ROBERT FELDMAN
UM School of Law
Law and the Internet
Professor Froomkin
Spring, 1996
Table of Contents:
I. Introduction
II. History of the Internet
III. Government Attempt at Regulation: The Communications
Decency Act
IV. A Voluntary Rating System is the Answer
V. Conclusion
Conceptually, the Internet is a wondrous creation. [EN1] It has been said that "where the wheel is an extension of the foot, and the television an extension of the eye, the [Internet] becomes [an] extension of the self." [EN2] With it one can correspond with people anywhere in the world and peruse through a seemingly endless supply of information on almost any topic imaginable. In this unique forum, all people can advance their ideas without facing the bias or prejudice of others with regard to their race, religion or ethnicity. The Internet is in the process of changing the patterns of commerce and social interaction and will eventually serve to completely revolutionize all modes of international communication.
However, the Internet is not without its dark side. Pornography is on the Internet. [EN3] It is a devious creature lurking in the darkest recesses of the global labyrinth just waiting to spring upon its next hapless victim. At least this is the impression that many people, especially parents of younger children, have acquired from being exposed to various news and media sources. [EN4] What with all the negative publicity dealing with smut, anarchy, stalking, pirating, terrorist groups, defamation and cybersex, "[o]ne is led to think the Internet is laying the foundation for the Apocalypse." [EN5]
This type of attention has led many people to focus primarily on the negative aspects of the Internet, while endangering the most positive ones. Many politicians, panicked by the media frenzy, have supported various legislation that would strictly regulate the Internet. [EN6] Although the government does have a commendable goal of protecting the young and impressionable from the "evils" of the Internet, it has obviously not taken the time nor acquired the information necessary to understand this relatively new technology. Because of this, the government intervention, in the form of outright censorship, has gotten many netizens [EN7] up in arms and has led to much controversy.
The purpose of this paper is to discuss certain aspects of this controversy and a possible solution. Part II will give a brief history of the Internet as the newest and most advanced medium of our time. Part III will describe the attempt that the U.S. Government has made to regulate the Internet and why it cannot work. Part IV will then discuss an alternative to government regulation which can accomplish the same goal and yet conform to all aspects of the Constitution as well as the netizens' ideal of self-regulation.
In the late 1950's, in response to the launching of Sputnik by the former Soviet Union, the Department of Defense created the Advanced Research Projects Agency ("ARPA"). [EN8] In response to rising fears over possible nuclear attack, ARPA designed and created a computer network that could function even if parts of the network were destroyed. This computer network, which was implemented in 1969, was called ARPANET. [EN9] In order to support ARPANET, a few supercomputers were placed at major universities and research centers.
Although originally created as a decentralized military communications array, the obvious potential of ARPANET led more universities, as well as other organizations and businesses, to obtain the necessary equipment to connect to the new network and join in the exchange of ideas. As the number of users increased, ARPANET eventually became obsolete. [EN10] In order to remedy this, the National Science Foundation ("NSF") [EN11] created NSFNET, which subsequently became the backbone of the Internet. [EN12]
The Internet, as we know it today, had a very modest beginning. It was originally a research tool used by experts in various computer and scientific fields to communicate with one another. [EN13] However, use of the Internet has increased dramatically over the years. It has "flourished into a vast commercial vehicle" [EN14] by which an individual may delve into anything from a comprehensive listing of international cooking recipes to an esoteric discussion of the meaning of life. [EN15]
Today, the Internet has been characterized as being "a loose and anarchic confederation of millions of users around the world who communicate in perhaps the freest forum of speech in history." [EN16] However, with all the recent negative attention, cyberspace has been forcibly removed from its previous peaceful existence, and has been "thrust into the fiery world of legal precedents and government regulation." [EN17] Now, the most important question that must be addressed is how to allow the Internet to continue to flourish and yet protect individuals, particularly children, from its undesirable elements. [EN18]
The government has responded to the media frenzy and resulting public outcry against on-line pornography by attempting to implement strict regulations on the Internet. During 1995, several acts were proposed to Congress which would serve to regulate the transmission of indecent speech, and particularly pornography, by way of the Internet. [EN19] However, this discussion will be limited mainly to the Communications Decency Act (CDA) and the constitutional challenges that can be made thereto.
One year after being introduced by Senator Exon, the CDA was passed by Congress. On February 1, 1996, the Internet, which up until this time had arguably been the most autonomous medium of expression, became one of the most strictly regulated. [EN20] The CDA, in pertinent part, provides criminal penalties for knowingly transmitting any communication that is accessible to minors which is found to be "obscene, lewd, lascivious, filthy, or indecent." Punishment includes a sentence of up to two years in prison and a $100,000 fine. The bill further penalizes on-line services such as Prodigy and America On-Line for serving as the conduit for such transmissions. [EN21]
Almost immediately after its passage, the CDA became a target for severe criticism and constitutional challenge. [EN22] The CDA runs afoul of the Constitution for the following reasons: first, it infringes upon an individual's First Amendment right by imposing a general ban on "indecent" speech [EN23], which has been held by the Supreme Court to be constitutionally protected; second, the act is not narrowly tailored, in that there are much less restrictive means available to accomplish its goal; and third, the act unconstitutionally allows federal authorities to intrude upon private communications and information used by individuals.
1. General Ban on Indecent Speech Is Unconstitutional
Government control over obscenity has been thoroughly established by years of constitutional law precedent. [EN24] Indecent speech, on the other hand, has been consistently held to be entitled to First Amendment protection by the Supreme Court. [EN25] This protection is based on the principle that each person should decide for himself or herself the "ideas and beliefs deserving of expression, consideration and adherence." [EN26] Although the Court has limited this protection in some instances where the speech is transmitted on a medium which is considered "pervasive" and, therefore, within easy reach of unsuspecting children [EN27], it has never allowed a complete ban of indecent expression.
In implementing a blanket prohibition, the CDA does not distinguish between obscenity and indecency as types of expression. In so doing, it completely ignores the Supreme Court's precedential mandate - indecent expression must be given constitutional protection. The fact that the CDA includes a ban of all indecent speech serves to make it constitutionally infirm.
2. There Exist Much Less Restrictive Means to Achieve the Government's Goal
Indecent expression, unlike obscenity, can only be limited by a narrowly tailored regulation that serves a compelling state interest.[EN28] In Sable Communications v. FCC [EN29], the Court stated that although the protection of minors from access to indecent material is a compelling state interest, "it is not enough that the government's ends are compelling; the means must be carefully tailored to achieve those ends." [EN30] The Sable Court, in dealing with a case involving the transmission of indecent material to children by way of previously recorded dial-a-porn phone messages, was forced to wrestle with the holding of a prior case, Pacifica Foundation v. FCC. [EN31]
In Pacifica, the Supreme Court allowed the Federal Communications Commission ("FCC") to regulate the use of certain language during specific hours of the day when children were likely to be exposed to it. The reasoning behind this was that certain mediums of expression, such as television and radio, are considered "pervasive" in that all a child must do is turn them on in order to be potentially subjected to indecent language.
Sable, however, rejected this finding of "pervasiveness" as "emphatically narrow" and totally irrelevant to other media such as telephone services. [EN32] The Court reasoned that the telephone, unlike television and radio, was not a pervasive medium because the user must perform affirmative actions in order to gain access to any form of speech. The Court instead emphasized the fact that less restrictive means were available to limit children's access to the telephone service. For this reason, the FCC could not ban indecent expression on this medium of communication.
Analogous reasoning must be applied to the Internet. Unlike media such as television or radio where, once accessed, speech is thrust upon the viewer or listener, the Internet user must take affirmative steps and actively look for the material sought, whether it be indecent, obscene, or otherwise. Therefore, the Internet cannot be considered pervasive.
Furthermore, a ban on all indecent materials is not a narrowly tailored means to protect children from Internet pornography. Programs already exist that allow users (i.e., parents) to exclude access to certain types of information based on a variety of characteristics. [EN33] In passing the CDA, the government has neglected to examine these much less restrictive means as possible methods of regulation. [EN34]
Under the holding of Sable, where the medium is not pervasive and the individual's access could be limited in a less restrictive manner, indecent speech must receive full First Amendment protection. As previously stated, the Internet is not a pervasive medium. Therefore, because the government has neglected to consider any of the existing less restrictive means of regulation, the CDA is in violation of the Constitution.
3. The Act Allows Infringement of Individual Privacy Rights
The Supreme Court has held that the government has a right to prohibit dissemination of pornographic or indecent material in public [EN35] or in a place that caters to the public. [EN36] However, in Stanley v. Georgia [EN37], a case involving the right to keep pornographic material in one's home, the Court held that the government does not have a right to ban information kept in private. [EN38]
The CDA, as written, would serve to criminalize the act of sending pornographic and indecent material via e-mail between two consenting adults. [EN39] In order to enforce this provision, federal authorities are necessarily empowered to intrude on private communications which will likely be kept within one's home. This is in plain violation of the Court's holding in Stanley.
Furthermore, in holding on-line service providers liable for pornographic and indecent materials sent over their networks, the CDA is, in effect creating private censors out of them. Actions taken by these providers in compliance with the CDA will likely serve to violate provisions of the Electronic Communications Privacy Act ("ECPA") of 1986. [EN40] Service providers and system operators will be forced to infringe upon the privacy of user communications and censor any materials found to be inappropriate.
As can be seen, one must be able to understand both the technical and cultural aspects of the Internet before one can begin to devise a solution. Upon close examination, it is obvious that the issue presented is not that of excising pornography from the Internet - it has proven itself almost impossible to eliminate. Rather, the issue is how to prevent indecent material from reaching children without violating the First Amendment rights of consenting adults. The goal, then, is to devise some type of regulatory scheme that will (1) maximize access to diverse information sources, (2) minimize the potential danger imposed upon children, and (3) minimize the government regulation and thereby protect the First Amendment freedom of expression.
Several companies have already created programs in an attempt to achieve this goal. At least three of them, Surf Watch [EN41] and NetNanny [EN42], and Cyberpatrol [EN43] utilize what is known as a blocking or filtering system:
1. Surf Watch - This software package enables parents to block their child's access to UseNet newsgroups, World Wide Web sites, and other Internet sites which are know to contain sexually explicit material. Surf Watch employs a team of professional "net surfers" to compile a list of all sexually explicit sites. The list is then incorporated into the program and prevents the user from accessing any of these sites. As the Internet continues to grow, the list is continually updated.
2. NetNanny - This program, as well as enabling parents to block certain sites, allows the parents to prevent their child from giving out their name, telephone number, or other personal information to others on the Internet via e-mail or chat rooms and maintains a log of all activity that occurs on the computer. The program contains a dictionary in which parents can enter the names of sites which they do not wish to allow their child to access and phrases such as "what's your name?" or "what's your phone number?" which they do not wish their child to answer. The creators of this program are also planning on compiling a list similar to that of Surf Watch in the near future.
3. Cyberpatrol - This program allows the same functions of the other two plus it enables parents to restrict their child's access to certain times of day and limit the total time spent on-line per day and per week. In addition to providing its own objectionable sites list, Cyberpatrol further allows parents to block or allow specific Internet resources and sites according to their own preferences.
Unfortunately, none of these software programs can serve as a practical solution to the problem. Their main flaw is that they are all based on the compilation of a list of undesirable sites. The nature of the Internet is to be an ever-changing organism, incapable of being completely indexed at any given moment. It is inevitable that some sites will go unnoticed for significant periods of time, thereby allowing potential access by enterprising children.
The most viable solution, one which will take full advantage of the interactive nature of the Internet, is to implement a voluntary rating system. [EN44] Two notable plans have been advanced for this type of system. [EN45] Both plans rely on a simple restriction tag that would have to be encoded into the hypertext markup language ("HTML") of each objectionable site. [EN46] Once this tag is encountered, the program being utilized to "browse" the Internet would then block access to that site. However, I believe that in order for the ratings to have any real meaning, a more diverse rating system, such as that used in the movie industry, should be used. [EN47] This type of system would enable parents to make a more informed choice as to what their child should and should not have access to.
In order for such a system to be realized, special programmable software must be created which can recognize the different rating on each site and access only those which the user (or parent of the user) has defined as acceptable. Furthermore, under the implementation of this software, sites that have no rating at all will not be accessed. This will prevent access to new potentially undesirable sites which have not yet been rated, as well as those sites whose creators have chosen not to have them rated. [EN48]
Creation of the ratings and their assignment to different sites should not be accomplished by a single group of people. [EN49] Instead, with proper implementation, the interactive nature of the Internet could serve to accommodate multiple rating systems. In this way, users and parents could then select access restrictions based on the judgment of the group whose values they share.
Under this implementation, the goal set out above will be achieved. Everyone will be able to "surf the net" and access any information they require without regard to the ratings. Anyone who objects to material found on the Internet will have the option of using this program and selecting their own rating system. Lastly, since parents are acting as their own child's censor (with the help of the rating system of their choice), very little, if any, government regulation will be necessary.
On the eve of the Twenty-First Century, the Internet has the potential to revolutionize our methods of thinking, learning and communicating. The Internet is bridging the gap between geographic boundaries and time zones. People are being exposed to ideas that they have never before encountered. Many innovations previously depicted purely as fantasy are on the verge of becoming reality.
However, due to the panic created by a few misinformed persons, the fate of the Internet is being threatened by the specter of centralized government regulation. Politicians with little or no computer experience are passing legislation which treats the Internet as but an extension of a previously existing medium.
Legislators must attempt to better understand the technology that they are dealing with. "Any attempt to impose centralized content control . . . on this fundamentally decentralized medium" will be likely to "stifle the growth of the medium, squander the democratic potential of the Internet, and may even cut the United States off from the growing global information infrastructure." [EN50]
The interactive nature of the Internet allows users (especially parents) to exercise an unprecedented level of control over the information that they receive. The implementation of a program similar to the previously mentioned rating system would enable parents to restrict their child's access to pornography and other indecent material, while preserving the First Amendment rights of consenting adults. In this way parents, and not the government, would decide what is appropriate for their children.
1. The term "Internet" is generally used to refer to open-access services like the World Wide Web and UseNet newsgroups. However, with the increased demand and availability of Internet connections, this term has been informally expanded to include private service providers such as America Online, Prodigy, and CompuServe.
2. Selena Sol, Emergence on the Web: Cyberspace and the Science of Complexity. See URL: http://www.eff.org/~erict/Personal/Prose/final.html, referring to Marshall McLuhan, The Medium is the Message.
3. An interesting theory has been advanced by Jeffrey Shallit, a computer science professor at the University of Waterloo in Ontario and Internet activist. His theory of new communications media is dubbed Shallit's Laws. The first law is that "every new medium of expression will be used for sex," and the second is that "every new medium of expression will come under attack, usually because of Shallit's first law." Joe Chidley, Red-Light District, Maclean's, May 22, 1995, p. 58.
4. See, for example, the article by Philip Elmer-DeWitt, On a Screen Near You: Cyberporn, TIME, July 3, 1995. The information cited in this article was taken from a study published in the Georgetown Law Journal. Marty Rimm, Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories and Animations Downloaded 8.6 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces and Territories, 83 GEO. L.J. 1849 (1995).
5. Robert F. Goldman, Put Another Log on the Fire, There's a Chill on the Internet: The Effect of Applying Current Anti-obscenity Laws to Online Communications, 29 Ga. L. Rev. 1075 (1995).
6. These will be discussed in Part III, infra.
7. A feeling of "community" has developed on the Internet and has led to the creation of a language all its own. Internet users have even come up with different words to describe themselves and their environment. They refer to cyberspace (i.e., the Internet) as "the Net," to citizens of cyberspace as "netizens," and those who are on-line on a regular schedule as "netters." Tracy LaQuey Parker, The Internet Companion (Menlo Park, California: Addison Wesley:1994), p. 76.
8. Howard Rheingold, The Virtual Community: Homesteading on the Electronic Frontier 71-73 (1993), at 71. The purpose of ARPA was to discover and research new and innovative proposals for technological advances. Id.
9. ARPANET utilized electronic mail as a means of communicating. Id., at 76. ARPANET was based on a new "packet-switching" technology which effectively eliminated the need for a single network command center. For a more in-depth explanation of this "packet-switching" technology see Rheingold, supra note 8, at 74.
10. As a comparison, ARPANET users originally numbered about one thousand. Rheingold, supra note 8, at 79. Today, it has been estimated that the Internet population may be upwards of thirty million. Donna L. Hoffman and Thomas P. Novak Measuring the Internet: Preliminary Results of the Commerce/Nielson Internet Demographics Survey, December 5, 1995. See URL: http://www2000.ogsm.vanderbilt.edu/novak/CN.prelim.results.oct30.html.
11. The National Science Foundation is an agency of the U.S. government. Ed Krol, The Whole Internet: User's Guide & Catalog 13 (2d ed. 1994), at 14.
12. Rheingold, supra note 8, at 84.
13. Id.
14. Barbara M. Ryga, Cyberporn: Contemplating the First Amendment in Cyberspace, 6 Seton Hall Const. L.J. 221 (1995).
15. There is a UseNet discussion group (known as a "newsgroup") for almost every conceivable topic. Phillip Elmer-DeWitt, supra note 4, at 9.
16. Michael A. Itzoe, A Regulatory Scheme for CyberpornDecember 7, 1995. See URL: http://ezinfo.ucs.indiana.edu/~mitzoe/porn/porn2.html.
17. Id.
18. According to a survey of opinions about sex on the Internet, a majority of people would not consider pornography to be "undesirable." See URL: http://www.survey.net/sex1c.html.
19. The bills introduced in 1995 include: The Communications Decency Act; The Protection of Children from Computer Pornography Act of 1995; The Child Protection, User Empowerment and Free Expression in Interactive Media Study Act; and The Internet Freedom and Family Empowerment Act. Stacey J. Rappaport, Rules of the Road: The Constitutional Limits of Restricting Indecent Speech on the Information Superhighway, 6 Fordham Intell. Prop. Media & Ent. L.J. 301 (1995).
20. Goldman, supra note 5.
21. S. 314, 104th Cong., 1st Sess. (1995). For the full text of the CDA see URL: http://www.eff.org/pub/Alerts/s652_95_a1362_exon_coats.amend.
22. Within a week after being passed by Congress, the CDA had already come under constitutional attack. See ACLU v. Reno, Civ. Act. No. 96-963, 1996 U.S. Dist. LEXIS 1617. On-line at URL: http://www.epic.org/free_speech/censorship/lawsuit/TRO.html.
23. Indecent speech has been defined as "non-obscene material that deals explicitly with sex or that uses profane language." Pacifica Foundation v. FCC, 438 U.S. 726 (1978).
24. The Supreme Court set out a three part analysis to determine whether material will be considered obscene in Miller v. California, 413 U.S. 1 (1973). The elements, as set forth by the Court were: first, whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; second, whether the work depicts or describes, in a patently offensive manner, sexual conduct as defined by the applicable state law; and third, whether the work, taken as a whole, lacks serious literary, artistic, politcial, or scientific value. Once characterized as obscene, the material receives no First Amendment protection. Id.
25. Rappaport, supra note 19.
26. Turner Broadcasting v. FCC, 114 U.S. 2445 (1994).
27. Pacifica, supra, note 23.
28. Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).
29. Id.
30. Id., at 126. See also Carlin Communications v. FCC, 837 F.2d 546, 555 (2nd Cir. 1988).
31. Pacifica, supra note 23.
32. Sable, supra note 28.
33. These programs will be discussed in Part IV.
34. Senator Leahy appears to be one of the few voices of reason in Congress. He has sponsered the Child Protection, User Empowerment and Free Expression in Interactive Media Study Act. This would require: (1) a comprehensive study of the current laws dealing with pornography and how they would relate to the Internet; (2) an assessment of available resources to enforce the current laws; (3) an evaluation of current parental control technology; and (4) recommendations to encourage the development and use of this technology. S. 714, 104th Cong., 1st Sess. (1995). Unfortunately, this proposed act has neither had a hearing nor been voted upon.
35. Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973).
36. Schad v. Mt. Ephraim, 452 U.S. 61 (1981).
37. Stanley v. Georgia, 394 U.S. 557 (1969). The Court stated that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Id. at 598.
38In Osborne v. Ohio, 495 U.S. 103 (1990), the Supreme Court narrowed the holding of Stanley, supra note 37, to exclude the possession of child pornography in the home from constitutional protection. The Supreme Court had previously classified child pornography as a category of constitutionally unprotected speech. New York v. Ferber, 458 U.S. 747 (1982). Therefore, this type of pornography does not fall within the scope of the arguments advanced in this discussion.
39. The CDA. See supra note 21.
40. The ECPA established that users of on-line communications networks have a substantial privacy interest in the communications transmitted over the systems. It further set out well defined conditions under which law enforcement agencies, and in some cases, system operators, could access the private communications. 18 U.S.C. Sec. 2510.
41. Information on Surf Watch can be found at URL: http://www.surfwatch.com.
42. Information on NetNanny can be found at URL: http://www.netnanny.com/netnanny.
43. Information on Cyberpatrol can be found at URL: http://www.microsystems.com.
44. A mandatory rating system, while accomplishing the same purpose as a voluntary one, would unnecessarily infringe on the individual's freedom of choice. "Relying on individuals and parents, not the government, to make choices about the content that they and their families receive assures maximum respect for First Amendment rights of adults . . ., and allows families, not federal bureaucrats, to determine what information is most consistent with their own moral values." Interactive Working Group Report to Senator Leahy, Parental Empowerment, Child Protection, & Free Speech in Interactive Media, July 24,1995. See URL: http://www.cdt.org/iwg/overview.html.
45. For descriptions of the two rating plans see: Itzoe, supra note 16; and Gary Hawkins, text at URL: http://www.eskimo.com/~ghawk/tagging.txt.
46. Hypertext markup language ("HTML") is the programming language utilized in order to create World Wide Web sites (known as Web pages).
47. Ratings used by the movie industry include: G - all audiences admitted; PG - parental guidance suggested; PG-13 - no one under 13 admitted without an adult; R - no one under 17 admitted without an adult; and NC-17 - no one under 17 admitted.
48. The most efficient method to grant ratings to new sites would be to require the creator to petition for them by placing a notice at a site set up solely for this purpose. In this way, resources would not have to be expended looking for new sites, and anyone who does not want their site to be rated will have that choice. Of course, without a rating, their site will not be accessed by the protected software.
49. If implemented by a single group, the single government censor will simply be replaced by a single private censor.
50. Interactive Working Group Report to Senator Leahy, supra note 44.