The rapid expansion of information technology in the past few years has left states and the Federal government struggling desperately to keep up and many of the laws attempting to regulate the Internet and information technology show a lack of understanding how the affected technology actually works and could possibly the growth and distribution of new ideas and inventions even incapacitate the Internet. One area in particular that has been the subject of widespread concern and attention is online pornography, a business that few people only realize just how big it truly is. This article focuses on the recent District Court of Pennsylvania decision in Center for Democracy & Technology et al vs. Pappert, the latest in a string of decisions striking down laws aimed at regulating online access to pornography and other sexually explicit material. After briefly presenting how the Pennsylvania Internet Child Pornography Act applies to online content regulation, a brief explanation of the technology involved is offered, arguing that the answer to problems involving technology is not more technology. It then examines the issues raised by the Pennsylvania statute and others like it, relating to the First Amendment and due process as well as constitutional issues relating to the Commerce Clause. It is a generally acceptable fact that federal and state governments have a legitimate interest in regulating child pornography but Internet regulation both at the state and federal level, such as the Communications Decency Act, have been proven unconstitutional and ineffective. The author argues that the answer is to find a balance between recognizing the challenges and features of the Internet and utilizing existing legislation in a more efficient and practical manner while adapting the methods of law enforcement agencies to the new demands in order to save time and money as well as prosecute criminals. Ultimately, the best answer to furthering the legitimate interests of controlling access to obscenity and child pornography lies in a combination of federal/international legislation, self-regulation by the adult industry, and most importantly, common sense by individual users.
John Spence, Pennsylvania and Pornography: CDT v. Pappert Offers a New Approach to Criminal Liability, 23 J. Marshall J. Computer & Info. L. 411 (2005)