In 1993, Robert and Carleen Thomas were operating a bulletin board system called the Amateur Action Bulletin Board System (AABBS) in Milpitas, California. The system was accessed by telephone, not the Internet. The BBS contained a wide range of adult fare, and had numerous login screens and banners that clearly indicated that the information the system contained was sexually explicit. To gain access to the system, potential subscribers needed to send AABBS a photocopy of their driver’s licenses (to prove their ages) and pay a membership fee of $55 for six months.

In July 1993, a Tennessee postal inspector named Dirmeyer downloaded a number of sexually explicit files from AABBS, after first registering (using an assumed name) and paying the membership fee. The postal inspector was apparently responding to a complaint from a person in his jurisdiction. On the basis of the information that he downloaded, the Thomases were charged with a violation of 18 USC 1465, “knowingly transport[ing] in interstate or foreign commerce for the purpose of sale or distribution . . . any obscene . . . book, pamphlet, picture, film . . . or any other matter.”

The outcome of the trial hinged on whether the information that the postal inspector had downloaded was actually obscene or merely sexually explicit. But the standard for obscenity is not defined in U.S. law. In 1973, the United States Supreme Court instead said that obscenity was best judged by local “community standards.” And while the information distributed by AABBS may not have violated the community standards of Milpitas, California, or the standards of the community of dial-up bulletin board systems, on July 29, 1994, a jury in the Federal District Court for Western Tennessee ruled that the downloaded images did violate the community standards of Western Tennessee.^[356] (As it turns out, the Thomas’ BBS had been previously raided by the San Jose Police Department in 1991; following that investigation, local law enforcement had concluded that the BBS had been acting in a legal manner—at least in California.)

In 1996, the U.S. Congress passed the Communications Decency Act (CDA) as an amendment to the Telecommunications Act of 1996. The purpose of the act was allegedly to protect minors from harmful material on the Internet. But civil libertarians complained that the act was overly broad and that it would actually result in significant limitations for adult users of the network.

Shortly after the act was passed, a coalition of civil liberties groups filed suit against Attorney General Janet Reno, asking the court to enjoin Reno from enforcing the law. The case, American Civil Liberties Union v. Reno , was “fast tracked” to a special three-judge court in Philadelphia. That court ruled that two key provisions of the law were an unconstitutional abridgment of rights protected under the First and Fifth Amendments. The first provision struck down was a part of the law that criminalized the “knowing” transmission of “obscene or indecent” messages to any recipient under 18 years of age. The second was a provision that prohibited the “knowin[g],” sending, or displaying to a person under 18 of any message “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

The Clinton Administration appealed the ruling in the case Reno v. ACLU. The case went to the U.S. Supreme Court, which ruled against the Clinton Administration and the law.^[357] At the time of the ruling, one of the key issues that the Court focused on was the increasing availability of filtering software that could be used to prevent children from accessing pornography. The argument was that if parents wanted to “protect” their children from pornography, all they had to do was equip their computers with the requisite software; there was no need to restrict everybody else who used the Internet.

Realizing that it could not regulate the Internet itself, Congress subsequently passed a law requiring that federally supported schools and libraries install filtering software on computers to prevent children from accessing pornography at these places. That law has been challenged in some jurisdictions as overly broad. The overall issue is likely to be a topic of legislation and litigation for years to come.

Numerous laws now require that schools and libraries install mandatory filtering software on their Internet connections. Of these, the most important is the Children’s Internet Protection Act (Pub. L. 106-554), which requires that schools receiving discounted communications services have in place technology that prevents access through computers to visual depictions that are “(I) obscene, (II) child pornography, or (III) harmful to minors.”

Today, the harshest punishments in the U.S. legal system for possession of contraband information are reserved for pornography that involves the sexual depiction of children or pornography that uses children in its creation. The prohibition against child pornography is based on the need to protect children from sexual exploitation. Because the child pornography regulations criminalize the mere possession of child pornography, you can be in serious legal trouble simply by receiving by email an image of a naked minor, even if you don’t know what the image is at the time you fetch it.

Child pornography laws are often applied selectively. In several cases, individuals have been arrested for downloading child pornography from several major online service providers. Yet the online service providers themselves have not been harassed by law enforcement, even though the same child pornography resides on the online services’ systems.

In recent years, there has been a move to expand the definition of child pornography to include simulated acts of child pornography, computer animations of child pornography, and even textual descriptions of child pornography. Proponents of these expansions argue that besides any harm that may be caused to children in the creation of child pornography, the mere existence of child pornography is harmful and should therefore be criminal.