"Congressional Efforts to Regulate Cyberspace: Slowing
Down Big Brother"
by Charles L. Mudd, Jr.
Most everyone familiar with the Internet and its gui-based World Wide Web knows of the Communications Decency Act ("CDA") and the blue ribbon campaign launched only a few years ago.1 The CDA constitutes Congress' most emphatic and salient attempt to engage in legislating the Internet and its netizens. The CDA attempted to regulate speech and content on a communications medium that had long been self-regulated, if regulated at all. When the Internet's population explosion was still quite young, discussions raged on whether legislation should or would occur. Some writers suggested the authoring of protype legislation on certain areas certain to be encroached upon by congressional mandates.2 At the time, these suggestions often received responses characterized by incredulousness and plain repulsion to the idea of any legislative initiatives.
Unfortunately, the suggested prototypes did not come to fruition. Rather, as the Internet experienced greater growth both in population and media coverage, certain problems emerged that soon became salient and politically attractive.3 Consequently, Congress embarked on an effort to infiltrate the Internet and its domains with proposed regulations that more often than not were ill conceived, ill timed, and ineffective. Thus, the CDA marked the end of an era wherein the Internet and its netizens enjoyed widespread freedom and self-governance.4 The Internet will be regulated, and Congress will continue to enact poorly written statutes affecting net behavior.5 Thus, the CDA also marks the beginning of a second era of congressional response to cyberspace. As advocates testify before hearings, wage campaigns against legislative initiatives, and combat unconstitutional statutes in the courts, Internet advocates will continue to demand an opportunity to be heard and will fulfill their obligation to affect the way in which the Internet is regulated and defined for the twenty-first century. This "war" describes the second era of congressional response on which this article will focus.6
This article serves as both a critique of congressional efforts to regulate cyberspace and as a strategy for obtaining "peace" by cooperative efforts in constructing a fair and constitutional regulatory regime. First, the CDA and the more recent Children's Online Protection Act ("COPA") are analyzed in light of the recent court decisions affecting their validity. From these two acts, a paradigm is defined that serves as a vehicle from which most congressional efforts to regulate cyberspace may be recognized as ill conceived, ill timed, and ineffective. Second, this paradigm is applied to certain other congressional efforts effecting cyberspace and the Internet. This application reinforces the constructs of the paradigm. Finally, a discussion of the consequences of the paradigm's validity conclude with a peace process proposal for securing the Constitution in cyberspace while at the same time enabling Congress the ability to effectively address identifiable state interests arising from conduct in cyberspace.
I. CDA and COPA
The CDA and COPA represent Congress' most ambitious effort to regulate behavior within cyberspace. In addition, they represent the epitome of congressional actions motivated by politically salient topics and coupled with a sexy element relating to emerging technology. Unfortunately, this breed of congressional legislative action is marked by several flaws. First, the legislation is constitutionally unsound. The legislation is either over broad or too vague, or clearly opposite to our fundamental constitutional rights. Second, the legislation targets an issue that encompasses a broad appeal to the populace that may indeed be worthy of some legislative initiative. At the same time, the legislation attacks behavior on the Internet. In turn, the legislation is marketed by arguments that contend the interests to be protected (invoked by the populace issue) far outweigh the rights of those affected. Third, there are a few, if not several, alternatives to the proposed legislative action. Finally, the legislation tends to suggest the authors are unfamiliar with the behavioral environment of cyberspace and the complexities, both legal and physical, of the Internet and online communities. Analyzing both the CDA and COPA, in light of their attributes and subsequent deconstruction by the courts, reveals a paradigm reflected by the characteristics outlined above.
A. CDA: The Legislative Beginnings
On July 26, 1994, Senator Exon introduced an amendment ("Exon Amendment") to the Senate telecommunications reform bill then under consideration by the Senate Commerce Committee.7 The Exon Amendment sought to amend the Communications Act of 1934 ("1934 Act") by holding owners of telecommunications facilities liable for knowingly permitting their facility to be used for any purpose prohibited under the 1934 Act.8 The amendment further intended to amend the prohibited purposes to include "'mak[ing], transmit[ing], or otherwise mak[ing] available any comment, request, suggestion, proposal, image or other communication"9 "which is obscene, lewd, lascivious, filthy, or indecent."10 Senator Exon stated:
"Simply put, this Communications Decency amendment modernizes the anti-harassment, decency, and anti-obscenity provisions of the Communications Act of 1934. When these provisions were originally drafted, there were couched in the context of telephone technology. These critical public protections must be updated for the digital world of the future.
Before too long a host of new telecommunications devices will be used by citizens to communicate with each other. Telephones may one day be relegated to museums next to telegraphs. Conversation is being replaced with communication and electrical transmissions are being replaced with digital transmissions. As the Congress rewrites the Communications Act, it is necessary and appropriate to update these important public protections.
Anticipating this exciting future of communications, the Communications Decency amendment I introduce today will keep pace with the coming change.
References to telephones in the current law are replaced with references to telecommunications devices. The amendment also increases the maximum penalties connected with the decency provisions of the Communications Act to $100,000 and 2 years imprisonment . . . .
These measures will help assure that the information superhighway does not turn into a red light district. It will help protect children from being exposed to obscene, lewd, or indecent messages."11
However, the Exon Amendment, along with the telecommunications reform bill, died at the end of the 103rd Congress.
On February 1, 1995, Senator Exon introduced legislation substantively identical to the Exon Amendment entitled the "Communications Decency Act of 1995" ("Exon Bill").12 The Exon Bill again sought to hold owners of telecommunications facilities liable for knowingly permitting their facilities to be used for the making or transmitting of any communication that could be considered "obscene, lewd, lascivious, filthy, or indecent."13 Essentially, the Exon Bill intended to "simply apply the laws that are now enforced on telephones over to and on the new information superhighway."14 Senator Exon stated that "young people, especially small children, should be able to cruise that superhighway without being endangered by a whole series of smut, pornography . . . ."15 Once introduced, the Exon Bill was referred to the Senate Commerce Committee.
Immediately, the Exon Bill received widespread criticism. Perhaps, the most widespread complaint centered around the Exon Bill's unconstitutionality on free speech and privacy grounds. First, the impositions the Exon Bill would place on telecommunications carriers violated rights to free speech and privacy. Specifically, the Exon Bill would impose liability upon telecommunications carriers (i.e. telephone companies, commercial online services, Internet Service Providers ("ISPs"), and bulletin board systems ("BBSs") for any and all content carried on their networks.16 This would include liability for private conversations or messages exchanged between two consenting individuals.17 In addition, the critics argued that the Exon Bill imposed such restrictive requirements that many telecommunications carriers would be required "to choose between severely restricting the activities of their subscribers or completely shutting down their email, Internet access, and conferencing services under the threat of criminal liability."18 Otherwise, the carriers would "be forced to pre-screen all messages, files, or other content before transmitting it to the intended recipient" to avoid liability.19 Essentially, carriers would be forced to become private censors of all material available to the open public on their networks because of the expanded liability for exposing indecent material to minors via telecommunications devices.
Ironically, the U.S. Department of Justice, in a letter to Senator Leahy, stated clearly that the criminalization of indecent communications "would impose criminal sanctions on the transmission of constitutionally protected speech."20 In addition, the section imposing such sanctions "fails to take into account less restrictive alternatives utilizing existing and emerging technologies which enable parents and other adult users to control access to content."21 The Supreme Court had ruled that the "Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."22 Thus, by failing to consider less restrictive alternatives, the Exon Bill violated the Constitution.23
The Exon Bill also received criticism for the way in which it had been drafted. From an enforcement perspective, the Department of Justice claimed the use of the word "knowingly" would "cripple obscenity prosecutions" because under Miller v. California "the government must only prove that a person being prosecuted under an obscenity statute had knowledge of the general nature of the material being distributed." Essentially, the scienter requirement of section 402(e) of the Exon Bill would make it "nearly impossible for the government to establish the necessary requirement and would thereby severely handicap enforcement of existing statutes."24 In addition, the Exon Bill's addition of defenses to criminal prosecution would interfere with existing statutes that actually target the same offenses to which the Exon Bill directed its criminalization. Specifically, the Department of Justice stated:
"The government currently enforces federal criminal laws preventing the distribution over computer networks of obscene and other pornographic material that is harmful to minors (under 18 U.S.C. § 1465, 2252 & 2423 (a)), the illegal solicitation of a minor by way of a computer network (under 18 U.S.C. § § 2252), and illegal 'luring' of a minor into sexual activity through computer conversations (under 18 U.S.C. § 2423(b)). These statutes apply to all methods of 'distribution' including over computer networks. The new defenses proposed . . . would thwart ongoing government obscenity and child sexual exploitation prosecutions . . . ."25
In addition, the Exon Bill's use of the term "indecency" was flawed because there is no agreed upon definition. Consequently, the carriers would be forced to censure for any content that might violate the broadest interpretation of the term. Such a result, it was argued, would "severely limit the diversity of content available on online networks, and limit the editorial freedom of independent forum operators."26
The Exon Bill also suggested an unfamiliarity with the technology subject to the regulations among its drafters. First, the Exon Bill failed to account for the lack of discreet boundaries within and among electronic communications networks. Because an individual on one completely "independent" network may communicate with a distinct individual belonging to a second "independent" network, each of the networks will obtain communications originating from a source outside its network. Under the Exon Bill, each network would be liable for any content from any communications found on its networks despite the origin of the communications.27 Such a requirement would force carriers to pre-screen content which would be "impossible due to the sheer volume of messages."28 The CDT also alleged that it would violate current legal protections. Second, the critics argued that because the technology being regulated is interactive, circumstances did not require government control. Specifically, they argued tools exist within interactive technology (such as Internet browsers and software used to obtain access to online services) that allow users to select, and thereby control, the information they want to access.
During the debate, an undergraduate student, Martin Rimm, completed a study on pornography on the Internet at Carnegie-Mellon University.29 The study made claims such as "83.5% of all images posted on the Usenet are pornographic"30 Due to the alleged expansiveness of pornography on the Internet (with subjects on bestiality and pedophilia), the study identified the three "most complex legal questions" as child pornography, limiting access to minors, and obscenity standards.31 Despite substantial criticism levied against the study's methodology,32 TIME magazine covered the study and treated it as sound.33 Consequently, congressional members cited the article in favor of the CDA or similar legislation.34 In addition, Georgetown Law Journal published the student's "research" paper. All of this fueled congressional response to the allegedly wild, untamed, pornography-ridden Internet.35 And, it helped make the subject much more salient among the less tech-savvy general public.
Despite the widespread criticism, the Exon Bill survived with only minor amendments and became part of the Telecommunications Act of 1996.
B. CDA: The Judicial End
On February 8, 1996, the President signed into law the Telecommunications Act of 1996 ("Telecomm Act") of which Title V constituted the Communications Decency Act of 1996 ("CDA").36 On the same day, the American Civil Liberties Union ("ACLU") and others filed an action in the United States District Court for the Eastern District of Pennsylvania and moved for a temporary restraining order.37 The relevant portions of the CDA contested by the parties were codified as 47 U.S.C. § 223(a), (d) and (e); and, 18 U.S.C. § 1462(c). Of these, sections 223 (a) and (d) were the essence of the constitutional challenge. United States Code § 223 (a) read in relevant part:
"[Anyone will be subject to criminal penalties of imprisonment of no more than two years or a fine or both who]:
1) in interstate or foreign communications . . .
(B) by means of a telecommunications device
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene or indecent, knowing that the recipient of
the communication is under 18 years of age, regardless of whether the
maker of such communication placed the call or initiated the
communication; . . .
(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity."
United States Code § 223 (d) read in relevant part:
"[Anyone will be subject to criminal penalties who]:
(1) in interstate or foreign communications knowingly--
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the use of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity."
The District Court issued the order a week later. Subsequently, a second suit was filed and consolidated with the first.38 Pursuant to § 561 of the Act, a three-judge District Court convened to hear the case.39 Thus began a challenge to the first major attack on behavior in cyberspace that ultimately found its way before the U.S. Supreme Court.
1. The Three Panel District Court
In describing the parties' arguments, the District Court stated:
"Plaintiffs focus their challenge on two provisions of section 502 of the CDA which amend 47 U.S.C. §§ 223(a) and 223(d).
Section 223(a)(1)(B) provides in part that any person in interstate or foreign communications who, 'by means of a telecommunications device,'(5) 'knowingly . . . makes, creates, or solicits' and 'initiates the transmission' of 'any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age,' 'shall be criminally fined or imprisoned.' (emphasis added).
Section 223(d)(1) ('the patently offensive provision'), makes it a crime to use an 'interactive computer service'(6) to 'send' or 'display in a manner available' to a person under age 18, 'any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication.'
Plaintiffs also challenge on the same grounds the provisions in § 223(a)(2) and § 223(d)(2), which make it a crime for anyone to "knowingly permit any telecommunications facility under [his or her] control to be used for any activity prohibited" in §§ 223(a)(1)(B) and 223(d)(1). The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both for each offense.
Plaintiffs make clear that they do not quarrel with the statute to the extent that it covers obscenity or child pornography, which were already proscribed before the CDA's adoption. See 18 U.S.C. §§ 1464-65 (criminalizing obscene material); id. §§ 2251-52 (criminalizing child pornography); see also New York v. Ferber, 458 U.S. 747 (1982); Miller v. California, 413 U.S. 15 (1973).
Plaintiffs in the ACLU action also challenge the provision of the CDA that criminalizes speech over the Internet that transmits information about abortions or abortifacient drugs and devices, through its amendment of 18 U.S.C. § 1462(c). That section now prohibits the sending and receiving of information over the Internet by any means regarding "where, how, or of whom, or by what means any [drug, medicine, article, or thing designed, adapted, or intended for producing abortion] may be obtained or made". The Government has stated that it does not contest plaintiffs' challenge to the enforceability of the provision of the CDA as it relates to 18 U.S.C. § 1462(c).(7)
As part of its argument that the CDA passes constitutional muster, the Government cites the CDA's 'safe harbor' defenses in new § 223(e) of 47 U.S.C., which provides:
In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) of this section solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person --
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The [Federal Communications] Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d) of this section. Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. . . .'"40
The District Court held an evidentiary hearing on the motion for a preliminary junction. At the hearing, the plaintiffs essentially argued that the CDA would inhibit the exchange of information on the Internet and impose unreasonable costs on web site operators. In response, the government argued that the CDA provided three defenses to prosecution: credit card verification, adult verification by password or adult identification number, and "tagging."41 However, the District Court found that the first defense "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material."42 In addition, the costs of obtaining verification through credit card verification services (testified by one witness to be $1) could force web site operators to "incur a monthly cost far beyond [their] modest resources."43 Indeed, the government's expert "suspect[ed]" that verifications agencies would require purchases to accompany any processing of a card. Moreover, both parties' experts testified that credit card verification would inhibit the flow of information causing delays that people would not tolerate.44 This evidence deemed the first defense all but mere surplussage.
The second "defense" consisted of employing password verification systems. The District Court found that the information presented by the government's expert on two verification systems (AdultCheck and Verify) used by commercial, pornographic sites consisted of "very limited evidence." The District Court also heard testimony from non-commercial organizations which testified that charging listeners to access the information would be contrary to their intent to distribute information free of charge. In addition, ACLU presented evidence that some adult users would be discouraged from retrieving information that required the use of a password or credit card. Based upon the evidence, the District Court found that the administrative burden imposed by the creation of an internal screening system would be cost prohibitive for even some commercial sites. In addition, the District Court stated that "the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18."45 It then concluded: "The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number if Internet content providers."46
The final "defense" has been labeled "tagging." This refers to the process by which web site operators place within the html or web page a tag that identifies it as containing certain forms of content. While this may seem trivial on one hand, the enormity of tagging every web page for some organizations (ie Carnegie Library) would be enormous. ACLU presented evidence that some organizations would be required to tag all or none of its content because it would be unable to determine whether information on safer sex would be considered indecent for each community. Interestingly, the government agreed with the plaintiffs that tagging alone would not "shield minors from speech or insulate a speaker from criminal liability under the CDA.47 The District Court also identified additional concerns. First, tagging would require a worldwide consensus on the format of tags. Content is often from overseas and it sometimes difficult to determine from where it came. The court also recognized the importance of anonymity to Internet users of sensitive information.
Based on the evidence before it, the trial court found that "speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution."48 Moreover, it found that the CDA's defenses "are effectively unavailable for non-commercial, not for profit entities.49 None of the plaintiffs were commercial purveyors of "pornography" but some of their material posted to a web site could be considered indecent or patently offensive in some communities.50 The District Court held:
"Plaintiffs have established a reasonable probability of eventual success in the litigation by demonstrating that §§ 223 (a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Sections 223 (d)(1) and 223(d)(2) of the CDA are unconstitutional on their face. Accordingly, plaintiffs have shown irreparable injury, no party has any interest in the enforcement of an unconstitutional law, and therefore the public interest will be served by granting the preliminary injunction."51
In addition, it found the CDA violative of the First Amendment for being over broad and the Fifth Amendment for being vague. It subsequently granted the motions.52
2. The Supreme Court
The Supreme Court heard oral arguments on Wednesday, March 19, 199753 and decided the case on June 26, 1997.54
a. Oral Arguments
At the hearing, the Court presented the Government with factually based hypotheticals that focused upon specific examples of conduct that appeared to be prohibited on the face of the statute. However, they were presented in such a way that any prosecution would be considered extreme. Specifically, the Court seemed concerned about the possible over breadth of the CDA. In response to whether § 223 (d)(2) would prohibit a parent from allowing her child to observe patently offensive material using the parent's computer, the Government responded by stating that the Court could "exempt the provision of this material for parents," although such actions could constitute child abuse. The Court later asked the Government whether two high school students discussing patently offensive material would face liability under the provision of the CDA prohibiting the knowing transmission of indecent material to a person under the age of 18. Although the Government contended this provision targeted sexual predators, it conceded that such communications would be prohibited. Moreover, the Government stated that it did not believe the Internet to be a public forum and, therefore, distinct from a public park or other public location where such communications may be protected. In response to these and similar scenarios, the Government argued that the Court should construe the CDA in such a manner that saves the provisions of the statute that are found to be over broad.
Responding, the appellees identified four reasons the CDA should be struck down: it would ban speech; it would not be effective; there exist less-restrictive alternatives; and it would chill non-indecent speech. While some members of the Court responded to these four reasons (ie the less-restrictive alternatives), the Court's questions seemed to primarily focus upon whether the statute could be construed in such a way as to make it constitutional. The Appellees vehemently disagreed with any construction. First, the Appellees argued that the CDA could not be construed to prohibit only commercial speech because the legislative history clearly indicated the CDA was to apply to both commercial and noncommercial entities. Second, the definition of patently offensive could not be narrowly construed because the conference report clearly indicated that Congress had rejected the less restrictive approach of "harmful to minors."
The Court also questioned the importance of Appellees' argument that the CDA would be ineffective against foreign communications. In response, the Appellees explained that whether all domestic communications prohibited under the CDA were eradicated, a search engine will still list any remaining sites that contained the sought after material. Moreover, commercial entities could move their operations overseas. When questioned about the Government's alleged policy reasons in support of the CDA, the Appellees stated that they "did not challenge this law insofar as it prohibits obscene speech, child pornography, solicitation of minors, or harassment of minors." Rather, their arguments focused upon where the effect of the CDA bans both prohibitable speech and non-prohibitable speech. Essentially, the Court's questions focused on whether the CDA could be construed as constitutional. The Appellees vehemently argued that the CDA as written could not be construed as constitutional.
b. The Opinion
In its opinion, the Supreme Court affirmed the decision of the three-judge District Court and held that the CDA "abridges 'the freedom of speech' protected by the First Amendment."55 In summarizing the District Court's findings of fact, the Court held:
"The Internet is 'a unique and wholly new medium of worldwide human communication.'
The Internet has experienced 'extraordinary growth.' The number of 'host' computers--those that store information and relay communications--increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation.
* * * * *
Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail ("e-mail"), automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium--known to its users as 'cyberspace'--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic message--generally akin to a note or letter--to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, postings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time dialogue--in other words, by typing messages to one another that appear almost immediately on the others' computer screens. The District Court found that at any given time "tens of thousands of users are engaging in conversations on a huge range of subjects." > () It is "no exaggeration to conclude that the content on the Internet is as diverse as human thought."
The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web "pages," are also prevalent. Each has its own address--'rather like a telephone number.' Web pages frequently contain information and sometimes allow the viewer to communicate with the page's (or 'site's') author. They generally also contain 'links' to other documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text--sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the "surfer," or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of the page's icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.
From the publishers' point of view, it constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. 'No single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked from the Web.'
* * * * *
Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the modestly titillating to the hardest-core." These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search.
* * * * *
Some of the communications over the Internet that originate in foreign countries are also sexually explicit.
Though such material is widely available, users seldom encounter such content accidentally. "A document's title or a description of the document will usually appear before the document itself ... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content." For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident. Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended."
Systems have been developed to help parents control the material that may be available on a home computer with Internet access. A system may either limit a computer's access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. "Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images." Nevertheless, the evidence indicates that "a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be available."'
The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms.' The Government offered no evidence that there was a reliable way to screen recipients and participants in such fora for age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics or other subjects that potentially elicit 'indecent' or 'patently offensive' contributions, it would not be possible to block their access to that material and 'still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent.'
Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. Using credit card possession as a surrogate for proof of age would impose costs on non-commercial Web sites that would require many of them to shut down. For that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial number of Internet content providers.' Moreover, the imposition of such a requirement "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material.'
. . . [e]ven if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and maintaining such screening systems would be 'beyond their reach.'
In sum, the District Court found:
'Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers.'"56
The Supreme Court then proceeded to analyze the facts in light of relevant constitutional jurisprudence.
The Supreme Court first agreed with the District Court that prior "cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." In so concluding, the Court reviewed its decisions in Ginsberg v. New York 57 ; Southeastern Promotions, Ltd. v. Conrad58 ; FCC v. Pacifica Foundation 59 ; Renton v. Playtime Theatres, Inc.60; and, Sable Communications of Cal., Inc. v. FCC61. The Court held that each of the foregoing cases presented facts and circumstances distinct from those presented by the Internet and the CDA.
The Court then proceeded to address the vagueness of the statute as it applied to First Amendment jurisprudence. The Court found the CDA to be problematic for several reasons. First, the two provisions being challenged each used a distinct linguistic form in describing the proscribed communications. Section 223 (a) prohibited speech that was "indecent" while § 223(d) prohibited that which "in context, depict[ed] or describe[d], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Consequently, speakers would be uncertain as to the relation and meaning between the two linguistic forms.62 Moreover, "[t]his uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials."63
The Court also distinguished the standard for prohibited speech employed in Miller v. California from that in the CDA.64 In Miller, the Court espoused the standard for obscenity still employed today:
"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."65
Here, the Court concluded that the CDA contained only one of the three-prong Miller test. The remaining two prongs in Miller place a limit on the community defined second prong by allowing "appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeemable value."66 Moreover, the CDA omitted a critical requirement "that the proscribed material be 'specifically defined by the applicable state law.'"67 Finally, the CDA extended beyond the "sexual conduct" limitation of Miller and included "excretory activities" and "organs" of both a sexual and excretory nature.
Thus, the Court found this vagueness troublesome for two reasons. First, as a content-based regulation of speech, the CDA raised "special First Amendment concerns because of its obvious chilling effect on free speech."68 Second, the CDA imposed criminal liability upon its violators in the form of both fines and imprisonment which "may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas and images."69 The Court concluded with respect to the CDAs vagueness:
" . . . the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the [statute's coverage], it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute."70
The Court then held:
"We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.
* * * * *
The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial--as well as some commercial--speakers who have Web sites to verify that their users are adults. These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that '[d]espite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available.'"71
Consequently, the Court concluded that "[t]he breadth of the CDA's coverage is wholly unprecedented" and "in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not tailored if that requirement has any meaning at all."72
The Court "agree[d] with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of 'narrow tailoring' that will save an otherwise patently invalid unconstitutional provision."73 Specifically, the Court held that the "tagging" defense failed by its own requirement that the good faith action must be "effective." "Without the impossible knowledge that every guardian in America is screening for the 'tag,' the transmitter could not reasonably rely on its action to be effective."74 In addition, the Court concluded that the two remaining defenses fail because, although the technology exists, they would be too economically burdensome on most non-commercial speakers.75
Finally, the Court addressed the Government's argument that should the Court find the CDA unconstitutional, it should employ the statute's severability clause and construe those provisions that are not severable narrowly. To the extent that § 223 (a) applies to any communication deemed "obscene," the Court upheld the statute but severed the term "or indecent."76 The Court denied the Government's request to limit the applicability of the statute to the extent it does not reach "too far." The Court reasoned that its jurisdiction based upon expedited review under § 561 rested solely on facial challenges and not "as-applied."77 In addition, "[t]he open-ended character of the CDA provides no guidance what ever for limiting its coverage."78 Therefore, the Court affirmed the judgment of the District Court.79
C. COPA: The Legislative Beginning
Nearly a year after the Supreme Court's opinion in Reno v. ACLU, Representative Oxley introduced the Child Online Protection Act ("COPA") into the House.80 COPA was then referred to the House Commerce Committee.81 The House Subcommittee on Telecommunications, Trade and Consumer Protection held hearings on COPA and other related legislation on September 11, 1998.82
COPA retained the legislative intent originating in the CDA but narrowed its focus pursuant to Reno v. ACLU. Specifically, COPA limited its scope to commercial entities, applied only to communications on the World Wide Web, and employed a "harmful to minors" standard which the CDA lacked.
Again, advocacy groups challenged the constitutionality of COPA.83 First, they argued COPA violated the fundamental First Amendment principles by criminalizing protected speech among adults.84 To impose a burden or restriction on our right to free speech, a statute must be "necessary to serve a compelling state interest and [be] narrowly drawn to achieve that end."85 Critics complained that COPA failed to serve the compelling state interest in protecting children because it would not prevent children from accessing material available on foreign based web sites, non-commercial entities, newsgroups, chatrooms, and electronic mail.86 COPA also "fails to make any distinction between material that may be harmful to a six-year-old but valuable for a 16-year-old, such as safer-sex information."87 In addition, CDT argued that less restrictive means of achieving the government's interest were available. Specifically, the organization mentioned the use of filtering software available to parents and schools.
Second, COPA's opponents argued that the legislation failed to define the standards it employed. Specifically, COPA employed the "harmful to minors" standard that would be based on community standards. This vague standard allegedly violated the Miller standard specifically cited in Reno. Critics also contended that COPA failed to define the term "commercial distributor" and the extent of commercial behavior on the Web that would impose liability.88 Third, the CDT argued that the defenses employed by COPA violate individuals' right to privacy by requiring identifying information to gain access to the harmful material. Finally, the ACLU contended the age verification provision of COPA "flies in the face" of the Supreme Court's decision in Reno.89 Specifically, COPA fails to recognize that most sites are unable to financially support screening systems or verify that a customer using a password is in fact not a minor.90
On October 5, 1998, COPA was "[r]eported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed."91 The amended bill contained some congressional findings. First, the legislation identified "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them" as a compelling state interest.92 Second, Congress found that industry efforts designed to restrict material from minors "have not provided a national solution to the problem . . . ."93
Based on its findings, Congress enacted COPA. COPA prohibited anyone from knowingly making any communication for commercial purposes available to any minor where such material is "harmful to minors" and the one making the communication available had "knowledge of the character of the material."94 The statute allowed penalties of not more than $50,000, imprisonment for not more than 6 months, or both. For intentional violations, the violator could be fined $50,000 for each day the violation occurred. In addition, the statute subjected violators (intentional or not) to potential civil liability of not more than $50,000 for each day the violation occurred. Thus, COPA imposed a significantly smaller maximum time for imprisonment than did the CDA.95
Interestingly, the statute exempted "telecommunications carriers engaged in the provision of a telecommunications service," search engine providers, Internet access providers, or those "similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation . . . of a communication made by another person, without selection or alteration of the content of the communication" (deletion of material does not constitute selection or alteration).
Similar to the CDA, COPA provided defenses to any charge, both criminal or civil, of engaging in prohibited conduct. Specifically, the defendant has an affirmative defense where she, in good faith, required some form of adult authorization code (access code, credit card, etc.), a digital certificate verifying age, or "any other reasonable measures that are feasible under available technology" to restrict minors' access to material prohibited under the Act.
As enacted, COPA reflected some of the criticism and comments from opponents of the legislation. For example, COPA contained privacy protection requirements imposed on those who collect information for the purposes of restricting access from minors.96 The Act defined a communication for commercial purposes as one made by a person "engaged in the business of making such communications."97 One who is "engaged in the business" includes any person "who makes a communication or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities . . . ."98 Under the definition, one need not actually make a profit.99 Finally, the legislation included sections on notice (being required to be given by a provider of an interactive computer service to a customer notifying them of the availability of filtering hardware or software) and to implement a commission for the study of online child protection.100
D: COPA: The Temporary Restraining Order
Once enacted, interested parties sought a temporary restraining order which the District Court granted. After a hearing, the District Court granted the parties' motion for a preliminary injunction.101 Recognizing that "the relevant inquiry is determining the burden imposed on the protected speech regulated by COPA" and that "[e]ach medium of expression 'must be assessed for First Amendment purposes by standards suited to it,'" the court held that COPA "has the effect of burdening speech in these fora that is not covered by the statute" and that a substantial likelihood exists that the plaintiffs "will be able to show that COPA imposes a burden on speech protected for adults."102 Specifically, the court found that "the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials and that the loss of users of such material may affect the speakers' economic ability to provide such communications . . . may [cause web site operators and content providers to] self-censor the content of their sites."
The court recognized that the statute would not likely be effective. The court found that because minors could access material deemed "harmful to minors" via "foreign web sites, non-commercial sites, and online protocols other than http," the statute would have problems "efficaciously meeting its goal." The court found these problems compounded by evidence suggesting minors could evade such restrictions by obtaining a valid credit card or debit card. In addition, the court found that it would be strongly possible that the defendant could not demonstrate that COPA represented the least restrictive means available to accomplish its objective. Rather, the court found evidence to suggest that filtering or blocking techniques would be just as effective without imposing the burden on constitutionally protected speech that COPA imposes. Moreover, the court cited plaintiffs' claims that the sweeping language of COPA that "any communication . . . or other matter of any kind" did not represent the least restrictive means and that lesser penalties might represent a lesser restriction. Therefore, the court suggested that the evidence could demonstrate at trial both COPA's ineffectiveness and the existence of less restrictive alternatives.
Finally, noting that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the court concluded that the plaintiffs had demonstrated irreparable harm in that they would be required to self-censorship their web sites and content in fear of prosecution under COPA. Balancing the harms and interests of the parties, the court held that the violation of plaintiffs First Amendment rights far outweighed any interests of the defendants.
As the courts have held, the prevention of "a few of the most enterprising and disobedient young people" from obtaining access to harmful material does not justify a statute that has the "invalid effect of limiting the content of adult [communications] to that which is suitable for children." Sable,
II. THE PARADIGM
The CDA and COPA establish the paradigm which may be employed to explain congressional behavior with respect to most cyber-legislation.103 The elements of the paradigm can be isolated into two subsets. First, the requisite elements determine from the mass of legislation produced by Congress which items fit into the study and become a member of the paradigm class. Second, the characteristic elements describe the legislation within the paradigm class. In other words, should a piece of legislation meet the requisite elements, the legislation will share the characteristic elements.
A. The Requisite Elements
The most obvious requisite element belonging to the paradigm class legislation is its cyber nature. That is, the legislation must be primarily concerned with cyberspace or the activities therein. Cyberspace is defined as:
". . . a completely spatialized visualization of all information in global information processing systems, along pathways provided by present and future communication networks, enabling full copresence and interaction of multiple users, allowing input and output from and to the full human sensorium, permitting simulations of real and virtual realities, remote data collection and control through telepresence, and total integration and intercommunication with a full range of intelligent products and environments in real space."104
Thus, any legislation concerning computers, networks, online behavior, the Internet, etc. would be included. Obviously, the CDA and COPA met this requisite requirement as the prohibited conduct prohibited by the contested portions of the statutes occurred on the Internet; within cyberspace.105 Thus, for this first requirement, the legislation merely need to be concerned with cyberspace and the emerging technology affecting cyberspace.
Second, the legislation must be associated with a salient issue that would invoke an identifiable government interest where both the issue and government interest are separate and apart from cyberspace. The CDA and COPA were inherently associated with the issues of pornography and the safety of our children. These issues invoke an identifiable government interest in protecting the safety of our children. Additionally, both the issue and the government interest are severable from cyberspace.106
The class of legislation that fits within the paradigm is further narrowed by the final requisite element which concerns whether the legislation affects the substantial rights of those within cyberspace. The CDA and COPA clearly constitute cyber legislation that affects substantial rights because of the proposed restrictions on speech and privacy within cyberspace.107 The substantial rights may also concern an individual's rights to redress in the "real" world for activities occurring in cyberspace. On the other hand, legislation with such purposes as to "amend the Intermodal Surface Transportation Efficiency Act of 1991 to provide for the establishment of Internet, dial-in network, and telephone access to information on traffic conditions," "[express] the sense of the Congress that Members should understand and use the Internet to improve the democratic process, and communicate with the Internet community," would not constitute affecting substantial rights. Though a right not need rise to the level of constitutional validation, the right must have been recognized either by statute or common law prior to the legislation alleged to affect the right. In other words, the right that will be allegedly affected must have at least some grounding in legal precedent. Though, the application of that right to cyberspace and the specific legislation may be novel.
B. The Characteristic Elements
The following have been defined as characteristic elements because should an item of legislation meet the requisite elements above (cyber, salient issue and government interest, affect individual rights), the legislation undoubtedly will be characterized by the following elements. First, the legislation will push aside individual rights for the interests it seeks to uphold. Despite the potency of individual rights, the salience of the severable issue and government interest becomes so strong that it has the potential to overcome any objections to violations of individuals rights. At the least, the general public may see the issue and government interest as more a concern than the individual rights harmed in the process. With respect to the CDA and COPA, individual rights to free speech and privacy were secondary to the issue of pornography and the government interest's in protecting our children from the pornography. Here, the Rimm study and the subsequent TIME article fed the salience by portraying cyberspace and the Internet as a filth infested haven for pornographers, adult and child alike.
Second, the violation of individual rights will invoke strong legal questions.108 Both the District Court and Supreme Court determined that the CDA violated rights to free speech and privacy. In addition, the District Court recently determined that COPA violated the rights to free speech and privacy. Specifically, the Acts restricted speech based on the nature of the content to be prohibited. Under Supreme Court doctrine, such content-based statutory schemes invoke the strict scrutiny test which requires that to the statute be "necessary to serve a compelling state interest and [be] narrowly drawn to achieve that end."109 The courts held that the statutes did not meet the strict scrutiny test in that they were not narrowly drawn to achieving the compelling government interest of protecting children from pornography on the Internet. Thus, the legislation fitting the paradigm class will be adverse and contrary to existing legal standards.110
As part of the second characteristic element, the legislation will also be poorly constructed or written. The CDA and COPA both failed to define their terms which contributed to their downfall.
Third, the legislative proposals will be ineffective in reaching the goals advocated by the government interest. With respect to the CDA and COPA, both Acts were found to be ineffective in their application. Minors could still obtain access to indecent or harmful material via web sites from foreign jurisdictions. In addition, minors could obtain credit cards or passwords which would deceptively allow entry to the prohibited material. These inadequacies rendered the Acts ineffective. Fourth, alternatives will exist that are more effective than that proposed in the legislation. Advocates against the CDA and COPA strongly pushed parental control as an alternative deemed to be more successful than that proposed by the Acts.111
Fifth, the legislation, through its inadequacy, ineffectiveness, and dismissal of more compelling alternatives, evinces a lack of technological knowledge among those drafting the legislation. The CDA and COPA relied upon age verification systems despite testimony of their inadequacy and cost-prohibitiveness. Moreover, the manner in which the legislation met the third element (ineffectiveness) also demonstrated lack of technical knowledge about the Internet and Web. Specifically, minors could bypass any restriction the statutes might impose here in the United States and obtain access to indecent or harmful material from foreign sites.
Finally, though perhaps elementary, the legislation will face fierce competition from advocacy groups. Both the CDA and COPA experienced strong opposition from numerous opponents as both legislation and enacted statutes. While the strength of opposition need not be as strong as with the CDA and COPA, the opposition will be visibly apparent.
These are the characteristic elements which constitute the descriptive portion of the paradigm. In essence, they are the Y in the formula if X, then Y. If the legislation is cyber related, affects rights, and associated with a severable issue and government interest, the legislation may be characterized as violative of individual rights; invoking strong legal questions (poorly written); ineffective; more restrictive than viable alternatives; technologically ignorant; and subject to fierce competition.
III. FITTING THE PARADIGM WITH CYBER LEGISLATION
Ideally, the paradigm described above should encompass any congressional legislative efforts fitting within the identified paradigm class. However, prior to engaging in a complete study of the entire paradigm class, a select sample of legislative efforts was chosen to initially test the paradigm's validity. The results, while positive, suggested there were legislative efforts that would not share the characteristic elements. Specifically, these legislative efforts could be described as pro-cyber and were nearly the antithesis of the paradigm. However, these legislative efforts have not yet been enacted - yet. This lack of enactment is a defining characteristic that may soon represent a paradigm shift.
For congressional behavior prior to the 106th Congress, the distinction between those legislative efforts meeting the characteristic elements and those that do not could be to whom the legislation is directed. If the legislation is directed toward the behavior of government and "legitimate" businesses, the legislation may indeed belong to a distinct paradigm or sub-paradigm. Thus far, privacy and encryption are two legislative efforts that could belong to a separate paradigm or sub-paradigm. Those legislative efforts directed toward individuals or sub-legitimate businesses (ie gambling, pornography, adult entertainment) would fit within the paradigm class described above. While more research need be completed to discern the exact boundaries of the paradigm class (or sub-classes),112 the paradigm does contribute to an understanding of the select sample of legislative efforts below.
A. Inappropriate Material on the Internet
Along with the CDA and COPA, Congress introduced a number of legislative initiatives "to protect children from inappropriate materials on the Internet."113 This included the "Safe Schools Act,"114 requiring all public schools and libraries that receive public monies for Internet access to install filtering software restricting the content to which minors have access; the "E-Rate Policy and Child Protection Act,"115 requiring schools and libraries to adopt policies concerning the restriction of content "harmful to minors"; and three bills requiring online service providers to offer customers "screening" software designed to block certain material from children. 116 This continues in the 106th Congress. Recently, Senator McCain introduced the "Childrens' Internet Protection Act"117 requiring all schools and libraries receiving universal service assistance to install filtering or blocking technology on computers with Internet Access.
While legislative efforts have not yet been challenged in this area (due to the absence of enactment thus far), this past year the U.S. District Court for the Eastern District of Virginia denied a motion to dismiss a challenge to a library's voluntary act118 of placing filtering software on their computers.119 The public library had implemented a policy that required blocking or filtering software to be installed on all the library computers so as to "block child pornography and obscene material (hard core pornography)" and "block material deemed harmful to juveniles under Virginia statutes and legal precedents (soft-core pornography)."120 The plaintiffs alleged the software impermissibly blocked web sites that would not fall into either category.121
After addressing defendants' immunity122 and standing claims, the trial court addressed whether "a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech." Under Board of Education v. Pico, the Supreme Court held that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'"123 Concluding Pico applied to the facts in Loudon, the trial court held that "[Pico] stands for the proposition that the First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection."124 Consequently, a public library, like other State enterprises, may not engage in policies which have the effect of dictating "what shall be orthodox in politics, nationalism, religion, or other matters of opinion."125 Thus, once the library chose to offer Internet access, it could not adopt and enforce content-based restrictions without meeting the strict scrutiny standard (ie compelling state interest narrowly drawn to achieve the interest).126 The trial court then applied Reno to the Loudon facts and concluded that the board could not limit the speech available to adults to that fit for children in the interest of protecting the children.127
Although the Loudon decision was merely a memorandum opinion, it does suggest that the filtering of web sites accessible via the Internet by public libraries violates the First Amendment. If this is indeed true, any legislation requiring public libraries to place such restrictions on may be facially unconstitutional. However, issues still to be addressed include whether Congress can withhold funds to those libraries that refuse to do so and whether public schools may permissibly implement such policies.
The Loudon court clearly recognized that the filtering of Internet web sites directly affects individual rights. Thus, any legislation imposing requirements on libraries and schools would also affect individual rights and invoke the same constitutional questions raised in the CDA and COPA cases. Moreover, advocacy groups contend the use of filtering software by libraries and schools is not the least restrictive alternative.128 Rather, there exist several alternatives which include: the use of acceptable use policies; the use of time limits on Internet access and use; training courses for students akin to driver's education classes; the publication of recommended web sites; and privacy screens between access terminals.129
Critics also argue that the legislation would not be effective. First, the filtering software tends to filter web sites that do not contain pornographic material but rather educational information. Second, the software programs do not always filter out all forms of pornography. Finally, the legislation continues to evidence a lack of technological knowledge among the congressional members who drafted the legislative initiatives. Therefore, this form of legislation shares the characteristic elements of the paradigm.130
As with most every aspect of culture, gambling has invaded the Internet. In response, Congress considered legislation titled the "Internet Gambling Prohibition Act of 1997." As the title infers, the legislation sought to ban gambling and cyber-casinos on the Internet. As such, it meets the requisite requirements of the paradigm class on its face. First, it involves cyberspace. Second, the legislation involves individual rights by seeking to restrict their behavior. Finally, the legislation focuses upon the salient issue of gambling, and the government's interest in protecting the well-being of its citizens and controlling activity considered illegal in some jurisdictions.
As would be expected under the paradigm, the legislation received strong criticism. Critics identified four broad complaints against the legislation that would "have the effect of regulating transactions that took place even in password-restricted sites not accessible to minors or the general public."131 First, as occurred with consideration of the CDA, "the Senate [had] held only one hearing on [the bill], chaired by Senator Kyl and attended by no other members of the Senate," prior to the mark-up consideration by the Senate Judiciary Committee.132 In addition, "[n]ot one representative of the virtual gaming industry, the Internet community as a whole, or privacy and free speech was allowed to testify in person."133 The Internet Consumers Choice Coalition argued that consideration had not been given to the impact the bill would have on the continued growth of the Internet. It also explained that the year before the Senate had authorized the creation of a National Gambling Impact Commission to study the impact of online gambling. The Coalition argued, persuasively it might be added, that any action should be delayed until a report had been obtained from the Commission. Thus, the Coalition complained that the Gambling Act represented regulation without representation and supportive data.
Second, the bill ignores jurisdictional issues unique to cyberspace. Specifically, it "sets a precedent that the mere transmission or receipt of a message on the Internet may be sufficient to confer jurisdiction on state or local authorities at either end of the transmission."134 This essentially attempts to place a "patchwork of state and local laws" upon a global network. To the extent the bill would be limited to the national network (if there exists such an entity) of computers in the United States connected to the Internet, the legislation may be effective in imposing such a patchwork.135 However, to the extent it does not encompass the global network (which is impossible), the legislation becomes ineffective in preventing use of gambling facilities outside the national boundaries (though one may still be liable for the use of the facilities within the national boundaries). In addition, the availability of a federal injunction to shut down an ISP suggests the "solution" far outweighs the "problem" sought to be remedied.
Third, the bill would disrupt the global marketplace. The Coalition argued that:
"By allowing a patchwork of federal and state laws to be applied to the Internet and backed by the threat of local vetoes over NATIONAL AND global content, [the gambling bill] could have adverse implications for creating a global or national market on the Internet for products and services that are now already subject to close state regulation. Examples of such services include securities sales and insurance. The tendency toward patchwork regulation which [the gambling bill] would legitimize and the low thresholds required for establishing regulatory nexus will also only encourage the nation's 30,000 tax jurisdictions to press for taxes on local Internet access and commerce based on similarly low thresholds of nexus."136
As to the effectiveness of national ISPs responsible for "policing the content of offshore Internet sites," the Coalition pointed out that:
"[t]he World Wide Web and the Internet is by definition an inter-state and international creature. for the Internet, geographic distance is a non-factor. Transmissions from one web address to another may travel around the world before reaching their destinations. Nevertheless, the [gambling bill] would attempt to segment the Internet - in effect placing an electronic wall around the United States - to "protect us from ourselves" much like China and Singapore have tried to do."137
It concluded such an attempt is "clearly unworkable."138
On broader policy grounds, the Coalition opposes any efforts to regulate content on the Internet. It argued the gambling bill went even further than the CDA in its "blanket federal injunctions against any activity that might reasonably be considered 'private.'"
At least one author has suggested there exist three alternatives to the gambling act. These include: "(1) government licensing and regulation in conjunction with the taxation of winnings; (2) regulation by parents and schools; and (3) a uniform international policy against online gambling."139 While recognizing that each of the alternatives invoke their own issues, they suggest the need for exploration and investigation. Therefore, the "Internet Gambling Prohibition Act of 1997" shares the characteristic elements of the paradigm.
Y2K refers to the problem inherent in some older software and hardware that allows only two digits for representation of the date year. There has been much concern that the computer or software will read the mark '00' as the year 1900 and not 2000. As a result, many believe systems will fail when the Year 2000(K) is reached on January 1, 2000. Consequently, massive efforts have been undertaken to resolve the Y2K problem. This includes remedial measures such as rewriting the software code and replacing Y2K-defective equipment and software. Also, legal remedies may be available to those customers who purchased Y2K-defective hardware or software under contract and warranty.140
Federal Y2K legislation did not appear until the 105th Congress.141 In the 105th Congress, most all items of legislation were quite benign and did not fall within the paradigm class.142 However, of those Y2K bills introduced thus far in the 106th Congress, the two bills that most clearly fall within the paradigm class are titled the "Y2K Act" and the "Year 2000 Fairness and Responsibility Act."143
Both legislative initiatives seek to limit liability in Y2K litigation. The legislation meets the requisite elements of the paradigm. The legislation is cyber related and affects the rights of both those injured by Y2K-defective products (by limiting their recovery for damages) and those producing Y2K-defective products (by limiting their liability). In addition, the Y2K issue is quite salient. Although Y2K may be seen closely related to cyberspace, it is quite severable. The public's identity of the issue has spread to electronic equipment in microwave ovens, refrigerators, medical equipment, and nearly every electronic item that contains a microprocessor. Nonetheless, an additional salient issue involves the excessive amount of damages sometimes awarded by juries.144 The government's interest involves placing some control on recoverable amounts in certain forms of litigation. Specifically related to Y2K, the government's interest also involves controlling public hysteria.
With respect to this Y2K legislation, critics have voiced concerns on several levels.145 Among the critics, the United States Department of Justice ("DOJ") recently testified before the Senate Judiciary Committee on the Fairness and Responsibility Act.146 The DOJ argued the bill "would be by far the most sweeping litigation reform measure ever enacted if it were approved in its current form . . . [by making] . . . extraordinary dramatic changes in both federal [and state] procedural and substantive law."147 In the DOJs opinion, these would represent negative changes.148 First, the bill represented an alteration to existing federal and state contract law by modifying the terms of negotiated contracts and contractual relationships. Assistant Attorney General Eleanor Acheson testified for the DOJ:
"As a general matter, a party to a contract is obligated to fulfill its promises and is liable to the other party for damages to the latter resulting from the former's breach of the contract absent force majeure or other extremely rare circumstances. It does not matter whether the party breaching the contract made reasonable efforts to avoid a breach. This widespread rule of basic contract law has been in existence for hundreds of years in the common law, is currently reflected in our contract statutory schemes (e.g., the Uniform Commercial Code), and is essential to commerce."149
Consequently, the bill's provisions that would allow defendants to introduce evidence of their reasonable efforts to comply with their contractual obligations and use reasonable efforts as a defense should be deleted.150 In addition, the bill's provisions limiting damage awards might limit plaintiffs' ability to recover damages.151 As a result, small businesses may unintentionally be destroyed. Thus, if the bill's intent centers on limiting the liability of Y2K defendants and thereby preventing their destruction, the bill would seem to be ineffective if it causes that which it seeks to prevent.
The legislation, by changing procedural and substantive law, would indeed "push aside" the rights of those damaged by Y2K-defective products. Moreover, the legislation faces opposition by advocacy groups including the Department of Justice and the White House. This opposition focused upon the strong legal questions posed by the legislation. As drafted, the critics argue that the proposals ignore existing law by making sweeping changes. As such, the legislation is poorly written. As has been evidenced by the resolution of Y2K lawsuits thus far, alternative dispute resolution arguably is a more efficient and viable solution to any Y2K legislation affecting litigation efforts. By ignoring this, the legislators suggest they are unaware of the practicalities thus far of Y2K litigation and mediation.152
From a brief examination of two Y2K legislative initiatives, it does appear that they fit within the paradigm class and validate the characteristic elements attributed to members of the paradigm class.
Having identified a potential paradigm and applied it to selected legislation falling into the paradigm class, certain conclusions emerge. These conclusions enable, rather than hinder, the future application of the paradigm to the full set of legislative initiatives falling within the paradigm class. At the same time, the conclusions reveal aspects of the system that, while potentially threatening, may be explained in congruence with the paradigm.
A. Application of the Paradigm
The limited application of the paradigm to selected legislative initiatives falling within the paradigm class suggest certain conclusions which demonstrate the potential strength of the paradigm. The most important conclusion confirms the hypothesis on which the paradigm is founded. That is, legislative initiatives within the paradigm class (ie the requisite elements) share the characteristic elements strongly evident in the defining initiatives (CDA and COPA). Beyond the characteristic elements themselves, the combination of the characteristic elements suggests certain behavioral patterns.
The legislation considered in the study suggests that Congress has no understanding of the nature of cyberspace.153 Moreover, it appears there exists a general pattern to the flux of poorly drafted legislation. First, though legislation may have been circulating around Congress on certain cyber issues, the legislation does not obtain momentum until the severable issue becomes salient. Once salient, the application of that issue to cyberspace becomes a "sexy" commodity. That is, the Congress members believe they appear (1) technologically savvy and (2) concerned about issue x (whatever the issue happens to be.) There then is either a strong push behind one piece of legislation,154 a plethora of legislative initiatives (ie should something suddenly become salient without legislation under consideration),155 or when the one strong piece of legislation is criticized, a plethora of alternatives and amendments.
Once the legislation is introduced, it can be deconstructed according to the characteristic elements. The members begin to debate in public on the issues trumpeting the issue and government interest before their constituents. However, they avoid the issues that are not severable from cyberspace. Namely, the ignore the structure of cyberspace, its unique jurisdictional issues, and the technology upon which it is based.
From all appearances, a partisan division does not exist in this regard. Rather, though there may be a few exceptions, the legislation fits into the paradigm outside of any partisanship alliances. However, there are biases in favor of big business and against individuals. In this sense, members utilize the issue and government interest for political gain among the "people" and the legislation for political gain among the corporate interests. A definitive approach to studying partisanship should be included in the full analysis of paradigm class legislative initiatives.
As has been mentioned, the salience of the severable issue and government interest should be strong enough to overcome any outcry from the violation of individual rights. The proponents of the legislation will invoke the issue and government interest, playing off their salience to overcome any resistance. Whether the intent of the legislators is conscious and knowing or whether they truly believe the interest they advocate outweigh the interests of individual rights remains to be determined.
These conclusions emanate from the results obtained in the study. The results obtained through the application of the paradigm to selected legislative initiatives suggest the viability of the paradigm when applied to the entire paradigm class.156 At that time, further inquiry into the extra-paradigmitical conclusions would be implemented to test for their veracity.
B. A Sister Paradigm
There exist exceptions to the paradigm outlined above. Particularly, these are items of cyber legislation that protect the rights of individuals at the expense of corporate interests. Also, the issues invoke the government's interest in protecting the rights of individuals.157 Thus, the items of legislation fit into paradigm class because they meet the requisite elements. However, they become exceptions because they do protect the rights of individuals, are often constitutionally and technologically sound, and inevitably do not obtain enough support to obtain passage. These items of legislation arise on issues where many advocates have argued for legislative initiatives. Some congresspeople then in turn acknowledge the complaints and introduce legislation. However, these legislative initiatives inevitably fail.
While these "exceptional" legislative initiatives do not support the paradigm, they may create a complimentary paradigm, a sister paradigm. Particularly, those items of legislation that support individual rights against corporate interests will share nearly the opposite of the characteristic elements outlined above. Most noticeably, these items inevitably fail. Specific examples include legislative initiatives introduced to enact measures designed to protect netizens from corporate "marketing giants." In these cases, the "self-regulation" banner has been waived and, in turn, won the day. First, Congress has failed to enact legislation protecting netizens from "spam," or unsolicited email. Although anti-spam legislation has been introduced in both houses, the collective Congress has failed to reach agreement in conference.158 Both Senator Frank Murkowski and House Commerce Committee Chairman Thomas Bliley have called for anti-spam legislation in the 106th Congress.159 Second, all efforts to enact legislation containing strong privacy protections for consumers (ie similar to the EU Directive) have failed. However, the 106th Congress may break this pattern. The enactment of legislation intending to relax export controls of encryption software appears to be likely.
C. Paradigm Shift 2000
The research thus far also suggests there may be a paradigm shift in the near future. The cause for this may be two-fold. First, Congress, through the efforts of the Department of Justice, have learned from the CDA and COPA experiences. Not only have they learned about the requirements necessary should similar legislation be proposed a third time, they have also learned (providing them with the benefit of doubt) about the technological idiosyncrasies of the Internet and its related components. In both cases, however, the technology may advance at such a pace that the legislative process can not possibly catch up. Working against Congress is the fact that two important and high-profile attempts at regulating cyberspace have been recognized as flawed. While any court reviewing a distinct statute would not be consciously influences by prior political precedent, the legal precedent may indeed be more persuasive. In addition, the courts may become more wary of Congressional attempts in this area. With this in mind, the time between the introduction of legislation and its review on a motion for permanent injunction could defeat the nature of the legislation. Thus, Congress may indeed become technologically up to speed. However, the legislative and judicial process may prohibit such savvy knowledge from affecting cyberspace.
Delays such as this could be beneficial or detrimental, depending on one's position with respect to the content of the statutes being challenged. At the moment, it would appear that such a delay in process would benefit those advocates of individual rights. However, should Congress enact strong privacy initiatives, a challenge by the "marketing giants" may turn the tide.
Putting aside the problematic learning curve, the area of personal information privacy has begun to suggest evidence exists of a paradigm shift. Since more and more constituents have complained of privacy violations both within and without cyberspace, Congress finally responded by introducing a slew of privacy legislation. Examples of these include: the "Patient Privacy Act of 1998"160 and the "Medical Privacy Protection Act of 1998,"161 repealing the requirement for a national patient ID number; the "Financial Information Privacy Act of 1998,"162 and its Senate counterpart,163 preventing the acquisition of personal financial information from financial institutions under false pretenses and thereby protecting consumers and the institutions; the "Consumer Financial Privacy Protection Act of 1998,"164 requiring consumer privacy protections under the Consumer Credit Protection Act; the "Depository Institution Customers Financial Privacy Enhancement Act of 1998"165 and the "Securities Investors Privacy Enhancement Act of 1998," requiring, respectively, depository related institutions and securities related individuals to protect the confidentiality of their customers' financial information; the "Real Estate Transaction Privacy Promotion Act,"166 prohibiting a lender in a consumer residential mortgage transaction from requiring complete access to the consumer's tax information; Personal Privacy Protection Act;167 "Personal Data Privacy Act of 1998,"168 prohibiting the transfer, sale, or disclosure of personal privacy information without the express consent of the individual (with few exceptions) and to provide consumers with information held about them; and the "HIV Partner Protection Act,"169 requiring notification of AIDS to partner. This suggests that on some levels congressional members recognize the need for consumer protection on the Internet. If this change spreads to other areas of cyber legislation, the paradigm herein discussed may be descriptive of the past, but not the future. If so, so much better fore cyberspace. Finally, this success may change as the population within cyberspace continues to grow and becomes more savvy, though not necessarily tech savvy.
D. Future Studies
Should the paradigm withstand the full study of the paradigm class, it will provide a model through which the behavior of Congress in response to cyberspace may be fully examined. Additionally, the results may suggest the application of the paradigm to congressional response to certain forms of (or in general) new technology by changing the "cyber" variable. Even should the paradigm become relegated to history due to a paradigm shift (see above), the paradigm may represent a model for understanding congressional response to new technology and new environments where traditional legal and statutory understandings do not have their same meaning or relevance. By pursuing additional studies, a clearer understanding of these possibilities may be possible.
The intention of this study began as an exploration of congressional response to cyberspace. With an interest in cyberspace, law and politics, observations had been made over several years regarding the nature of legislative initiatives emanating from Congress. Thus, there existed preconceived notions of what congressional behavior would be found. While these notions and ideas were found with respect to the model legislation (CDA and COPA) and a few test samples, it became a more enormous task to do the depth of analysis originally desired. For example, research revealed that the impetus for CDA being enacted may indeed have been the Rimm study and subsequent TIME article. This suggested more research would be required into the media role at the time the legislation became an issue. For, the saliency of the issue plays a large role in the paradigm. Consequently, an accurate measure of the issue's saliency would be required.
The remaining elements (both requisite and characteristic) also required significant research to understand the legislation and legal arguments in full detail. While not overwhelming, the task seemed best delayed until the paradigm and an initial test analysis were completed. In addition, there were negative congressional actions (deciding legislative initiatives were unneeded) which needed to be further studied in their relation to cyber issues and positive actions (legislative initiatives). On this basis and from the results obtained through the study, a plan for future research developed.
First, the legislative initiatives would be considered from the 103rd, 104th, and 105th Congresses. Although the 106th Congress has only just begun, indications suggest there may indeed be paradigm shifts taking place. Consequently, the 106th would be tracked as it proceeds. In this way, the research is neither limited by the 106th Congress nor rendered dated so quickly. Second, upon successful completion of the full initial study of congressional response to cyberspace, the cyber variable will be altered to a distinct technological area. The same analysis will be made based upon the paradigm outlined in this article. Finally, technological issues will replace the "cyber-issue" requisite element.
V. TOWARD A PEACEFUL FUTURE
The essential message learned from this initial study consists of two words: SLOW DOWN. Big Brother has been moving too fast in its efforts to regulate new technologies. This pace can be seen in both positive actions (ie legislative initiatives) and in negative actions (unilaterally deciding legislation is unneeded). As with any phenomenon, be it congressional action or taking a math test, a steady pace is more sound than a rush to be the first to finish. Congress appears rushed to be involved in creating a regulatory regime in cyberspace. Whether it be for political gain in their legislative districts or states or to construct a regime prior to the EU and other countries, there speed renders their legislative initiatives ill conceived, ill timed and ineffective.170
The congressional response to cyberspace is ill conceived because the drafters do not understand the technological aspects of the phenomenon they seek to regulate. In addition, they fail to understand the unique nature of cyberspace and the inapplicability of many traditional notions of legal theories. For example, jurisdictional boundaries are not the same in cyberspace. With respect to the CDA and COPA, Congress attempted to regulate activity that would remain because anyone can access any material from anywhere in the world.
The legislative initiatives are also ill timed. It seems ironic that with technology moving so quickly legislative initiatives can be ill timed. However, Congress must make efforts to understand the technology and the positions of those interested parties who have contributions to make. Before Congress recognizes this need, any legislative efforts will be ill timed. Cyberspace and the Internet have been with us for quite some time. Pornography has been with us for quite some time. It is true the growth of the Internet is monumental. However, this should not justify creation of blind justice and ignorant statutes.
These problems render the legislation ineffective. The parties challenging the legislative initiatives recognize the interest being championed by Congress. However, they disagree on the methodology employed to reach the goal. So, a message to Congress: Slow down, take a deep breath. Ask for help. There are many of us who have been around cyberspace for some time. We have built homes and domains. We enjoy conversations on a diverse realm of subject matter. We welcome new neighbors, but we've enjoyed our freedom. Nonetheless, we are all in this wonderful new era together. And, regulation is necessary in some areas, in some it is not. We will agree and disagree. But the essence of any well crafted community is patience and understanding. Understanding comes with communication. How long the "war" will last remains to be seen.In essence, the ensuing peace process on this side of cyberspace will define the quality of life for generations of netizens to come. So, again, slow down, big brother. Your younger sibling has a thing or two to teach you before you take that exam.
1 For those who are unfamiliar, the blue ribbon campaign represented the efforts of those opposed to the CDA and reflected the sentiment that free speech should be preserved on the Internet. One may still observe some blue ribbons on particular web sites.
2 See generally Charles L. Mudd, Jr., The Emerging Realm of Electronic Law and Policy (1994) (on file with author, also available at http://www.
3 As will be demonstrated below, "politically attractive" refers to the politicians' interest in the topics for representing technological awareness and interest in the "severable" issue.
4 This period of unintrusive enjoyment constitutes the first phase of congressional response to cyberspace marked by the absence of any legislative efforts that would fall into the paradigm class identified below.
5 This will occur unless their behavior changes. The conclusion of the article suggests a path toward that direction.
6 As the research will indicate, there is evidence to suggest a third era of congressional response to cyberspace is on the horizon. However, the second era is by no means behind us.
7 Exon Amendment No. 2404, United States Senate, July 26, 1994.
8 Id. The amendment contained additional provisions that are not discussed in this article.
10 47 U.S.C. §§ 223 (a)(1) and (a)(2) (1992).
11 Remarks by Senator Exon when introducing Exon Amendment No. 2404, July 26, 1994. Text obtainable from: http://thomas.loc.gov/bss/d103query.html. At the close of his remarks, Senator Exon requested that an article from the Los Angeles Times be admitted without objection. The article reported on a discovery at Lawrence Livermore Laboratories that hackers had used the lab's computers to store pornographic material. "Info Superhighway Veers into Pornographic Ditch," Los Angeles Times, July 12, 1994.
12 S. 314, Bill Summary and Status for the 104th Congress. In the House, Representative Johnson introduced the counterpart to S. 314 as H.R. 1004 on February 21, 1995.
13 S. 314 at Section 2(a)(1); 47 U.S.C. 223 (1992) at (a) (1) and (2).
14 Comments of Senator Exon, February 13, 1995, CNN (Transcript # 1021-7). Available at: gopher://gopher.panix.com:70/00/vtw/exon/media/cnn.
16 Center for Democracy and Technology, Policy Post 1.1, (February 9, 1995). Available at: http://www.cdt.org/publications/pp10209.html.
20 Letter from Kent Markus (Acting Asst. Attorney General, U.S. Dept. of Justice) to Senator Leahy (May 3, 1995) (available at http://www.cdt.org/policy/freespeech/doj_050395.ltr.html).
22 Sable Communications of California, Inc. v. F.C.C., 109 S.Ct. 2829, 2836, 492 U.S. 115 (1989).
23 See id.
24 DOJ Letter. The DOJ specifically stated that prosecution under the dial-a-porn statute would be crippled. The DOJ stated that it had taken 10 years to obtain an effective statute to address the criminality of dial-a-porn due to constitutional challenges. The DOJ indicated it feared renewed constitutional attacks of that statute. Id. The length of time (10 years) it took to obtain a constitutional, working statute on dial-a-porn suggests one of two possibilities: (1) the ineptitude of Congress or (2) the tactic to continue enacting legislation as strong as possible until finally a court does not strike it down. If the latter is true, this posits a senseless and wasteful approach by Congress.
25 DOJ Letter. The defenses and the critiques are outlined in the DOJ letter. However, their specifics are not necessary for review here. See above for the url for the letter.
26 Policy Post 1.1.
29 Rimm, Martin. "Marketing Pornography on the Information Highway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories." 83 Georgetown Law Journal 1849 (1995).
30 Id. While there are certainly more claims within the study, a full analysis of the Rimm study is beyond the scope of this article. Rather, the study is mentioned due to its role as a catalyst in the CDA's enactment.
32 For links to a number of critical responses to the Rimm study, see http://www2000.ogsm.vanderbilt.edu/cyberporn.debate.html.
33 Elmer-Dewitt, Philip. "Cyberporn" Time (July 3, 1995).
34 Remarks of Senator Grassley and Exon, Congressional Record (June 26, 1995).
35 Email from Marc Rotenberg (Director, Electronic Privacy and Information Center) to Charles Mudd (March 15, 1999) (on file with author).
36 Telecommunications Act of 1996, Pub. L. No. 104-104, ? 502, 110 Stat. 56, 133-135.
37 Among the other parties joining in the complaint were: "Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; National Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc." Reno, 117 S. Ct. at 2357, 521 U.S. at .
38 The parties to the second suit included: "American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L.L.C.; National Press Photographers Association; Netcom On-Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; Wired Ventures, Ltd." Id.
40 ACLU v. Reno, 929 F. Supp 824 (E.D. Pa 1996). Because the decision originated from the Internet, the actual paragraphs numbered are used [Note: in process of changing citations, where ¶ - the paragraph is cited, where number alone - page number as printed from Internet.]
41 Id. at 25.
42 Id. at 26.
46 Id. at 27.
47 Id. at ¶ 114.
48 Id. at ¶ 122.
50 Id. at ¶ 123.
51 Id. at "CONCLUSIONS OF LAW."
52 The decision of the panel included opinions from each of the three judges. While the analyses of the judges are recommended for further reading, the content of these separate opinions is not on COPA will be addressed as the Supreme Court has not heard arguments nor ruled upon COPA.
53 The transcript of the oral arguments is available from http://www.aclu.org.
54 Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329 (1997).
55 Reno, 117 S.Ct. at 2334 521 U.S. at .
56 Reno, 117 S.Ct. at 2336, 521 U.S. at (citations and footnotes omitted).
57 390 U.S. 629, 88 S. Ct. 1274 (1968).
58 420 U.S. 546, 95 S. Ct. 1239 (1975).
59 438 U.S. 726, 98 S. Ct. 3026 (1978).
60 475 U.S. 41, 106 S. Ct. 925 (1986).
61 492 U.S. 115, 109 S. Ct. 2829 (1989).
62 Reno, 521 U.S. at, 117 S. Ct. at 2344.
64 413 U.S. 15, 93 S. Ct. 2607 (1973).
65 Id. at 24, 93 S. Ct. at 2615 (citations omitted).
66 Reno, 521 U.S. at , 117 S. Ct. at 2345.
68 Id. at 2344-2345.
69 Id. The Court distinguished this "increased deterrent effect" from that reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 116 S. Ct. 2374 (1996).
70 Id. at 2346.
71 Id. at , 117 S. Ct. at 2346, 2347.
72 Id. at , 117 S. Ct. at 2347-2348. Recognizing that the CDA constituted Title V of the Telecommunications Act of 1996, the Court noted that unlike the other portions of the Act, the CDA was not the subject of "extensive committee hearings [nor] the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives." Id. at 2338, 521 U.S. at .
73 Id. at , 117 S. Ct. at 2350.
74 Id. at , 117 S. Ct. at 2349.
75 Id. at , 117 S. Ct. at 2349-2350. The Court also noted that there could be no assurance a minor would not be using a credit card or password to pose as an adult.
76 Id. at , 117 S. Ct. 2350.
79 Id. at , 117 S. Ct. at 2351. Justice O'Connor, joined by Chief Justice Rehnquist, concurred in part and dissented in part.
80 H.R. 3783, The Child Online Protection Act (1998); S. 1482. H.R. 3783 was introduced into the House on April 30, 1998 with sponsors including Representatives Greenwood, Manton, Gillmor, Deal of Georgia, Whitfield, Norwood, Cubin, Burr of North Carolina and Upton.
81 H.R. 3783.
82 At the hearing, some legislators and witnesses noted the irony that day because the House planned to post on its website Kenneth Starr's report on President Clinton. The report, as we all know or at least have heard, contained sexually explicit detail.
83 "Joint Statement for the Record on Legislative Proposals to Protect children from Inappropriate Materials on the Internet." ("Joint Statement") Submitted to the Subcommittee on Telecommunications, Trade and Consumer Protection, Committee on Commerce, House of Representatives, September 11, 1998. Available at: http://aclu.org/congress/t1091098a.html. Those signing the Joint Statement included: American Booksellers Foundation for Free Expression, ACLU, American Library Association, Association of American Publishers, Computer Professionals for Social Responsibility, Electronic Frontier Foundation, EPIC, Feminists for Free Expression, First Amendment Project, Freedom to Read Foundation, Gay & Lesbian Alliance Against Defamation; Institute for Global Communications; Internet Content Coalition; Journalism Education Association; National Campaign for Freedom of Expression, National Coalition Against Censorship; NetAction; Oregon Coalition for Free Expression; Peacefire; PEN American Center; People for the American Way; Periodical and Book Association of America; Publishers Marketing Association; and the Society of Professional Journalists.
84 Testimony of the ACLU before the United States Senate, Committee on Commerce, Science, and Transportation, Hearing on Indecency, February 10, 1998 (Submitted March 16, 1998). Available at: http://www.aclu.org/congress/archives.html#cl.
85 Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 503 (1991).A content-neutral statute would merely be required to meet an "intermediate" level of scrutiny. Under this standard, "the Government may employ the means of its choosing so long as the ... regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further that interest." Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 117 S.Ct. 1174, 1198 (1997) (internal quotations and citations omitted).
86 "CDT, Constitutional Analysis of the Oxley Bill - The Child Online Protection Act" (H.R. 3783) ("CDT Analysis"), September 24, 1998; ACLU Testimony, p. 7.
87 ACLU Testimony, p. 6. Also, Advocates noted that the "coincidence [of the hearing being held the same day the Starr Report would be posted to the House's web site] underscores the fact that distinguishing between 'inappropriate' material and that which deserves wide distribution requires difficult -- and subjective -- judgments." EPIC ALERT, Volume 5.12, September 16, 1998.
88 Id. at 7. For example, this author just completed a transaction on www.ebay.com, an online auction house. The sale prompted the question: Should I sell my imaginary collection of rare, vintage Playboy, Penthouse and Hustler magazines on ebay.com, would I be subject to liability? What if I happened to be clearing my house of older junk material, conduct sales for a two month period, and then sell the collection of men's magazines? Or women's magazines?
89 ACLU Testimony, p. 6.
90 Joint Statement, p. 3.
92 H.R. 3783.
93 Id. Although COPA purports to offer a national solution to the problem, the "national" solution turns on local community standards of material "harmful to minors." Id.
94 H.R. 3783, Sec. 1403. As enacted, 47 U.S.C. § 231(a)(1).
95 The CDA imposed a sentence of not more than two years.
97 H.R. 3783, Sec. 1403. As enacted, 47 U.S.C. § 231(e)(2)(A).
98 H.R. 3783, Sec. 1403. As enacted, 47 U.S.C. § 231(e)(2)(B) (emphasis added).
100 H.R. 3783, Secs. 1402 and 1403.
101 The District Court noted the standard for obtaining a preliminary injunction: "the plaintiffs must prove: (1) the likelihood of success on the merits; irreparable harm; (3) that less harm will result to the defendant if the preliminary injunction issues than to the plaintiffs is the preliminary injunction does not issue; and (4) that the public interest, if any, weighs in favor of the plaintiffs." Citing Pappan Enterprises, Inc. v. Hardee's Food Systems, Inc., 143 F.3d 800, 803 (3d Cir. 1998).
102 ACLU v. Reno (II), February 1, 1999.
103 The exploration of those exceptions to the paradigm shall be included in the expansion of this particular project. However, see sec. IV.A. infra.
104 Novak, Marcos. "Liquid Architectures in Cyberspace." 225 Cyberspace: First Steps, ed. Michael Benedikt (1991).
105 An additional example concerns legislation focusing upon Y2K issues. This would be considered cyber oriented because it may affect the technology used to maintain or transport one to cyberspace.
106 Additionally, Y2K legislation becomes inextricably associated with consumer protection, contracts, warranties, etc. These invoke the government's interest in enforcing contractual obligations and protecting the market.
107 Y2K legislation would also be included in this because legislation might affect an individual's ability to enter cyberspace.
108 This does not suggest that the questions or the standards be based solely on constitutional protections. Rights granted by statute would be included, as would any question that focuses upon an understanding of justice. The ability to file suit against a manufacturer of non-Y2K compliant hardware or software would be included.
109 See supra, note 85.
110 Upon last minute reflection, I believe the first two characteristic elements should be combined and the second corollary (ie poorly written, infra) should be the second element.
111 This argument is quite similar to some heard in Denver and with the V-chip. Essentially, advocates against similar government regulation argue that the most effective control on minors' exposure to harmful material must be with parental and school control. Essentially, they advocate parents assume responsibility for the images and programs their children watch. Others respond that with more and more homes having both parents working, legislation exists to protect the children when adult supervision is absent. However, without question, responsibility appears to be a word with a dying meaning.
112 It could be related to the first characteristic element. If Congress champions the issue and government interest over individual rights, the paradigm applies. However, if the issue and government interest are identified with protecting individual rights, a distinct paradigm applies.
113 Quote obtained from EPIC ALERT, 5.12.
114 H.R. 3177 (105th Congress); H.R. .
115 H.R. 3442 (105th Congress).
116 H.R. 774, H.R. 1180 and H.R. 1964.
117 S. 97 (106th Congress). Introduced January 19, 1999.
118 For a challenge from almost a completely different perspective, a mother in Livermore, California brought suit against the City of Livermore seeking injunctive relief in the nature of an order prohibiting the city library system from allowing the access to pornographic material via computers connected to the Internet. Kathleen R. v. City of Livermore, Case No. V-015266-4 (Sup. Ct. Cal, May 28, 1998). The plaintiff filed the complaint after a request to use filtering software on the computers within the city's library system.
Apparently, the mother learned that her son had used the system's computers to obtain/download pornographic pictures. Her complaint alleged "waste of public funds," "nuisance," and "premises liability." Her amended complaint alleged the library "is misusing its traditional reputation as a safe-haven for children" and by maintaining a policy of "Library patrons use the Internet at their own risk," demonstrate "a deliberate indifference to the health and welfare of children" who are invited to the library. Amended Complaint, ¶¶ 5, 7, 9 (filed November 3, 1998).
The amended complaint alleged violations of the Fifth Amendment, substantive due process, and other federal and constitutional law under a fourth cause entitling her son to recovery under 42 U.S.C. § 1983. Id. at ¶¶ 10-12. Thus, they argue, an injunction should be issued prohibiting the City and its library "from knowingly and intentionally allowing its computers to display obscene and pornographic images where he and other children can view them." Id. at ¶ 13.
The trial court dismissed the suit granting the defendant's motions for demurrer. Http://www.techlawjournal.com/courts/kathleenr/default.htm. The trial court held that § 230 (section 230 (c)(1) states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"; and section 230 (d)(3) precludes any suit under any state law inconsistent with section 230) of the Telecommunications Act of 1996 bars the action on the first three counts. Id. The plaintiffs have since filed a notice of appeal. Id.
119 Mainstream Loudon, et al. v. Board of Trustees of the Loudon County Library, Civil Action No. 97-2049-A (April 7, 1998) (memorandum order and opinion). The Court also held that genuine issues of material fact remained as to "the defendants, justification for the policy, the Internet sites blocked by [the filtering software], and the degree of defendant's knowledge of and control over the sites [the software] blocks" and, therefore, defendant's motion for summary judgment should be denied.
120 Id. at 2.
121 Id. at 2. The plaintiffs also alleged the policy employed "no clear criteria for blocking decisions" and the policy's "unblocking policy  unconstitutionally chills plaintiffs' receipt of constitutionally protected materials." Id. at 3.
122 Of the several immunity claims, the defendants argued that under the Communications Decency Act, 47 U.S.C. § 230. Citing Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), the trial court held that "§ 230 was not enacted to insulate government regulation of Internet speech from judicial review." Id. at 11. The trial court did dismiss all defendants except the Library Board because the suit against the board alone "will provide plaintiffs with full relief against enforcement of the Policy" considering that "official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Id. at 13 (quoting Monell v. Department of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).
123 Pico, 457 U.S. 853, 872, 102 S. Ct. 2799, 2810 (1982) (plurality opinion) (quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187 (1943)).
124 Loudon, at 26.
125 Id. at 26-27 (quoting Pico, 457 U.S. at 876 (Blackmun, J., concurring)).
126 See id.
127 Loudon, at 33.
128 Note the distinction between advocates suggesting the use of filtering software by individual families/parents and the decision by government entities or congressional decree forcing the use of filtering software on schools and libraries that provide services and facilities to a number of individuals.
129 ACLU, "Censorship In A Box," 1998. Available at http://www.aclu.org/issues/cyber/hmcl.html.
130 The author recognizes the need for additional support. In the final revision, such support will be cited. Nonetheless, the ACLU publication in note 127, supra, contains arguments supporting these conclusions - either specifically or generally.
131 Letter from the Internet Consumers Choice Coalition to Senator Orrin Hatch, Senate Judiciary Committee (October 8, 1997) (available at http://www.aclu.org/congress/lg100897a.html).
135 In essence, this would probably come down to the lowest common denominator (ie the most restrictive regulatory scheme). Indeed, the Coalition argues the bill would allow a single jurisdiction to wield a veto power over both the types of content and transactions which occur over the Internet. This may also pose significant problems in choice of law and jurisdictional disputes.
136 Coalition Letter.
139 Lessani, Andrea M. "How Much Do You Want to Bet That The Internet Gambling Prohibition Act of 1997 is Not The Most Effective Way To Tackle the Problems of Online Gambling?" UCLA Online Institute for Cyberspace Law and Policy (May 1998).
140 The Practicing Law Institute ("PLI") offers a free mailing list (PLI-Y2KLAW@PLI.EDU) discussing the legal aspects of Y2K. This includes vendor liability, Y2K compliance, and remediation efforts. Also, the Information Technology Association of America offers a free weekly "Y2K Outllook" newsletter. Contact: http://www.itaa.org.
There have been several Y2K lawsuits filed. See http://www.itaa.org. It is the opinion of this author that most will be resolved through alternative dispute resolution, rather than proceed to a full trial.
141 From the THOMAS database of federal legislation, a search for "Y2K" and "Year 2000" found no relevant results for the 103rd and 104th Congress. While "Year 2000" produced results, there were not specific to this issue.
142 They primarily related to ensuring compliance among the federal agencies.
143 S. 96 (106th Congress). Senator McCain introduced the bill on January 19, 1999.
144 Admittedly, placing caps on recoverable damages does not enjoy the same level of salience as does Y2K. However, the salience that does exist may be observed in other areas of litigation; medical malpractice, for example.
145 Critics include the American Trial Lawyers Association and the White House. As with the prior categories and the CDA/COPA model, there do exist proponents of the bill including the ITAA. However, the purpose here is not to deconstruct the entire legislative initiative by addressing and analyzing arguments on either side. Rather, the intent is to identify whether the legislation fits within the paradigm. However, the paradigm could perhaps be refined by addressing and studying the proponents and their arguments for particular legislative initiatives.
146 ITAA, ITAA's Year 2000 Outlook (March 5, 1999) (on file with author).
150 Id. Apparently, the defense would be available if a defendant can demonstrate "that the plaintiff should have known of information that could reasonably have aided the plaintiff in avoiding the injury on which the claim is based." Id.
152 This ignorance does not identically meet the characteristic element identified as a lack of technological knowledge. However, it does suggest a more general lack of knowledge on the subject matter they are legislating.
153 These conclusions are based on the behavior of the body Congress and those who initiated the legislation considered in the study.
154 Although the CDA had its competitors, Senator Exon's bill tended to be the forerunner and most widely supported - among those who did support the legislation.
155 This has occurred with Y2K and privacy legislation.
156 At present, those legislative initiatives to be considered for possible paradigm class status will be those whose text includes the following key words: "Internet", "cyberspace", "Y2K" or "Year 2000", and "privacy" in conjunction with "electronic". Initial results indicate that the "Internet" class will be as follows:
101st Congress 1989-1990 0
102nd Congress 1991-1992 10
103rd Congress 1993-1994 23
104th Congress 1995-1996 75
105th Congress 1997-1998 413
106th Congress 1999-2000 58* * as of mid-March 1999
Results obtained using the Thomas congressional database. The numbers certainly represent an increase in the relevance of the Internet to legislation. The extent to which the Internet plays a primary role in the legislation remains to be determined.
157 There may be more specific government interests that may be explored in further research.
158 In the 105th Congress, the following bill numbers represented spam related legislation: H.R. 1748, H.R. 2368, H.R. 3888, H.R. 4124, H.R. 4176, S. 771, S. 875, and Amendments to S. 1618. H.R. 3888 was passed in the House, but died in conference. The Amendments to S. 1618 passed the Senate but died in conference. Coalition Against Unsolicited Commercial Email (CAUCE), http://www.cauce.org/legislation.html.
159 Id.; "A Statement from Senator Frank Murkowski," http://www.senate.gov/~murkowski/commercialemail/EmailAmendText.html.
160 H.R. 4281 (105th Congress).
161 H.R. 4312 (105th Congress).
162 H.R. 4321 (105th Congress).
163 S. 2433 (105th Congress).
164 H.R. 4388 (105th Congress).
165 H.R. 4395 (105th Congress).
166 H.R. 4395, 105th Congress.
167 H.R. 4425, 105th Congress.
168 H.R. 4470 (105th Congress).
169 H.R. 4431 (105th Congress).
170 A recent study by The Media Institute graded the three federal branches of government on their performance in protecting the First Amendment rights of the Media. Interestingly, in 1998, the legislative branch scored a C on Internet issues and a D+ overall due primarily to the passage of CODA. The First Amendment and the Media - 1999, The Media Institute, 1999. Richard T. Kaplar, vice-president of The Media Institute, stated that over the last three years "[t]he performance of the political branches of government have been consistently dismal. The courts have been the sole bright spot - and occasionally brilliant, as in 1997's Communications Decency Act . . . ." "Courts Outperformed Congress and Administration in Protecting Media's First Amendment Rights, Annual Media Institute Survey Finds." Wired News, March 8, 1999. The report cites "CDA II, restrictions on encryption products, crackdowns on Internet advertising as contributing factors to the Legislative Branch's poor grade. Id. The executive branch scored a D+, the judicial branch a B- and state courts a D-. Wired News story Available at: http://www.wired.com/news/news/email/explode-infobeat/politics/story/18320.html.
copyright 1999 by Charles Lee Mudd, Jr.