Shelley Toich
March 6, 1998
Prof. McGinn
TA: Lesley Barnhorn
STS 110
Introduction
The Telecommunications Act of 1996, signed into law in February of that year, included a controversial component known as the Communications Decency Act (CDA). The intent of the CDA was "to halt the flow of pornography and other objectionable material on the Internet" (5). It also made the existence of "indecent or patently offensive materials available on computer systems where children might see them" a felony, "punishable by prison terms and large fines" (5). Largely because of imprecise wording and the use of the phrase "indecent or patently offensive" rather than the legally accepted term "obscene," the CDA was immediately perceived as a threat to free speech on the Internet. The online community quickly responded by turning backgrounds black and prominently displaying blue ribbons symbolizing "freedom of speech on the Internet" on thousands of web sites. In addition, diverse groups such as the American Civil Liberties Union, Microsoft, Apple Computer, and the American Library Association soon filed lawsuits to stop enforcement of the CDA. In March 1997 the case went to the United States Supreme Court, which in June of the same year overturned the Communications Decency Act on grounds that it was unconstitutional. The judges found that "it was too broad, vague and a violation of First Amendment rights" (6). The decision was also based in part "on the fact that parents can effectively shield children from objectionable material on the Internet without government intervention" (4).
Subsequent to the Supreme Court ruling, a number of states have responded by introducing legislation, at state or local levels, for Internet regulation. Opponents of regulation are exploring other options including blocking or filtering content and ratings systems. Last July, at a meeting with public advocates and industry, President Clinton endorsed the "User Empowerment Approach." This proposal intends to address parents' concerns about their children's access to inappropriate material while "preserving the free flow of information online" (3). There are several ways in which this policy may be implemented, but all emphasize parental responsibility in protecting children from objectionable material on the Internet. User Empowerment intends to aid parents in this responsibility by providing the technological means to restrict children's access to the Internet, without employing regulations which may infringe upon free speech. Recently, in December of 1997, a summit was held to discuss these issues and to outline "ways to encourage the growth of the Internet as a safe and educational medium for kids" while preserving free speech (3).
Today, regulation of the Internet is still a controversial and highly-charged issue, with many fervent proponents on both sides of the issue. The User Empowerment Approach endorsed by the President may be the best solution, but in order to come to a balanced and fully informed decision, many issues and arguments on both sides must be explored.
The Case Against the User Empowerment Approach
There are two primary groups that object to the proposed User Empowerment Approach: those who promote regulation, such as the CDA; and those who see blocking, filtering, or rating of content as potential infringements on free speech. The latter group is concerned with ensuring that these systems are implemented in a way that preserves free speech--they are worried about "the impacts of some blocking and filtering implementations on the free flow of ideas, and particularly about the potential for censorship by third parties that these technologies may offer"--but most are not opposed to "user empowerment" in theory (4). Therefore, this section will concentrate on the arguments of the former group, which advocates regulation.
Analyzing support for the Communications Decency Act, sponsored by Senator James Exon and supported by many others including President Clinton, illuminates many of the concerns and arguments of those who propose to regulate the Internet. A primary belief held by supporters of the CDA is that "[t]he federal government's compelling interest to protect minors overshadows any infringement on the First Amendment rights of adult users of the Internet" (2). This is an application of the harm principle: it is reasonable to limit the liberty of adults on the Internet in order to protect children from harmful material. An unintended consequence of this policy was that, shortly after the CDA was signed into law, many providers began to remove these materials from their servers in order to ensure that minors could not access harmful material, making those materials unavailable for adults as well. This side-effect may be viewed as a form of legal moralism or of the offense principle--although the effect was unintended, the CDA prevented moral transgression by or offense to adults. This appeal to the harm principle is potentially a strong point in favor of regulation, but it is difficult to assess objectively whether the intended result, protecting children, outweighs the rights of adults, both to free speech and to access material which is perhaps "indecent" but not currently illegal.
Because this issue is so closely tied to new technologies, CDA promoters also claim that, "parents are hard-pressed to keep up with their techno-savvy kids" (2). "Supporters…saw the bill as an aid to parents struggling to protect their children in an increasingly complex world" (2). In other words, the claim is that parents do not have enough knowledge to protect their children from harmful Internet content. One proponent, Donna Rice Hughes of Enough is Enough, an anti-pornography organization, was quoted as saying, "We can't expect parents to supervise their kids if they can't set the clocks on their VCRs" (2). In effect, the assumption is that when parents do not have the ability to effectively protect their children, it is the government's responsibility to fill the void.
Advocates of the CDA also state that blocking or filtering software and ratings systems are inadequate to fully protect children from objectionable material; they are concerned that some material could get through in spite of these technological controls. They are asserting that, because technological solutions are likely to be less than perfect controls, they are not sufficient to address the problem of protecting children. This is a spurious argument because there is no guarantee that content regulation would be more reliable than software solutions, as will be discussed in the next section.
Finally, because children can access the Internet from outside their home (e.g., in libraries, at school, or in other people's homes), parental controls might not always be effective. This is potentially a strong argument because it is inevitable, if all decisions regarding Internet access are left to parents, that different parents will have different rules and procedures for their children. It could be prohibitively difficult for parents to be certain that their children are protected when they are outside the home. This is another appeal to the harm principle to protect children.
Implicit in all of these arguments is the assumption that the government has a responsibility to protect children from objectionable material on the Internet. Depending on how the Internet is defined, there might be grounds for this assumption of government responsibility. Because the Internet has similarities to nearly all other communications media, which are regulated by government to some extent, proponents of regulation claim that the Internet should be regulated as are other media. The difficulty with this presumption is that it is very difficult to define the Internet in terms of existing communications media. The CDA required regulation of the Internet as a broadcast medium, like television and radio. The Internet does have some properties of television and radio, especially for those who are only consumers of Internet content and not also information creators. For these people, the Internet may seem much like a broadcast medium, with information coming from another site and appearing on the computer screen, much as television programs appear on the television screen. Broadcast media have strict regulations regarding the transmission of indecent material. If the Internet is viewed as comparable to broadcast media, then it makes sense, based on the formal principle of comparative justice, to apply similarly broad regulatory methods such as the CDA.
In summary, the primary arguments presented by advocates of Internet regulation are that it is preferable to protect children than to protect free speech on the Internet; that parents need help in fulfilling their responsibility to protect their children; that technological solutions are not sufficient because they are imperfect; and that the government is obligated to regulate the Internet as it regulates other communications media, especially as broadcast media.
The Case For the User Empowerment Approach
In contrast to the Communications Decency Act and other proposed regulation, the User Empowerment Approach claims to promote free speech interests while still protecting children online. Proponents argue that the responsibility to protect children belongs to the parents, but that it is possible for government and industry working together to make that responsibility easier for parents to fulfill. The Center for Democracy and Technology summarizes the goals of the User Empowerment Approach in this way:
The challenge before the Internet community today is to deploy user empowerment technologies in a way that maximizes the twin goals of protecting children and promoting free expression. It must also do so in a way that is sustainable over the long run in the new online environment, that recognizes the unique nature and potential of the Internet--it's [sic] decentralized structure, it's [sic] potential for promoting access to information, and it's [sic] global scope. (4)
Unpacking this quote reveals several of the arguments in support of user empowerment.
The primary, and immediately seized upon, objection to the Communications Decency Act was that it was an "over-broad, vague and unenforceable" attempt at censorship (1). This opinion is in fact supported by the findings of the United States Supreme Court, but still it deserves some analysis. It is difficult to argue with the fact that the "indecency standard" created by the CDA was vaguely defined and therefore problematic--but since this issue is specific to the CDA and perhaps would not apply to other proposed regulation, it will not be discussed at length here. However, the idea of "unenforceability" requires some further reflection. The claim that a law should not exist because it would be difficult to enforce has little basis in reality. Speeding laws are difficult to enforce (as anyone driving on the highways in California can attest), yet they exist and are enforced somewhat randomly with the idea that the existence of a speed limit combined with the possibility of receiving a speeding ticket from a nearby police officer is a sufficient deterrent to would-be speeders. While people do speed in spite of the laws, it is possible that they do not drive as fast as they would if there was no speed limit.
Internet regulation could be enforced in a similar manner. Every offender would obviously not be discovered and prosecuted, but the possibility of prosecution might in itself be a deterrent. There are, however, other difficulties with enforcement, not the least of which concerns the "global scope" of the Internet mentioned above. Because the Internet is a worldwide, not just nationwide, system, enforcing indecency laws within the United States would not in itself rid the Internet of indecent material. In fact, it is quite likely that some of the existing owners of pornographic material on the Internet would simply relocate their material to a willing service provider in another country. Freeing the Internet of all indecent material would necessitate agreement among all nations which are connected to the network--or else isolating American systems from the global network while enforcing regulation within U.S. borders. With more than 150 nations currently represented on the Internet, any regulatory agreement among them seems unlikely; and isolating the national system from the rest of the world would defeat what has become one of the overriding purposes of the Internet: global communication and information exchange. So while it is possible that regulation could be effective within the borders of the United States, it is clear that the global nature of the network would prevent elimination of, and perhaps would not even significantly decrease the amount of, indecent materials on the Internet.
Another argument advanced by proponents of user empowerment is that "[e]xisting laws…already prohibit obscenity, harassment, child pornography and enticing minors into sexual activity" so legislation such as the CDA will either be redundant or will attempt to make illegal types of speech which are currently protected as free speech. This is the primary grounds on which the Supreme Court overturned the Communications Decency Act last year. In conjunction with this idea, it is useful to note that there is technology available today to block or filter Internet content before it reaches children, so parents do have options for protecting their children from content which may be objectionable although it is not considered legally obscene. This is a very strong argument against regulation--since obscene materials are already illegal and technology exists which can help parents shield children from other types of objectionable content, it is not reasonably necessary to restrict the right to free speech in order to protect children from harm.
As previously noted, the CDA frames the regulation in terms of broadcast media. However, the Internet also has characteristics of other communications media: like the telephone, it is possible to converse with other people over the Internet in "real time"; like print media, it is possible for anyone to create and publish content for others to view. These varying characteristics make a comparison of censorship traditions in other media unproductive. Broadcast media have traditionally had strict censorship because there is little control over content and access by the user (e.g., there is no simple way to block or forewarn against obscene material on broadcast television, so it is very easy, when flipping through television channels, to stumble upon obscene material if it is being broadcast) and because few people have the means to create content, so there is necessarily a limited choice for viewers. In contrast, the telephone has had no censorship because the owner of the system is not the content provider and because everyone using the system has equal access and can easily avoid unwanted communication by hanging up the telephone. Print media, on the other hand, has been censored, too, but only in a limited form. Content which has been legally declared obscene, such as child pornography, may not be printed; other material which may be harmful to children, such as pornography concerning adults, has restricted access. Strict censorship has not been applied to the print media as it has to broadcast because it is easy to avoid objectionable material (simply by not reading a magazine or book which contains it) and because print media is open to anyone who wishes to publish his work. Because the Internet incorporates characteristics of all existing communications media, it would be unjust to apply the regulatory concept of a single medium to the Internet.
Conclusion
The issue of regulation of Internet content has been highly contentious and has received remarkable attention in the last few years. Although the opposing sides have been highly polarized, it may be possible to satisfy most of the worries of the concerned parties with a combination of user empowerment and strict enforcement of existing obscenity laws. In my opinion, the most important consideration is whether it is reasonably necessary to restrict the free speech of adults in order to protect children from harm. The criteria of "reasonable necessity" is one which I believe is ignored by those in favor of regulating Internet content. Because technologies exist which can effectively shield children from content which parents find objectionable, I contend that it is not reasonably necessary to restrict adults' constitutional right to free speech. In fact, because it would be so easy to circumvent regulation like the CDA by taking advantage of the global nature of the Internet, it is likely that blocking or filtering tools would be necessary in spite of regulation--these technologies would be more effective in keeping materials from appearing on a specific computer than would any legislation applied to only a portion of a worldwide network.
Another issue which I did not address previously, but which I believe is of prime importance, is the idea that Internet regulation would impose broad standards for children which with parents might not agree. Some parents have very strict opinions of what is indecent and unacceptable for their children--for example, a belief that any nudity, whether artistic or not, is unacceptable. For these parents, software which allows them to specify what is or is not acceptable would be more powerful than a national definition of indecency which may not be as comprehensive as the parents' own opinions. Similarly, some parents have less strict views on indecency--for these parents, nudity may be perfectly acceptable as long as it is not sexual in nature. A nationally defined concept of indecency might keep children from viewing material which the parents find acceptable and even educational. The oft-cited example of Michelangelo's David is appropriate for this discussion: the first set of parents would find the nudity of even this masterpiece of art objectionable and would want to shield it from their children; the second set of parents would likely wish their children to have access to this important work of art. A national indecency regulation could, for the first set of parents, be an ineffective application of the harm principle; for the second set of parents it could be an unjust application of legal moralism.
Other objections which might be raised by those opposed to user empowerment include the fact that some parents do not understand technology enough to effectively protect children and also the difficulty in protecting children outside of the home. I believe that if parents are concerned about what their children are doing on the Internet, they will learn enough to be able to protect their children with existing technologies. Addressing the issue of access outside the home is more difficult: it may be necessary to address this issue with local legislation requiring access restrictions, appropriate for the local community, in public places such as schools and libraries. As for protecting children while they are in other people's homes, this issue is really no different for the Internet than for any other type of protection. It is a parent's responsibility to evaluate the conditions of any house a child is allowed to visit--Internet access can be merely one more aspect to take into account when deciding whether a child should be allowed unsupervised visits to a particular household.
Because it is possible to address so many of the related issues within the framework of user empowerment, I advocate this approach to regulating Internet content. With the cooperation of government and industry, these empowerment technologies can be made effective and powerful without placing restrictions on the constitutional right to free speech. This would also be the most effective approach when the global nature of the Internet is taken into account.