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Lesson 74 - Content Regulation: the CDA of 1996

The Case For the CDA

We've given you the argument against the CDA. Now we'll give you the argument in its favor. We're sure you've heard many arguments in favor of the statute. What we offer here is, we think, the strongest argument supporting it. Whether it is strong enough is for you (and the Supreme Court) to decide.

First, some context: They say a picture is worth a 1,000 words. Here's a link to a cartoon that's worth at least that:

In it (for those who can't access the web), there are two "stores." On the right is an adult book store; on the left, a computer with "" as its marquee. On the right, a kid is being kicked out of the real space adult book store by its owner; on the left, a kid is being invited in. The message of the cartoon is clear: In real space we have all sorts of techniques for keeping kids from porn; in cyberspace we don't.

This captures just what the CDA is about: It is about inducing cyberspace to develop technologies for screening kids out of porn in cyberspace, just as kids are screened out from porn in real space. In a sense, the government is mandating that the "code" of cyberspace be changed, so that cyberspace can discriminate on the basis of age.

The government calls this a kind of zoning: The purpose of the CDA is to zone porn into a part of cyberspace that is able to keep kids out, while letting adults in (again, like the adult book store in real space keeps kids out while letting adults in). It aims at achieving this zoning by requiring, in effect, screening devices in cyberspace, that block out kids, while letting in adults. In effect, the CDA mandates that providers of porn put up screens on their sites if they want to offer porn on the internet.

What would those screens be? The easiest example would be a password requirement, where the password was an "adult identification number" that gave the adult access to the adult site. If a site with indecent material blocks out people without a password, then it has, we believe, satisfied the requirements of the statute.

How hard would it be to get such a password? When the CDA was passed, nobody knew. But already there have sprung up dozens of companies that sell adult identification passwords. As the government argues in its brief to the Supreme Court, for $9.95, someone can get a password that will give them access to thousands of "indecent" sites. And to get such a password is extremely easy (at least for those with a credit card): One click when entering an adult site will take the user to a registration location where, with a credit card or other verified identification, the user can get a password in a very short time.

But how burdensome would this be on providers, who want to put indecent material on the internet? Well again, when the CDA was passed, nobody knew. But now it seems that the burden on the providers is quite slight. Indeed, right now companies that issue adult verification numbers are *paying* sites to offer their registration service on their site. So rather than being a significant burden, the password requirement may actually be in some ways a benefit.

In the end, the government argues, the actual burden on adults (to get an adult identification) is slight, and the actual burden on providers (to implement a screening device) is slight, and since both burdens are slight, the statute should be upheld. It is, in legal terms, a not very restrictive means to achieve its end.

It seems that whatever burden the CDA would impose, by requiring these password systems, it would be less than the burden imposed on porn sellers in real space. Cities can use zoning to restrict porn sellers to remote parts of the city; they can require that porn sellers check IDs of people they wish to sell to; they can require that adult sites not advertise in very provocative ways. All these are real space burdens that sellers of porn must bear. And the government's best argument about the CDA is that zoning porn in this way is even less burdensome.

Larry LessigDavid PostEugene Volokh

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