Newspaper Articles

This collection of articles was published in the Detroit Legal News from 1995-1997. All were written in the infancy of the modern Internet, before the landscape surrounding Internet legal and business issues began to develop. Access to the Internet largely consisted of dial-up connections on a 14.4 kbs modem or slower. Both the technology and state of the law have evolved considerably since these were first published.

Delicate Balance Needed for Internet Restrictions

Originally published June 26, 1996

"Just as the strength of the Internet is chaos, so the strength of our liberty depends on the chaos and cacophony of the unfettered speech the First Amendment protects."

Two weeks ago, with those concluding words, the U.S. District Court for the Eastern District of Pennsylvania preliminarily enjoined the enforcement of the first piece of federal legislation attempting to regulate content on the Internet.

Not surprisingly, the decision was available around the world over the Internet within minutes of its release. It is currently being devoured in Usenet groups, listserva and other electronic forums across the globe.

The district court's decision in American Civil Liberties Union vs. Reno follows months of testimony in one of the most technologically advanced courtroom presentations ever. The opinion (which runs 143 pages in the electronic version) leaves no doubt that the court understood the unique nature of the Internet, its constantly evolving technology and offerings and the difficulty in regulating content.

At issue in the ACLU case are provisions of the Communications Decency Act which criminalize the electronic transmission or display of indecent speech or of patently offensive material as measured by contemporary community standards. The CDA provisions prohibiting transmission of information about abortions or abortifacient drugs or devices are also being challenged.

The district court panel unanimously approved the preliminary injunction request of the case's numerous plaintiffs and amicus parties, a veritable who's who of civil liberties and social organizations, computer companies, publishers and on-line service providers. As permitted under the act's expedited review procedures, the government has appealed the ruling directly to the U.S. Supreme Court.

The ACLU case begins with 123 numbered paragraphs of stipulated and adduced facts tracing the origins of the Internet to its present day operation. One set of facts particularly relevant to the court's decision focuses on the means available to regulate access to inappropriate content on the Internet.

This issue is of increasing concern to employers and parents alike as Internet usage expands at home and in the work place.

With regard to access restrictions, the fact findings first note the efforts of the Platform of Internet Content Selection, an industry consortium developing technical standards to filter and screen. Internet material content. PICS is intended to provide the ability to rate and, with PICS compatible software, limit access to content on the Internet on a voluntary or parental control basis.

PICS functions as a positive rating/site inclusive system because of the enormous amount of content available on the Internet. Only sites previously rated will be accessible using PICS-based software.

In. addition to PICS, there is growing competition among companies seeking to capture a share of the screening software market. Among the currently available products are Cyber Patrol, CYBERsitter, The Internet Filter, Net Nanny, Parental Guidance and Webtrack. Most of these products search for particular words or for known sites containing potentially objectionable content.

For instance, CyberPatrol, developed by Microsystems Softwares Inc., allows selective blocking of up to 12 categories of content, including violence/profanity, sex and nudity, racism/ethnic impropriety, satanic/cult, drugs, militant/extremist and gambling.

MSI employs people to search the Internet for sites in the rated categories. The software automatically updates its CyberNOT list of rated sites weekly. Both CompuServe and Prodigy have entered into licensing arrangements to provide CyberPatrol to users free of charge. The product is also available to end users connected to the 'Internet through a commercial or nonprofit access provider.

Finally, all of the major Internet access providers (AOL, et al.) allow subscribers to block access to the Internet or particular on-line offerings. For example, a child can be assigned his or her own password. The system then uses screening software to limit access to the child.

While software to screen objectionable Internet content is becoming more widely available, there are few other provider-based means to effectively restrict user access to content. With a number of Internet alternatives, including e-mail, newsgroups and chat rooms, there is no feasible way to determine who is actually accessing content. Anonymity is both common and widely accepted.

In the case of Web sites, current technology allows for form-based subscriptions requiring credit card numbers and adult passwords to limit site access. However, it is questionable whether this truly limits access to enterprising minors. Even if effective, these techniques are particularly harsh on noncommercial sites (who must pay processing fees). They completely block access to adults without a credit card and discourage site access.

The difficulty of regulating Internet content is also a function of the global decentralized nature of the network. Someone posting content on the Internet cannot prevent that content from entering any particular community. A message or Web site originating in Detroit can be accessed anywhere in the world and vice versa.

A large percentage of Internet content originates outside of the United States and foreign content written in English is indistinguishable from U.S. content. Pictures are universal. The use of caching, the process. of temporarily storing content on a server to avoid delays and network bottlenecks, compounds the problem insofar as it makes the determination of the source of the content difficult.

While the basis of the ACLU decision focuses on the vagueness of the term "indecent" as used in the CDA, the court repeatedly noted the technical, economical or practical difficulty of complying with the CDA and the difficulty of regulating content on the Internet.

Legislatures, regulators and jurists must also take note of the unique and chaotic nature of the network as they address the issues surrounding the growing and ever changing Internet.