2. LEGISLATING CONTENT REGULATION
The U.S. was the first nation to legislate content over the Internet. In the early and middle 1990s, the unregulated flow of information on the Internet generated concern among some U.S. parents about children's easy access to pornographic material online. (Kim L. Rappaport, In The Wake Of Reno v. ACLU: The Continued Struggle In Western Constitutional Democracies With Internet Censorship And Freedom Of Speech Online, 13 Am. U. Int’l L. Rev. 765, 773 (1995).) Regulation of speech on the Internet has always been a contentious issue among United States policy makers because the nature of the Internet creates unique First Amendment problems. Various non-profit organizations began to lobby Congress for legislation to protect children from adult-oriented web sites, even though applicable child pornography laws already existed. Proponents of government regulation want strict controls, similar to those applied to television and radio, extended to the Internet to protect children from objectionable content. (Id. at 774.) Those opposing Internet regulation argue that any attempt to restrict online content would be too broad and unenforceable given the global reach of the medium. (Id.)
As a result, Congress faced the problem of balancing the politics of protecting children from inappropriate online material and adult Internet users' First Amendment rights. As a compromise, Congress passed the Communications Decency Act in 1996. However, the Supreme Court, in Reno v. ACLU, concluded that the CDA, in its attempt to regulate children's access to indecent material, instead limited the constitutionally protected rights of adults to make indecent speech. (Id. at 784.) A more carefully drafted statute or less restrictive alternative would have been at least as effective in achieving the Act's legitimate purposes, rendering the CDA's burden on adult speech unacceptable. (Id.) This ruling makes it clear that national attempts to legislate content on the Internet must meet the highest level of scrutiny and be narrowly tailored to survive.
However, not all countries have been as protective of the Internet’s freedom. In Germany, the Information and Communications Services Act ("ICSA") took effect on August 1, 1997, and became Europe's first national Internet-specific law. (Id. at 792.) The ICSA was the first attempt by any country to introduce "cyber sheriffs" to patrol the Internet for unsuitable content. (Id.) Further, this law criminalizes German ISP’s who make harmful materials on the Internet accessible to children. The ICSA also punishes ISP’s if they fail to appoint a bureaucratic "youth protection officer" or self-control committee to ensure that its service limits materials unsuitable for minors. (Id.) The disparity between United States and German laws regulating content hinders international harmonization and results in uncertain liability for ISPs.
Global access to information over the Internet means that ISPs may face liability for information that, although legal where supplied, is illegal where viewed. In France, two CEO’s of Internet service providers were indicted under its Telecommunications Reform Act for making illegal material available over their networks. (Sean Selin, Governing Cyberspace: The Need For An International Solution, 32 Gonz. L. Rev. 365, 371 (1996-97).) Singapore requires the registration of all ISPs and monitors all information content entering its borders. While these debates are just beginning in national capitals around the world, the practical implications are far-reaching for content over the Internet. The concern of differing national laws about content is that ISP’s may choose the overly cautious route of self-censorship rather than face possible liability in a country like Singapore.
If national legislatures want to be effective in regulating content that its citizens access over the Internet, the most important goal is to develop a single international standard. If multiple national content regulations exists for ISPs, there will be a deterioration of individual rights and protection of ideas. Distinct national standards applied whenever a different user accesses the Internet would result in an appeal to the lowest category. Words or pictures offensive to any religion, group or government would not be allowed on the Internet. Consequently, there would be little content left on the Internet and any artistic and intellectual expressions could be stifled. (Sean Selin, Governing Cyberspace: The Need For An International Solution, 32 Gonz. L. Rev. 365, 373 (1996-97).)