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Federal & State Laws Restricting Internet Content (1998 to 2002)

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Topics in this section:

bulletFederal government laws to restrict Internet access:
bulletThe "Child On line Protection Act (COPA)"
bulletChildren's Internet Protection Act (CIPA)
bulletState laws to restrict Internet access:
bulletNew Mexico law
bulletA potential danger from Internet censorship software

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Child Online Protecion Act (CPOA):

The "Child On line Protection Act" originated as bill H.R. 3783, sponsored by Representatives Oxley and Greenwood. A similar bill, S. 1482 was sponsored by Senator Coats (R-IN); it passed the Senate in 1998-JUL. The bills were referred to as "CDA-II" by civil libertarians. A compromise bill was signed into law on 1998-OCT-22. It creates a new federal crime (Title 47 of the U.S. code, Section 231):

"Whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that includes any material that is harmful to minors without restricting access to such material by minors pursuant to subsection(c) should be fined not more than $50,000, imprisoned not more than 6 months, or both."

CPOA differs from the CDA in that it is directed against commercial sites on the Web. It also specifies an "affirmative defense" if the Webmaster has attempted to restrict access to minors by "by requiring use of a credit card, debit account, adult access code, or adult personal identification number; or...by any other reasonable measures that are feasible under available technology."

The U.S. Department of Justice expressed severe reservations concerning this law when it was still a bill: 7

bulletThe work load on the Department to administer the law would be very heavy. It would divert effort from other initiatives "combating traffickers in hard-core child pornography, in thwarting child predators, and in prosecuting large-scale and multi district commercial distributors of obscene materials involving child pornography."
bullet"There are thousands of news group and Internet relay chat channels on which anyone" would still be able to access pornography
bullet"...children would still be able to obtain ready access to pornography from a myriad of overseas web sites" that would not be touched by the law.
bulletIt would likely be challenged successfully on constitutional grounds.
bullet"Contemporary community standards" are difficult to difficult to judge, because there are many communities involved: the community where the Web file was created, the community where the ISP is located, the community where the jury judging the case sits, some virtual "'community' in hyperspace", or some other community.

On 1998-OCT-22, a group of plaintiffs filed a case in the federal District Court in Philadelphia. They represent "a broad range of individuals and entities who are speakers, content providers, and users of the Web. Plaintiffs include online magazines, booksellers, media companies, art vendors, and gay and lesbian content providers." They ask that the law be declared unconstitutional. The plaintiffs state in their court challenge that the law's "constitutional flaws are identical to the flaws that led the Supreme Court to strike down the Communications Decency Act...The effect of the [CPOA] Act, like the CDA, is to restrict adults from communicating and receiving expression that is clearly protected by the Constitution...The Act directly violates the First Amendment rights of plaintiffs, their members and tens of millions of other speakers to communicate protected expression on the Web. In addition, the Act violates the rights of millions of Web users to access and view constitutionally protected speech, including the right to do so anonymously." 8,9

Ann Beeson of the American Civil Liberties Union Foundation commented: "Whether you call it the 'Communications Decency Act' or the 'Congress Doesn't Understand the Internet Act,' it is still unconstitutional and it still reduces the Internet to what is fit for a six-year-old."

COPA is supported by many very conservative Christian groups: the American Family Association, Christian Coalition, Concerned Women for America, Family Research Council, Morality in Media, and National Coalition for the Protection of Children & Families. 6 Christian Coalition Executive Director, Randy Tate, congratulated the Senate for passing S. 1482: "Families across America need this sensible legislation to make the World Wide Web family friendly. Absolutely no one has the right to peddle pornography to our children. Just as our children do not have access to pornography at the corner store, they should be protected from smut on the information superhighway, penetrating their rooms at home."

The American Civil Liberties Union, and associated groups, won a temporary restraining order against COPA on 1998-DEC-4, and an injunction on 1999-FEB-2. 14

Oral arguments began on 1999-NOV-4 before the Third Circuit Court of Appeals, in Philadelphia, PA. The ACLU and 17 other groups and individuals argued the unconstitutionality of the law. Ann Beeson, the ACLU lawyer in the case commented: "Despite the government's claims that the new law is aimed at only commercial pornography, we think the appeals court will agree with Judge Reed's finding that the law restricts a broad range of speech that is valuable for adults." She noted that sexual advice columns, discussion boards on gynecology, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, among others would be at risk.

On 2000-JUN-22, the Third Circuit Court of Appeals upheld the injunction. 18

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Children's Internet Protection Act (CIPA):

The latest efforts by the Federal government to censor the Internet are the Children's Internet Protection Act (CIPA) and the Neighborhood Internet Protection Act (NCIPA). They requires all schools and public libraries who use federally-funded computers to at least start a program aimed at eventually installing censorship software to block access by children to certain web sites. It was passed as part of a major spending bill, and was signed into law on 2000-DEC-21. 15 Although billed as an "anti-porn" bill, it actually goes much farther and attempts to ban visual material that is considered to be "harmful to minors." This might be interpreted as including sex-ed material placed on the web for teenagers. The American Library Association executive board voted on 2001-JAN-17 to initiate legal action to overturn the CIPA law. They believe that it is unconstitutional and that it violates First Amendment rights. They state: "No filtering software successfully differentiates constitutionally protected speech from illegal speech on the Internet. Even the federal commission appointed to study child safety on the Internet concluded filters are not effective in blocking all content that some may find objectionable, but they do block much useful and constitutionally protected information." 16 ALA spokeswoman, Larra Clark, said: "The problem is that filters donít work. They canít differentiate between constitutionally protected information and illegal information." 17 Others claim that filtering software has greatly improved in recent years and is now capable of differentiating between pornographic sites and those which merely discuss controversial topics, like human sexuality, sexual orientation, minority religions, etc.

CIPA became effective on 2001-APR-20. Libraries were not required to certify that they had conformed to the law until 2002-JUL-31. Lawsuits to declare the law unconstitutional were launched by the American Library Association (ALA) and the American Civil Liberties Association. They were consolidated into a single lawsuit. According to the ALA: "The three-judge panel held that 'we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid;' the three-judge panel sitting in the Eastern District of Pennsylvania ruled Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act to be facially invalid under the First Amendment and permanently enjoined the government from enforcing those provisions." 19

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New Mexico law:

In 1998, the New Mexico governor signed into law: "Section 1(A), 1998 New Mexico Laws, Chapter 64, to be codified as Section 30-37-3.2(A) of the New Mexico Statutes Annotated." It banned Internet material that may be "harmful to minors.12 Any material on the Web which involves "nudity, sexual intercourse, or any other sexual conduct," and "indecency" was criminalized. The scope of the law was far reaching. This web site, for example, might be interpreted as violating the New Mexico law in its essays on the Satanic Ritual Abuse hoax, religious and medical views on masturbation, abortion access, etc. We have dozens, perhaps hundreds of essays which describe religiously liberal beliefs which many religious conservatives would find blasphemous or indecent....and vice versa. The American Civil Liberties Union and many other groups applied for an injunction that would suspend application of the law. A three-judge panel of the Tenth Circuit Court of Appeals in Denver, CO granted the injunction, stating that the "Plaintiffs are likely to succeed on their claims that:"

bulletThe law violates the 1st, 5th, and 14th Amendments of the U.S. Constitution in a variety of ways. 
bulletThe government has not put forth a valid case that the law would "directly and materially advance a compelling governmental interest." or that the law "constitutes the least restrictive means of serving its stated interest."
bulletIt also violates the Commerce Clause of the U.S. Constitution "because it constitutes an unreasonable and undue burden on interstate and foreign commerce," and "because it subjects interstate use of the Internet to inconsistent state regulations." Considering one of our site's essays as an example: the text was composed in Canada, transferred to a web hosting service in Pennsylvania and might be accessed by an individual in New Mexico. The state law attempts to reach beyond the borders of New Mexico and regulate commerce elsewhere in the U.S. and in a foreign country. 13

The ACLU commented that: "The state had argued that its law banned only online material considered 'harmful to minors.' But as the appeals court pointed out, that argument 'overlook[s] the basic point that what may be 'patently offensive...for minors'...may very well have social importance and not be patently offensive for adults.' Indeed, the court noted, 'plaintiffs' speech includes discussions of women's health and interests, literary works and fine art, gay and lesbian issues, prison rapes, and censorship and civil liberties issues.'

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A Potential Danger from Censorship Software:

In their rush to prevent access by their children to erotic and explicit sexual images, parents may also block access to some badly needed sites. For example, they might install software that prevents access to:

bulletall sites with sexual content: This might prevent their children from seeking information on the use of condoms to prevent pregnancy or the transmittal of a sexually transmitted disease (STD). A youth who decides to become sexually active might be prevented from obtaining the information needed to preserve their health and even save his/her life. It might also prevent them from accessing Web sites (such as this one) which contain information on sexual orientation. A gay son or lesbian daughter might feel a profound sense of loneliness as they try to come to terms with their sexuality. Being able to surf the Internet for support groups and information sites could give them the support that they need to overcome thoughts of suicide. Access could literally save their life.
bulletsites describing new religious movements: Apparently, some censorship software companies employ individuals without a great deal of religious knowledge to scan the Internet, looking for sites to be banned. They might group all Asatru, Druidic, Wiccan and other Neo-Pagan sites along with Satanism and consider them all to be dangerous cults. At one time CyberPatrol had many dozens of benign home pages banned in this way. As a result, youth may not have access to accurate information on religious minorities.

Parents need to be careful when installing and setting up censorship software, so that they know exactly what is being censored.

Some censorship software providers are:

bullet"CyberPatrol," Microsystems Software, Inc., 600 Worcester Rd., Framingham, MA 01701, Phone: 1-800-489-2001 or 508-879-9000, Fax 508-626-8515, E-mail info@microsys.com, Web-site www.microsys.com 
bullet"CyberSitter," Solid Oak Software, Inc., PO Box 6826, Santa Barbara, CA 93160, Fax 805-967-1614, E-mail info@solidoak.com
bullet"Net Nanny," Trove Investment Corporation, Main Floor - 525 Seymour Street, Vancouver, B.C., Canada V6B 3H7. E-mail netnanny@netnanny.com Web-site www.netnanny.com/netnanny 
bullet"SurfWatch," SurfWatch Software, 105 Fremont Avenue, Suite F, Los Altos, California 94022, Phone: 415-948-9500, Fax 415-948-9577, E-mail press@surfwatch.com or info@surfwatch.com, Web-site www.surfwatch.com  

Some public libraries are installing censorship software, and many be exposing themselves to a constitutional challenge if access by adult users is also restricted.

Censorship software providers are a law onto themselves. Webmasters have no way of knowing when their site or any part of their site is blocked. Some sites, like Cyberpatrol, have a facility allowing webmasters to determine if any part of their domain is blocked. But no company, to our knowledge, routinely informs webmasters that their site has just been blocked. Our site has had two essays temporarily blocked: Cyberpatrol banned our essay on Wicca, presumably because it contained the word "Witch."  Bess banned our essay on Satanic Ritual Abuse, presumably because it included the word "Satanism." We have no way of knowing which of our 1,000 or so essays have been blocked by which of the dozens of available censorship companies.

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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/
  19. "Litigation decided by Third Circuit," American Library Association, at: http://www.ala.org/
  20. Text of the American Library Association v. United States," U.S. District Court for the Eastern District of Pennsylvania, 2002-MAY-31, at: http://www.ala.org/ This is a PDF file. You may require software to read it. Software can be obtained free from: 

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Copyright © 1996 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUN-18
Author: B.A. Robinson

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