Ch3 Free Speech and Content Controls in Cyberspace p 55
Richard A. Spinello
Individuals are now more enabled to exercise their First Amendment right to freedom of
expression
. Individuals now can create a much louder voice (we’ve discussed this before) b/c of
Internet and technology
. Some forms of expression are offensive to others and can provoke unease
b/c of this, the issue of free speech and content controls in cyberspace are
possibly the most debated moral problem of the recent information age.
. We see, in recent time, basic rights like free speech collide w/ states inclination to rein
in the power of users
. In the U.S. we’ve seen the Gov’t work to suppress online pornography
. In some European countries the target has been hate speech.
. Author also mentions that speech is at the root of most other major ethical and public
policy problems in cyberspace including privacy, intellectual property, and security
EX) Some ight argue that IP rights can be construed as restrictions on free speech or
If someone has property rights to a trademark, others cannot use that form of
expression freely and openly
Many of these issues can be reduced to: What is the appropriate scope of free expression
for organizations and individuals
. Many Internet pioneers have advocated for the right to free expression in cyberspace to
have as broad a scope as possible.
. They would argue for unrestricted access to all forms of speech in cyberspace
. Expanded usage of the Internet to vulnerable populations has led to several attempts in
U.S. to control Internet through poorly crafted legislation.
Speech and Internet Architecture p 56
The unique architecture of the net is consistent w/ an expansive and robust conception
of free speech rights
. The net was designed so that anyone can send any form of digital content anywhere in
the world w/o interference
. The net was developed and nurtured in the U.S. where its citizens have broad free
speech ideals
. not surprising that they would construct a network embodying that philosophy
. Read Lessig’s comment pg. 57
. As the “nets” architecture changes over time it is no longer beyond the control of
sovereigns and regulatory forces, code can be used to enforce territory (Yahoo Case
Study)
. Should the net have borders?
Pg. 57 – Pornography in Cyberspace
(some guidelines for class discussion set before beginning this section)
- Author clarifies legal standards that pertain to pornographic and obscene speech
- obscene speech is completely unprotected by the 1st amendment and is banned for
everyone
- you read this section! Be familiar w/ the 3 parts of Miller V. California and Ginsburg
V. New York so that you understand the term, Ginsberg Speech introduced in this
section.
Pg. 58 Public Policy Overview
The Communications Decency Act p 58
. Lawmakers are challenged by the ubiquity of obscene and pornographic speech on the
net
. Estimates (in book) indicate 500K sites w/ various forms of pornography (more now)
. The Communications Decency Act (CDA) was one unsuccessful attempt at regulation
to control and contain complete free speech on the net
. Read last paragraph of pg. 58 through first paragraph of pg. 59
. Read next to last paragraph pg. 59
. In part due to the publicity of the study and the Time Magazine story, CDA was passed
by Congress and signed by President Clinton in 1996.
. Congress was worried about: 1) Negative effects of pornography on children and
2) their availability might make parents less likely to
have Internet in their homes and diminish Internet utility.
. What the CDA did (read next to last paragraph pg. 59)
. CDA defenders believed it channeled Ginsberg speech on the Internet away from
children.
. One supportive brief stated “the act grants categorical defences to those who
reasonably safeguard indecent material from innocent children.”
. Support for the CDA was thin and opposition grew to a coalition leading to a case
ACLU v. Reno
. The greatest weakness was it cast the net of censorship too far including art, literature,
and possibly health related or sex ed information.
. Law was also vague, what did “reasonably effective” measures to screen out children
mean?
. The architectures of that time were crude for screening out children and, @ that time it
could not control pornographic content on the net that originated in other countries
. A panel of federal judges in Philadelphia ruled unanimously that the CDA violated the
1st and 5th amendments.
. Justice dept appealed to supreme court which agreed w/ the lower court.
. June 1997, CDA declared unconstitutional
. Read Justice Stevens Conclusion on pg. 60
Childrens Online Protection Act p 61
. Although CDA went away, the issue did no
. congress tried again, in Oct ’98 with a bill called the Child Online Protection Act
(COPA).
. Signed by President Clinton and immediately challenged by the ACLU
. Made it illegal for operators of commercial web sites to make sexually explicit
materials available to those under age 17.
. Commercial web site operators were required to collect an identification code such as a
credit card number as proof of age before viewers access such material.
. COPA made it more difficult for commercial companies to cheaply, easily, broadly
communicate material to adults that is constitutionally protected to adults though
harmful to minors.
. COPA was more narrowly focused than CDA and attempted to define objectionable
content more carefully.
. Critics worried what would happen if the law were arbitrarily or carelessly applied.
EX) Would sites offering sexual education information be accused of violating the
law?
. Another comment of critics was the problem of requiring adults to present an ID to
exercise their right to access speech protected by the 1st amendment.
. In February ’99 Philadelphia Judge issued a preliminary injunction against COPA
preventing it from going into effect.
. Judge accepted argument that the law would lead to self-censorship that could
result in censoring of constitutionally protected speech
. The rest of this section contains a little more history of this laws legal history to
the Supreme Court.
Childrens Internet Protection Act p 62
. Congress, despite the defeats, did not abandon its efforts to contain the spread of
pornography in cyberspace.
. The CIPA act was led by Senator McCain and signed into law on Dec 21, 2000 by
President Clinton and took affect April, 2001.
. A change in Govt strategy
. Govt hopes to rely on private surrogates libraries and schools to regulate speech
harmful to minors through use of filters that block out objectionable content.
. Law mandated that terminals used by library patrons must have filters that block
Internet access to obscene images or child pornography
. Public schools seeking e-funds needed to have the same filtering scheme
. The e-rate pgm provided an opportunity for schools and libraries to be
reimbursed for costs of connecting to the Internet
. CIPA was immediately challenged by libraries, educational leaders, and civil
libertarians
. Suit filed in April 2001 charging that CIPA was unconstitutional
. Forcing public libraries to install such technology will suppress ideas and
viewpoints that are constitutionally protected from reaching wiling patrons
. Suit also contended that CIPA was arbitrary and irrational b/c existing technology fails
to block access to much speech that congress intended to block and thus will not protect
library patrons from objectionable content
. In this case Supreme Court did validate CIPA
. Read last two paragraphs, p 63
Automating Content Controls p 63
. We are back to a recurring question, how should the Internet be regulated?
. 2 broad areas of concern about the use of content controls
1) The social & moral probity (goodness/decency) of censorship itself even when
directed at the young.
- a growing tendency to recognize a broad spectrum of rights, even for
children and to criticize parents, educators, and politicians who are more
interested in imposing their value systems on others than in protecting
vulnerable children.
- Do children have a 1st amendment right to access indecent material
- No consensus among legal scholars; one thought is to have rights
proportionate to age.
2) The suitability of the blocking methods and other automated controls used to
accomplish the censorship.
. Some problems with blocking SW (ask class to list some, write on board)
. unreliability and lack of precision in the products
. no perfect or fool proof devices for filtering out obscene material
. some pgms make mistakes leading to overblocking where they filter out sites
that do not fit a particular category
. They can also underblock, failing to find a site you wish blocked and leaving it
off the blocked list.
. Another problem is that they are not always transparent and can be used to
enforce a code of political correctness unknown to librarians or parents
. Another disadvantage is that the filter can be imposed at any level in the vertical
hierarchy controlling the access to the Internet user level, corporate, institutional, ISP,
Saudi Arabia, or other countries
. Author mentions that many countries have put in country-wide filtering systems
. Our textbook has a couple of pages on the PICS architectural specification
. PICS – Platform for Internet Content Selection (PICS)
. developed by the World Wide Web Consortium, a protocol for rating and
filtering context on the net.
. It enables labels (metadata) to be associated w/ Internet content
. Originally designed to help parents and teachers control what children access on
the Internet.
. Now PICS is superseded by the Protocol for Web Description Resources (POWDER)
which is encouraged by W3C (WWW Consortium).
. POWDER specifies a protocol for publishing descriptions of metadata.
. It provides a mechanism to describe and discover web resources and helps the users to
make a decision whether a given resource is of interest.
- Uses: better means of describing web resources, creating trustmarks to aid content
discovery, child protection, and semantic web searches.
. These labeling mechanisms have generated controversy
Supporters: voluntary system better than one imposed by Govt
Detractors: strenuously object to ratings systems claim it can transform Internet into a
virtual censorship machine.
. restrictions inscribed in code end up having the force of law w/o the checks and
balances of the legal system.
<Class should read example p68-71, Example Case Loudon Organization vs. Loudon
county Library>
Hate Speech and Online Threats p 71
. Hate speech has grown on the Internet just as obscene images have grown.
. It takes many forms, games, web sites, videos, etc. and they target many different types
of groups, religious, race, nationality, beliefs, and preferences
. The Simon Wisenthal Center, monitors hate sites on the web and estimates (2009) that
there are 10,000 problematic web sites on the Internet. This is up from 2,300 listed in
our textbook.
. If you look this up on the web, just Google “digital terrorism and hate” there now
seems to be an annual report with this title from this organization.
They report that the first extremist web site went online in April 1995
The greatest increase of digital hate has emerged from Facebook and YouTube have
seen a proliferation of extremist use, with 30% of new postings on Facebook alone—
with the greatest increase coming from overseas, particularly Europe and the Middle
East.
There is a growing subculture of hate on the Internet, we have often heard how you can
find almost anything on the Internet now.
A danger is that these messages that were once confined to reclusive groups can now be
spread more easily in cyberspace
Unlike obscenity and libel, hate speech is not illegal under U.S. federal law and it is
fully protected by the First Amendment
In European countries, like Germany and France, anti-Semitic, Nazi-oriented Web sites
are illegal along with other forms of hate speech
Hate speech can be dealt with through the same constraints used to control pornography,
especially law and code
Some sovereignties, like France and Germany, prefer regulation and explicit laws.
Many hate sites, have simply relocated to the U.S. where French or German laws would
not apply.
An alternative is greater reliance on filtering that does no erroneously exclude legitimate
political speech
Author comments that more caution must be exercised in the use of blocking
mechanisms for hate speech than is used for obscene images
The reason is that there is a fine distinction between hate speech and unpopular or
unorthodox political opinion.
Read pg. 72 A general rule of thumb (I read underlined part, they can read the example
story)
Anonymous Speech p. 73
Can be accomplished through use of anonymous remailers which strip off identifying
information on an email msg and substitute an anonymouse code or a random number
A user can rest somewhat assured that their message will remain anonymous by
encrypting a message and then routing that msg through a series of anonymous
remailers – this is called chained remailing
It has been said that this technique is about as close as we can come on the Internet to
“untraceable anonymity”
None of the remailers has the key to read the encrypted message; neither the recipient
nor any remailers (except first) in the chain can identify the sender; the recipient cannot
connect the sender to the msg unless every single remailer in the chain cooperates
Q: Do we need to ensure digital anonymity can be preserved, especially since it is
frequently used for subversive activities? Is it a core human good, utterly indispensable
for human flourishing and happiness?
A: It may not be a basic human good, it can be an instrumental good. For some,
anonymity is quite important for their life plan and human flourishing
Sometimes social intolerance may require some individuals to rely on anonymity to
communicate about an embarrassing medical condition or awkward disability
Whistle blowing can be another example where someone may not come forward about
events unless they can remain anonymous
Anonymity can also be critical in expression political dissent, whether it be in a nondemocratic country or even in our own within expressing dissent against corporate or
government abuses of power.
<need to show the whistle blowing movie>
What is a social cost in preserving anonymity? The author believes it is a positive good
It can have drawbacks, can be abused by criminals, terrorists, seeking to communicate
anonymously to plot their crimes.
Allows the cowardly users to communicate w/o civility or to libel someone w/o
accountability and w/o likelihood of apprehension
Anonymity can also be used to reveal trade secrets or violating other intellectual
property laws
Generally, secrecy and anonymity are not beneficial for society if they are overused or
used improperly
So, Anonymity has advantages and disadvantages
The Ethics of Blogging p 75
. A blog is a web log or online journal and they have become ubiquitous virtually
overnight
. Many are interactive and provide for feedback from readers
The blogosphere has emerged as a viable alternative news medium and are having
growing impact, sometimes supplementing or correcting mainstream news
The Wall Street Journal reports that the audience for alternative media is expanding
The number of Americans reading blogs jumped 58% in 2004 w/ about 11 million
reading political blogs during the 2004 election year
They are also used by doctors, lawyers, teachers, and students
Case presented about bloggers revealing confidential Apple Computer documents about
an unreleased Apple Product.
The Company demanded to know the source of the info but the bloggers argued that
they were journalist and protected under federal and state laws from revealing their
sources
A California judge disagreed, and ruled the bloggers must reveal their sources but did
not address the central question, do bloggers have the same rights as mainstream
journalists.
Since blogging is relatively new, there hasn’t been a lot written on the ethics of
blogging
What would you think are some ethical principles for bloggers?
Not lying, validating sources, be truthful at all times, identify sources whenever possible
so readers are fully informed (possibly just provide links to other sites), avoid unjust
accusations and to retract erroneous information as quickly as possible. Bloggers
should also disclose any conflicts of interest in which their objectivity may be
compromised. Sometimes a blogger may need to disclose who pays his salary or who
provides funding for the web sites operating costs
One blogger summarizes: “The audience should be able to come to your blog and
assume you’re not on the take.”
Spam as Commercial Free Speech p 77
Spam is junk mail usually sent in bulk to thousands or millions of Internet users
. It increases to grow exponentially
. The per copy cost of sending paper mail is much higher than electronic junk mail
. Some direct marketers specializing in SPAM charge clients a fee as low as $400 to
send out millions of messages
. spam is postage due marketing
What are some of the costs for SPAM?
O consumption of computer resources
O storage, sitting on disk drives somewhere
O network bandwidth
O some users must pay for each msg received or for each disk block used
O some users must pay for the time they are connected to the Internet
O costs to process spam
O when you receive unwanted spam, if a vendor sends out 6Million msgs and it
takes 6 seconds to delete each one the total cost of this is how many person hours?
Do the math – author says, 10,000 person hours of lost time
Those who send SPAM content this is another form of commercial free speech that
deserves the same level of 1st Amendment protection as does traditional advertising
They say a ban on spam would be impractical and unconstitutional
Again, it can be difficult to accurately classify what is “spam” should one want to
suppress SPAM further complicating what could already be a potential violation of free
speech
Author mentions an example of Intel Corporation v Hamidi a former Intel Employee.
You read, this is also a case study at the end of the chapter
So, What can be done about Spam?
What are Lessig’s four forces: law, code, market, and norms
A number of states have adopted laws to deal with SPAM, he mentions Washington and
Virginia and provides an example of a case in Washington against an Oregon resident.
There have also been laws against spam at the federal level
2004 Can-Spam act went into effect and regulates commercial email msgs
Can-Spam does not prohibit the transmission of commercial messages but requires the
following:
O an opt-out mechanism that permits recipients of the mail not to receive further
messages;
O identification of the email as an advertisement (or solicitation of some sort) – this can
take of the form of putting ADV in the subject line; and
O a valid return address along with the physical postal address of the sender
Has the Act reduced the level of commercial email? Hardly, many critics have called it
a toothless tiger since its inception , volume of spam has increased since law went into
effect
Author reports that the law has only sporadically been enforced, one IT security firm
that tracks spam reported that an estimated 97% of spam in 2004 did not comply with
the Can-Spam act and in vast majority of cases the law was not enforced
So, we are seeing increased usage of code to handle SPAM via filters
Author asks about the other two forces in Lessig’s framework, the market or norms –
O market forces contribute to the proliferation of spam; near zero cost of producing and
sending digital information
O some have suggested electronic postal fees but author indicates that this would
encounter formidable logistical and political obstacles
O Norms are also unlikely to curb the growth of spam
O What about now that political parties use electronic communication more than in the
past, how will that effect legislation or code in handling these issues?
O He also mentions that the Can-Spam law itself offers legitimacy to this activity so
long as one follows the rules and uses a label such as ADV in the subject line.
You read the PostScript Section and read over the Case Studies, they are interesting and
we may do something with the examples throughout this chapter that we have not
specifically discussed as well as the case studies in our 3rd exam.