Well was an exciting week, NY passed a law that'll cost $2-5 million to prove fails constitutional muster, and the US District Court ruled unanimously that COPA is also unfit to be a law.

NY's new law requires that all games have a warning label for violent content. Additionally, it requires all console games sold in NY state to have parental control lockouts by 2010. This might not be so bad, except that 5 other states have tried to impose similar laws and all 5 have spent millions of dollars only to have the courts tell them the obvious thing - Forced Labeling of artistic materials is an 'abridgement of free speech'.

COPA on the other hand has been around since 1998, gone to the Supreme Court twice, and has failed to make any rational sense since the day it was signed into law. In essence, any website with content 'unsuitable for minors' is required to have some form of age verification mechanism to lock out underage visitors. The problem is that 'unsuitable for minors' drops back to the 'prevailing community standard' used in the Miller Test for obscenity.

Why do politicians fight so hard to impose these types of legislation on us? Even worse, why do they insist on fighting tooth and nail to enforce it, spending our tax dollars to impose restrictions that have proven themselves to be legally unenforceable.

The NY law will cost about 5 million dollars if it's left at the state Supreme Court level. That's about between 25 & 30 cents per person in the state. Settling the issues with COPA should cost about the same - per person in the US, all 300 Million of us. I know I shouldn't complain about a pittance like $75 million dollars, after all it's to 'protect the children'.

There is a theory in the security field about the difference between being secure and feeling secure. If you were to compare an airport lounge with undercover security guards against one with big burly bouncer type security guards in uniforms, the general consensus of the occupants of the lounge is that the bouncer infested one was safer. The reality is, they are the same. The difference is what security experts call 'Security Theatre'.

When you go through the scanner at the airport & the guard pulls out your little clear plastic bag with 4 3 ounce bottles and asks you to choose which one he is going to throw out, that's security theater. It doesn't make you any safer, it's just supposed to make the people in line feel like the guards there are doing something besides wasting your time. Is the NTSA really so stupid that they think a 'terrorist' isn't going to choose the one that still lets him make a bomb? Or how much of a threat do they expect the guy carrying a 'congressional medal of honor' to be?

This is theater, it's purpose isn't to make you safer, it's to make you feel safer. The problem is that after you go so far, it becomes farcical and people begin to realize what it is. The reality is that you are probably less safe than you were 5 years ago. Why? because of the hordes of freshly trained people manning those security booths are less well trained and more rushed than their counterparts of old were.

COPA and the new NY gaming law are part of the same process. These pieces of legislation were passed for the sole purpose of being trotted out in front of the public while the politicians cry out about how much they are 'doing for the children' - 'We'll call this 'Election Theater'.

Let's examine some facts.

NY Game Labeling Legislation:

• Mandatory warning label on all violent games.

  currently all games sold through retail outlets pass through the ESRB rating system & are labelled according to the age group deemed appropriate & the reason the rating was chosen.

• Parental control lockout feature by 2010:

  All home console gaming systems currently marketed have parental controls.

  Some portables including the popular PSP also have a parental control system.

What exact purpose does this law then serve? It's reported purpose is to enable parents to make better choices in their parenting. While that's a laudable goal, I utterly fail to see how this law achieves it. Mandating a second 'violence' warning label on a box that already has an 'suitable for' label that includes a 'violence' marker doesn't improve the ability of a parent to determine if the game is violent or not.

As for forcing all manufacturers to include a parental content lockout feature, I direct you to a 2004 study on the adoption of the V-Chip. In summary: 8% were using it after a year. 9% had tried but had given up without ever turning it on, and almost 13% had used it but turned it back off. The conclusion - "While training and information influenced attempts to try the V-Chip, these endeavors were not related to sustained use. Results suggest that access to supervisory technology alone is an insufficient indicator of adoption and use. Rather, family media supervision is better understood through the context of the family system." IE, people don't like or use tech solutions to control what media is used in the house.

This law serves one purpose & one purpose only - to wave the flag of "we're doing something" without actually having to do anything that might be hard or expensive. The problem is, it will be expensive - $5 million if the ACLU's track record holds.

Politicians love these laws. They get to stand up and beat their chests proclaiming that they are 'protecting the children' or 'doing something about violence'. The even better part is that when one of their potential rivals publicly announces that the law is pointless, incumbents can smear them with labels of 'soft on crime' or 'willing to sacrifice our children'.

Here's an idea for NY: abandon this pointless law now then take the $5 million you save and invest it in family programming worth watching. Or better yet, to really handle violent crime amongst children - invest it in more anti-gang programs. We all know that won't happen, because more cops or more of a program that's already showing results isn't sexy enough to win an election. Only bold 'Election Theater' legislation can do that for them.

COPA:

Let's move on to COPA. Think back 10 years to 1998, the internet bubble was still in full bloom, Usenet had just begun it's eternal September, and the CDA had just been dropped in the toilet as unconstitutional. So if one attempt to use a sledgehammer to excise a portion of the internet didn't work, the only legislative alternative is to try another sledgehammer.

At COPA's heart is a requirement that any site hosting material deemed 'harmful to minors' based on the wonderful Miller test of 'local community standards' needed to have some means of age verifying people attempting to view the material. Again this law has laudable intentions, and again, it utterly fails to even grasp the enormity of it's failure. Even before this law was passed, members of congress were stating that it wasn't constitutional. Members of the technical community were standing in shear awe of the level of incompetence required to craft such a bill.

COPA's stated purpose is to protect children from viewing material on the internet that could harm them. OK, that's a start, but the methods chosen are an utter failure.

As the first point of failure, less than half of the pornography and graphic depictions of violence aren't hosted within the US for the simple reason that if hosted outside the US, they can cheerfully ignore US laws on obscenity. Assuming that by some wild chance this law were constitutional and there was 100% compliance and the age determination systems were 100% accurate. Google would simply return 13.5 million hits for pornography instead of 27 million. Wow, those children are much safer now.

Shall we look at the other points of failure? How about 100% accurate. The suggested form of age verification was a credit card number. I will only point out that at most banks you must now explicitly ask NOT to receive a Mastercard/Visa debit card. Worse were the suggestions that people mail in age verifications such as a photocopy of a driver's license. Many sites get hits from thousands of unique visitors each day - I'm sure that small sites like mine won't mind figuring out how to validate a drivers license from another state when looking at a faxed copy. Or how about all those wonderful people who aren't in the US and aren't subject to US rules. I'm sure they will all be happy to pay international postage to send me copies of their passports.

100% compliance. How is anyone going to know if they are compliant or not? The statement of 'community standard' tells a web operator NOTHING. Let me say it again 'community standard' is a semantically null statement. It means nothing and conveys no information about acceptability. In accordance with the law, all websites containing images of Michelangelo's David will need to be age verified. As will most sites containing images of a large number of classical nudes. CNN would have to age verify any video clip that they broadcast on television warning that it contains graphical images. Is a website geared towards showing the dangers of poorly done nipple piercing a 'hazard to minors'? I would assume it would be classed as such somewhere since it is going to show nipples, even though it's purpose is to help them make a safe choices.

How about a site showing those old drivers ed. films - all the gory crash footage - I'm sure that's considered a hazard to minors since a few of them show actual news footage of dismembered bodies. How is a webmaster supposed to know what the community standard is in some small town 10 states away?

Of course the law's biggest problem is that it's blatantly unconstitutional. There are very few lawyers who would say that COPA's provisions don't violate the First Amendment. The prohibition against abridging free speech is very clear and has been held to the highest standard throughout our nations history. To enact a law which attaches legal penalties to speech based not on the content of the speech, but on the age of the listener is clearly not in line with the standards of our Judicial Precedent. I may stand on the corner of a street and read aloud the contents of "Lady Chatterley's Lover", or passages from the "Song of Solomon" discussing the beauty of the female form - and oral sex. But to discuss such things on an open website would be criminal under COPA.

The restrictions placed on free speech which have passed constitutional muster are few and far between. Slander and Libel laws are restrictions on free speech, but the state has a compelling interest in preventing it's citizens from destroying each others reputations with lies. The classic prohibition against shouting 'fire' in the theater when you know there isn't one again shows the compelling interest of the government to protect it's citizens from harm. Note the clear and narrow lines defined in these exceptions. You can destroy a person's reputation by reveling truths they would rather stay hidden. You can shout 'pizza' or 'slug' or any other word which will not incite a riot or panic in the theater without legal consequences.

The other thing they have in common is that they are the least restrictive means of accomplishing their goal. Slander & Libel are curtailed by limiting only lies. Riots are curtailed by limiting only those actions which can reasonably be seen as causing them.

COPA fails to narrowly define it's scope - casting a huge net of "a hazard to minors as defined by community standards". Nor does COPA succeed in defining why it is the least restrictive means of achieving it's goal. Proponents of COPA claim that filters are not effective enough, yet their law fully exempts half of the internet from regulation. Thus by their convoluted logic - fully controlling half the internet and exempting the other half is more effective than filters that are constantly updated and capable of filtering based on multiple stages of refinement.

Well congress - I want my 30 cents back from this law, and I think everyone else does too. If you want to 'protect the children' then really do it. Make some hard choices and spend the money it's going to take to put police on our streets, teachers in our schools, and agents in the FBI offices. If after that you're feeling generous, toss some money towards a free publicly available internet filter that might actually help with the problems COPA is supposed to solve.

I am tired of Election Theater, and I think that people who have paid any attention to what is happening in congress & state legislatures is also tired of it. These 'elect me again because I am doing something' laws have got to stop. They are poorly worded, technically hopeless, contrivances that do nothing except divert attention away from the fact that solving problems is hard and waste out tax money.

Write your congress critter and state representatives and tell them where to stuff their Election Theater, we pay them to make sure our society runs smoothly - that means making the hard choices between fixing bridges this year or putting more cops on the street. We don't pay them to waste our money by pushing laws that can't do what their supposed purpose is. We certainly don't pay them to waste even more money by running it through the court systems for years - knowing full well it's a hopeless case from the start.