Zoning the Internet: A New Approach to Protecting Children Online

I. INTRODUCTION Some movements generate a great deal of energy but seem to get no closer to their goal. The fight to save children and teens from Internet pornography has been one such endeavor. Weeks and years, impressive fortunes, and promising political careers have been consumed with good faith efforts to address this pressing problem. Statutes are drafted, passed, and litigated. Courts struggle to frame a proper test. The Supreme Court splits in pluralities. Statutes fail. All the while, academics, lawyers, and legislators churn arguments and ideas. Still, the problem grows. Pornographers find new and ingenious ways to circumvent filters, attract new categories of viewers, and build economic and political support. The number of sexually explicit Web pages multiplies. Younger and younger children learn to use the computer. Cheaper and smaller devices are engineered to be Web-enabled but not filtered. Unfiltered, unsecured WiFi hotspots pop up everywhere. In short, a generation of tech-sawy children is being exposed to sexually explicit material that is not age-appropriate, that they cannot fully process, and that they lack the judgment and experience to contextualize. As Internet pornography metastasizes at an ever more alarming rate, many, like Justice Stevens in his concurring opinion in Ashcroft v. ACLU (Ashcroft III), express "a growing sense of unease" about any regulation of speech on the Internet.1 In fact, the track record of prior legislative schemes in the courts suggests that no legal mechanism for restricting children's access to Internet pornography will survive constitutional review. And, indeed, if approached again as an Internet-wide, transaction-based restriction, further attempts are likely doomed. The law, or East Coast Code as characterized by Larry Lessig,2 seems hopeless as a means of addressing speech on the Internet. Rather than give up in despair or pretend that any teen with a decent public education cannot bypass a filter, it is time to step back from failed patterns of government regulation and consider how Internet architecture can be harnessed to create an environment where government regulation can be effective but not unreasonably burdensome. This Article proposes a solution that engages programming and technology, or West Coast Code,3 in refocusing the point of regulation of Internet pornography, thereby reducing the burden of regulation on speech and increasing the ability to achieve constitutionally recognized governmental objectives. Part II briefly examines previous congressional attempts to restrict children's access to Internet pornography and the judicial responses. Part III explains the Internet Community Ports Concept, which relies on technology to zone Internet ports. Part IV then describes the Internet Community Ports Act (ICPA), which supports and enforces the zoning divisions. Thus, working together West Coast Code and East Coast Code can create safe places for children and families on the Internet. Part V responds to the issues raised by Professor Dawn Nunziato with respect to ICPA.4 Finally, Part VI concludes by explaining how this two-pronged solution provides a constitutionally acceptable solution to the problem of underage access to Internet pornography. 2. See LAWRENCE LESSIG, CODE: VERSION 2.0, at 72 (2006). In the Internet context, East Coast Code is a constraint on the Internet caused by law as enacted and enforced by Congress and the Supreme Court on the East Coast. West Coast Code is a constraint on the Internet caused by the technological architecture and software written and applied by geeks who are at least srereotypically identified with Silicon Valley, or the West Coast. 3. See id. 4. See Dawn C. Nunziato, Technology and Pornography, 2007 BYU L. REV. 1535, 1571-84. II. LEARNING FROM THE PAST: EXAMINING PRIOR LEGISLATIVE SCHEMES Congress has adopted two broad regulations aimed at protecting children from Internet pornography: the Communications Decency Act (CDA)5 in 1996 and the Child Online Protection Act (COPA)6 in 1998. …