Internet Regulation
Internet Regulation

“Modern technology-especially the Internet-creates important
opportunities to expand
freedom of speech globally.
It also poses challenges to
our traditional notions of
freedom and censorship.”
--Alan Dershowitz, Shouting
Fire (Boston: Little Brown, 2002), p. 196.
Internet Regulation

two eras
• pre-Reno v. ACLU (1997)
• post-Reno v. ACLU (1997)
Libel on the Internet
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
statement of fact
that is published
whether the plaintiff is identified
that is defamatory
that is false
that is a result of fault by the defendant
Libel on the Internet






statement of fact
that is published
whether the plaintiff is identified
that is defamatory
that is false
that is a result of fault by the defendant
Libel on the Internet

Cubby, Inc. v.
(1991).
Libel on the Internet


Cubby, Inc. v.
Stratton Oakmont v.
(1991).
(1995).
Libel on the Internet



Cubby, Inc. v.
(1991).
Stratton Oakmont v.
(1995).
Telecommunications Act of 1996
Libel on the Internet



Cubby, Inc. v.
(1991).
Stratton Oakmont v.
(1995).
Telecommunications Act of 1996
• Communications Decency Act
Libel on the Internet



Cubby, Inc. v.
(1991).
Stratton Oakmont v.
(1995).
Telecommunications Act of 1996
• Communications Decency Act
• § 230
Libel on the Internet



Cubby, Inc. v.
(1991).
Stratton Oakmont v.
(1995).
Telecommunications Act of 1996
• Communications Decency Act
• § 230
– “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.”
Libel on the Internet
The
Cases
Libel on the Internet
The
Cases
 Zeran v. America Online (1997)
Libel on the Internet
The
Cases
 Zeran v. America Online (1997)
 Blumenthal v. AOL & Drudge (1998)
Libel on the Internet
The
Cases
 Zeran v. America Online (1997)
 Blumenthal v. AOL & Drudge (1998)
Reno v. ACLU (1997)

What is the Internet?
 What First Amendment standard
should be applied?
• Is it like the print media?
• Is it broadcast-like?
• Is it like no other medium?
Reno v. ACLU (1997)

Pacifica Foundation v. FCC (1978)
Reno v. ACLU (1997)

Pacifica Foundation v. FCC (1978)
Chris Hansen
ACLU Senior Staff Counsel
Reno v. ACLU (1997)

Pacifica Foundation v. FCC (1978)
Chris Hansen
ACLU Senior Staff Counsel

“A huge amount of the case
was designed to distinguish us
from Pacifica. That’s the whole fight. If
we were television, then we were
Pacifica. And if we were Pacifica, we
lose.”
Reno v. ACLU (1997)
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

Communications Decency Act criminally prohibits:
§ 223(a): the knowing transmission, by means of a
telecommunications device, of "obscene or indecent”
communications to any recipient under 18 years of age
§ 223(d): the knowing use of an interactive computer
service to send to a specific person or persons under 18
years of age, or to display in a manner available to a person
under 18 years of age communications that, in context,
depict or describe, in terms "patently offensive" as
measured by contemporary community standards, sexual
or excretory activities or organs.
Ann Beeson
ACLU Staff Counsel
“There weren’t any hearings
held, the Congressmen, just
like the courts, didn’t know anything about
the Internet. They didn’t have a clue as to
what this law would do. It’s really only in
hindsight that everybody understands
implicitly why it is that it was so facially
unconstitutional. They didn’t understand
that unlike the ‘real world’...
Ann Beeson
ACLU Staff Counsel
“...you can’t verify age on the
Internet, so they thought they
just
could issue some kind of
blanket ban on indecency to minors and that
it wouldn’t have any effect necessarily on
adults. They just didn’t understand at all.
In that sense, I suppose you could say, they
had a little bit of an excuse the first time,
but that’s becoming increasingly less so and
they continue to pass these laws….”
Ann Beeson
ACLU Staff Counsel
“They do this kind of thing all
the time. So the other answer
is they don’t care whether it’s
unconstitutional. And you get Congressmen
literally admitting that, and passing laws
because they get political points for passing
them as being anti-porn. Then they know
that the courts are going to strike them
down if they’re unconstitutional.”
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Patricia Nell Warren
Wildcat Press
“If I as an individual who
believes in the American
dream, and believes in free speech—and if I
really think that our country has had a
history of struggle to learn how to respect
diverse viewpoints—then how can I live
with myself if I step back and allow this to
be done to me?”
Patricia Nell Warren
Wildcat Press
“If I let it be done to me, what
kind of signal does that send
to other people, especially young writers?
Because young people do pay attention to
these things, and when they see examples of
people standing up for what they think and
what they feel, then that can be important to
them. If they see a lot of us willing to eat
dirt and bow our necks to the yoke, then
that sends a terrible signal.”
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU/assembling the plaintiffs
Reno v. ACLU (1997)
Justice Stevens’ opinion for the Court
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[U]nlike the conditions that prevailed when Congress first authorized
regulation of the broadcast spectrum, the Internet can hardly be
considered a “scarce” expressive commodity.
[The CDA] silences some speakers whose messages would be entitled
to constitutional protection.
[T]he 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.
“Regardless of the strength of the government's interest” in protecting
children, “the level of discourse reaching a mailbox simply cannot be
limited to that which would be suitable for a sandbox.”
John B. Morris, Jr.
ALA
attorney
“What is the legacy of this case? What’s the
long term impact? I think this decision will
continue to be the starting point for 50
years—for a very long time it will be where
courts start when they evaluate the
regulation of the Internet.”
John B. Morris, Jr.
ALA
attorney
“...But it will also be an important point in the
whole development of lots of smaller parts
of the First Amendment jurisprudence in
terms of avoiding the dumbing down of
communications just to protect children. I
think it will withstand the test of time. I
think it really sets up the framework for
years to come.”
Chris Hansen
ACLU Senior Counsel
“I take the long view of all of this
stuff that no issue is ever won, and no issue
is ever lost. I do think that the longer you
hold onto a medium like the Internet that is
free of restriction, the harder it is to start
rolling that back. It’s easiest to impose
restrictions at the very beginning. The fact
that we held off restrictions at the very
beginning, I suspect--I hope--will last.”
Regulating the Internet
Children’s Online Protection Act (1998)

targets speech on the World Wide Web that is
harmful to minors according to “contemporary
community standards.”
 $50,000 fine and 6 months in jail for those who
are found to knowingly “make any communication
for commercial purposes” on the Internet “that is
available to any minor and that includes any
material that is harmful to minors.”

Ashcroft v. ACLU (2002)
Regulating the Internet


Library computers
Loudoun County, Virginia
• Mainstream Loudoun v. Board of Trustees
of the Loudoun County Library (1998)
Regulating the Internet

Privacy
• Children’s Online Privacy Protection Act
(1998)
• Intercepting e-mail
• Konop v. Hawaiian Airlines (2001)
Regulating the Internet

Misappropriation
Regulating the Internet

Misappropriation
Regulating the Internet

Misappropriation
• Milano v.
(1998)
Machinenet
Regulating the Internet

Misappropriation
• Milano v.
(1998)
• Milano v. Eight
Ball, Inc., et al. (1998)
Machinenet
Regulating the Internet

Misappropriation
• Milano v.
(1998)
• Milano v. Eight
Ball, Inc., et al. (1998)
• $238,000 + other
settlements
Machinenet
Regulating the Internet

Misappropriation
Regulating the Internet

Misappropriation
• Hoffman v. Capital
Cities/ABC, Fairchild
Publications and Los
Angeles Magazine,
33 F. Supp. 2d 867 (1999)
Regulating the Internet

Misappropriation
• Hoffman v. Capital
Cities/ABC, Fairchild
Publications and Los
Angeles Magazine,
33 F. Supp. 2d 867 (1999)
• $3 million
Technology’s Threats to Privacy
Technology’s Threats to Privacy
Technology’s Threats to Privacy

transparency
Technology’s Threats to Privacy


transparency
user control
Technology’s Threats to Privacy



transparency
user control
“Users should be told exactly what personal information is
being collected and what will be done with it. And it
should be made easy for users to withhold private
information or set conditions for its use.”
Technology’s Threats to Privacy




transparency
user control
“Users should be told exactly what personal information is
being collected and what will be done with it. And it
should be made easy for users to withhold private
information or set conditions for its use.”
“The burden remains on companies like Microsoft to show
that they can be trusted to build transparency and user
control into their technology. If not, the government may
need to step in to protect users’ reasonable expectations of
privacy.”
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Fair Use
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Fair Use
Purpose and character of the use
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Fair Use
Purpose and character of the use
Nature of the work
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Fair Use
Purpose and character of the use
Nature of the work
How much of the original work is used
Regulating the Internet

Copyright
A&M Records, et al.
v.
Napster (2001)
Fair Use
Purpose and character of the use
Nature of the work
How much of the original work is used
Effect on the potential market
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet

Copyright

Digital Millenium Copyright Act (1998)
Regulating the Internet

Copyright

Digital Millenium Copyright Act (1998)
• ISPs
Regulating the Internet

Copyright

Digital Millenium Copyright Act (1998)
• ISPs
• “cookies”
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet


Copyright
2600 Enterprises
VS.
COPYRIGHT - KaZaA does not condone
activities and actions that breach the
copyright of artists and copyright
owners - as a KaZaA user you are
bound by the KaZaA Terms of Use and
laws governing copyright in each
country.
Regulating the Internet

Copyright
Regulating the Internet

Copyright
Regulating the Internet

Copyright
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Internet Regulation

“Modern technology-especially the Internet-creates important
opportunities to expand
freedom of speech globally.
It also poses challenges to
our traditional notions of
freedom and censorship.”
--Alan Dershowitz, Shouting
Fire (Boston: Little Brown, 2002), p. 196.