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Federal Laws Restricting Internet Content

(1996 & 1997)

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Sponsored link.

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Topics in this section:

bulletFederal government laws to restrict Internet access:
bulletThe "Communications Decency Amendment" (CDA)
bulletThe Comstock Act
bulletCourt challenge to the CDA
bulletReactions to the U.S. Supreme Court CDA decision

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The Communications Decency Amendment:

This amendment l was sponsored by Senator Jim Exon (D-Nebraska), and passed by the US Senate on 1996-JUN-14. It includes:

Section 223 (47 U.S.C. 223) is amended .... by adding at the end...:
(e) Whoever...
(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent comment, request, suggestion, proposal, image to any person under 18 years of age regardless of whether the maker of such communication 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, shall be fined not more than $100,000 or imprisoned not more than two years or both.

The amendment shows a profound lack of knowledge of the working of the Internet. An Internet Service Provider (ISP) gives subscribers the ability to surf the Internet. The law could be interpreted to say that the ISP is providing indecent material, because it follows the subscribers' requests to view different web sites.  But surely an ISP acts much like the telephone system: an individual uses their telephone to make a call. A local or long-distance service provider can hardly be held responsible for the conversation that results from the call. Also, the law seems to assume that each web site is aware of the age of their visitors. Many Webmasters have no way of knowing the Internet address of visitors, so of course they have no indication of their age. Our own ISP provides us with weekly summaries which only show totals of "hits" from various top level domains (com, org, mil, gov, ca and dozens of other country codes). Individual internet addresses are not shown.

The only way in which a Webmaster could be certain of following the law would be to eliminate all material that could be considered indecent by anyone, when exposed to a person under 18.

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Sponsored link:

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The Comstock Act:

The telecommunications bill also contains amendments to the Comstock Act which were made at the last minute. The latter act was passed in 1873 to suppress the flow of both contraceptive and abortion material and information through the mail. Margaret Sanger and other early birth control pioneers were prosecuted under this law. By 1971, contraceptives were generally available to the public. The law was then updated to delete all references to contraceptives. In 1973, the US Supreme Court legalized early abortions in its famous Roe v. Wade decision. However, the Comstock law was kept on the books, unchanged until now.

"Comstock" has long been considered to be unconstitutional, but has never been declared so by a US court. By amending the law, it has gained "renewed currency" and might be ruled to be constitutional.

The new section [18 U.S.C. Section 1462(c)] it prohibits the taking or receiving, via interactive computer service of "any drug, medicine, article, or thing designed, adapted, or intended for producing abortion ... or any written or printed card, letter, circular, book, pamphlet, advertisement, or a notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made."

It is believed that the law, as currently amended, bans abortion information of all types on the Internet. Our essays on abortion is probably illegal under this law. Under a wide-ranging interpretation of the term "indecent" much of this site could be illegal, because many people would consider large parts of it offensive.

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Court Challenge to the CDA:

President Clinton signed the law on 1996-FEB-8. The ACLU filed a law suit immediately. There were 27 plaintiffs, including the American Library Assoc., American Society of Newspaper Editors, Newspaper Assoc. of America, the Society of Professional Journalists, and the Citizens' Internet Empowerment Coalition. The CIEC represents 40,000 Internet users. They argued that this law violates the First Amendment rights to freedom of speech, and violates the Fifth Amendment twice.

The suit, Sanger v. Reno, was filed by Alexander Sanger, President of Planned Parenthood of New York City (PPNYC) on behalf of the many other co-filers. The case was heard by a three-judge panel.

On 1996-JUN-12, the Federal Court in Philadelphia granted a preliminary injunction against the Communications Decency Act, by a vote of 3 to 0. An excerpt from their 175 page decision reads: "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion....Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."

The US Supreme Court heard the case on 1997-MAR-19 and rendered a 7 to 2 decision on 1997-JUN-26 which declared the law to be unconstitutional. Banning material that somebody finds "unseemly" was seen to be a gross violation of the First Amendment to the Constitution - the one which guarantees freedom of speech.  It was the Court's first ruling on free speech on the Internet. Justice John Paul Stevens wrote the decision. He said, in part:

"As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it...The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

One of the basic problems considered by the court was the impossibility of Internet Service Providers determining the age of an individual surfing the net. The only simple way to prevent access by children to adult and other unsuitable materials would be to prevent access by everyone. Thus, the content of the Internet would have to be restricted to only that which is suitable for children. Justice Stevens commented: "The government may not reduce the adult population...to... [view] only what is fit for children." Another consideration by the court was that the Internet is more like a newspaper or magazine; a surfer must actually make a positive move to request information. It is less like a radio or TV program, where the listener/viewer passively hears and views information provided by the station. Thus, the Internet should be given the same freedoms as are granted to the press, not the restricted freedoms allowed to the more invasive broadcast media.

Fortunately, there are technological solutions to the censorship problems. Parents can buy censorship software that prevents their children from accessing unsuitable material. Most software systems allow the parents to define what type of material is suitable an what is not. Some Internet Service Providers are bundling censorship software with their sign-up packages. Some new versions of Internet browsers will have programs built-in that will allow the computer owner to select from a variety of censorship criteria. However, most parents will not do this, so that many children will be free to roam the Internet freely.

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Reactions to the Supreme Court Decision:

bulletReuters News Agency reported on 1997-JUN-26 a comment by President Clinton: "With the right technology and rating systems we can help ensure that our children don't end up in the red light districts of cyberspace." He promised to "study the decision, gather people representing industry, parents, teachers and librarians to review it, and continue to look for a way to keep children from viewing pornography on the Internet."
bulletSenator Joseph Biden (D-DE) plans to "back an alternative legislative approach requiring the government to help develop technological filtering solutions...The market is already developing software and hardware to enable parents to block children's access to filth, violence and other objectionable material...This solution is now proven as the better way."
bulletIra Glasser of the American Civil Liberties Union commented: "Today's historic decision affirms what we knew all along: cyberspace must be free."
bulletBrian O'Shaughnessy of the Interactive Services Association stated: "Parents, not children, should decide what content is right for their families. And it is up to parents, not government, to control content and how it is used at home."
bulletDonald Hodel of the Christian Coalition said that the ruling "leaves millions of children vulnerable to exploitation by pornographers."
bulletSenator Dan coats (IN-R), sponsor of the original bill, said that the court is "telling parents to abandon any hope of a decent public culture."
bulletCathy Cleaver of the Family Research Council (FRC) said: "This is not good news for the thousands of families who discover every day that their children have accessed offensive and disgusting material on the Internet...With no legal liability for those who pursue children with graphic images and language on the Internet, we need to act fast and firmly to ensure that our country does not give pornographers special rights."
bulletMorality in Media issued a press release. They describe themselves as "a national, interfaith non-profit organization established in 1966. They said, in part: "The U.S. Supreme Court's opinion means that children now have no protection under the law from indecent explicit sexual depictions on their home computers" They are disappointed "in the failure of the Justices to provide guidance on how the Communications Decency Act could be amended to constitutionally protect the children of our nation from this vile material."
bulletJerry Kirk of the National Coalition for the Protection of Children & Families (NCPCF) said: "Parents cannot and should not be expected to protect their children single-handedly...Without further legislative action, the Internet will remain the only place in America where you can knowingly send pornography to someone you know is a minor." The NCPCF complained that "many libraries and schools have been slow or even opposed to installing filters on computers used by minors." He called for an "all out effort by library boards and school districts to install filtering software that protects children using their computers for Internet access."
bulletThe American Family Association (AFA) is taking a pro-active stance. They are distributing "The Next Right Thing" which is a comic book that illustrates how children can "make Godly choices" when on the Internet.
bulletConcerned Women for America (CWA), believed to be the largest women's organization in the US, publishes a "Family Voice" The 1997-MAR issue was devoted to the evils of the Internet. It was prepared before the Supreme Court decision. It attacks Email for allowing the transmission of child pornography, and for encouraging "cyberadultery" (online affairs). The Web is criticized because it allows individuals "to post whatever they choose [including] steamy romance fiction and writings on lesbian sadomasochistic practices." Newsgroups and online chat rooms are criticized because they can lead to "cyberstalking".

Some of the responses by religious groups appear to misunderstand the nature of the Internet, of Constitutional guarantees of freedom of speech, and of the role of Government:

bulletThe FRC seems to believe that webmasters of erotic and XXX rated Web sites actively pursue children. The Internet is designed so that the user must seek out sites of interest to them; this is often a difficult task.
bulletThe FRC also complains about some webmasters being given "special rights", whereas the Supreme Court decision gives everyone equal rights.
bulletMorality in Media complained that the Court did not suggest constitutional laws to protect children. This shows a fundamental misunderstanding of the role of the Judicial branch of the Government.
bulletThe NCPCF appears to be unaware that parents need not battle the problem "single-handedly"; they can install censorship software to do the job.
bulletThe NCPCF complains that anyone can legally send pornography to a person that they know to be a minor over the Internet. This is not true. Anyone knowingly sending pornography to a minor, whether by direct sale or mail or Email, is committing a criminal act.
bulletThe NCPCF is calling on public libraries to install censorship software. Being a public body, a library must follow the freedom of speech provisions of the Constitution. By installing such software on its computers which may be used by adults, they would be clearly violating the first amendment.
bulletCWA's magazine performs a useful service by highlighting some of the dangers of the Internet. But their solution appears to involve a severe restriction on individual freedom of speech that many Americans (and the Constitution) would not agree with.

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References:

  1. The Goodparents web site includes "a discussion forum for parents, reviews by parents of computer-related products, and tips for parents whose kids are active online." They are at: http://www.goodparents.com
  2. The Interactive Services Association (ISA) is the interactive industry's leading trade association. Their web site is at: http://www.isa.net
  3. "OutProud! is a non-profit organization, providing services both to individuals and agencies for the benefit of gay and lesbian youth. They are at: 454 Las Gallinas Avenue, Suite 261, San Rafael, CA 94903-3618. Phone: 415-499-0993, Fax 415-499-1013, E-mail info@outproud.org, web-site is http://www.outproud.org
  4. Jim Hill, "Hate case raises Internet free speech issues," CNN Interactive, 1997-NOV-9 at http://cnn.com/TECH/9711/09/cyber.hate/index.html (Believed to be a dead link)
  5. Some groups working to maintain free speech on the Internet:
     
    bulletThe Electronic Frontier Foundation is at: http://www.eff.org   The EFF is one of the 10 most-linked-to-sites on the Internet.
    bulletCitizens Internet Empowerment Coalition (CIEC) is at: http://www.ciec.org/.  They give you an opportunity to join their effort and to subscribe to their mailing list.
    bulletPeacefire is a volunteer-based organization composed of young people (ages 13 - 20) working for freedom of speech on the Internet. See: http://www.peacefire.org  
    bulletSee also Yahoo's list of "censorship and the net" organizations, at: http://dir.yahoo.com/Society_and_Culture/Issues_and_Causes/
  6. Groups working to restrict the Net are primarily Fundamentalist Christian organizations:
    bulletAmerican Family Association at: http://www.afa.net/ See comments under "Government Issues."
    bulletChristian Coalition at: http://www.cc.org/ See: http://www.cc.org/publications/ccnews/ccnews98.html#passporn
    bulletConcerned Women for America at: http://www.cwfa.org/ See: http://www.cwfa.org/newsflash/internet0717.html
    bulletFamily Research Council at: http://frc.org/   See: http://www.frc.org/infocus/if95k4pn.html
    bulletMorality in Media at: http://pw2.netcom.com/~mimnyc/index.html This is a interfaith organization
    bulletNational Coalition for the Protection of Children & Families at: http://www.nationalcoalition.org/ See: http://www2.nationalcoalition.org/ncpcf/legis.html
    bulletIf any of these links do not work, PureNet Communications has a list of "best anti-pornography links" at: http://www.purenet.net/mainlinks.html
  7. Letter: L. Anthony Sutin to Thomas Bliley, 1998-OCT-5, at: http://www.aclu.org/court/acluvrenoII_doj_letter.html
  8. The text of the complaint is available at: http://www.aclu.org/court/acluvrenoII_complaint.html
  9. A complete plaintiff list is available at: http://www.aclu.org/court/acluvrenoII_plaintiffs.html
  10. "Children, Pornography and Cyberspace: The Problem, Solutions & the Current Congressional Debate," by the National Coalition for the Protection of Children & Families.
  11. "Definitions of Pornography, Obscenity and Indecency," by Morality in Media, at: http://pw2.netcom.com/~mimnyc/obscporn.htm
  12. American Civil Liberties Union Newsfeed, 1999-NOV-5. 
  13. A copy of the decision by the Tenth Circuit Court of Appeals is at: http://www.aclu.org/court/acluvjohnson_findings.html 
  14. The Electronic Privacy Information Center maintains a very complete collection of legal documents and press releases on COPA at: http://www.epic.org/free_speech/copa/ 
  15. "Welcome to ALA's CIPA web site," at: http://www.ala.org/cipa/ 
  16. "American Library Association votes to challenge CIPA," at: http://www.ala.org/news/v7n1/cipa.html 
  17. "ALA to challenge Internet porn law," Focus on the Family, at: http://www.family.org/cforum/fnif/news/A0014616.html
  18. "COPA ('CDA II') legal challenge page," Electronic Frontier Foundation, at: http://www.eff.org/pub/Legal/Cases/ACLU_v_Reno_II/ 

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Copyright © 1996 to 2001 incl. by Ontario Consultants on Religious Tolerance
Latest update: 2001-DEC-19
Author: B.A. Robinson

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