Information Technology Reference
In-Depth Information
One of the great challenges is that, given the freedom to connect and communicate that everyone has
on the Internet, there is a corollary concept of responsibility. Unless there are shared ethics that respect
property, privacy, pluralism, diversity, and the rule of law, the Internet will never realize its potential.
Responding to public pressure, the US Congress passed the Communications Decency
Act to restrict access of children to sexually explicit materials on the Web. Why did you
organize a legal challenge to the CDA?
In enacting the CDA over our objections, Congress attempted to treat the Internet the same way as
other broadcast mass media (TV, radio). The first filed challenge to the CDA,
ACLU v. Reno
, was
designed to persuade the courts that if you restrict speech for children, you also necessarily restrict
adults' free speech rights, because the definition of indecency covers constitutionally protected speech
for adults. If ISPs had to block all indecent content for children, that content would not reach adults
who are entitled to it, because adults and children are all on the same Internet network.
We filed a second challenge to the CDA, and eventually the ACLU suit and the CDT suit were joined
and argued together. CDT brought together a broad coalition of Internet technology companies, news
organizations, and librarians to educate the courts that the Internet was architecturally different from
broadcast media. Traditional media is a one-to-many communication and the Internet is a many-
to-many communication, much like print. It was also critical to explain that the Internet is a global
medium: it isn't effective to censor speech in the United States if it's also available on the Internet from
outside the United States. It is impossible for ISPs to prevent content flowing from sources they do not
control, and any ISP censorship would violate constitutional rights. The architecture of the Internet
leads to different analysis and different policy solutions to both protect free speech and protect children
from inappropriate content. The lawyers for our coalition argued the case in the Supreme Court on
behalf of all the plaintiffs and made the case for user control and user empowerment. The only effective
way to deal with unwanted content is for parents and other users (rather than the government) to
voluntarily employ available filtering tools and parental controls offered by ISPs and other vendors.
In issues of constitutionally protected speech, the courts seek to determine if Congress has chosen the
least restrictive means for achieving their public purpose. We were able to show that blocking content
at the provider end is neither effective nor the least restrictive means for protecting children from
inappropriate content. Voluntary filtering is a less restrictive means because it allows users to decide
what comes into their homes and, given the global nature of the Internet, gives them the most effective
means to do that.
Should an ordinary American citizen's Web site enjoy the same constitutional protections
as the
New York Times?
On the Internet everyone can be publishers. And if they're holding themselves out as publishers,
they have the same credentials as the
New York Times
, since no one's handing out credentials on the
Internet. The Supreme Court heard the Communications Decency Act (CDA) challenge and ruled that
the Internet communicator enjoys the maximum protection afforded under the First Amendment.
Like the print media, the Internet is not subject to equal time, to the fairness doctrine, or various
spectrum allocations. The whole technology of the Internet and the ability of anyone to be a publisher
suggests the Internet publisher should, if anything, enjoy greater protection than the
New York Times
.
For example, if a newspaper libels someone with false charges, it may require a lawsuit to restore a
reputation. On the Internet anyone can answer back in the blogosphere and reputations are often
quickly restored. Thus courts may narrow the scope of libel suits when the Internet is concerned in
favor of more robust debate and “give-and-take” on the Internet.
