This is a local copy. I made the copy as background research for a
column, for more pointers and the column itself, go here.
Parental Empowerment, Child Protection, & Free Speech in
Interactive Media
Interactive Working Group Report to Senator Leahy
July 24, 1995
Overview
The Internet and other interactive services are a new medium, and a
new array of markets, different from any means of communication that has
come before. This new medium raises fundamental questions about the
appropriate balance between the needs of the market, of American
families, and basic constitutional free speech and privacy guarantees
that Americans value so deeply. In order to protect families and
children in this open, global network, we should first rely on the
entrepreneurial spirit of the interactive services market to build
parental empowerment tools, and encourage the industry to work together
to ensure that such solutions are widely available. The interactive
media market must not be regulated like telegraphs, broadcast radio and
television, and telephones, thereby stifling the development of an
important new communications medium with burdensome regulations. Rather,
we should identify policies that enable the interactive media market to
flourish like the personal computer industry, and provide parents the
ability to protect their children from inappropriate material that is
internationally-available.
In answer to questions posed to the Interactive Working Group by
Senator Patrick Leahy earlier this year, this report contains an
assessment of:
1. general policy issues at stake in the regulation of content on the
National Information Infrastructure;
2. software and services available today that enable parents to
restrict their children from access to inappropriate material
online;
3. the current state of criminal law regarding obscenity, child
pornography, and harassment online;
4. threats to free speech, free press and individual privacy
raised by proposed regulation of indecency in interactive media.
We begin with a brief overview of the contents of the report:
A. A New Regulatory Model for Interactive Media is needed to Ensure Free
Speech and Continued Innovation in the National and International
Information Infrastructure
The Internet is a global information and communications system which
is becoming a critical resource for organizations and individuals around
the world. Businesses, schools, libraries, researchers, community
groups, and individuals are all coming to rely on the Internet as a vital
communications system and information resource. The Internet and other
interactive media include electronic mail, the World Wide Web, online
discussion groups, and other multimedia information resources. Providers
of interactive media services range from large and small online services
and bulletin boards, to those who provide services for their own use such
as schools, libraries, and large and small businesses.
To ensure the continued growth of the new interactive media market,
national policy for the Internet must:
1. preserve the vibrant free market in interactive media, free from
regulation of constitutionally-protected communications and
information;
2. preserve full constitutional free speech and privacy protections in
new interactive media;
3. encourage the industry to work together to develop blocking and
filtering technologies that empower parents to restrict their
children's access to offensive material;
4. ensure emerging media not be used for criminal activity such as
stalking, trafficking in obscenity, and the creation of child
pornography.
B. Currently Available Blocking and Filtering Technology, combined with
public education, can empower parents to protect their children from
inappropriate material online
While the vast majority of content on the Internet is intended for
legitimate educational, cultural, political, or entertainment value.
Some material on the Internet, however, may not be appropriate for
children. Moreover, much of this material is accessible from the United
States but transmitted from other countries, beyond the practical reach
of U.S. law. In order to protect children we must rely on powerful new
blocking and filtering technology to empower parents to make choices
about the material which their children can access.
¥ Entrepreneurial effort has already produced blocking and filtering
products for families and schools: The inherent power of computer
software allows the creation of computer programs which enable parents to
block material from the reach of their children automatically, without
the need for constant parental supervision. Such software can be easily
installed by parents, even those who are not computer experts.
* The global and decentralized nature of interactive media requires new
approaches to child protection: Censorship of centralized media such
as radio and television may be effective at keeping the "seven dirty
words" off the airwaves. However, on the Internet, with tens of
millions of content creators all over the world, US law, no matter how
tough, will never be able to keep offensive material out of the reach
of kids.
* Industry-wide initiatives are developing standard label and blocking
conventions to increase the effectiveness of blocking: The
flexibility of interactive media allows multiple rating systems to co-
exist so that individuals and families can chose a rating system that
best reflects their own values. No single government-mandated system
could be as comprehensive or flexible as voluntary private sector
alternatives.
* Individual and parental choice assures full respect for the free
speech rights in interactive media: Relying on individuals and
parents, not the government, to make choices about the content that
they and their families receive assures maximum respect for First
Amendment rights of adults to receive and transmit constitutionally-
protected material, and allows families, not federal bureaucrats, to
determine what information is most consistent with their own moral
values.
Any changes in federal law should seek to remove the Hobson's choice
faced by all who provide access to the Internet. In order to protect
children, legal disincentives facing those who would create 'child safe'
areas should be removed.
* Recent case law discourages online providers from screening material
that is inappropriate for children: In the recent Stratton Oakmont,
Inc. v. Prodigy Services Company, No. 31063/94 (N.Y. Sup. Ct. May 24,
1995) case, Prodigy was found to be a "publisher" of libelous
statements made by a subscriber on one of its online bulletin boards.
Such added exposure to legal liability is a substantial disincentive
to the creation of 'child safe' interactive services.
* Neither federal nor state law should punish service providers for
creating child-safe services. The marketplace should be free to
create a variety of online forums, some that provide only material
appropriate for children, and others that are more open and designed
for a wider audience.
C. There is No Anarchy in Interactive Media: Vigorous enforcement of
current criminal laws will protect all users from obscenity, child
pornography, and harassment online
Law enforcement agencies and some prominent pro-family groups agree
current laws already enable prosecutions of online obscenity violations.
More vigorous enforcement of existing criminal laws may, however, be
necessary. Following this logic, it is unnecessary to amend federal law
to prohibit distribution of obscenity by computer, since existing law
already criminalizes such conduct, as well as threats and harassment by
computer.
* The Department of Justice and American Family Association state that
existing laws already criminalize obscenity online.
* Tough obscenity, child pornography and harassment laws are already in
the federal criminal code: Under existing Federal law trafficking in
obscenity (18 U.S.C. ¤¤1462, 1464, 1466), child pornography (18 U.S.C.
¤2252), harassment (18 U.S.C. ¤875(c)), illegal solicitation or luring
of minors (18 U.S.C. ¤2423(b)), and threatening to injure someone (18
U.S.C. ¤875(c)) have already been successfully applied to punish
conduct on computer networks.
* Online obscenity and child pornography crimes are being prosecuted
around the country: These laws are being enforced, as is evident by
numerous prosecutions around the country.
* The Senate-passed legislative proposals fail to add any protections
against online stalking and child solicitation: Everyone is concerned
about protecting children from threats online and off. Ironically,
the Senate-passed Communications Decency Amendment only punishes
indecency and obscenity, not stalking or solicitation. Neither
prosecutors nor police receive any additional help in the prevention
or prosecution of online crimes against children.
D. Bans on indecent communications online are unconstitutional
The unique nature of interactive media demands that policy makers
carefully evaluate the application of the First Amendment in a new light.
Essential to the Court's approval of indecency restrictions in the
broadcast media was the fact that listeners had insufficient control over
programming to which they were exposed. Any effort to impose similar
indecency restrictions on interactive media, however, will not pass
constitutional scrutiny given the high degree of user control in this new
medium.
¥ To assure the First Amendment free flow of information and protect
individual privacy rights, liability for online service providers must be
carefully limited: If online system and service providers are held
criminally liable for obscene or indecent material created by their
users, and not intentionally purveyed by the provider, then public
service providers and private system operators will be forced to become
private censors in order to limit their own legal risk. Just as current
law limits the liability of phone companies, mail services, and other
carriers for the content of material which the carrier merely transports,
online service provider liability should be limited in order to assure
the free flow of information on the National Information Infrastructure.
* Ability of users and parents to control the material to which they
have access places constitutional limits on the degree to which the
government can censor material based on its content: The First
Amendment has been interpreted to allow restrictions on indecent
speech only if such government restrictions are the "least restrictive
means" of protecting children or accomplishing other important
government goals. Given that parents are able to protect their
children from unwanted material using screening tools, government
restrictions are unnecessary and therefore unconstitutional.
* Online service providers should not be forced to become private
censors: If online services or individual system operators are held
liable for all of their users' communications, the services will be
forced to impose stringent censorship rules on their users in order to
limit the corporate liability of the service provider. Such rules
would create a chilling effect on users of interactive media.
* There are great constitutional difficulties in defining "indecency":
Neither the Congress nor the Supreme Court have ever established a
single definition for what constitutes "indecent" material. The FCC
has offered different definitions for indecency depending on the
communications medium. Embarking on such a process for interactive
media would be fraught with Constitutional disputes and challenges in
court. Efforts to ban indecency on dial-a-porn services lead to ten
years of constitutional litigation, thus delaying the enforcement of
those regulations considerably.
* The Federal Communications Commission should not be given power to
regulate content in interactive media: The inherent complexity and
constitutional difficulties of regulating indecency would involve the
FCC in lengthy and burdensome rulemaking to implement any indecency
ban. Such extension of FCC control over new media will create
unnecessary bureaucratic intrusions that hinder the development of new
interactive media and private sector screening options.
I. Public Policy Reflecting Unique Nature of Interactive Media is
Essential to Ensure the Potential of the National Information
Infrastructure and Protect Children
The Internet and other interactive communications media are
fundamentally decentralized media. Unlike centralized broadcast radio
and television services, there are no central control points through
which either a single network operator or government censors can control
particular content. On the Internet there are literally millions of
speakers and publishers. This proliferation of individual speakers
stands in sharp contrast to broadcast television or even cable
television, where one may count five, ten or perhaps one hundred
speakers, each of whom controls a channel. Federal broadcast content
regulators can direct their regulations at the operators of a particular
channel in order to enforce their regulations. However, content control
on the Internet would have to be targeted at each and every one of the
millions of US citizens and international users that speak daily online.
Any attempt to impose centralized content control in a bureaucratic
manner on this fundamentally decentralized medium is bound to stifle the
growth of the medium, squander the democratic potential of the Internet,
and may even cut the United States off from the growing global
information infrastructure.
A. Attempts at "Command and Control" regulation of content online will
stifle innovation in interactive media
As a decentralized medium, the Internet and other interactive services
have flourished in a largely unregulated environment. Indeed, recent
Congressional decisions to commercialize the Internet has lead to a
tremendous increase in the number of users who have access to the
Internet and great innovations such as the World Wide Web. Indeed, the
innovative, entrepreneurial Internet marketplace has even produced a
variety of software and services that help protect children from
inappropriate material online. Imposition of content regulations and
extension of Federal Communications Commission jurisdiction over
standards and technologies would seriously retard the growth of the
Internet marketplace. What's more, FCC content control is unlikely to be
effective in protecting children.
B. Heavy-handed content regulation will squander the democratic potential
of interactive media
As the popularity and accessibility of the Internet and commercial
online services grows, and as the medium becomes easier to use, the
political uses of the net have flourished. Political discourse is
facilitated by a variety of different communications techniques possible
online, including newsgroups, mailing list discussion groups, chat
sessions, and a host of electronic publishing capabilities. Any
regulation creating criminal penalties for communication of indecent
material would have a substantial chilling effect on all who use
interactive media. Such a chilling effect would severely inhibit the
growth of the Internet as a political forum.
Political groups1 left,2 right,3 and center are using the Internet to
communicate, to organize, and to advocate their own views. Advocacy
organizations have found World Wide Web services are critical to
political education activities, and an increasing number of grass roots
and community groups are coming to rely on the Internet to keep in touch
with members and constituents. In fact, even some Senators offices are
using the World Wide Web to communicate with and solicit feedback from
constituents.4 As a nation we should be encouraging political discourse
in this new medium, because of it potential to raise the level of
political discussion beyond the sound bite and to involve more citizens
in the political process. Encouraging political discourse in interactive
media requires that all users are assured that their First Amendment and
privacy rights will be respected fully.
Indeed, the Internet and other online services are fast becoming a new
public forum for political discourse for American citizens. In order to
preserve the freedom and openness of this new political arena, it is
critical to avoid creating a chilling effect on individual expression.
II. Parental and User Control Technologies Available Today to Screen
Unwanted Content
Overview -- Dealing With Inappropriate Material in Cyberspace Through
Technology
Interactive media such as the Internet and commercial online services
such as America Online and Prodigy offer users tremendous control over
the information that they and their children receive. Unlike traditional
mass media which "assaults" viewers with content, interactive media
requires users to seek out information from any number of the millions of
available World Wide Web sites, online file archives (ftp, and gopher),
and from any of the more than 3000 Usenet newsgroups.
The vast majority of the content available on interactive media is
related to normal every day topics such as politics, educational
resources, sports, consumer information, shopping, to name just a few. In
addition, millions of people use the Internet every day to conduct
business, socialize, organize political activities, and communicate on
issues of interest to them. However, just like in the terrestrial world,
there are areas of cyberspace which may contain materials that are not
appropriate for children.
Preventing children from successfully gaining access to such material
is an important issue which must be addressed. However, because
cyberspace is a global network with millions of users, active policing of
content by governments, besides the obvious implications for free speech
and privacy rights, is simply not a practical or effective solution.
There is a growing market for applications that empower users and
parents to control their children's access to inappropriate materials on
the Internet and commercial online services. This document provides an
extensive (though by no means exhaustive) overview of some of the
technologies currently available. All but two of the tools mentioned
here are currently available to consumers across the country.
Four categories of technological options are examined here, each
provides a slightly different, but equally effective, point of
intervention.
1. Commercial Online Services Parental Control Features
The Parental Control Feature of three of the most popular commercial
online services (America Online, Prodigy, an Compuserve) are illustrated.
These features are embedded in the service and are available to all
subscribers of these services at no additional charge.
2. Features for the Home PC and Direct Internet Access
For families that do not subscribe to one of the commercial online
services but instead receive direct access to the Internet, there are a
variety of products that run right on the home PC (SurfWatch, NET NANNY,
and CYBERsitter). Some of these products are also compatible with and can
run in addition to the parental control features available on the
commercial services.
3. Applications for Schools and Businesses
Schools and corporations can employ server based technologies such as
the Netscape Proxy Server and WEBTrack to prevent users from accessing
inappropriate content while in the classroom or at the office.
4. Proposals for the Future
In addition to these examples of products currently on the market,
there is a innovative proposal being offered by Nathaniel Borenstein and
Darren New. KidCode, a proposed Internet protocol, is a voluntary rating
system that can prevent children from accessing content that may not be
appropriate.
A. Child Protection in Commercial Online Services
Commercial online services such as America Online, Compuserve, and
Prodigy offer technologies that allow parents to block their children's
access to certain online forums where children might be exposed to
inappropriate content. Other services run filtering software which
automatically screens messages posted to public forums that contain
language inappropriate to children.
1. America Online Parental Control Features
America Online (AOL), one of the large commercial online service
providers, contains a feature which allows parents to prevent their
children from accessing interactive discussion forums (a.k.a. "Chat
Rooms"). A small minority of these forums, which are areas provided by
America Online and are accessible only to AOL's subscribers, sometimes
contain language and other discussion which may not be suitable for
children. Parents are empowered to prevent their children from accessing
these areas simply by selecting a menu option and entering a password.
The block out function cannot be de-activated without the password.
America Online also offers parents the ability to block access to
Usenet newsgroups based on keywords, subject matter, or specific
newsgroups. For example, parents can configure their system to block
access to newsgroups containing the word "sex", or can block access to
specific news groups such as "alt.sex.binaries.pictures". This mechanism
is not exclusive to sexually explicit materials -- the software can be
configured to block access to groups based on any keyword. Configuring
this system is as simple as clicking a button and describing the keywords
or groups to be blocked.
Concerned parents, even if they are less computer literate than their
childnre, have easy access to these control features. AOL provides
telephone help, detailed instructions and advice for parents. There is no
additional cost for this service, and, like the other parental control
features on AOL, the feature cannot be turned off without a password
known only to the parent.
Finally, on July 17, 1995, America Online announced that they had
entered a partnership with SurfWatch Software (described below).
Starting in the fall of 1995 AOL will provide SurfWatch as part of is
regular service, preventing children from accessing sites on the Internet
known to contain sexually explicit material. SurfWatch will run
continuously, unless disabled by the parent, and will provide a further
layer of protection for children who use America Online.
2. Prodigy Internet access restrictions
Prodigy runs special screening software that monitors messages posted
to public bulletin boards and chat rooms on the Prodigy network, and
automatically blocks messages which contain language (such as the "seven
dirty words"), and other content deemed inappropriate for children.
Like all the major commercial online services, Prodigy offers users
access to the Internet. Prodigy will not provide customers access to the
Internet without the authorization by the head of the household (the
principal account holder). The authorization is made at the time of the
account setup and requires credit card verification. This additional
child protection feature is designed to ensure that parents are aware
that their child has access to the Internet where Prodigy cannot control
the content.
Finally, Prodigy offers parents the ability to monitor which sites
their child has visited on the World Wide Web. Each time a site is
visited, the Prodigy software records that site in a log which can be
displayed at a later time. Parents can keep track of where their
children have gone in cyberspace, and can instruct their children not to
visit sites which may contain inappropriate materials (based on their own
personal values).
3. Compuserve: Internet in a Box for kids
Compuserve, another of the large commercial online services, recently
announced a partnership with SPRY Inc. (makers of the popular "Internet
in a Box") and is currently developing two child protection features:
Internet In a Box for Kids, and KidNet.
Internet In a Box for Kids contains a program called Crossing Guard,
which will allow parents to control their children's access to the by
blocking access to sites that may contain inappropriate materials.
Crossing Guard will also allow parents to monitor their children's online
activities and set timers to control when and how long their children can
surf the net.
Parents who purchase Internet In a Box for Kids will automatically
become subscribers to KidNet, an electronic community designed
specifically for kids. The site will allow members to congregate, chat,
exchange information, shop, and play interactive games. All content on
KidNet will be closely monitored to ensure that it is appropriate for
children. The area will also be designed to offer teachers and adults
access to educational sites, school networks and other resources for
education and information geared to kids. KidNet will also include a home
page builder that will allow kids to develop their own Internet
resources.
The product will begin shipping in the Fall of 1995. Information is
currently available at the Compuserve/Spry Home Page: http://www.spry.com
B. Parental Empowerment Applications for the Home PC and Direct Internet
Access
Although many parents subscribe to commercial online services such as
those mentioned above, access to the global information highway is not
limited to commercial online services. Many parents, educational
institutions, and corporations choose to access the directly through an
Internet Access Provider. Unlike commercial online services, access
providers generally do not provide any of their own content. Because of
this, parental control features must be initiated on the Home PC.
There are a variety of software developers working on parental control
features for this market. Some of these applications can be used in
conjunction with commercial online services, over and above the parental
control features provided by commercial services, while others are
designed specifically for direct access.
1. 'Surf Watch'
Surf Watch Software is designed to provide parental control for
families who do not subscribe to commercial online services. SurfWatch
allows parents to block their children's access to Usenet newsgroups,
World Wide Web sites, gopher and file archives (ftp sites) which are
known to contain sexually explicit material. When activated with a
private password held only by a parent, Surf Watch completely prevents
any user from accessing these areas. The program is launched when the
computer is started up, and operates when the parent is not present.
SurfWatch employs a group of professional "net.surfers" to find out
and log sites on the where sexually explicit material is located. Sites
are reviewed by a group of concerned parents and educators to determine
the nature of the content, and those sites which meet specific criteria
are added to a list which is embedded in the program.
SurfWatch software resides on the home PC. When activated, the program
cross-checks every attempt to access Usenet newsgroups, world wide web,
gopher, and ftp sites. Sites which are included on the list are blocked
automatically. Because the new sites are constantly appearing on the
net, SurfWatch provides a subscription service that automatically updates
the list of sites to be blocked, without any intervention required from
the user. Subscribers can receive updates as frequently as they choose.
Surf Watch Software maintains the list of sites the program will
block, and will make custom lists available if requested. SurfWatch will
also soon provide users the ability to add an delete sites to their own
custom lists
SurfWatch is available now for under $50.00. Information on SurfWatch is available
on the world wide web: http://www.surfwatch.com/
2. NET NANNY
NET NANNY, developed by Net Nanny Ltd. of Vancouver BC Canada, is
designed to prevent children from accessing areas on the Internet that a
parent deems inappropriate, prevent children from giving their name,
address, telephone number, credit card, or other personal information to
strangers via email or chat rooms, and can log off an online service or
shut down the computer when the child attempts any of these activities.
The program contains a dictionary in which the parent can enter the
names of sites known to contain sexually explicit or other5 material
(e.g., the Usenet newsgroup "alt.sex" hierarchy, or the web site
http://www.playboy.com). Parents may also enter phrases such as "what's
your name?", "what's your phone number", "where do you live", or "are
your parents home?". If anyone attempts to ask these questions, NET NANNY
will automatically log off the network or shut down the computer.
NET NANNY can also be configured to block access to files on the PC's
hard drive, floppy drive and CD-ROM, to prevent a child from accessing
and altering the parent's financial records, work related files, and
programs and files intended only for adults.
Finally, the program keeps a log of all activity that occurs on the
computer, allowing parents to monitor their children's use of the
computer. By using this feature, parents can determine if their children
are using the computer to access inappropriate material, and can then
augment the Dictionary to prevent further access.
NET NANNY is compatible with commercial online services and direct
Internet access providers. The program is launched when the computer is
started up, and operates when the parent is not present.
Net Nanny is available for Windows users for $49.95. More information can
be found on the World Wide Web: http://www.netnanny.com/netnanny
3. 'CYBERsitter'
CYBERsitter, developed by Solid Oak Software in Santa Barbara
California, allows parents to monitor their children's computer activity
and can prevent a child from downloading image, sound, and video files.
It will also prevent children from accessing files on the home PC hard
drive such as financial information, business related files, CD-ROM
titles, and anything else a parent determines their children should not
have access to. The program is launched when the computer is started up,
and operates when the parent is not present.
CYBERsitter keeps a log of all activity on the computer, including
access to the, commercial online services, and local files on the hard
drive, CD-ROMs and floppy disks, enabling parents to monitor their
children's use of the computer.
CYBERsitter is available for $29.95. More information, and a free
demonstration version of the product (for Windows) is available on the
world wide web: http://www.solidaok.com/~solidoak
C. Solutions in the Schools and Businesses -- Server Based Applications
In addition to the commercial online services and home access
environments, may schools (from k-12 to universities) and corporations
are beginning to provide access to the Internet. Many of these
organizations are becoming increasingly concerned about the availability
of not only sexually explicit materials, but also games, sports
information, gambling sites, and other areas which may not be appropriate
for access during school and work hours.
Products such as the Netscape Proxy Server and WEBTrack provide
schools and businesses the ability to block specific sites from access by
all uses on the network, and to track an monitor use of the Internet.
1. Netscape Proxy Server
The Netscape Proxy Server, developed by Netscape Communications
Corporation (the developer of the popular World Wide Web browser), allows
schools and business to block access to specific sites on the Internet,
individual computers (IP addresses) and other information. The Server
operates in the background and does not require teachers or employees to
have sophisticated programming knowledge or configure any feature. The
systems administrator is responsible for operating the server and for
maintaining the list of sites to be blocked.
The Server can be configured to block access to specified World Wide
Web, file archives (ftp), and Gopher sites on the for users on the
network on which the server is deployed. In other words, a school or
business which runs the Netscape proxy server can prevent students or
employees from accessing sites known to contain sexually explicit
materials, information about drugs, gambling, sports, games, and anything
else determined to be inappropriate for users on the network.
2. WEBTrack
WEBTrack, developed by Webster Network Strategies in Naples Florida,
allows businesses to block access to certain pre-determined sites on the
Internet. The product gives businesses the capability to restrict access
to 15 categories of World Wide Web, Gopher, and ftp sites (including
sexually explicit material, games, gambling, job search information,
drugs, online merchandising, sports, humor, and others), while allowing
full access to a wide variety of resources. The product is designed to
promote the use of the Internet for business purposes while restricting
recreational use.
On July 17, 1995, Webster Network Strategies announced that it would
provide its software free to K-12 schools, ensuring that all of America's
children who access the Internet from the classroom will not be able to
stumble upon inappropriate material.
WEBTrack also allows corporate systems administrators to monitor
employee use of the network in order to determine if an employee is using
the to access materials which violate stated corporate policy.
WEBTrack is available for most major network servers, and costs
approximately $7,500. Updates of the site list are available on a
subscription basis for $1,500 per year. Free to schools K-12
D. Future Applications and Protocol Solutions
1. Information Highway Parental Empowerment Group
A consortium assembled by Microsoft, Netscape Communications, and
Progressive Networks recently announced plans to develop technical
standards to enable voluntary rating of a variety of content available
through the Internet and other online services. These standards would
enable content creators to voluntarily label their own content so that
individuals and families can block the material, if they chose. In
addition, the Information Highway Parental Empowerment Group (IHPEG) will
create standards to allow "third-party" rating of content online. Much
as TV Guide rates TV shows on broadcast television, IHPEG would enable
multiple third-party rating of content available online.
2. KidCode
Among the more innovative of proposals on the drawing boards is
KidCode, currently being developed by Nathaniel Borenstein and Darren
New. KidCode, a proposal for an Internet protocol designed to block
access to sites based on a common voluntary rating system, is in the
early stages of development, but would be compatible with all of the
parental control applications currently on the market.
KidCode is a proposed convention for labeling World Wide Web and other
sites on the Internet as containing material which may not be suitable
for children. There are an infinite number of possible categories (e.g.,
sexually explicit material, violent material, drug related material,
etc.).
Content providers and individuals who create web 'Home Pages' could
voluntarily incorporate a standardized KidCode tag in the address of the
site. Browser applications would be configured to read these tags and
determine if the content on the site is appropriate for the viewing.
In addition, KidCode can accommodate third party ratings, age
verification, and other factors. Finally, because KidCode is a voluntary
rating system that may not be employed by every content provider on the,
it can be configured to block access to sites that do not contain KidCode
tags. In other words, if a site chooses not to use KidCode, a child using
a KidCode enabled program would not be able to access that site
regardless of the content it contains.
The Borenstein-New KidCode proposal is still in the early stages of
development and has not yet been deployed. Further information can be
obtained automatically by sending email to .
Prospects for the future
The products described here represent only a fraction of what is
currently available to empower parents to protect their children from
inappropriate material on the Internet. Moreover, these are only the
beginning, as the industry is committed to developing more and better
solutions, and the open nature of the Internet provides a wealth of
possibilities for parental empowerment tools that may not yet have been
imagined.
The availability of material on the Internet which may be
inappropriate for children is a serious issue and one of `legitimate
concern, However, because the Internet is a global network with millions
of users, top-down, command and control content restrictions simply
cannot effectively control the availability of such materials. The only
effective way to protect children from inappropriate material on the
Internet is to encourage the continued development and deployment of
tools that empower parents to control their children's online activities
based on their own individual tastes and preferences. The products
descried here provide parents these tools, and can do so without the need
for burdensome legislation or government imposed content restrictions.
III. Prosecution of Obscenity, Child Pornography, and Other Violations
of Criminal Law in Interactive Media Proceeding Under Current Law
As the Internet and other interactive media become more fully
integrated into the fabric of our society it is sad, but not surprising,
that criminal behavior has begun to appear online. Already cases of
consumer fraud and theft of intellectual property have been reported and
prosecuted. Traffickers in obscenity and child pornography, too, have
begun to use the Internet to facilitate their criminal behavior.
Notwithstanding the recent appearance of crime online, cyberspace is not
left in a state of anarchy. Federal criminal laws against transportation
of obscenity, child pornography, and harassment have all been used
successfully to prosecute criminal behavior online.
More vigorous enforcement of existing criminal laws may be necessary,
but law enforcement agencies and some prominent pro-family groups agree
current laws already enable prosecutions of online obscenity violations.
The Justice Department has repeatedly stated that there are no gaps in
current federal criminal laws prohibiting the distribution by computer of
obscenity and child pornography. Following this logic, it is unnecessary
to amend federal law to prohibit distribution of obscenity by computer,
since existing law already criminalizes such conduct, as well as threats
made by computer.
A. There is no anarchy in cyberspace: Federal and state criminal laws
already are used to prosecute criminal conduct in interactive media
Tough obscenity, child pornography and harassment laws are already in
the federal criminal code. Under existing Federal law trafficking in
obscenity (18 U.S.C. ¤¤1462, 1464, 1466), child pornography (18 U.S.C.
¤2252), harassment (18 U.S.C. ¤875(c)), illegal solicitation or luring of
minors (18 U.S.C. ¤2423(b)), and threatening to injure someone (18 U.S.C.
¤875(c)) have already been successfully applied to punish conduct on
computer networks. Notwithstanding all of the concern in the popular
media and the United States Senate about this issue, all indications are
that these and other laws fully cover all serious criminal behavior that
may be perpetrated in cyberspace.
The Department of Justice and the American Family Association agree
that existing laws already criminalize obscenity online. The American
Family Association, a prominent pro-family, anti-pornography group lead
by a former federal prosecutor from the Reagan and Bush administrations
wrote to Chairman Thomas Bliley:
"[T]he federal criminal code currently prohibits distribution
of both child pornography and obscenity by computer."6
In a communication to Senator Leahy, the Justice Department agrees with
this assessment:
"[W]e have applied current law to this emerging problem. . . .
The Department's Criminal Division has, indeed, successfully
prosecuted violations of federal child pornography and
obscenity laws which were perpetrated with computer technology." 7
Thus, while more enforcement resources may or may not be required, no
case has been made that any new criminal laws are needed in this area.
B. Violations of obscenity, child pornography, and other criminal law
online are being prosecuted
Even as the Congress rushes to enact new criminal laws, online
obscenity and child pornography crimes are being prosecuted around the
country under existing law. According to the Justice Department:
"The Criminal Division's Child Exploitation and Obscenity
Section is aggressively investigating and prosecuting the
distribution of child pornography and obscenity through
computer networks, and the use of computers to locate minors
for the purpose of sexual exploitation."8
To the extent that any obstacles arise, Congress should examine
whether there is a need for additional training and resources for
enforcement. The Justice Department, the agency responsible for
investigating and prosecuting these crimes, sees no urgent need for
legislation and instead has urged -- prior to any congressional action --
"in-depth analysis" of the "number of complex legal and policy issues"
raised by the need to protect children while respecting the First
Amendment and privacy rights of computer users. The precise
constitutional parameters, for example, of criminal obscenity laws and
the application of community standards doctrine to interactive media are
currently being decided by the courts. If Congressional investigation
determines that there are actual gaps in current law, it may, then, be
appropriate to investigate modernization or clarification of existing
law.
Ironically, the Communications Decency Act as passed by the United
States Senate as part of the telecommunications reform bill, fails to add
any protections against online stalking and child solicitation. Everyone
is concerned about protecting children from threats online and off. The
Senate-passed Communications Decency Act, however, only punishes
indecency and obscenity, not stalking or solicitation. It offers no help
to prosecutors or police in prevention of prosecution of online crimes
against children.
IV. Censorship of Indecent Communications In Interactive Media Suffers
Fundamental Constitutional Infirmity
Indecency restrictions have the acknowledged important purpose of
protecting minors from access to controversial and inappropriate sexually
explicit material. However, such restrictions, especially if imposed on
new interactive media, would be subject to serious constitutional
challenge. This section of the report will demonstrate five key
constitutional points:
1. Censorship of indecent communications prohibited: General bans on
indecent material are unconstitutional.
2. Impermissibly intrusive means of achieving legitimate goal: First
Amendment jurisprudence requires that restrictions on speech adopt the
"least restrictive means" available for achieving a compelling
purpose. Due to the availability of programs such as Surf Watch and
the parental control features on America Online and other commercial
services, blanket indecency restrictions are clearly not the "least
restrictive means", and are unconstitutional on their face.
3. Invasion of privacy: By criminalizing the content of private, non-
obscene messages, the Senate-passed Communications Decency Act would
force an invasion of the realm of private electronic communications
and end the individual's ability to control the content of information
he or she chooses to access in private.
4. Creation of private censors: Holding service providers criminally-
liable for the content of all messages that they carry will force
providers to become private censors and prescreen all communications
traveling across their system.
Most importantly, statist, bureacratic command and control regulation
of indecent material online fails to take advantage of the empowering
aspects of new interactive media, which can allow parents and other users
to exercise control over the information that to which they and their
children have access.
Legislating about new interactive media requires a careful
understanding of the unique attributes of this new medium. First and
foremost, interactive media enable users (including parents) to exercise
choice over the information to which they and their children have access.
In sharp contrast to older media, government content regulation is simply
not necessary in order to shield children from possibly inappropriate
information. Furthermore, given the heavily fact-based determination
required to justify regulation of indecency, legislative findings based
on open hearings and a public record are essential before any legislation
could pass constitutional muster.
Indecency restrictions for interactive media would enshrine in statute
a sharp distinction between the print medium and new interactive media.
For example, though an individual is allowed to go into a bookstore and
buy a sexually-explicit magazine or a "lewd" work of art, one would not
be able to access the identical information over the Internet. Both the
interactive media and the print media are arenas in which individuals and
organizations exercise core First Amendment free speech rights. Before
Congress elects to diminish the First Amendment protections available in
this new medium, we believe that careful, public consideration is
required.
A. General prohibitions against indecent communications are
unconstitutional
A general prohibition against indecent communications in interactive
media would violate the First Amendment to the Constitution of the United
States. The principle that each person should decide for him or herself
the "ideas and beliefs deserving of expression, consideration and
adherence" lies at the heart of the First Amendment. Turner Broadcasting
v. FCC, 114 U.S. 2445 (1994) This principle has been interpreted to mean
that individuals should be able to speak freely and frankly about issues
of their choosing, without fear of reprisal because many people may not
agree with or appreciate the nature and content of their messages. At
the same time, the Supreme Court has recognized that despite this
fundamental guarantee, there are certain kinds of speech that fall into a
category of unprotected speech -- obscenity is one such category,
indecency is not.9
Because of the difficulty in defining obscenity in the context of the
First Amendment, it took numerous attempts for the Supreme Court to find
five justices to agree on defining principles.10 Finally, in 1973 the
Supreme Court in Miller v. California,11 established the definition of
obscenity and the narrow area of sexually explicit speech that is
unprotected by the Constitution.12 Since that time, the definition has
not been expanded or changed.
By contrast, indecent speech which may include important political
views, even if crudely stated, is protected by the First Amendment. As
such, government cannot enact a ban on such speech without illustrating a
compelling governmental interest, and any restrictions on such speech
must be accomplished in the least restrictive manner.13
B. Restrictions on indecent communications are unconstitutional for
failure to adopt least restrictive means
1. Censorship of indecent, but not obscene, communications for the
purpose of protecting minors must employ the least restrictive means
available to accomplish their goal
Indecent communications are protected by the First Amendment, unlike
obscenity which is altogether unprotected. Sable Communications of
California v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989).
Indecent communications, which do not rise to the level of obscenity, can
only be limited in order to serve a compelling state purpose and must be
done using the least restrictive means possible. Id. at 125. The Sable
court found that the protection of minors from access to indecent
material is a compelling state purpose, but that "it is not enough that
the Government's ends are compelling; the means must be carefully
tailored to achieve those ends." Id.14
As a threshold matter, the Sable court found that the constitutional
basis for upholding indecency regulations in broadcast media articulated
in Pacifica Foundation v. FCC, 438 US 726, 98 S.Ct. 3026, 57 L.Ed. 2d
1073 (1978), were inapplicable in any other media besides over-the-air
broadcasting.15 492 U.S. at 127. Pacifica upheld the FCC content
regulation based on the dual finding that 1) radio was a "uniquely
pervasive medium"16 that intruded (dirty words and all) into peoples
homes, and 2) the only way to protect children from exposure to
objectionable content was to keep it off the air altogether.17 Sable
rejects this finding of "pervasiveness" as "emphatically narrow" and
irrelevant to other media such as telephone audiotext services. 492 U.S.
at 127
Thus, the Sable "least restrictive means" standard became the test by
which all regulations on access to indecent, but constitutional-
protected, material were judged. Nearly ten years of litigation along
with adjustment of the statute and regulation were required before the
current statute was found constitutional under this standard. See Dial
Information Services v. Thornburg, 938 F.2d 1535 (2d Cir., 1991)(finding
FCC regulations implementing ¤ 223(b) constitutional). During the course
of the dispute over the application of ¤ 223 to audiotext services,
courts considered and rejected a number of means by which carriers were
required to shield minors from access to indecent information. First,
time channeling rules, requiring that services only be accessible during
hours when children were asleep, were found to violate the First
Amendment because they had the effect of denying access to adults as well
as children. Carlin Communications v. FCC, 749 F.2d 113, 121 (2d Cir.
1984) (Carlin I). Next, the courts rejected a requirement that carriers
provide access to indecent services only once customers entered access
codes or passwords, which were to be issued after verification that the
customer was over 18. Carlin Communications v. FCC, 787 F.2d 846 (2d
Cir. 1986)(Carlin II).
The finding of the Dial court, approving the constitutionality of ¤
223 and associated regulations depended on the legislative determination
that the telephone company blocking of service pending age verification
or use of a credit card are the only means to enable parents to restrict
their children from access to indecent audiotext services.18
2. Background on dial-a-porn rules:
As was the case for broadcast indecency restrictions considered in
Pacifica, the dial-a-porn restrictions were only found constitutional
because of the uniquely intrusive and uncontrollable nature of the
audiotext services. A key legislative motivation for imposing these
rules during the 1980s was that indecent information available through
audiotext services in the telephone system were openly available to
children in such a way that it was difficult for parents to control
access by their children. The views of Congressman Bliley recounts the
prevailing view of the need for the legislation: "It constitutes an
attractive nuisance in every home in America where children are present.
There is no completely effective way to prevent children from being
exposed to "indecent" or "obscene" dial-a-porn so long as it is lawfully
and commercially marketed. . . ." Bliley continues:
"Telephones are precisely like radio and television because of
their easy accessibility to children and the virtual impossibility
for parents to monitor their use . . . . [D]ial-a-porn is
presently in the home whether the homeowner wants it or not.
Today one cannot have telephone service in the privacy of one's
family environment without being required to [have] dial-a-porn
with it. Families with children must give up telephone service to
be "left alone" from exposure of their children to this intruder."19
The current statute and Federal Communications Commission regulations
promulgated thereunder were found constitutional after nearly ten years
of litigation and efforts by Congress and the Commission to bring the
statute within constitutionally acceptable bounds. Indecency restrictions
applied to interactive media would require a wholesale review of the
constitutionality as applied to new media such as online services and the
Internet. Interactive media operates in such a different manner, that
the constitutional issues must be considered afresh given the new factual
backdrop. Mere extension of the current dial-a-porn rules to new media
would be found unconstitutional in interactive media given the standards
set out by the courts reviewing the ¤ 223 rules as they applied to older
telephone technology.
3. Reliance on government censorship to restrict access to indecency
fails to take into account the fact that interactive media offers
parents a much greater degree of control then broadcast services or
900 number services.
Indecency restrictions in interactive media would presumably be
motivated by the same goal of protecting minors as the existing statute.
However, the means adopted for achieving the goal are impermissible under
the First Amendment because they are not the least restrictive means of
accomplishing the legitimate government purpose. Interactive media is
materially different from analog telephone and audiotext technology in
that it offers users the ability to exercise control over precisely what
information one accesses. Given the dramatic difference between
telephone technology and interactive services such as the Internet and
other interactive media, we believe that blocking by the carrier as
demanded by ¤ 223 would not meet the "least restrictive means" test.
Just as the Sable court found broadcast indecency regulations
inapplicable to the telephone system because of differences in the
medium, regulations designed for audiotext services in the telephone
system are constitutionally inapplicable to new interactive media.
Indeed, indecency restrictions on material transport by US Mail have also
been struck down by the Supreme Court precisely because "the receipt of
mail is far less intrusive and uncontrollable"20 than broadcast
information that was the subject of the Pacifica case.
Technologies already exist that enable users to access certain
information based on a variety of characteristics, or, to exclude certain
types of information from access.21 With such filtering technology,
users, instead of the government or network operators, can exercise
control over the information content that they receive in an interactive
network environment. User control could be exercised in two ways.
First, one could screen out all messages or programs based on information
in the header. If a parent wanted to prevent a child from seeing a
particular movie or from participating in a particular online discussion
group, then the computer or other information appliance used by the child
could be set by the parent to screen out the objectionable content. Such
features can often be protected with passwords which would be assigned,
for example, by the responsible adults in the house. Second, the same
systems can be used to enable blocking of content based on third-party
rating systems.
Given the flexibility of interactive technology, we need not rely on
just one rating system. In fact, a single rating system or a single set
of filters would merely replace a single government censor with a single
private censor, with no real gain for the free flow of information.
Properly implemented, interactive media can accommodate multiple
filtering systems, giving users and parents the opportunity to select and
block information based on a true diversity of criteria. The national
Parent Teachers Association or different religious organizations could
set up rating systems which would be available on the network to those
who desired them. Rather than relying on the judgment of the government,
or of the service provider, viewers can limit access to content based on
the judgment of a group whose values they share.
Interactive media can enable individuals and parents to prevent
themselves or their children from using their PCs or TVs (in particular,
their children) from accessing certain kinds of content. With such
control mechanisms within the practical reach of parents, the
governmental purpose generally cited for indecency regulations -- the
protection of children -- could be accomplished without government
content restrictions. In particular, the reasoning of Pacifica (unsought
intrusion of the indecent message into homes) and Sable (inability of
parents to exercise control) would no longer justify most content
regulation in new interactive media.
C. Forcing online service providers to become private censors impairs
First Amendment values by restricting the free flow of information
Holding carriers responsible for the content of all information and
communication on their systems is a grave policy error which will
restrict the free flow of information and is contrary to First Amendment
and presonal privacy values. If service providers are held liable for
all of the content on their networks, then they will be forced to attempt
to screen all content before it is allowed to enter the system. In many
cases, this would simply be impossible. But even where it is possible,
such prescreening can severely limit the diversity and free flow of
information in the online world. To be sure, some system operators will
want to offer services that prescreen content. However, if all systems
were forced to do so, the usefulness of digital media as communication
and information dissemination systems would be drastically limited. Where
possible, we must avoid legal structures that force those who merely
carry messages to screen their content.
Relying on user control is a real alternative to the draconian
approach now being considered and sure to be proposed again and again. A
media environment in which parents -- or anyone else who has particular
preferences about the content of information to which he or she is
exposed -- would give users the control that courts have determined they
lack in the mass media, without involving the government in content
control which we believe would not survive appropriate First Amendment
scrutiny in this new medium.
D. Banning private, sexually-explicit communications violates
constitutional privacy rights
Regulation of private, indecent communications between individuals
raises constitutional privacy concerns. The Supreme Court has made clear
that absolute restrictions on indecency cannot pass constitutional muster
under the Fourth Amendment's guarantee of personal privacy. Though the
Court has explicitly recognized that while the government may have an
interest in protecting in public, Paris Adult Theater I v. Slaton, 413
U.S. 49 (1973) or in a place that caters to the public, Schad v. Mt
Ephraim, 452 U.S. 61 (1981); California v. LaRue, 409 U.S. 109 (1972). it
does not have a right to ban information maintained in private. Stanley
v. Georgia, 394 U.S. 557 (1969). "If the First Amendment means anything,
it means that a State has no business telling a man, sitting alone in his
house, what books he may read or what films he may watch." Id. at 598.
If enacted, the Senate-passed Communications Decency Act would empower
federal authorities to intrude on the private communications and
information used by individuals, in clear violation of Stanley.
As reflected in passage of the Video Privacy and Library Protection
Act of 1988 (protecting records of video rentals), and the Electronic
Communications Privacy Act (ECPA) of 1986 (18 U.S.C ¤ 2510), Congress has
long recognized the privacy interest in information that we read and
otherwise use. A number of surveys have confirmed that Americans care
deeply about their privacy. In a 1983 analysis of their survey results,
Louis Harris & Associates concluded:
Particularly striking is the pervasiveness of support for tough new
[privacy protection] ground rules governing computers and other
information technology . . . . This support permeates all subgroups
in society and represents a mandate for initiatives in public policy.
(L. Harris, The Road after 1984: A Nationwide Survey of the Public
and its Leader on the New Technology and its Consequences for American
Life, December, 1983).
Enforcement of indecency restrictions by online service providers would
require that online service providers violate the privacy rights, and
statutory protections established by the Electronic Communications
Privacy Act, in order to assure that criminal violations do not occur.
ECPA established that users of online communications systems have a
substantial privacy interest in the communications that they transmit
over computer networks. ECPA also set out clear conditions under which
law enforcement agencies, and, in narrow cases, system operators, could
access these private communications. Holding system operators liable
would presume a dramatic change in the privacy protected established in
ECPA, thereby forcing service providers and system operators to invade
the privacy of user communications. While there may be some
justification for regulation of communication and information made
public, there must be no intrusion on private or closed group
communications unless there is evidence of criminal wrongdoing.
E. Constitutional alternatives to the Communications Decency Act
censorship regime
Alternative means of achieving the goal of protecting minors from
access to material considered inappropriate by their parents would
include:
* Maximum reliance on technology to empower parents: Interactive media
offers parents and other users the ability to filter certain kinds of
content. Instead of relying on government content restrictions, or
even government-imposed rating systems, parents should be able to
block the delivery of certain information to their children.
* Clear protection for constitutionally-permissible speech: Any
alternative legislation must provide affirmative protection for
constitutionally-permissible speech, even if it is lewd or filthy.
Controversial speech must be treated separately than that which is
clearly obscene and unprotected.
* Emphasis on enforcement of existing statutes: Federal and state law
already prohibits transportation of obscenity, child pornography, as
well as, in many instances threats, stalking and harassment. To the
extent that there are obstacles to enforcing these laws in the new on-
line environment, Congress should examine whether or not more
resources for enforcement are required, including training for law
enforcement in interactive services and cooperative efforts with the
industry.
The regulation of speech, commerce, and privacy rights in new
interactive communications systems raises many difficult issues of public
policy and constitutional law. Before proceeding with legislation,
Congress must provide the opportunity for public hearings to identify
clearly the problems that exist, and to identify solutions that are
appropriate to the new technology. Failure to do so will result in
ineffective policy, years of constitutional litigation, and a disastrous
chilling effect on the development and growth of a very promising new
communications medium.
------------------------------------------------------------------------
Disclaimer: This report represents general principles discussed by the
Interactive Working Group. The report is not a specific policy statement
on behalf of the group or of any individual organization.
This report was
compiled and edited by:
The Center for Democracy and Technology, with detailed omments from a
number of working group members
and written by:
Jill Lesser, People for the American Way
Ronald Plesser, Piper and Marbury
Daniel J. Weitzner, Center for Democracy and Technology
For More Information on the Interactive Working Group Contact:
Jerry Berman or Daniel Weitzner
Center for Democracy and Technology
1001 G Street NW Suite 700 East
Washington, DC 20001
(202) 637-9800
------------------------------------------------------------------------
Participants in the Interactive Working Group
ABC/Cap Cities
America Online, Inc.
American Advertising Federation
American Association Of Law Libraries
American Association of Advertizing Agencies
American Civil Liberties Union
American Library Association
American Petroleum Institute
American Society of Newspaper Editors
Apple Computer, Inc.
Association Of American Publishers
Association Of National Advertisers
Association Of Research Libraries
AT&T
Bell Atlantic
Business Software Alliance
CBS
Cellular Telecommunications Industry Association
Center For Democracy And Technology
Center For National Security Studies
CompuServe, Inc.
Computer & Communications Industry Association
Computing Industry Technology Association
Consumer Federation Of America
Cox Enterprises, Inc.
Cyberspace Law Institute
Direct Marketing Association
Dun & Bradstreet Corporation
Electronic Data Systems
Electronic Frontier Foundaiton
Electronic Messaging Association
Feminists For Free Expression
Fox Broadcasting Company
G.E. Information Services, Inc.
Household International
Human Rights Watch
IBM
Information Technology Association of America
Information Technology Industry Council
Institute of Electrical and Electronics Engineers
Interactive Services Association
Interchange Online Network
MCI
Media Access Project
Microsoft Corporation
Motion Picture Association Of America
National Association of State Utility Consumer Advocates
National Cable Television Association
National Campaign For Freedom Of Expression
National Center For Missing & Exploited Children
National Newspaper Association
National Public Telecomputing Network
National Retail Federation
NBC
Netscape Communications Corporation
News Corporation Limited
Newspaper Association Of America
NYNEX
Pacific Telesis
People For The American Way
Prodigy Services Company
Progress And Freedom Foundation
Recreational Software Advisory Council
Showtime
Smithkline Beecham
Software Industry Coalition
Software Publishers Association
Sun Microsystems
SurfWatch Software
Targetbase Marketing
Telecommunications Industry Association
The Internet Company
Time Warner, Inc.
Times Mirror
U.S. Telephone Association
US West
Viacom
--
1 Eg: The American Civil Liberties Union URL:gopher://aclu.org:6601/1/
2 Eg: The Left Side of the Web URL:http://paul.spu.edu/~sinnfein/progressive.html
3 Eg: The Right Side of the Web URL:http://www.clark.net/pub/jeffd/index.html
4 Eg: Sen. Leahy's Home Page: ftp://ftp.senate.gov/member/vt/leahy/general/pjl.html
5 NOTE: The list of blocked sites is entirely determined by the parent. The parent can block
access to sites that contain any materials they do not wish their children to access, including but
not limited to games, drugs, rap music, violence, or guns. A Net Nanny spokesman indicated that
pre-programmed lists will be available from the company soon.
6 American Family Association, Letter to Rep. Thomas Bliley (May 16, 1995) from Patrick A.
Trueman, Section Chief during Bush and Reagan Administrations, Child Exploitation and
Obscenity Section, Criminal Division, U.S. Department of Justice.
7 U.S. Department of Justice, Letter to Sen. Patrick Leahy (May 3, 1995) from Kent Markus,
Acting Assistant Attorney General, Office of Legislative Affairs
8 U.S. Department of Justice, Letter to Sen. Patrick Leahy (May 3, 1995) from Assistant
Attorney General, Kent Markus.
9 In very limited circumstances, the Supreme Court has found indecency to be "unprotected"
speech. See Ginsberg v. New York, 390 U. S. 629 (1969)(holding indecency unprotected where
distributed to minors). See the discussion of proposed Section 223(b) below.
10 See, e.g., Roth v. United States, 354 U.S. 476 (1957) and Memoirs v. Massachusetts, 383 U.S.
413 (1966)
11 413 U.S. 15 (1973)(adopting standards that were later rejected by the Supreme Court).
Given the national and international reach of new interactive media, determinations of obscenity
based on traditional "community standards" doctrine also raises a whole host of questions.
12 The Court in Miller held that the guidelines for determining obscenity are as follows: "(a)
whether the average person applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct defined by the applicable state law; and (c)
whether the work taken as a whole, lacks serious literary, artistic, political or scientific value."
(citations omitted).
13 Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989).
14 See also Carlin Communications v. FCC, 837 F.2d 546, 555 (2nd Cir. 1988).
15 Pacifica held that the FCC had authority to enforce a rule which barred the comedian
George Carlin and others from repeating the "seven dirty words" in over-the-air radio
broadcasts. Pacifica did not,however, specifically approve the substance of the indecency rule
promulgated by the Commission.
16 Id. at 748
17 Id at 749-50. The Pacifica court recognized that the radio station (WBAI in New York
City) had actually broadcast a warning as to the possibly objectionable content, but that this
warning failed to protect those who tuned in after it was given. Id. at 731.
18 Rep. Blilely asserts as much in his comments on the legislation. He states, "...It became
clear that there was not a technological solution that would adequately and effectively protect
our children from the effects of this material. We looked for effective alternatives to a ban --
there were none." 134 Cong. Rec. H1691.
19 134 Cong. Rec. H1693-4 (daily ed. April 19, 1988)(statement of Rep. Blilely)(emphasis
added).
20 Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 (1983). The Court in Bolger struck
down a statute regulating the mailing of birth control material, despite the fact that proponents
of the law asserted that its purpose was to protect children from exposure to sexually explicit,
offensive material.
21 For a complete discussion of blocking a filtering technologies, see Section II of this Report.