Internet Decency Legislation

Terrance Garmon

1996

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Communication D

ecency

Act

Telecommunication Act of 1996• Primary Purpose: to reduce regulation and encourage the

“rapid deployment of new telecommunication technologies.”

• Originally for Telephone, T.V. and Radio

• Internet started to become more popular

• Congress saw potential of Internet as a medium for educational and political discourse, and as a result wanted to enact legislation that would promote the development of the internet

• Congress also saw how easy it was for users to access sexually explicit sites without knowing the user’s age

• As a result, title V of the Act was created to address decency on the internet

The Communications Decency Act of 1996 (CDA)

• The 1st notable attempt by the US Congress to regulate pornographic material on the internet.

• Did 2 things:• 1.) Attempted to regulate both indecency (when available to

children) and obscenity in cyberspace.• 2.) Section 230 of the Act has been interpreted to say that

operators of Internet services are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).

What Did the CDA Say?• Passed in 1996 stating :

– the CDA imposed criminal sanctions on anyone who• 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 to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.

• It further criminalized the transmission of materials that were "obscene or indecent" to persons known to be under 18.

• Free Speech Advocates Challenged the CDA claiming it was unconstitutional as it violated the 1st amendment.

Reno v. American Civil Liberties Union (1997)

• ACLU argued provisions violated 1st amendment because of vagueness

• The U.S. Supreme Court held the two provisions of the Communications Decency Act of 1996 (CDA) that criminalized providing obscene materials to minors by on the internet were unconstitutional because:

• 1.) there was no definition of “indecent”• 2.) patently offensive could exclude literary, artistic, political,

scientific, or educational value.• Policy problems:

• If upheld:• 1.) would place burden on senders/ websites to

determine whether speech is subject to regulation• 2.) whether recipient is of min. age

• “the mere possibility that user-based Internet screening software would ‘soon be widely available’ was relevant to their restriction of an overboard regulation.”

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Comm

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1997

Communication D

ecency

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1998

Child

Onl

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rote

ction

Act

Child Online Protection Act (COPA)• A direct response to the Reno v. ACLU decision narrowing the range of material

covered

• Was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet.

• COPA only limits commercial speech and only affects providers based within the U.S.

• Required all commercial distributors of "material harmful to minors" to restrict their sites from access by minors.

• "Material harmful to minors" was defined as material that by "contemporary community standards" was judged to appeal to the "prurient interest" and that showed sexual acts or nudity (including female breasts). This is a much broader standard than obscenity.

• Law Never took effect as 3 rounds of litigation led to a permanent injunction against the law

Ashcroft v. American Civil Liberties Union (2004)

Legislation– Round 1= remanded back to circuit ct (1998-2002)– Round 2= upheld injunction, likely unconstitutional (2003-2004)

• Supreme ct of Ashcroft– It prevented online publishers from publishing some

material that adults had a right to access - and because it did not use the least restrictive means possible to protect children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech).

– For similar reasons, the panel found that the act was unconstitutionally "overbroad" - that is, it applied to too much protected material.

– Round 3= permanent enjoinment of law granted and upheld on appeal and denied review in Supreme ct, which killed the bill. (2007-2009)

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Communication D

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1998

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2004

Child

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2000

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Act

Children’s Internet Protection Act (CIPA)

What is it?-The Children’s Internet Protection Act (CIPA) is a federal law enacted by Congress to address concerns about access to offensive content over the Internet on school and library computers.

-CIPA imposes certain types of requirements on any school or library that receives certain types of federal funding.

-In passing CIPA, Congress required libraries and K-12 schools using these discounts (sometimes called "E-Rate discounts") on Internet access and internal connections to purchase and use a "technology protection measure" on every computer connected to the Internet.

What CIPA RequiresSchools and libraries subject to CIPA may not receive the federal funding unless:

1.) they certify that they have an Internet safety policy that includes technology protection measures.

2.) The protection measures must block or filter Internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors (for computers that are accessed by minors). 3.) Before adopting this Internet safety policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposal.4.) Adopt and enforce a policy to monitor online activities of minors.5.) required to adopt and implement an Internet safety policy addressing:

(a) access by minors to inappropriate matter on the Internet; (b) the safety and security of minors when using electronic mail, chat rooms and other forms of direct electronic communications; (c) unauthorized access, including so-called “hacking,” and other unlawful activities by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) measures restricting minors’ access to materials harmful to them.

What Else Does it Require?• Schools and libraries are required to certify that they have their safety

policies and technology in place before receiving funding.• CIPA does not affect funding for schools and libraries receiving discounts

only for telecommunications, such as telephone service.

• An authorized person may disable the blocking or filtering measure during use by an adult to enable access for bona fide research or other lawful purposes.

• Schools and libraries that do not receive (E-Rate discounts) or only receive discounts for telecommunication services and not for Internet access or internal connections, do not have any obligation to filter under CIPA.

• As of 2007 approximately one third of libraries had chosen to forego federal E-Rate and certain types of LSTA funds so they would not be required to filter the Internet access of their patrons and staff.

United States v. American Library Association (2003)

• Challenged the Constitutionality of Act– Argued 1.) Did not help disadvantaged schools and libraries improve

economically– 2.) that "no filtering software successfully differentiates constitutionally

protected speech from illegal speech on the Internet.“

• Found:– That it is not possible for a public library to comply with CIPA without blocking a

very substantial amount of constitutionally protected speech, in violation of the First Amendment."

– Upon appeal to the U.S. Supreme Court, however, the law was upheld as constitutional as a condition imposed on institutions in exchange for government funding

• Upheld and made it clear that the constitutionality of CIPA would be upheld only "if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request."

1996

1995 2000 2005 2010

Telec

omm

unications A

ct of 1

996

Comm

unication D

ecen

cy A

ct

1997

Communication D

ecency

Act

1998

Child

Onl

ine P

rote

ction

Act

2004

Child

Onl

ine

Prot

ectio

n Ac

t

2000

Child

Inte

rnet

Prot

ection

Act

2003

Child

Inte

rnet

Prot

ectio

n Ac

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