Free Speech in Cyberspace

The Supreme Court's ruling yesterday striking down a federal ban on ''virtual'' child pornography sent a clear message to would-be censors: The government must be scrupulous, when regulating obscene material, not to infringe on protected speech. The decision is especially welcome now, as a three-judge court in Philadelphia is poised to rule on a federal law that seeks to force libraries to censor the Internet use of their patrons.

The restrictions that the court struck down yesterday, portions of the Child Pornography Prevention Act, were Congress's attempt to ban computer-generated images so lifelike that they appear to be of actual children. By a 6-to-3 vote, the court ruled that the restrictions on such images were so vague as to be unconstitutional.

This same sort of overbreadth is one of the central problems with the Internet law being challenged in Philadelphia. In that case, a coalition of libraries, Internet sites and civil libertarians is challenging the Children's Internet Protection Act, a federal law that withholds technology aid from public libraries and schools that refuse to block sites that are ''harmful to minors.''

The technology the government wants to force libraries to put in place is woefully inadequate to the task. Internet filters, which are crudely programmed to search for purportedly offensive words, invariably end up blocking sites that should be available. One filter blocked as sexually explicit, according to the plaintiffs, a site run by the Mormon Church and a list of passengers on the Mayflower. Another one blocked a Holocaust memorial site.

Even if Internet filters were more adept, the act would still be unconstitutional because the filters do not distinguish between adults and minors, which means that adult library patrons would be denied access to material. The world is not G-rated, and the federal government cannot restrict libraries that serve the whole community.

The Supreme Court has repeatedly made clear that when the federal government hands out funds to private parties it cannot restrict what they say. Once the government decides to finance local libraries, the decision about what material will be made available to the libraries' patrons belongs with the libraries, not with censors in Washington.

These are critical times for establishing the scope of our freedoms on the Internet. Courts right now are laying the groundwork -- principles that could last for generations -- for how legal doctrines like freedom of expression and copyright will be applied in cyberspace. Guided by yesterday's powerful First Amendment ruling, the three-judge court in Philadelphia should waste no time in striking down the oppressive and unconstitutional restrictions of the Children's Internet Protection Act.

Offensive Speech and Censorship in Cyberspace

Speech Might Include:

• •Political or religious speech.
• Pornography.
• Sexual or racial slurs.
• •Nazi materials.
• •Libelous statements.
• •Abortion information.
• •Alcohol ads.

Material Inappropriate for Children

Technology Changes the Context

•On the Web, children have access to the same ‘adult’ text, images, videos, etc. as adults.

•Online proprietors don’t know the customer is not an adult.

Protecting Children

Regardless of the medium:

–It is illegal to create, possess or distribute child pornography.

–It is illegal to lure children into sexual activity.

Censorship Laws

Child Online Protection Act (COPA, 1998)

• •Commercial Web sites that make available to minors materials “harmful to minors”, as judged by community standards would be subject to a $50,000 fine and six months in jail.

• •In 2000 and 2003, COPA was ruled unconstitutional by a federal court.

Limiting Internet Access in Libraries and Schools

Filtering Software

• •Benefit: prevent access to inappropriate material on the Internet by screening words or phrases, blocking sites according to rating system, or disallowing access to specific sites in a list.

• •Problems: can be ineffective—kids get around the filters; the words, phrases, rating systems, etc. are subjective; “banned” keywords can be overly restrictive for adult users and for legitimate use by minors.

Challenging Old Regulatory Paradigms and Special Interests

License required:

• •To practice law.

• •To publish traditional newsletters about commodities and futures investing (prior to 2000).

No license required:

• •To create downloadable, self-help legal software.

• •To publish newsletters about, developing software for, and operating Web sites concerning commodities and futures investing (since 2000).

Censorship On the Global Net

Global Impact

• •Avoiding censorship: the global nature of the Net allows restrictions (or barriers) in one country to be circumvented by using networks in other, less restrictive countries.

• •Creating censorship: the global nature of the Net makes it easier for one nation to impose restrictive standards on others.

Anonymity

Is Anonymity Protected?

Conflicts between political freedom of speech and campaign regulations:

• •Anonymity protects against retaliation and embarrassment.

• •Anonymity violates rules established by the Federal Elections Commission (FEC)

Anonymity vs. Community

Supporters of anonymity:

• •Say it is necessary to protect privacy and free speech.

Opponents of anonymity:

• •Believe it is anti-social and allows criminals to hide from law enforcement.

Spam

What Is the Problem?

Unsolicited, mass e-mail:

• •is cheap to senders but may impose costs on the recipient’s time and/or the recipient’s online account.
• •may contain objectionable content (political, commercial ads, solicitations for funds, pornography, etc.).
• •may contain a disguised return address.
• •may pass through filters.
• •invades privacy.
• •creates a financial and managerial burden on ISPs.

Cases and Free Speech Issues:

AOL v. Cyber Promotions

• •AOL and other service providers have successfully sued spammers because of the cost burden imposed.

Disgruntled Intel Employee

• •Initially, a court ruled that non-commercial spam to Intel employees at their Intel e-mail accounts was a form of trespass.

• •The CA Supreme Court ruled that it was not.

Solutions:

• •Technology: filters that screen out spam.
• •Market Pressure: services that list spammers.
• •Business Policy: at the discretion of the recipient, all e-mail would be charged a microfee.
• •Law: create restrictions that are consistent with the First Amendment.
• •Vigilantism: punish spammers by hacking into their phone or computer systems.

Ensuring Valuable and Diverse Conte

Points to Consider:

• •Is there a balance between commercial and educational information on the Web?
• •Should diverse content on the Web be subsidized with taxes?
• •Should valuable content on the Web be regulated?
• •Do we need to ensure the existence of sites containing civic information?
• •Are more sites that promote the arts and culture needed?