Unlike the Law, Software Can Be Updated Instantly

By John McNulty, Secure Computing

January 3, 2005 12:00 PM ET

Computerworld - On June 29, the U.S. Supreme Court upheld a continuing injunction against a 1998 law called the Children's Online Protection Act (COPA) in the case of Ashcroft vs. ACLU. The court didn't completely dismiss COPA, which sought to protect children from Internet pornography by requiring that Web pornographers keep X-rated "teaser clips" behind a virtual brown wrapper, but sent the case back to a lower court for rehearing. Among the reasons for upholding the injunction, the court held that "[Internet software] filters also may be more effective [than COPA] because they can be applied to all forms of Internet communication, including e-mail, not just the World Wide Web."
Writing the majority opinion, Justice Anthony Kennedy made another keen observation about regulating the Internet:

The factual record does not reflect current technological reality -- a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the fact findings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed.

I'm not a lawyer, but you don't have to be one to understand Kennedy's point, particularly if you work in the technology industry. The law is designed to develop slowly. When there are serious questions about the application of a law, it must work its way through the court system, which can take years -- and COPA has taken six.
As the experience with COPA shows, six years is too long to wait to address an Internet-related problem. COPA was meant to address Internet pornography, which in 1998 was overwhelmingly being accessed via the Web. For this reason, COPA addressed only Web-based pornography. It didn't address pornography available on popular peer-to-peer file trading networks because they didn't exist at the time. Instant messaging and Web-based e-mail were in existence then but weren't the major conduits of pornography that they are today.
Enter filtering software. Since the mid-'90s, filters have been widely available that effectively block Web pornography. As the Web has grown and changed, so have filters. The newest filters block not just Web pornography but are also already blocking pornography appearing through peer-to-peer, e-mail and instant messaging -- areas where the law is just getting started. In cases such as this, the ability to enhance software to address issues quickly can fill the gap between the need for a solution and the wait for legislation to follow its course.
Of course, the law has a vital role to playin the regulation of the Internet -- the recent arrests by the FBI of over 100 cybercriminals is a good example -- but given the deliberative nature of the law, technology companies must take the lead in protecting users from the ever-changing array of Internet-based threats that includes viruses, Trojan horses, worms, spyware and malicious code. Because unlike the law, software can be updated instantly.

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