The Internet and the State

Part 5: Content/Access Control

1. Introduction to Filtering

Reading

1. How Filtering Works
1. Paul Resnick, Filtering Information on the Internet, Scientific American, March 1997
2. Paul Resnick, PICS, Censorship, & Intellectual Freedom FAQ
3. Lawrence Lessig & Paul Resnick, Zoning Speech on the Internet: A Legal and Technical Model, 98 Mich. L. Rev. 395 (1999).
4. CyberNOT List ; CyberNot List Criteria
5. Seth Finkelstein, BESS's Secret LOOPHOLE (censorware vs. privacy & anonymity) (Aug. 16, 2001)
2. Some critiques of Content Filtering
1. The Internet Filter Assessment Project
2. GILC, Coalition statement against "stealth blocking" (May 17, 2001)
3. Paul Festa, New.com, Porn sneaks past search filters (July 2, 2000)
3. Filtering in Congress
1. Text of CDA, 47 U.S.C.A. §§223, 230
2. Text of COPA, 47 U.S.C.A. §231
3. Text of CIPA, 20 U.S.C.A. § 7001 note  (Westlaw version preferable)

Thinking & Doing

• Suppose you were a parent seeking some sort of filtering software to install on a home computer that would be connected to the Internet and used by a child.
• What would you want to know about the software?
• Determine to what extent this information is available about two products of your choice from this list at rr.com (if possible, please investigate products with a listing that starts as the same letter as your last name).
• What First Amendment issues do filters raise if the government ...
• Subsidizes them in order to aid parents in their attempts to control the internet use of their children
• Requires them in public libraries
• Provides them free of charge online
• Regulates them to ensure quality
• Conditions all grants to elementary schools on the installation of filters on internet-enabled computers
• Conditions all grants to universities on the installation of filters on internet-enabled computers
• To what extent would these First Amendment concerns be removed by the creation of a 'perfect' filter -- one that didn't make mistakes?

Optional

1. Internet Rating and Content Association (ICRA)
2. ACLU, Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet
3. Internet Filter Effectiveness: Testing Over and Underinclusive Blocking Decisions of Four Popular Filters
4. Jonathan Wallace, Why Libraries Shouldn't Buy Censorware
5. Junichi P. Semitsu, Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. The First Amendment, 52 Stan. L. Rev. 509 (2000).
6. Miami-Dade Public Library System, Internet Policy...but see also the General Rules which have a materially different set of internet policies, including this:

   "Internet work stations are located in a public area; users need to be considerate and refrain from displaying materials that those around them might reasonably consider objectionable."

2. Forbidden Filters? Required Filters?

Reading

1. Forbidden filters?
1. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. Va. 1998)
2. Reno v. ACLU, 521 U.S. 844 (1997).
3. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
4. American Library Ass'n, Inc. v. U.S., 201 F.Supp.2d 401 (E.D.Pa. May 31, 2002), (Westlaw)  probable jurisdiction noted, U.S. v. American Library Ass'n., Inc., --- S.Ct. ----, 2002 WL 31060372, 71 USLW 3177 (U.S.Pa. Nov 12, 2002) This is a VERY LONG but VERY IMPORTANT case. Skim until page 449, then read carefully.
2. Required filters?
1. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684 (2001).
1. Complaint of Virgnia Pear against Minneapolis Public Library (May 2, 2000)
2. Cynthia L. Smith v. Minneapolis Public Library EEOC Determination. Re: Unrestricted Internet Access Policy of Minneapolis Public Library Creates Sexually Hostile Work Environment.(May 23, 2001) [Note-although the names are differnt this EEOC determination responds to several similar complaints including the Pear complaint above]
3. Permitted filters?
1. Mark Nadel, Internet Filtering by Public Libraries & the First Amendment (Sept. 1, 2001), pages 1134-1162

Thinking

• How would you draft a constitutional CDA?  If that's impossible, what's the closest you can get?
• How would you decide an appeal of the Smith decision?

Optional

1. Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38 Jurimetrics 629 (1998), .pdf
2. FCC Form 479: Certification by Administrative Authority to Billed Entity of Compliance with the Children's Internet Protection Act; also accompanying instructions for Form 479 ; FCC Specific Guidance for Year 4 'Undertaking Actions' Certification on compliance with CIPA.
3. Sidney Blumenthal, et al. v. Matt Drudge and America Online, Inc., 992 F. Supp.44 (D.D.C. April 22, 1998)..

3. Spam Control

Reading

1. State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (Wash. 2001) Westlaw
2. California Bus & Prof Code §§ 17538.4 and § 17538.45
3. Ferguson v. Friendfinder, Cal. Sup. Ct. (S.F.) (June 7, 2000)
4. Jane Doe One v. Oliver, 755 A.2d 1000 (Sup. Ct. Ct. March 7, 2000)
5. CompuServe, Inc. v. Cyberpromotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997)
6. Technical Means...
1. Spam-L FAQ, Tracking Spam & Blocking Spam
2. Paul Vixie, Realtime Blackhole Rationale
3. David G. Post, Of Black Holes and Decentralized Law-Making in Cyberspace, Vand. J. Ent. L. & Pract. (2000)
4. John Lettice, The Standard, Verified: you can get anybody you want kicked off Hotmail (July 2, 2001)
7. ....and the Ensuing Lawsuits
1. Harris Interactive Files Suit Against AOL, Microsoft, Qwest and Other ISPs Over Restraint of Trade; Judge Denies TRO in Harris v. Maps Case(Aug. 8, 2000); MAPS, MAPS AIDS HARRIS INTERACTIVE IN MOVE TO 100% CONFIRMED OPT-IN (Aug. 21, 2000)
2. Patricia Odell, Richard H. Levey, Yesmail Gets Restraining Order Against MAPS Blacklist, DirectNewsline (July 17, 2000); Yesmail and MAPS Agree to Put Litigation on Hold, DirectNewsline (July 26, 2000)
3. MAPS Settles Experian Litigation; Industry Leading E-mail Standards Remain in Place(Oct. 3, 2001); MAPS, EXACTIS SUIT AGAINST MAPS DISMISSED (Oct. 3, 2001)

Thinking

Who had the better case: MAPS or its antagonists?

Optional

1. Optional: Harris's Complaint Against MAPS [.pdf file - scanned so it's enormous and slow]

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Last update Nov. 15, 2002