PLEASE SUMMARIZE, "Free Speech in Cyberspace" BY Author(s): A. G. Noorani

Economic &Political WEEKLY Free Speech in Cyberspace Authors): A. G. Nobrani Source: Boonomic and Political Weekly. Vol. 33. No. 36 (Sep. 19-25. 1996). pp. 2425-2427 Published by: Deonomie and Political Wockly Stable URL: http://www.jelor.org/stable/#407175 Accused: 01-09-2016 14:14 UTC JSTOR is a not-for-profitservice that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and took to increase productivityand facilitate new forms of sch darship For more information about ISTOR, please contact support @jstor. org Your we of the BTOR archive indicates your acceptance of the Termset Conditions of Us, available at http:/aboutjstor. org'terms Bronomic you Foli boy! Week ( is collaborating with JSTOR to digitize, preserve and extend soces to Growviv you Full live! Week ! TO STOR This codcede domaloaded 1rods 13D.I 3.1 13.70 ca Thu, DI SQ> 2016 14.4447 UTC All usesubject o bop.mabout.prov org/teresCIVIL LIBERTIES Free Speech in Cyberspace A G Noorani The US Supreme Court struck down two provisions of the Communications Decency Act (CDA), 1996, seeking to protect minors Jfrom harmful material on the Internet precisely because they abridge the freedom of speech protected by the First Amendment. Moreover, the vagueness in CDA's language, the ambiguities regarding it's scope and difficulties in adult age-verification, make CDA unfeasible in its application to a multifaceted and unlimited form of communication such as the Internet. ON June 26, 1997 the US Supreme Court gave an important ruling in Janet Reno, attorney general vs ACLU. Itrepays study for two reasons. The court's description of the mechanics of cyberspace and its discussion of the guarantee of tree speech. Two provisions of the Communications Decency Act of 1996 (CDA) were struck down. They seek to protect minors from harmful material on the Internet. One punishes the \"knowing' transmission of \"obscene or indecent\" messages to any recipient under 18 years of age. Another prohibits the \"*knowin[g]\" sending or dis- playingtoapersonunder 18 of any message \"that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs'. Detences are provided for those who take \"good faith.... effective...actions\" torestrict access by minors to the prohibited com- munications. and those who restrict such access by requiring certain designated forms ot age proof, such as a verified credit card or an adult identification number. A number of plaintiffs tiled suit challenging their constitutionality. A three-judge district court gave an injunction against enforcement of both provisions. The court's judgment restrained government fromenforcing prohibitions insofar as they relate to 'indecent' communications, but expressly preserved the government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforce- ment was unqualified because that section contains no separate reference to obscenity or child pornography. The government appealed to the Supreme Court. The Supreme Court held that the CDA's \"indecent transmission\" and \"patently oftensive display provisions abridge \"the freedom of speech\" protected by the First Amendment. The CDA differed from the various laws and orders upheld in earlier Economic and Political Weekly cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of \"indecent\" and omits any requirement that \"\"patently offen- sive\" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases themon anevaluation by anagency familiar with the medium's unique characteristics; is punitive; applies to amedium that, unlike radio, receives full First Amendment pro- tection; and cannot be properly analysed as a form of time, place, and manner regu- lation because itis a content-based blanket restriction on speech. The special factors recognised in some ofthe court's cases as justifying regulation of the broadcast media, e g, Red Lion Broadcasting Co vs FCC,395US 367, 399; Turner Broadcasting System, Inc vs FCC 512US 622; Sable Communications of Cal, Inc vs FCC, 492US 115, are non-existent in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Use of undefined terms, \"indecent\" and \"patently offensive\\"Anyone withaccess to the Internet may take advantage of a wide variety of com- munication and information retrieval methods. These methods are constantly evolving and difficult to categorise pre- cisely. But, as presently constituted, those most relevant to this case are electronic mail ('e-mail'), automatic mailing list ser- vices ('mail exploders', sometimes referred to as 'listservs'), 'newsgroups', 'chat rooms', and the 'worldwide web'. All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium known to its users as 'cyberspace' located in no particular geographical location but availabletoanyone, anywhereinthe world, with access to the Internet.\" E-mail enables an individual to send an electronic message. generally akin to a note or letter. to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check his/her 'mailbox' and sometimes makingits receipt known through some type of prompter. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic. About 1,00.000 new messages are posted every day. In most newsgroups, postings are automatically purged at regular intervals. In addition to posting, a message that can be read later. two or more individuals wishing tocommunicate more immediately can enter a chat room to engage in real- time dialogue in other words, by typing messages to one another that appear almost immediately on the others' computer screens. The district court found that at any given time \"tens of thousands of users are engaging in conversations on a huge range of subjects\". It is \"no exaggeration to conclude that the content on the Internet is as diverse as human thought\". The best known category of communi- cation over the Internet is the worldwide web. which allows users to search for and retrieve information stored inremote com- puters, as well as, in some cases, to com- municate back to designated sites. In con- crete terms, the web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate docu- ments, commonly known as web 'pages', arealso prevalent. Each hasits ownaddress 2426 'rather like a telephone number'. Web pages frequently contain information and sometimes allow the viewer to communi- cate with the page's (or 'site's') author. They generally also contain 'links' to other documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text. Navigating the web isrelatively straight- forward. A user may eithertype the address of a known page or enter one or more keywords into a commercial 'search engine' in an effort to locate sites on a subject of interest. A particular web page may contain the information sought by the 'surfer', or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given web page, or move to another, by clicking a computer 'mouse' on one of the page's icons or links. Access to most web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider. The web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any personororgani- sation with a computer connected to the Internet can 'publish' information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups. and individuals. Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. \"No single organisation controls any membership in the web, nor is there any centralised point from which individual webssites orservices can be blocked from the web.\" Sexually explicit material on the Internet includes text, pictures, and chat and 'extends from the modestly titillating to the hardest-core'. These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. *'Once a provider posts itscontent on the Internet, it cannot prevent that content from entering any commu- nity.\" Thus, for example, \"when the UCR/ California Museum of Photography posts to its web site nudes by Edward Weston and Robert Mapplethorpe to announce thatits new exhibit will travel to Baltimore and New York city, those images areavaila- ble not only in Los Angeles, Baltimore, and New York city, but also in Cincinnati, Mobile, or Beijing wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its web site, written in street language so thatthe teenage receiver canunderstand them, are available not just in Philadelphia, but also in Provo and Prague.\" Some of the communications over the Internet that originate in foreign countries are also sexually explicit. Though such material is widely available, users seldom encounter such content accidentally. \"A document's title or a description of docu- ment will usually apper before the docu- ment itself... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content.\" For that reason, the 'odds are slim' that a user would enter a sexually explicit site by accident. Unlike communicationsreceived by radio or television, the receipt of informationon the Internetrequires aseries of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended. Systems have been developed to help parents control the material that may be available onahome computer with Internet access. A system may either limit a com- puter's access to an approved list of sources that have been identified as containing no adult material. it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. \"\"Although parental control software currently can screen for certain suggestive words or for known sexually explicitsites, it cannot now screen forsexually explicitimages.\" Nevertheless, the evidence indicates that \"\"a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be available. The problem of age verification differs fordifferent uses of the Internet. The district court categorically determined that there \"is no effective way to determine the identity orthe age of auser whois accessing material through e-mail, mail exploders, newsgroups or chat rooms\". The govern- ment offered no evidence, it has in such fora for age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics or other subjects that potentially elicit 'indecent' or 'patently offensive' contribu- tions. It would not be possible to block Economic and Political Weekly September 19, 1998 This content downloaded from 150.135.135.70 on Thu, 01 Sep 2016 14:44:47 UTC All use subject to http://about jstor.org/terms theiraccess to that material and \"\"still allow themaccess to the remaining content, even if the overwhelming majority of that content was not indecent\". Technology exists by which an operator of a web site may condition access on the verification of requested information such as a credit card number or an adult pass- word. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a veri- fication agency. Using credit card posses- sion as a surrogate for proof of age would impose costs on non-commercial web sites that would require many of them to shut down. Forthatreason, atthe time of the trial, credit card verification was \"effectively unavailable to a substantial number of Internet content providers\". Id, at 846 (finding102). Moreover, the imposition of sucharequirement \"would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material\". Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the district court found that an adult password requirement would impose significant burden on non-commer- cial sites, both because they would dis- courage users from accessing their sites and because the cost of creating and main- taining such screening systems would be 'beyond their reach'. The district court found: \"Even if credit card verification or adult password verifi- cation were implemented, the government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18 years of age. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers.\" The CDA is partof the Telecommunications Act, 1996. Two provisions challenged in this case aredescribed as the \"indecent transmission\" provision and the \"patently offensive display\" provision. S O 223(a) provides in pertinent part: \"(a) Whoever \"(i) in interstate or foreign communi- cations. \"(b) by means of a telecommunications device knowingly *\"(i) makes, creates, or solicits. and *\"(ii) initiates the transmission of, \"any comment, request, suggestion, pro- posal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;... *(2) knowingly permits any telecommuni- cations facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, \"shall be fined..., or imprisoned not more than two years, or both.\" The second provision S O 223(d), prohi- bits the knowing, sending or displaying of patently offensive messagesinamanner that is available to a person under 18 years of age. It provides: *(d) Whoever *(1) in interstate or foreign communi- cations knowingly *\"(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or *(B) uses any interactive computer service todisplay in amanner available to a person under 18 years of age, \"any comment, request, suggestion, pro- posal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contem- porary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or *(2) knowingly permits any telecommuni- cations 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...or imprisoned not more than two years, or both\". The breadth of these prohibitions is qualified by two affirmative defences. One covers those who take \"good faith, reasona- ble, effective, and appropriate actions\" to restrict access by minors to the prohibited communications. The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number of code. Unlike the conditions that prevailed when Congress first authorised regulation of the broadcast spectrum, the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unli- mited, low-cost capacity for communi- cation of all kinds. The government estimates that \"[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999\". This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Economic and Political Weekly September 19, 1998 Through the use of chat rooms, any person with a phone line can become a town crier 'with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and news- groups, the same individual can become a pamphleteer. The US Supreme Court ruled: \"Regardless of whether the CDA is so vague thatit violates the Fifth Amendment, the many ambiguities concerning that scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts of the CDA uses a different linguistic form. The first usesthe word 'indecent', while the second speaks of material that \"\"in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs\". Given the absence of a definition of either term, this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality... or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored " to the congressional goal of protecting minors from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such aregulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA isa criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanc- tions may well cause speakers to remain silentratherthan communicate evenargua- bly unlawful words, ideas. and images\". The court added: \"We are persuaded that the 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 harm- ful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to 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 srve. In evaluating the free speech rights of adults, we have made it perfectly clear that 'sexual expression which is indecent but not obscene is protected by the First s 9 Amendment'. 2427 This content downloaded from 150.135.135.70 on Thu, 01 Sep 2016 14:44:47 UTC All use subject to http://about jstor.org/terms