Pornography, Privacy, and Digital Self-Help, 19 J. Marshall J. Computer & Info. L. 133 (2000)

Pornography and privacy share a subtle relationship in internet law and policy. Legislation attempting to restrict online speech considered indecent or harmful to minors is subject to exacting scrutiny. Legislation that regulates online speech thought to be harmful to its readers because of privacy concerns should be subjected to the same level of scrutiny. The availability of self-help remedies should govern the scope of legislation affecting online privacy and the alternatives offered by digital self-help solutions makes state regulation constitutionally suspect and functionally inferior.

Self-help can be more effective than legislation in protecting online privacy. Cookie management software, use of online pseudonyms, anonymous browsing utilities, and other tools. The fact that technological measures are imperfect is irrelevant so long as they work better than legislative ones.