The CDA: The Goverment Should Not be on THIS Highway
Communications Decency Act INTRODUCTION
The Information Super Highway is growing at a phenomenal rate. More than 20 million people are currently surfing the Internet (hereinafter the Net) and what they are finding is sex, not just traditional male/female sex, but unusual and sometimes illegal sex, such as sex with kids, sex with things, sex with animals. Sex is not the only thing on the Net that parents and legislators are concerned about. There are also bomb building instructions, ways to commit credit card fraud, and horrible stories about committing vicious crimes. "The Internet, of course, is more than a place to find pictures of people having sex with dogs. It's a vast marketplace of ideas and information of all sorts -- on politics, religion, science and technology." This note focuses primarily on the pornography issue.A debate has raged on for many years about the relationship between First Amendment rights and governmental regulation of print and broadcast pornography. The Net has added a new dimension to the debate and "at present, there is no formal regulation of information or communications carried across CyberSpace.", The first amendment of the United States Constitution guarantees the freedom of speech "and a free exchange of ideas unencumbered by censorship or threat of imprisonment, leads to the betterment of society." However, the Supreme Court has held that the freedom of speech is not an absolute right. The issue that is debated is whether pornography should be protected under the free exchange of ideas doctrine. In response, the Supreme Court has held that "disseminators of obscene material must adhere to the standards for obscenity in the communities to which they distribute materials only if they have reason to know that the contents are obscene."
The issue that develops from this ruling is whether the obscene material is subject to the standards of the originating communities or the receiving communities. This "location of the community standard" distinction is important in the discussion of Internet regulation because the Internet is accessible from any computer with a modem and the appropriate software; therefore, the disseminator would have to adhere to the standards of every community in the country if the laws regulating the Net come down on the side of the receiving communities. These first amendment issues that the Net presents are far-reaching and have led to heated debates on Capital Hill (and in every town across the country) over how to deal with them.
In addition to the First Amendment issue, there are other issues that also need to be addressed, such as the following: is the pending legislation an effective and viable alternative to either the current laws or in the alternative, private control? This question leads to a more global question, which is should the Net be regulated at all, and if so, why? To what extent should it be regulated? Who specifically should be the target of the regulations? How and by whom should it be regulated? Most politicians are adamant that it should be regulated. These questions are ones that the Federal Government is currently grappling with, but the Government is not the only one who is concerned. There is a substantial proportion of the Net population that do not want to see the Net regulated by "The Government" at all (neither current nor pending legislation). This population feels that if any regulation is necessary, other forms of regulation can be put in place that are outside governmental control.
The irony regarding much of the controversy is that on the inception of virtually all major technological advancements there was a fear that the new technology would lead to the disintegration of our society. People feared telephones when Alexander Graham Bell first introduced us to that invention. We know now that telephones are necessary tools and have become a building block of our economy and industry. Additionally, television was viewed with skepticism and trepidation over the types of images and programming that would be displayed over the air. The same was true with the introduction of cable television. The reason that there was such concern over these new technologies was that people feared that productivity would stop within the country due to these new devices that were capable of spreading "filth". "What people see is a frightening use of technology, so they attack the technology itself." There are still problems with phones, TV, and cable because some people abuse them. However, these innovative technologies have served the public well by giving it something that it did not have before: access to information.
The Net does the same thing. The public has access, through the use of a computer, a modem and a bare minimum of technical knowledge, to a virtually limitless amount of information. The Net provides information on almost any topic imaginable. The fears are the same as they always have been: the government is fearful of the public being able to access certain types of information. It is undoubtedly true that certain types of information are not relevant or necessary to the well being of the average citizen or the public at large. For example, the location of military installations is not information that the public needs to have, but that is not where the government's concern lies. The government has expressed it's concern, through legislation, regarding the dissemination of pornography over the Net. They are concerned about children viewing pornography and violence on-line.
Those in opposition to the Federal Government exercising control over the Internet believe that any action the government takes to control the access to information that is available on-line is a violation of the First Amendment of the Constitution because it's a limitation on individual's right of free speech.
Historical Background of the Internet Before delving into the current caselaw concerning CyberSpace, a brief discussion of the Net's history is appropriate to provide a basic understanding of how it has evolved over the last 30 years. The Internet was created in the 1960's by the Defense Department's Advanced Research Projects Agency. The idea and purpose of the Net was as a data network capable of surviving a nuclear attack. There were two major aims: 1. to allow numerous users to simultaneously send data and 2. to ensure that there was never one central computer running the system. The reasons behind these aims were based on the antagonistic relations between the Communist countries and the United States. The Federal Government believed that if the Soviets bombed Washington, the entire system would not be destroyed.
The next phase of development of the Internet came in the 1970's when universities and research centers all over the world were given access. The purpose was to allow for the easy dissemination of information. The system allowed scientists who were across the world from one another to communicate almost immediately via electronic mail. By October 1971, experimenters were logging onto each others' sites, a remarkable feat at this time.
During the mid 1980's, the National Science Foundation took control of the Net. They created a network of supercomputer centers that would interconnect with autonomous networks serving different communities of researchers, government agencies, and university campus networks. Thus, the Net had gone public.
In the late 1980's the only way to operate within the Net was by using the fairly complex grammar of the UNIX operating system. However, in the last few years, the introduction of the World Wide Web (Web) has dramatically changed the way people interface with the Net. The Web links pages together with hypertext links. A hypertext link allows the user to input what they are looking for and what returns is the document, not the name of the source. This method of operation required that users know the HyperTextMarkupLanguage in order to effectively use the Web. However, from 1993 to the present time major advancements have taken place as programs called Web Browsers have come into existence. A Web Browser allows users to interface with the Net by pointing and clicking on graphics. This innovation has led to the explosion of the Web (which is only a part of the entire Internet system) and has brought millions of people on-line.
While the Web is the currently the most significant part of the Internet, it is just that, only a part of it. There are two other significant areas of the Net: newsgroups and electronic mail. A newsgroup (the most common is Usenet) is essentially a non-graphical user interface that allows people to chat about specific areas of interest from the Dallas Cowboys to Debbie Does Dallas. More specifically a user looks at the Usenet area of interest to them and they will see messages posted from people all around the world. Thus, when an individual posts to Usenet, potentially millions of others will have access to what they've written. Electronic mail (e-mail) allows people to send electronic messages nearly instantaneously to anyone who has an e-mail address. The primary difference between Usenet and e-mail is that e-mail is essentially like a one on one phone call; there is only one recipient of the mail, it is not available for a wide audience, while on Usenet their is a wide audience.
DISCUSSION Technological advancements in graphical and non-graphical user interfaces have made it such that users can easily view and download pornographic images. Thus, returning to the First Amendment questions presented above, should the government regulate the transmission of this data? As it turns out there is already a significant amount of legislation pending to curb much of the freedom that Net users (Netizens) are currently enjoy.
The mere existence of this legislation suggests that Congress does not feel that the current pornography laws are sufficient to deal with the pornography on the Net. Both Houses of Congress have passed legislation that deal with control of the Net. Despite the apparent use of circular reasoning to support this idea, it does appear that this legislation suggests that the members of Congress felt that the current law is inadequate, because if they did feel that the current legislation was sufficient, they would not have created and passed the new legislation within their respective Houses of Congress. It is likely that Congres passed their respective bills because they did not feel that on-line pornogrpahy could be regulated with the existing laws that apply to printed, televised, or telephoned pornography.
CURRENT STATUS OF PORNOGRAPHY LAW "Judicial attempts to create a clear test by which obscenity determinations may be based have produced an evolving standard." In 1957 the Supreme Court, based on a presumption that obscenity is utterly without social importance, held that the proper test of obscenity to be: "whether . . . the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient interest." The Supreme Court faced this issue again less than a decade later in Memoirs v. Massachusetts and they held that there is not a presumption that obscenity lacks social importance. The Court created a test based on three factors: "(1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is utterly without redeeming social value." Instead of presuming obscenity to be without social value, the Court made the question of its value an element of the test. In 1967, the Court once again changed how the legality of obscenity should be looked upon in Miller v. California. In Miller, the Court established a three part test that permitted regulation without evaluating the social value of the material. The criteria that the Court laid out is:
(a) whether "the average person applying contemporary community standards" would find the work taken as a whole, appeals to the prurient interest...; (b) whether the work depicts or describes in a patently offensive manner sexual conduct specifically defined by applicable state law; and (c) whether the work taken as a whole lacks serious literary, artistic, political or scientific value.
Additionally, in the Miller case, the Court implied that lower courts must use local community standards to determine whether material is obscene. In 1987, the Court changed that test by holding that lower courts should apply local community standards to the first and second element of the test, but a "reasonable person" standard to the third element.
There is a set of factors that can be used to determine if an individual's speech is obscene, but there remains a question of what specifically constitutes a speech. An additional question remains as to whether the local community standards test should apply to the individual(s) disseminating the speech or the individual(s) receiving the speech.
Regarding what constitutes a speech, the Courts have consistently held that the freedom of speech is afforded a great deal of latitude in the written form (print medium), but it is given less protection when the speech is made via television (broadcast medium). This is best explained by the FCC:
broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference . . . ; (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest.
The Supreme Court has broadened this FCC interpretation to include television, in that radio and television programming can potentially invade the sanctity of the home of the unsuspecting listener. "The Court interpreted the First Amendment to provide only limited protection for indecent broadcast speech, making regulation permissible when the government can show a compelling interest."
The Supreme Court distinguished speech made via telephone lines in Sable Communication of Cal., Inc. v. FCC. The Court found that the service that Sable offered it's audience was different than that of broadcast radio or television where the audience is comprised of unsuspecting listeners. Sable's customers dial into Sable's telephone system and take affirmative steps to access the messages, such as dialing the number and entering a credit card number or an access code.
Another Supreme Court decision established a limit on the government's power to proscribe admittedly obscene material. In Stanley v. Georgia, a jury found certain movies taken from the defendant's home by police to be obscene. The Court held that the private possession of these obscene materials was not a punishable offense. The Court said: "whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Therefore, mere possession of obscene material is outside the reach of anti-obscenity laws, which can now only regulate the distribution.
This leads to the question of whether or not the current laws are adequate to deal with the issues that are coming up on the Internet. Questions such as whether data transmissions from a bulletin board operator to an individual's home computer are more like broadcast or are they more like print? In other words, when a computer user logs onto someone's website and the data from the website is transmitted down to the user's computer, is that transmission of information more like the flow of information in a television broadcast or is it more like the flow of information in a book or a telephone call? These questions have not been clearly decided.
In response to the question of whether the current laws are sufficient to control the Net, the answer appears to be no, they are not sufficient. This is so because there is little consistency within the method of receiving and sending on-line communications. For example, the Net is somewhat similar to the written and telephonic medium in how speech is delivered. More specifically, in written and telephonic speech, there is no captive audience. The audience selects the information that they wish to receive and it is transmitted to them. For example, if someone was interested in making a phone sex call or purchasing a pornographic magazine, that individual is making a choice to do so. The Net is similar in that users only get the information that they request. It is dissimilar to television or radio because in those mediums, there is less choice involved. Despite the fact that one can change channels, they still run the risk of eventually running across a channel that contains pornography. Chances are quite slim that a user would accidentally find a pornographic website based simply on the complexity of the organization of the Net. The Net is similar to telephonic speech as it relates to the role of the disseminator and the recipient. Just as in telephonic speech, the recipient of the pornographic information is often the one making the phone call. Thus, there is no room for an invasion of privacy argument if the recipient of the pornography made the call voluntarily. Additionally, the Net is analogous to telephonic speech in that an examination of the local community standards could be ruinous for both telephonic speech and Net speech. The recipient of the pornographic speech is the one who's community is likely to be examined for community standards violations, if the recipient has made a complaint about the speech. The effect of this is that the disseminators would have to screen every community in the country in order to ensure that they are not violating any community standards.
However, different aspects of the Net mimic different media. For example, should e-mail messages being sent across the Net to specific mail boxes be treated as mail or as phone calls. Should BBS's where users leave messages for the general public be treated the same as e-mail? These questions are not easily answered.
The Internet presents so many new and novel issues that there likely needs to be a new approach to it's regulation. Thus, current laws are not the answer, though they give strong guidance towards a method of achieving appropriate regulations.
The regulation of the Net should follow the broad guidelines the Supreme Court has provided in previous cases regarding printed pornography. In those cases, the Supreme Court has stated that the possession of pornography is not a violation of the law, that distributors are not liable when they are unaware of the content and that in many instances even the aware distributors are protected if the pornography can pass the Miller test. Additionally, the Court has found that if a distributor knows about the pornographic material, he or she may avoid liability if they have taken proper precautions to limit the access of files that contain indecent or pornographic materials to adults through the use of access codes, encryption devices, and /or credit card payments. Several cases have come before the courts that have attempted to reconcile the non-congruous nature of the Net versus other mediums of communication. Landmark cases are described below.
EXISTING CASE LAW Before discussing the changes the Government is proposing, an examination of a few of the more important prior cases dealing with the Net will illustrate how the issues are currently being decided. There are a handful of cases that have proven to be landmark cases. The cases are somewhat inconsistent, but for the most part tend to promote freedom on the Net. The first case that came before the court system pertaining to the issue of on-line service providers' liability was Cubby, Inc. v. CompuServe Inc. CompuServe is an electronic library which is available to paying members. Users have access to numerous forums consisting of interactive on-line conferences, electronic bulletin boards, and topical databases. Cubby Inc. filed suit against CompuServe based on allegedly defamatory statements located within the Journalism Forum. CompuServe had contracted out the management of the Journalism Forum to a company called Cameron Communications, Inc. CompuServe does not review the information carried on the Journalism Forum. CompuServe moved for summary judgment and it was granted by the court based on the fact that CompuServe was acting as a distributor, not as a publisher. Courts have consistently held that distributors of printed matter, such as vendors and bookstores, are not liable if they can show that they neither knew, nor had reason to know of the defamation contained in the materials they distribute.
The CompuServe case dealt with a systems operator that was unaware of the postings of its users, but what would have happened if the Sysop did know what was being posted? The federal district court in Massachusetts faced this issue in the United States v. LaMacchia. David LaMacchia was a student at Massachusetts Institute of Technology and he was indicted on charges for managing a BBS used to distribute copyrighted software. The government charged him with conspiracy to commit wire fraud based on his operation of a bulletin board system that allowed users to download expensive copyrighted word-processing software at no charge. LaMacchia claimed that he was only a distributor, and thus was not liable, just as a bookstore owner who supplies information by virtue of the sale of the book that is later used illegally by others is not liable. The Court held that LaMacchia's conduct did not violate the wire fraud statute and granted his motion to dismiss.
In the now famous "Jake Baker Case," Jake Baker, a student at the University of Michigan, e-mailed back and forth with another person and posted a story on the Net about a violent sex fantasy. He specifically identified the victim of his fantasy as one of his schoolmates. He was charged with transmitting threatening communications over state lines. A federal district judge in Detroit dismissed the charges; the judge held that while his story might be offensive, it was not a crime.
Not all of the cases have come down so leniently on the side of free speech. A recent New York Supreme Court decision, demonstrates the issues presented. In Stratton Oakmont, Inc. v. Prodigy Serv. Co., the trial court concluded that Prodigy was liable for a derogatory message on one of its bulletin boards. The Court determined that Prodigy's efforts to censor obscenities from its bulletin boards put the company in the same position as a publisher because it was monitoring bulletin board conduct. This case seemingly holds a completely contradictory result from the CompuServe case, but there is one possible explanation for the different result. Prodigy attempted to control what was being posted by it's customers and CompuServe did not. However, deciding cases on this basis is an unenlightened approach to dealing with the problems. Prodigy has made efforts to internally regulate what was being posted, so as to not offend its customers. For their efforts they were found liable. On the other side, CompuServe took a hands off approach to the regulation of their on-line service and for their inactivity, they are not liable. This is simply an unfair result.
A case arose in Connecticut where a young man was arrested for operating a BBS containing a file that provided bomb-making instructions and advice on how to bomb law enforcement agents. He was charged with inciting injury to persons or property and risk of injury to a minor. The defendant, Michael Elansky, plea bargained with the government and received 28 months in jail, plus five years probation for violations from previous charges. This result is unfortunate because Elansky had a strong case in his defense. The same material that was posted onto his BBS is available in most bookstores in a book entitled The Anarchist Cookbook. Additionally, the United States government published books containing more detailed instructions regarding explosive devices that may be obtained at virtually any military surplus store. The argument is that if a print publisher is permitted to print information that is available to the public, then a Sysop should not be denied that same freedom. The information that Elansky published was not classified, nor was it illegal; indeed, it is available in virtually every community across the country. Yet another point in Elansky's favor is that he did not create the files that were retrieved from his BBS. Thus, if the Elansky court had followed the rule set forth in CompuServe or LaMacchia, Elansky would have been acquitted of the charges pending against him. This is so because the Courts in both CompuServe and LaMacchia threw out the cases on summary judgment because they were only distributors of information that was unknown or unpublished by them. Although Elansky published intentionally and knowingly published the information, he was not the author of the information.
In another anti-free speech case, a Tennessee court convicted two Sysops of distributing pornography via interstate telephone lines. Robert and Carleen Thomas operated a computer BBS that carried files that featured some rather unusual sexual pictures, including bestiality and adults having sex with prepubescent children. The Thomas's operated their members only BBS from their home in California, but they were indicted and prosecuted, and convicted in Memphis, Tennessee. Many Sysops were quite concerned with this result because the Thomas's were prosecuted in the community where the material was received rather than where it originated. The material was found to be obscene based on the contemporary community standards of Memphis, not California, where the couple originally published the material.
The results of these cases are not consistent and provide little guidance in how the current laws should be applied. Some cases suggest that the company or individual is immune from liability as an unknowing distributor, but some cases are suggesting that liability should be imposed for distributors. Therefore, the issue presented is that on-line services link users in different locales across the world, so a standard based on any one given community's views is unfair. "The reason for this is unique to our age of technology. Networked communications never actually enter any physical community. People and/or companies generally have no contacts with many of the recipient communities, and they do not advertise in them and often the distributors comply with the laws of the distributing state."
LEGISLATION In light of the proliferation of pornography on the Net, the Federal Government has proposed an array of legislation to address the issues that have developed. The new legislation suggests that the legislators feel that the current laws do not adequately protect people from obscene speech on the Net and therefore the legislators may not have to examine the issue any further. The effect of virtually any legislation is two fold: 1) implicitly new legislation states that the existing laws are insufficient to deal with the problems and 2) existing case law is not going to have any precedential value whatsoever.
Communications Decency Act Senator Jim Exon (D-Nebraska) proposed the Communications Decency Act (CDA), which passed the Senate in June 1995. The Bill provides that anyone who "makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image or other communication" that is "obscene, lewd, lascivious, filthy or indecent" using a "telecommunications device" will be subject to a fine of $100,000 or two years in prison. The effects of this proposed legislation are far reaching because they impose liability on system operators, as well as those who post the communication.
Pros The primary concern according to the supporters of this act is to protect minors from having access to material that may be inappropriate. Additionally, the supporters of this act believe that the indecent information on the Net: provides a negative image of society; makes women sex objects; encourages deviant behavior; fails to promote healthy male and female relationships; and gives people instructions on how to commit crimes (there is an argument that without such instruction, the individual would not commit the crime). Additionally, the supporters feel that this legislation is specifically necessary to prevent children from accessing material that they are not able to understand and comprehend. It is true that the Net contains pornography that is accessible by children, some of it coming from adults explicitly seeking sexual relations with children. Additionally, "parents have legitimate concerns about what their kids are being exposed to and, conversely, what those children might miss if their access to the Internet were cut off." For these reasons, the supporters of the Communications Decency Act wish to see the bill passed into law.
Cons There are several justifications that are advanced regarding limitations on the speech of Netizens, but on the other side of that coin, this legislation does dramatically interfere with the Constitutionally guaranteed right of free speech. Civil libertarians were outraged at the passage of this legislation. Mike Godwin, staff counsel of the Electronic Frontier Foundation, complained the indecency portion of the bill transforms the vast library of the Internet into a children's reading room, where only subjects suitable for kids could be discussed. "It's government censorship, the First Amendment shouldn't (sic) end where the Internet begins" said Marc Rotenberg of the Electronic Privacy Information Center.
There are several reasons that this piece of legislation is opposed. The first one is that the bill imposes unconstitutional restrictions on indecent speech on-line. This restriction on indecency amounts to a total ban on all indecent information in public areas of the Internet, since all users of the Internet know that public areas are accessible to minors. "The United States Supreme Court has held over and over again that indecent material is protected by the First Amendment and may only be regulated with narrowly tailored means that leave adults free to communicate. Senator Exon's bill has failed to identify Constitutionally-appropriate means of regulation."
The next reason that the legislation is opposed is because of the intrusion of the FCC on content and standards in interactive media. "Enforcement of the Exon/Coats bill will require extensive an ongoing FCC proceedings to determine what exactly constitutes Indecency in various interactive media, and how the safe harbor defenses in the bill will function. Such regulation will mean that the FCC will interfere with the development of all current and future Internet standards for services such as the Web, e-mail, and newsgroups. There is a strong belief that such an influential FCC role will lead to a great deal of delay in the growth of the Net.
Yet another reason for the opposition of the bill is the proposed new crime of on-line annoyance. This new crime would mean that annoying someone using harsh, but not obscene, language over interactive media would become a crime, also punishable by $100,000 fines and two year jail terms. Federal, as well as many state laws already criminalize harassment, no matter what the medium, but prohibiting mere annoyance is an infringement on free speech.
The final reason that this bill is opposed is because of the unfair service provider liability. The proposal of holding service providers liable is not only a violation of the First Amendment right to free speech, but it is simply unfair. Often Sysops have no knowledge of what is appearing on their bulletin boards and further, they often do not have any real means of controlling what is being posted.
As discussed above, the case law has tended to protect Sysop's, particularly when they were not been directly responsible for posting the offensive material. However, this bill would provide for a contrary result. An analogous situation is the case of a library or bookstore. When a person purchases a book in a bookstore and the book turns out to contain offensive material, it would not be reasonable to hold the bookstore owner responsible for that book's contents because a book store owner can not reasonably be expected to have analyzed every book that runs through his store. Similarly the argument can be made that Sysops can not reasonably be expected to monitor every posting that is put on their BBS' by their users. Additionally, the CDA is direct conflict with the law as set forth by the Supreme Court. The current law holds that Sysops are not liable if they are unaware of the content, that possession is not illegal and allows for some pornographic images to be legal if they pass the Miller test. However, this piece of legislation seemingly overlooks the current laws and has succumbed to the pressure of conservative groups that push for extreme control of the Net.
If this new proposal became law, the level of discourse on the Net as a whole would have to be reduced to that which is considered appropriate for children. One of the sections of the bill effectively makes it illegal to use any of the seven dirty words in public forums on the Net. The logical extreme of the Senate's bill is that free speech and the blossoming expansion of the Net will be a thing of the past.
Internet Freedom and Family Empowerment Act The House of Representatives countered the passage of the Communications Decency Act by passing the Internet Freedom and Family Empowerment Act, sponsored by Representatives Cox and Wyden. This is a radically different approach to the regulation of the Net because it prohibits the federal government from regulating content on the Internet, commercial on-line services, and other interactive media, and it does not hold the Sysop operators responsible for the postings of its users. Instead, the approach the House took indicates that the responsibility lies with industry self-regulation, commercial control and parental control. "Unlike the Senate passed CDA, the Cox/Wyden approach recognizes that the Internet is a global, decentralized network, with abundant capacity for content and tremendous user control. The Cox/Wyden bill seeks to accomplish four principal objectives: 1) prohibit FCC content regulation of the Internet; 2) remove disincentives for on-line service providers to exercise editorial control over their networks and to deploy blocking and screening technologies for their subscribers; 3) pre-empt inconsistent state laws regulating content on interactive communications services; and 4) no effect on criminal law. Thus, if the House Bill was to pass as written, the Internet would not be controlled by an intrusive Federal Agency, Sysops would be free to carry on as they have been and there would still be the threat of punishment for illegal activity under the laws regarding child pornography that have stood for the past several decades.
ALTERNATIVE METHODS OF CONTROL There are at least three distinct means of dealing with these issues outside of governmental regulation: 1) industry self-regulation; 2) commercial software and devices and 3) parental control. In addition to these methods of regulation, the simple fact that the information is only supplied on request is also suggestive that there need not be governmental intervention. This is so because if users do not want to see the pornography, then they do not have to go to those sites that have them.
Industry Self-Regulation "Most interactive technology, such as Internet browsers and the software used to access on-line services such as America Online and CompuServe, already have the capability of limiting certain types of services and selected information." "The service provider can control the dissemination of the information from the BBS in a number of ways. Requiring a subscription fee helps to reduce the number of subscribers who casually access the bulletin board." The belief is that someone who pays the fee intends to access the BBS for the content it offers.
Additionally, the service providers can screen their applicants to attempt to ensure that the subscribers are consenting adults who do not intend to misuse the information. Further, system operators can incorporate a rating system, similar to the one that the video game manufacturers have just adopted.
Commercial Products There are several products available to consumers that would protect the unwary from explicit speech. These products work by either searching for pre-selected vulgarities or by screening out selected sites that are pre-encoded with some signal that indicates that the site contains material that may not suitable for children. There are already several products on the market, including: Surfwatch, CyberSitter and NetNanny.
Parental Control There is no doubt that there is information available on-line that small children should not be privy to, but "the hard truth is that the burden ultimately falls where it always has: on the parents. If you don't want you children fixating on filth, better step up to the tough task of raising them to find it as distasteful as you do yourself." "Parents can teach children safe behavior on the Internet just as they teach them to deal with the dangers present in the real world."
CONCLUSION The conclusion of this paper brings with it a suggestion of a basic tenant of Existentialist philosophy: individuals should take responsibility for their own lives and actions. If individuals do not like what they find on the Internet, avoid that site, do not download those pictures which you find offensive. There are hundreds of thousands of places to go in CyberSpace, more than enough for everyone to go where they want. Regarding children's access to illicit material, there are plenty of good commercially available programs to protect their innocent or prying eyes from finding such things. These programs, tied in with tighter access by the industry itself and stronger parental encouragement of appropriate behavior and activity for their children provide an excellent means of control.
Current laws are not completely adequate for the control of the Net, as evidenced by the inconsistencies of the current crop of cases, but the proposed Senate Bill is not the answer either. The answer is quite simply the House of Representative's Internet Freedom and Family Empowerment Act. The Internet is a truly phenomenal technology industry, adding government control to it would surely slow it down and eventually turn it into a hapless, useless, network of nothingness.
