Legal Concerns for Providers of Internet HIV Prevention Programs

1. Legal Concerns for Providers of Internet HIV Prevention Programs Recognizing and Avoiding Legal Pitfalls Catherine Hanssens, Exec. Dir., The Center for HIV Law & Policy Robert Thony, MHRA law intern/Brooklyn Law School Jane Levine, General Counsel, MHRA

2. INTRODUCTION • NEED – • Sexual health understanding is key to healthy adulthood • Kids have uneven access to sound sexual health education in schools • Kids become sexual before 16; turn to internet for information * Study: 72% of adolescents said they used the Internet in their own home, 17% in school, 4% at a friend’s, and 6% at other locations. * 63% of respondents obtained info on birth control and safer sex from friends; 32% from siblings or cousins; 31% from the Internet; 31% from magazines; 29% from parents; 29% from health care providers or clinics; 21% from health class; 17% from teachers or coaches; 9.5% from public health campaigns; and 3.6% from clergy. (D. Borzekowsi, Ed.D. and V. Rickert, Psy.D., “Adolescent Cybersurfing for Health Information,” Archives of Pediatric and Adolescent Medicine, vol. 155, July 2001)

3. RISKS – • Exposure to distressing characterizations of sex, sexuality, risk of pedophilia or exploitation; misunderstandings concerning depictions and discussions of sexuality and sexual behavior. • Prosecution if there is an “incident” and you’ve allegedly stepped over the line • Loss of funding due to federal restrictions (e.g., CDC inquiries such as that into StopAIDS, based on allegations that the group used federal money to support HIV/AIDS awareness programs—such as its "Booty Call" and "Great Sex" workshops—that encourage sexual activity and violate federal obscenity standards.) • RIGHTS – • Federal case law is clear that especially in the areas of reproductive health -- pregnancy, abortion and sexually-transmitted disease prevention -- juveniles hold fundamental privacy rights to choose their care despite their age. • In order to effectively exercise these rights, adolescents must have access to complete and science-based sexual health information and services.

4. STEP ONE: DEFINING TERMS • When is sexual information educational, and when is it obscene or pornographic? ►Obscene? US Supreme Ct’s three-part test:  Does material depict or describe specific sexual activities or organs in a “patently offensive” manner?  Would average person, applying “contemporary community standards,” find that the material taken as a whole appeals predominantly to a “prurient interest” (shameful, morbid) in sex?  Does material, taken as a whole, lack “serious literary, artistic, political, or scientific value”?

5. When is sexual material “harmful to minors”? • NY: any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it: • (a) Considered as a whole, appeals to the prurient interest in sex of minors; and • (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and • (c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors. • Child pornography and “harmful to minors” law are sometimes confused, but legal standards and rationales are quite different • Child pornography laws are intended to protect children from physical harm; “harmful to minors” laws govern what youth see or listen to

6. ENTER THE INTERNET • THE ARRIVAL AND EXTRAORDINARY GROWTH OF THE INTERNET HAS RAISED QUESTIONS (AND CONFUSION) ABOUT LEGAL RULES ON SEXUAL EXPRESSION • WHAT DOES “COMMUNITY STANDARDS” MEAN IN CYBERSPACE? • HOW DO WEB-BASED PROGRAMS DISTINGUISH BETWEEN MINORS AND ADULTS?

7. STEP TWO: KNOWING THE LAW What laws, cases, guidelines and restrictions define the parameters of acceptable online sex education? • Relevant New York law • Disseminating indecent material to minors in the first degree: • A person is guilty of disseminating indecent material to minors in the first degree when:1. An adult computer communication with a minor involves words or images of actual or simulated nudity, sexual conduct or sadomasochistic abusewhich is harmful to minors, he intentionally uses any computer communication system to initiate or engage in such communication with a person who is a minor; and 2. is used to invites or induces a minor to engage in sexual conduct or sexual contact with him, or to engage in a sexual performance for his benefit.

8. Relevant New York law (continued) • Disseminating indecent material to minors in the second degree: • A person is guilty of disseminating indecent material to minors in the second degree when:1. he sells or loans to a minor for monetary consideration:(a) Any visual representation of a person which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or(b) Any printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) hereof, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors; or

9. Relevant New York law (continued) • Disseminating indecent material to minors in the second degree (continued): 2. Knowing a motion picture, show or other presentation depicts nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he:(a) Exhibits it to a minor for a monetary consideration; or(b) Sells a minor an admission ticket or pass to premises where it’s exhibited; or(c) Admits a minor for a monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture show or other presentation; or 3. Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

10. STEP TWO: KNOWING THE LAW What laws, cases, guidelines and restrictions define the parameters of acceptable online sex education? • What the U.S. Supreme Court has to say: • Stanley v. Georgia (1969)  Right to own and view sexually explicit (even obscene) materials in the privacy of one’s home.  Only exception recognized since is child pornography. Compelling state interest in protecting kids from sexual exploitation; ownership of child porn = crime. • Lawrence v. Texas (2006)Private consensual adult sexual activity is constitutionally protected

11. STEP TWO: KNOWING THE LAW What’s the battle between Congress and Free Speech/Sex Positive Advocates About? • Much of the debate and legislation concerning censorship of the internet is centered on efforts to protect minors from sexually explicit content. The Communications Decency Act (1996), the Child Online Protection Act (1998), and the Children's Internet Protection Act (2000) are examples of Internet legislation, and each has been challenged under the First Amendment. • In February of 1996, Congress enacted the Communications Decency Act (CDA). CDA sought to protect minors from harmful material online by criminalizing transmission of “indecent” materials to minors. However, in 1997, the Supreme Court ruled 9-0 in Reno v. American Civil Liberties Union that CDA was an unconstitutional restriction on the Internet, which they called a “unique and wholly new medium of worldwide human communication” deserving of full First Amendment protection. • Many opponents of CDA pointed to impact it would have on minors’ access to HIV, STD, and drug abuse prevention, as well as birth control and other health issues if they were required to identify themselves

12. STEP TWO: KNOWING THE LAWWhat laws, cases, guidelines and restrictions define the parameters of acceptable online sex education? • Relevant Federal law • Children’s Internet Protection Act (CIPA) – all schools and libraries receiving federal aid for Internet connections must install a “technology protection measure” (filter) on all computers, whether used by minors or adults that screens out images that are “obscene,” “child pornography,” or “harmful to minors” • In 2003, the Supreme Court ruled to allow implementation of the Children’s Internet Protection Act (CIPA), which required that filters be placed to limit the content available on library computers. Unfortunately, these regulations have unexpected consequences - for example, that the filters often inadvertently block indisputably acceptable speech. • FCC censorship power over “indecent” speech applies only to broadcasting; government cannot block “patently offensive” or “indecent” expression on the Internet or in print media

13. STEP TWO: KNOWING THE LAW What laws, cases, guidelines and restrictions define the parameters of acceptable online sex education? • What the federal courts have to say: • COPA (Child Online Protection Act) (still blocked by federal courts) – criminalizes Internet transmission of sexually explicit materials and communications that are available to and harmful to minors • Ashcroft v. American Civil Liberties Union (2004) DOH failed to show that COPA is the least restrictive way to accomplish legitimate goal of protecting minors, so injunction against COPA implementation stands. • Gonzales v. Google (2006)Rejection of the government’s demand for millions of Google search records, that the government claimed were needed to defend COPA against the challenge in Ashcroft v. ACLU. The government failed to describe how the millions of Google user records will help it to determine how much material deemed “harmful to minors” is available online. • American Civil Liberties Union v. Gonzales (2007): COPA is not narrowly tailored to the compelling interest of protecting minors – unconstitutionally vague and overbroad

14. STEP TWO: KNOWING THE LAW What laws, cases, guidelines and restrictions define the parameters of acceptable online sex education? • What the federal courts have to say: • “Section 2257” (amended Fed’l Recordkeeping and Label Act – universal age verification requirement) • Connection Distributing Co. v. Keisler (Oct.2007) Federal appeals court strikes down federal law that would have required every producer of sexually-explicit images to maintain detailed proof-of-age and identity records open to government inspection as an overbroad attempt to crack down on child porn. Court focused on law’s impact on non-commercial producers of sexually explicit images. • Example of ruling on state statute criminalizing transfer to minor of sexually explicit materials “harmful to minors”: • American Booksellers Foundation v. Dean (2nd Cir. 2003) Vt. State law violated 1st Amendment rights of web site operators providing sexual health advice; goal of preventing pedophiles from “grooming” minors for future sex encounters effectively addressed via statutes regulating electronic luring.

15. CDC HIV Prevention Funding Requirements From the CDC: “The HIV Content Guidelines ensure that HIV prevention materials contain messages on ways by which individuals can protect themselves from acquiring the virus or reduce their risk of acquiring or spreading the virus. The Guidelines provide a framework for developing and using educational materials and require that Program Review Panels (PRPs) consider the appropriateness of messages designed for various groups. According to the Guidelines, the PRPs must be composed of at least 5 members, include at least one employee of the state or local health department, and represent a reasonable cross-section of the general population.”

16. REQUIREMENTS FOR CONTENTS OF AIDS-RELATED WRITTEN MATERIALS, PICTORIALS,AUDIOVISUALS, QUESTIONNAIRES, SURVEY INSTRUMENTS, AND EDUCATIONAL SESSIONS INCENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) ASSISTANCE PROGRAMS • All programs must include info about the “harmful effects of promiscuous sexual activity and intravenous substance abuse” • No funds can be used to “promote or encourage, directly, homosexual or heterosexual sexual activity or intravenous substance abuse.” • Not intended to restrict the ability of a program to provide accurate information about various means to reduce an individual’s risk of exposure to, or transmission of, HIV as long as materials are not obscene • Programs shouldn’t include activities in which attendees participate in sexually suggestive physical contact or actual sex. • Message for adolescents in schools “and in other settings” should be guided by “Guidelines for Effective School Health Education to Prevent the Spread of AIDS” (MMWR 1988:37 [suppl. No. S-2]

17. REQUIREMENTS FOR CONTENTS OF AIDS-RELATED WRITTEN MATERIALS, PICTORIALS,AUDIOVISUALS, QUESTIONNAIRES, SURVEY INSTRUMENTS, AND EDUCATIONAL SESSIONS INCENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) ASSISTANCE PROGRAMS • Grantees must agree in writing to comply with the Requirements for Contents of AIDS-Related Written Materials, Pictorials, Audiovisuals, Questionnaires, Survey Instruments, and Educational Sessions in Centers for Disease Control and Prevention (CDC) Assistance Programs," as revised June 15, 1992, 57 Federal Register 26742. • All program written program materials, including questionnaires, survey instruments, proposed group educational sessions, educational curricula and like materials must be submitted to a Program Review Panel before use. • The Program Review Panel reviews and approve all applicable materials prior to their distribution and use in any activities funded in any part with CDC funds.

18. STEP THREE: Putting Protections in Place • Expert/Ethics review committees to: Avoiding transmission of obscene/indecent material to minors and others Ensuring accuracy and balance of material – no excuse for inaccurate information! Procedures for when other adults should be present

19. STEP THREE: Putting Protections in Place Informed consent & age issues ACLU v. Gonzales, 3/2007: “On the Internet, everyone is faceless and fairly anonymous and thus…the Internet merchant has no viable method of determining whether an individual is 6, 12, 17 or 51 years old… …a story that might have ‘serious literary value’ for a 16-year-old could be considered to appeal to the “prurient interest” of an 8-year-old and be ‘patently offensive’ and ‘without serious value’ to that child.” In short, it is overly burdensome, if not impossible, to verify the age of site visitors or limit access to young/some minors without limiting to all.

20. STEP THREE: Putting Protections in Place • Confidentiality: clearly explain privacy policy; do not collect minor’s identifiable personal information online. • Website Disclaimers/Disclosures …

21. Sample Website Disclaimers/Disclosures: WebMD • Message Boards and other Public Forums • “As a service to our users [this site] feature message boards, chat rooms and other public forums where users with similar interests or medical conditions can share information and support one another or where users can post questions for experts to answer. We also offer online discussions moderated by medical or healthcare experts. Any information shared (including Personally Identifiable and Personal Health Information) that you reveal in a chat room, message board, Ask Our Expert posting or online discussion such as WebMD University is by design open to the public and is not a private, secure service. You should think carefully before disclosing any Personally Identifiable or Personal Health Information in any public forum. What you have written may be seen, disclosed to or collected by third parties and may be used by others in ways we are unable to control or predict, including to contact you for unauthorized purposes. As with any public forum on any site, this information may also appear in third-party search engines like Google, Yahoo, MSN etc.”

22. Sample Website Disclaimers/Disclosures: WebMD • Children • “We are committed to protecting the privacy of children. Neither WebMD Health nor any of its services are designed or intended to attract children under the age of 13. We do not collect Personally Identifiable Information from any person we actually know is under the age of 13. A parent or guardian, however, may use WebMD Health Manager to establish a personal health record and a WebMD Health Manager home page for a minor. The parent or guardian is solely responsible for providing supervision of the minor's use of WebMD Health Manager. The parent or guardian assumes full responsibility for ensuring that the registration information is kept secure and that the information submitted is accurate. The parent or guardian also assumes full responsibility for the interpretation and use of any information or suggestions provided through WebMD Health Manager for the minor.”

23. DUTY TO WARN? • What if a client informs a staff member of his/her involvement in dangerous/illegal activity? • The law in the internet context is no different – Is the staffer in a therapeutic relationship with the client, and is the client making a credible threat of severe bodily harm to an identifiable third party who likely is unaware of the threat? Unlikely that staffer will have the relationship or the info to trigger a duty to warn. Does Article 27F (NY HIV confidentiality law) apply – e.g., does the staffer work for a covered entity that acquires HIV-related information in the course of providing services? Under NY law, a physician may disclose the HIV status of an index patient to a sex and/or needle sharing partner only under specific conditions, i.e., it’s clear that dislosure is: • medically appropriate • there is significant risk of HIV transmission to the partner • the index patient has been has been counseled but won’t tell • The patient has been warned of 3rd-party notificaiton and given a final choice to notify partner