most BBS system operators who market pornography.
the law enforcement and constitutional implications are obvious. Thus, it is necessary to briefly
discuss the constitutional status of sexually explicit images.
Obscene material does not enjoy First Amendment protection. See Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973). In Miller, the Supreme Court established the current tripartite definition for obscenity. In order to be obscene, and therefore outside the protection of the First Amendment, an image must (1) appeal to a prurient (i.e., unhealthy or shameful) interest in sexual activity, (2) depict real or simulated sexual conduct in a manner that, according to an average community member, offends contemporary community standards, and (3) according to a reasonable person, lack serious literary, artistic, political, or scientific value. Id. at 25-27; see also Pope v. Illinois, 481 U.S. 497, 500-01 (1987) (rejecting "ordinary member of given community" test, in favor of "reasonable person" standard for purposes of determining whether work at issue lacks literary, artistic, political, or scientific value); Pinkus v. United States, 436 U.S. 293, 298-301 (1978) (excluding children from "community" for purpose of determining obscenity, but allowing inclusion of "sensitive persons" in the "community"); Ginzburg v. United States, 383 U.S. 463, 471-74 (1966) (allowing courts to examine circumstances of dissemination to determine existence of literary, artistic, political, or scientific value); see also United States v. Orito, 413 U.S. 139, 143 (1973) (holding that constitutionally protected zone of privacy for obscenity does not extend beyond the home).
To complicate matters, all adult pornographic material is initially presumed to be nonobscene. Cf. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989) (requiring judicial determination of obscenity before taking publication out of circulation); Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961) (requiring procedures for seizure of obscenity which give police adequate guidance regarding the definition of obscenity to ensure no infringement on dissemination of constitutionally protected speech). Accordingly, law enforcers and prosecutors attempting to pursue an obscenity investigation or prosecution face constitutionally mandated procedural obstacles not present in other criminal matters. See New York v. P.J. Videos, Inc., 475 U.S. 868 (1986). For instance, the so-called "plain view" exception to the Fourth Amendment warrant requirement, whereby contraband plainly visible to a law enforcement officer may be seized, does not apply to allegedly obscene material because, prior to a judicial determination, nothing is obscene and therefore, a fortiori, nothing be can be considered contraband. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979) (requiring that search warrants contain specific description of allegedly obscene items to be seized).
In addition to obscenity, one other type of sexually explicit material does not enjoy constitutional protection. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court explicitly removed pornography depicting minors from the protective aegis of the First Amendment. That is, obscene or not, visual depictions of children engaged in sexual conduct are not constitutionally protected. Because the government interest identified by the Supreme Court as justifying removing child pornography from the protection of the First Amendment is more urgent than the government interest which justifies denying protection to obscenity, and because the child pornography standard is far less vague than the obscenity standard, law enforcers and prosecutors are not bound by any unique procedural burdens here. See United States v. Weigand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987).
In sum, the constitutional regime that the Supreme Court has established for pornography creates two distinct categories of sexually explicit imagery that are not protected by the First Amendment. While ascertaining whether a particular digital image contains a minor is not a Herculean labor, ascertaining whether a particular digital image is obscene in the abstract is well-neigh impossible. Accordingly, the research team will not attempt to pass on the question of obscenity as it applies to the digital images that are the subject of this article.
Public key encryption involves utilizing one of a few commonly available software encryption programs which will scramble/encode the contents of a computer file. Every user has two keys, a public one and a private one, which are created unique to their owner. Users can distribute their public keys to other computer users without compromising the security of their private key. Those users can then use the public key to encrypt a message or image which will be sent to the original owner of the public key. Only the original owner can then decode the message with his private key. Id.
See
infra notes 89-95 and accompanying
text.
One of the more intriguing questions raised by this study is whether the general population will demand the same types of imagery currently in high
demand among computer users.
However, there is language in Ferber and Osborne v. Ohio, 495 U.S. 103 (1990), which would support the notion that child pornography produced entirely by digital imaging technology may not be protected by the First Amendment. In both decisions, the Supreme Court used, as a secondary justification for denying constitutional protection to child pornography, the role that child pornography often plays in the molestation of a child. In Osborne, the Supreme Court noted that child pornography is often used to lower the sexual inhibitions of children. 495 U.S. at 109-10. See also Ferber, 458 U.S. at 759; T. Christopher Donnelly, Protection of Children from Use in Pornography: Toward Constitutionally Enforceable Legislation, 12 U. Mich. J.L. Ref. 295, 300-04 (1979) (noting the use of child pornography in child molestation, both to arouse the molester and the child, and to overcome the child's inhibitions); W.D. Erickson et al., Behavior Patterns of Child Molesters, 17 Archives Sexual Behav. 77-78 (1988).
A popular electronic pamphlet, "How to Receive Banned Newsgroups Frequently Asked Questions (FAQ)," which is posted monthly on the Usenet illustrates many of the difficulties. Users may access "banned" Usenet newsgroups through any of the following means:
Not-for-profit news providers: Users may telnet to various hosts, such as Freenet, Hermes, Nyx, Prairienet, Um-m-net, or UNC BBS. From there, they can easily access Usenet newsgroups directly.
Commercial news providers: If users have difficulty with not-for-profit news providers, they can turn to commercial news providers. These news providers will provide shell access, news, dialup lines, and more. There are many national service providers both in the U.S. and around the world.
Open netnews transfer protocol (nntp) sites: If users do not want to use a not-for-profit or commercial news provider, there are open nntp sites that allow almost anyone with shell access and a news reader to read from and post to Usenet newsgroups.
Gopher: Usenet newsgroups are available through gopher. To find them, users may search for "Usenet news -t7" in veronica, or use sites recommended in the FAQ.
Mail to news gateways: Mail to news gateways are sites that will take any article given to them and forward it to Usenet newsgroups. These are listed in the FAQ.
Internet services list: This is not a direct way to access Usenet newsgroups, but it does list many places, and it changes often. To get the Internet services list, users may look in alt.internet.services, comp.misc, biz.comp.services, alt.bbs.internet, news.answers, comp.answers, alt.answers, or ftp to rtfm.mit.edu or archie for inet.services.txt.
Telnet: With telnet, users can access any of the free services listed above. They can also access one of the many gopher servers that will allow them to read Usenet newsgroups. These are listed in the Internet services list. They can also access the World Wide Web via telnet.
Email: Many Usenet newsgroups are mirrored in a mailing list. In addition, some sites have ftp archives. Users may determine whether the group they are interested in has this service by checking the FAQ; these FAQs are available through the ftp site rftm.mit.edu.
Ftp: Ftp service is available through e-mail. For information on ftp-through-mail, users may look in the Internet services list.
Perl Scripts: It is also possible for one user to mail another user the contents of certain Usenet newsgroups with a simple Perl script, provided they have access to a shell account.
Mailing Lists: Users may also subscribe to mailing lists that mirror Usenet newsgroups. To get a list of these, they can ftp to rtfm.mit.edu and get /pub/Usenet/news.answers/mail/news-gateway/partX, where "X" is the number of separate parts.
Archived Newsgroups: Many Usenet newsgroups are archived. Users can often examine the FAQ for that group, available at rtfm.mit.edu.
These user "work arounds" are relevant principally to Usenet access providers (commonly referred to as "host sites"), which do not wish to act as a republisher or prevent users from exploring alternate avenues for retrieving pornography. Most of the "work arounds" discussed here also assume that the host is providing unlimited general internet (IP) access to off site locations which might contain pornographic Usenet newsgroups or gopher sites. Parents and schools are not obliged to provide unlimited access to arbitrary IP addresses and port numbers. They can implement IP address filters which limit access only to known, acceptable locations. They can also implement filter programs which will look for the string "alt.sex.*" and either drop the connection or log a child's access for the parents to deal with later. Accordingly, while acting in locus parentis, schools may be justified in logging all actions by minors at their computers. This would create an "after the fact" method of determining what students are doing. It is possible that employers may also attempt to monitor their employees" logfiles as a means of insuring that company equipment is utilized for business, as opposed to recreational, purposes.
To complicate matters, however, these strings might block desired informational newsgroups such as alt.sex.safe. Many network observers argue that such a strategy thwarts the most fundamental benefits of the Internet. Moreover, the research team and many network administrators have discovered pornography on alt.test and other supposedly "general interest" newsgroups. Given the approximately 50 new World Wide Web sites and 20 new Usenet groups announced each day, the cost in administering restrictive access may be prohibitive. Administrators would have to check each of the new sites and newsgroups daily and make decisions concerning access. They would then need to propogate the restrictions to every machine or account on the local net. Though technically possible, such filter programs are computationally expensive and do not resolve encryption issues (very common with PGP and other PEM products) or protocols that do not use standard ASCII.
In general, primary and secondary schools, as well as most parents, do not have the capability or resources to implement these safeguards. These difficulties might necessitate the review of thousands of newsgroups on a case by case basis, which has led some network analysts to suggest that a national or international rating system be established. See infra note 137. At least one third party vendor has begun to provide such blocking services, but it is not clear to what extent the services will be effective. See Carla Koehl et al., Policing for Porn, Newsweek, May 22, 1995, at 8. Furthermore, consumers can usually block access to 900 numbers at no cost, and they may be angered at the prospect of having to pay for services (and software updates) which attempt to filter out pornography from their home.
At the present time, it is also difficult to make distinctions between multiple users at a given site. For instance, a university could not easily set up filters so that the same public cluster machines could be used by persons of legal age to access anything, while at the same time restricting access to certain groups by minors.
Whatever procedures are implemented, many users may develop increasingly innovative techniques to bypass such blockades and trade pornography through underground channels. Although typical firewalls would block most (but not all) of the alternative paths discussed here, they raise additional concerns that those who manage the firewalls could act as censors by determining what their users can and cannot access. Routers could be programmed to restrict any traffic from a given site, but this implies a very large administrative cost to keep such blockage up to date, perhaps as many as several full-time staff per Internet node. Moreover, because current generation routers were not designed for restricting traffic, they may not have enough capacity for enough filters to block all restricted sites.
An intriguing solution to the difficulties raised here may involve some promising new technologies currently being developed at several universities and research labs, including the IBM Almaden Research Center. See Will Equitz & Wayne Niblack, Retrieving Images from a Database Using Texture-Algorithms from the QBIC System, Research Report, IBM Research Division (1994). Researchers are currently developing algorithms which would automatically scan through large online image databases to identify specific colors, texture (including contrast, coarseness, and directionality), and patterns. Dubbed "Query by Image Content (QBIC)," the technology might assist network administrators in locating the presence of nudity, genitalia, breasts, ejaculate, feces, and various activities in the images that might suggest sexually explicit content.
Even if the method were only moderately reliable, it might substantially narrow the number of suspected images a human monitor would need to sift
through to locate pornography. While it may not be possible in the next decade for such technology to automatically classify images with the same precision as
the Carnegie Mellon linguistic parsing software, it does not appear exceedingly difficult to develop algorithms that scan through images and check
for textures and colors that might suggest sexual explicitness. However, such technology may not work if the images are encrypted, and significant
privacy issues are also implicated.
While there is no evidence to suggest that Usenet and Internet users who block the monitoring of their accounts access pornography more frequently than those
who do not, one also cannot assume that a notable difference does not exist. This is especially true in the context of pedophilia and child pornography
consumption. Preferential molesters (i.e., pedophiles with a true sexual attraction to children) frequently employ inventive mechanisms to evade
discovery, as discovery will likely lead to incarceration. Kenneth Lanning, Child Molesters: A Behavioral Analysis 16-19 (3d ed. 1992).
Given this behavior pattern, it is at least possible that some Internet users who block their accounts prefer sexual images of children and wish to
avoid detection.
The research team has also mounted a continuous and persistent effort to obtain similar data from other universities. In most instances, the
universities contacted indicated that they did not compile such data, while others were uncooperative. Still, there is no reason to believe consumption at
the university studied differs from that of other universities from which pornographic Usenet newsgroups can be accessed.
With respect to the worldwide statistics, the "arbitron" script that is used to produce the data for the monthly Usenet readership surveys is supplied by Brian Reid at DEC Network Systems Lab. The system administrators who agree to participate in the survey customize the script for their site, and then run it once a month. Importantly, it automatically produces a readership survey for that site and then mails the results to decwrl.dec.com. These results are run through a statistics program on the first day of each month and include any report that has reached it by that time. Because the worldwide statistics are based on a small sampling of sites (453 or .17% of the total estimated sites), there is no way of knowing whether those who chose to participate in the Usenet survey differ significantly from other sites. Reid notes that:
The most controversial field in the survey report is the "$US per month per reader." It is the estimated number of dollars that are being spent on behalf of each reader, worldwide, on telephone and computer costs to transmit this newsgroup. The rate of $.0025 per kilobyte is the same value used in the UUNET statistics reported biweekly. It is based on discussions among system administrators about the true cost of news transmission . . . [who] treat this value as being accurate to within about 25%.Brian Reid, USENET Readership Summary Report for Jan. 95, Feb. 1, 1995 (electronic newsgroup posting, on file with author). For a complete description of the methodology used to compile the worldwide statistics, see the periodic postings in news.lists.
The results of the arbitron program are dependent on the rate at which sites expire (delete) newsgroups. If a site is small and expires newsgroups rapidly, the results may indicate fewer active readers than may be the case. Most sites expire news every three days to two weeks, depending on the group. The university arbitron, on the other hand, was modified to count readers who had accessed an article within the last thirty days. However, network administrators at the university also compiled weekly statistics and reported no significant differences between the weekly and monthly statistics.
, such commercial and
entertainment software may be used largely for pornographic purposes. "I am frequently patted on the back by CEOs of companies privately," said James
Erlich, creator of Penthouse Interactive Virtual Photo Shoot, "because their hardware sales have gone through the roof since our titles have been released."
David Landis, Regulating Porn: Does It Compute, USA Today, Aug. 9, 1994, at D1.
It should also be noted that Usenet names tend to be euphemistic. The bulletin board alt.binaries.pictures.erotica contained, in addition to soft-core and hard-core imagery as defined by this study, the following paraphilias: pedophilia, hebephilia, fisting, B&D/S&M, coprophilia, urophilia, transvestite, and transsexual. The commercial bulletin board clari.news.sex was clearly not pornographic, although sex-related. The newsgroups identified as pornographic include images, as well as written material and offers for sale of pornographic products.
Determining whether an image is obscene partly depends on its appeal and effect on a hypothetical "average person." See Miller v. California 413 U.S. 15, 24 (discussed supra note 2). The average person standard stands in stark contrast to an older approach to obscenity which tested whether a pornographic image impacted the most susceptible, rather than the average person. Regina v. Hicklin, 3 L.R.B.Q. 360 (1868). Cf. Commonwealth v. Friede, 171 N.E. 472 (1930) (focusing standard for determination of obscenity on whether it tends to corrupt youth).
There are numerous techniques a researcher or pornographer could apply to answer this question. First, one could obtain from the BBS the log file which indicates the download habits for each consumer. Thus, if the word "watches" were the reason for the download, the consumer would indicate a pattern of having downloaded other images which were described as "watches" (or "blondes" or "fucks"). The log file, which is kept privately by most BBS operators, is the best way to develop profiles of individual consumer habits. However, researchers (or sophisticated pornographers) might be more interested in analyzing segments or market niches; this would enable them to draw general conclusions about the industry independent of a few "unusual" customers. Second, if the log file were not available (and it is expected that in most cases it would not be) there would remain at least two other powerful techniques researchers could apply to answer such questions: cluster analysis and contingency table analysis. For a contingency table analysis, one could separately count the percentage of images which contained each of the three words and then predict the expected number of cases of overlap. This expected number could then be compared to the actual number to determine whether an unusually high or low degree of activity were present.
It should be noted here that famous models was defined broadly, to
include a great number of "local" stars from BBS across the United States. hebephile included images of young, "flat-chested" females,
their genitalia shaved, clad in pigtails and bobby socks, and sometimes surrounded by stuffed animals. Thus, they may be, or appear to be,
adolescents. The emphasis of this study, as noted earlier, is to determine how many images the pornographers market as pedo/hebephile, an important
area which has not been adequately addressed by the legal system. b&d/s&m: When a rope or harness or whip is visible
in the image, it was classified under b&d/s&m. However, the "pain and torture" category caused the most difficulty. Pornographers
often market anal sex and fisting images as "She screams in pain as he fucks her ass," or "She is tortured as her girlfriend fists her pussy." It
was necessary to permit overlap in these cases. Thus, the former image would be classified both as anal and b&d/s&m,
and the latter would be classified as fisting and b&d/s&m.
Before transformation, the Amateur Action BBS pedo/hebephile portfolio appears to differ substantially from other "adult" BBS, but on the logarithmic scale it is not an exceptional data point.
This dilemma is made more complex by the Supreme Court's decision in Stanley v. Georgia, 394 U.S. 557 (1969). In Stanley, the Court identified a penumbral privacy right to possess obscene material within the confines of one's home. Since computer transmitted pornography most often comes directly into the home, it is at least arguable that Stanley operates to immunize computer-transmitted pornographers from criminal liability. If this argument were accepted, the idea that Cyberspace should be considered an independent community would, oddly, be one of boudoirs and bedrooms connected to one another only by telephones.
Lastly, if one chooses to view computer acquisition of obscenity as merely one method, among many, of obtaining obscene material, another logical view is that Cyberspace does not constitute a community at all. A philosophical discussion of "community" is beyond the scope of this article. In sum, the entire conception of community and community standards may be revisited by federal courts as digital pornography becomes more prevalent.
Robert Thomas is presently under federal indictment in the District of Utah for allegedly selling child pornography over his Amateur Action BBS and is awaiting trial. United States v. Thomas, No. 94-CR-107J (D. Utah filed July 20, 1994).
Applying a similar analysis to the other 34 "adult" BBS suggests a very rough estimate of 75,892 subscribers whose consumption patterns were analyzed for this article. This does not include the other 33 "adult" BBS for which no download information was available, including one of the largest "adult" BBS discovered, Event Horizons, which reports more than 30,000 active subscribers. This also does not include those who obtain pornographic images via the Usenet, ftp sites, private trades, or other "adult" BBS.
Usenet statistics estimate the number of active users of alt.pictures.binaries.erotica at 260,000 worldwide. See supra Table 2. Due to overlap of readers within the .binaries hierarchy, there is no way of determining the total number of readers of pornographic Usenet newsgroups, but it appears to be notably higher. See, e.g., supra text accompanying note 126, which suggests that pornography consumers often comprise mutually exclusive subsets according to sexual tastes. Moreover, because this article demonstrates that pornography consumption at at least one university is substantially higher than among the general population, see supra section entitled Comparisons: Univerisity and Worldwide Results, it may be that the worldwide sampling underreports the total number of readers of pornographic Usenet newsgroups because it undersamples university sites. However, because "adult" BBS were found to use the Usenet to advertise their products, the subscribers to commercial "adult" BBS may merely be a subset of those accessing pornography via the Usenet. See supra section entitled Origins of Usenet Pornographic Imagery.
Finally, the "adult" BBS market, as with the BBS market in general, appears to be expanding rapidly. This article reports data from commercial BBS as of June 1, 1994. The most recent editions of Joy of Cybersex, The Adult BBS Guidebook, and the alt.bbs hierarchy of the Usenet contain listings of many "adult" BBS which opened in the past twelve months and were not included in this article. For instance, six months after the first dataset was collected for this study, the research team obtained a list of new BBS in the Chicago area. Twenty-three were advertised as "adult," but none of them had been available for inclusion in the original dataset. In sum, while the reader is cautioned against interpreting the 8.5 million downloads discussed here as alarmingly high, he or she is equally cautioned against attributing the total number of downloads of sexually explicit materials in Cyberspace, both reported and unreported by this article, to a disproportionately small percentage of the computer literate population.
Each government and, indeed, each site can regulate what sort of traffic they will receive. For example, a computer network run by a religious organization may elect not to carry any sexually explicit material, while major service providers may choose to carry everything permitted by law. Parents who do not want their children to see pornographic images could establish a filter from their homes. If successfully implemented, content flags might allow the government to regulate obscenity without unduly restricting access to other sexually explicit material which is protected by the First Amendment. The obvious difficulty will likely be enforcing a content flag requirement, both on a national and international basis.
To identify the senders of child pornography, or those sending obscene materials without the correct content information, some form of authentication is required. Simply pointing back to a hostname is not viable, because hostnames might be forged. Similarly, pointing back to an IP address, although more reliable, only identifies the site responsible for that particular block of IP addresses. This may work well for entities such as CompuServe, or Carnegie Mellon University, where complying with the law is generally expected, but many other sites exist on the Internet which may not feel obligated to comply with the law as scrupulously.
Without the help of computer system administrators, law enforcement agencies would have to expend an enormous amount of resources tracing a site, which may be connected to another site which is connected to a third site, etc. For authentication to be practical, sites might have to be connected according to a hierarchy, with responsibility defined at each level.
Furthermore, the implementation of content flags and authentication procedures may raise constitutional concerns. With content flags, the government would essentially be requiring computer users to identify the nature of their speech. One question is whether this constitutes "compelled speech," which the Supreme Court has viewed with some suspicion. See, e.g., Wooley v. Maynard, 430 U.S. 705, 713 (1977) (striking down state statute requiring all license plates to display state motto); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (striking down state resolution requiring all public school children to salute the American flag and recite Pledge of Allegiance). But see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375 (1969) (upholding FCC order requiring broadcasters to air replies to political editorials).
Moreover, in the case of authentication procedures, the government may be requiring computer users, arguably engaged in expressive conduct, to identify themselves. Generally, the First Amendment protects the anonymity of those transmitting speech. The Supreme Court has invalidated a requirement that prohibited the distribution of leaflets which did not identify the author of the leaflet. Talley v. California, 362 U.S. 60, 64-65 (1960). While trading digitized images on computer networks is vastly more complex than leafletting, the question of anonymity continues to be important. Thus, the Supreme Court's anonymity cases may apply to Cyberspace. Because the apprehension of child pornography producers, distributors, and consumers is a particularly compelling government interest, see New York v. Ferber, 458 U.S. 747, 761 (1982), carefully drawn authentication procedures may pass constitutional muster.
Even if content flag and authentication requirements are implemented, other forms of electronic communication, such as ftp and World Wide Web sites, pose even more serious challenges to law enforcement. Child pornographers will inevitably develop more effective means of circumventing the law. Currently, they set up anonymous mail bouncers to redirect traffic elsewhere, with a new authenticated identification.
The collection, retention, and improper use of personal information by businesses is not a phenomenon unique to Cyberspace. In 1972, in California, voters amended the state constitution to include privacy as an inalienable right prohibiting intrusive business practices. See Cal. Const. art. I, +s 1; White v. Davis, 13 Cal. 3d 757, 773-75 nn. 8-9 (1975) (discussing the purposes and applications of the state constitutional amendment). Importantly, one of the reasons California voters felt compelled to amend their constitution is that the federally protected penumbral right to privacy operates only against state action. See Hill v. NCAA, 7 Cal. 4th 1, 28-29 n.8 (1994) (contrasting California right to privacy with federal privacy right).
In hindsight, California appears to have been prescient. With the aid of computer software applications which can quickly analyze and categorize personal information, businesses can become far more intrusive. It would be erroneous to assume that bulletin board operators who offer extremely explicit, possibly illegal digitized pornography for sale will not collect and use personal information. In fact, the potential for blackmail is readily apparent assuming that few, if any, persons would want their personal pornography consumption habits to be made public. As with California, there may be increasing calls for enacting state and local legislation, which reaches beyond state action, to protect against such abuses of personal information.