Information Technology and the Law

In Wednesday’s class’s discussion, we talked briefly about the Internet as a public forum. While we agreed (for the most part) that the Internet as accessed from a library was not protected by public forum principles, it may deserve such protection under other circumstances. According to US v. American Library Association, Inc., a traditional public forum is a resource which has

… immemorially been held in trust for the use of the public and, time out of mind, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.

where a designated public forum requires that

the government … make an affirmative choice to open up its property for use as a public forum … The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional form for public discourse.

Since our discussions on trespass to chattels in regard to Internet servers, we have been plagued by the question of whether a website is a chattel or a piece of real property. While we never completely settled this dichotomy, the fact that the servers on which sites are hosted are physical objects seemed to override any claims to trespassing in cyberspace (a term which seems to carry little legal credence). It seems obvious that a chattel cannot serve as a forum, as a chattel offers no location at which to carry out actions appropriate for a forum. However, while the servers which comprise the Internet may be insufficient to be considered a forum, the Internet as a whole may be considered greater than the sum of its parts by virtue of its ability to act as an publicly accessible means of communication.

Before considering this application of the term forum to the Internet, several issues need to be resolved. First, one must consider that the Internet is highly commercialized, and a large portion of Internet servers and service providers are privately owned, thus making them unsuitable as elements of a public forum; however, the information distributed by those servers (if not restricted by some affirmative means of entry control) is publicly available, and thus expression by way of the Internet becomes a public resource. Additionally, the Internet has not necessarily … immemorially been held in trust for the use of the public (US v. ALA). This requirement for classification as a public forum may be inappropriate when applied to the Internet, as the sheer number of individuals who are able to make their voices heard via the Internet seems to outweigh the need for a longstanding tradition of forum-specific activity. I feel quite confident in presuming that the Internet has been more …used for purposes of assembly, communication of thoughts between citizens, and discussing public questions… (US v. ALA) than some real public forums. Finally, the fact that the Internet is not government property may make it difficult for it to attain forum status. But while the government may not own the Internet as a whole, it has displayed a significant interest in the Internet’s continuation (such as in the continuing contract between ICANN and the D.o.C.) and is directly involved with the Internet in its maintenance of government administered web servers. The Internet may not be government property, but the government’s contributions to the Internet may suffice to allow the application of forum status.

The growing number of blogs and ease by which users may host websites through which they express (and discuss) their opinions on public questions seems to make the Internet an ideal public forum. Take as an example of forum-like activity occurring currently the Frist Filibuster - this protest has been accompanied by a live web cast, and, by publicizing information on the demonstration through the Internet, has been able to gain attention in other forms of media. The Internet has provided a means by which members of the Princeton community can draw attention to this particular question of public interest (i.e. the filibuster preventing certain republican judicial nominations from being approved) so it can be widely can be widely heard and discussed. As such, should free speech on the Internet not be protected as if it were a public forum?

While it is understandable that the locality of an Internet access point (i.e. a library) and the interests pertaining thereto may override protection of free speech (it may be best that rights of a forum accessed from a place which is explicitly not a forum give way to the welfare of the non-forum), it is important to recognize that the Internet has, in an incredibly short period of time, taken on this role, and deserves all possible protection for free speech.

The internet has, undeniably, become central to our lives. The wide range of cases we have reviewed this semester gives us just a glimpse into the complicated legal world that governs our use of this resource. Email and instant messenger have made communication among people across the globe easy and inexpensive. Needed information is now just a few clicks away. Companies have been able to expand their customer bases far beyond the confines of traditional brick and mortar business models. Computers have secured a place in the classrooms of even the youngest students. As technology develops and consumers become more sophisticated, the internet seeps further and further into global use. The web can now be accessed through your computer, your cell phone and soon even your refrigerator.

Beyond challenging technology creators to build on the innovations of the internet, this medium has challenged lawmakers as well. Traditional geographically-based conceptions of property and jurisdiction have been repeatedly called into question. Our discussions this last week regarding community standards in cases like U.S. v. Thomas bring up once again the role of geography with the internet. For regional businesses, laws incorporating community standards for conduct make sense, since practically only these customers would have access to them. With the internet, on the other hand, even with password protection, filters, and other means, some people under the jurisdiction of strict community standards would be bound to obtain access to the material. Why should a company be obligated to research the arbitrary standards that a jury might impose thousands of miles away, when companies would have little recourse to prevent these parties from accessing their site? Cases like this demonstrate the need for at least national—or better yet international internet community standards—for determining what is “legal” to place, sell, do, etc. on the web.

The example of U.S. lawmakers intending to shield children from accessing pornographic material through public libraries highlights the difficulty national laws have in combating a problem that needs a more international solution. Filters are just a band-aid in U.S. v. American Library Association. Without some sort of consensus and/or change in the internet infrastructure, most sites lie within easy reach of anyone, regardless of age or place. The value of this cannot be underestimated, but neither can the costs. The success of the internet comes through the interconnectedness of sites around the globe. This ideal would lean towards implementing more internet community laws or common standards that users should abide by. Creating an international law would be a difficult process. But, this truly global entity which does not yield to arbitrary state or country borders necessitates such an approach. Last week’s discussions and multiple posts on ICANN highlighted the potential role that this organization could take to govern the internet. Already in charge of domain names and the disputes arising from this governance, this organization or another one to take its place could become the central point for creating rules that all countries could abide by. While some people proposed that all domain names should end with a country code, which would allow countries more jurisdiction over the kinds of sites in their domain and the ability to provide better filtering for examples like the Library case, to me this defeats the value of the internet. Many of the cases and laws discussed this semester continually point towards lawmakers resorting to more traditional geographical viewpoints. Discussion of trespass to chattels use in cases of sending spam and robots crawling websites have called me to question the use of internet nomenclature like homepage and site in terms of their real personal property value. Lawmakers should question these conventions as well and look beyond the physical constraints of clearly outlined borders and national property rights when governing the internet.

Whether it is the Supreme Court rendering a decision on Grokster or Congress enacting the DMCA, no decision about the internet or creation of new technology operates completely in a vacuum within the borders of America. A clear cut set of rules on a global scale is best for internet users, government regulators, and the creators of technology. Inventors must have protection from overly invasive governments or Courts which would restrict their rights to create and sell new technologies as well from overly-lax places which would give them no incentive to create and not protect their rights. This is true for the maker of the next iPod as well as the new company which launches its international e-commerce site. While difficult to implement, a global consensus for rules would be the best means to protect all of these parties.

In US v. ALA, the majority opinion takes a very narrow view of the purpose of libraries, and seems to wish to attempt to ensure that the libraries continue to fulfill only their traditional role. As the opinion states, “… public libraries seek to provide materials that would be of the greatest direct benefit or interest to the community. To this end, libraries collect only those materials deemed to have requisite and appropriate quality.” (Internal quotes omitted.) The opinon also quotes a document which states that “a hypothetical collection of everything that has been produced is not only of dubious value, but actually detrimental to users trying to find what what they want to find and really need.” While these quotes certainly do apply to libraries in the context of their traditional purpose (i.e., lending books), their use in support of the court’s decision demonstrates that the court has fundamentally misunderstood the situation of the libraries’ provision of Internet access in at least three different ways.

First, many libraries may not wish to curate their Internet access in the same way they do their print collection. The Internet is an extremely large resource and is extremely dynamic, which would make it difficult to select the most beneficial or most interesting parts of it in any kind of timely fashion, even with a substantial staff dedicated to the purpose — which very few libraries, if any could afford. If a library chooses to provide Internet access to its patrons, perhaps this suggests that the library has decided that the Internet as a whole is a resource worth providing, despite its inability to examine all of the material it contains.

Second, a library’s traditional role towards the selection of material is positive, not negative — while its role in the selection of worthwhile Internet material is usually the opposite. A positive role, in which the library affirmatively chooses what material to display in its collection, indicates that the most important limiting factor in the size of the collection is not a dearth of worthwhile material, but rather the library’s limited resources and inability to make an infinite number of items available to its patrons. A negative role, in which the library displays everything by default and eliminates objectionable material from its collection, indicates that the limiting factor is the amount of worthwhile material and not library resources. The court in this case errs in determining that negative filtering is within a library’s typical or necessary role. This brings me to the next part.

Third, a filtering software does not help a library to find the material that a patron desires to find. In fact, any negative filtering method generally will not help a patron find information — even after the elimination of all objectionable information, there is simply too much material remaining for a user unfamiliar with the collection to determine what is worth his attention and what is not. It is not by the suppression of information of questionable quality that Internet users find information, but instead through search engines and human-maintained indices of content. Internet filters do not have any recognizable role here — their role is simply in preventing some users from seeing material that they might find offensive.

The majority of the court, in this case, has found the Internet to be, in nature, similar to a large pile of books. In this context, they believe it is the library’s role to locate and display only those books that contain worthwhile content. But this is necessarily a subjective (and in many cases controversial) determination, and, since the library is not constrained by limited resources, it makes little sense to state that Internet filtering is a service that should be expected from a library. To do so is to seek to confine libraries to a role that they have traditionally held, and to deny them the opportunity to expand their service and their goals in light of the new capabilities that the Internet affords them.

In truth, I must admit that U.S. v. Thomas seems like quite an irrelevant case. For all the discussion of varying community standards and hypotheticals involving naked children from distant countries and cultures, what we are dealing with in this particular case is something far simpler. Thomas distributed pornographic images, including “images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination.” Let’s not split hairs. (Aside from the fact that they had the Memphis address of a particular subscriber) Applying logic that we’ve used earlier in the course about the nature of the internet and its users, there is a high probability that at least one of the Thomases users would reside in a jurisdiction which found such material obscene—we are not talking borderline stuff here… it does not take a low bar to admit bestiality, incest and similar acts under the obscene tag—so then legally, the Thomases knew, at least constructively, that they were sending their images to some jurisdiction where they would not be welcome or legal. It is not as if the images that he was sending were likely to be seen as universally non-obscene across the nation. Consequently, it makes sense that the Thomases be held accountable for whatever harm their images did in any jurisdictions they reached…specifically the jurisdiction of Tennessee.

Why bother?

Another question I had was why bother with this case? I mean, sure the material was obscene in Tennessee, but last time I checked the internet was chock full of tons of other sites promising depictions of the same and similar weird and deviant behaviors (personal opinion). So what makes the Thomases bulletin board any different? What makes this case in particular worth pursuing? Because the internet is almost wholly accessible from anywhere you can access any part of it, surely there are an abundance of other sites, both password protected and unprotected, where people within Tennessee jurisdiction can come in contact with similar material.

It’s been done before

Something else that struck me about this case is the lack of originality (which is not to say that individuals need be more creative with respect to the expression and depiction of their deviant behavior). To me, it seems that any ruling in this case could have followed directly from a precedent set by any cases relating to obscene materials distributed via mail order. Disregarding the differences between the way customers interface with each company, I think it is easy to agree that most issues concerns raised by Thomas’company are probably common to companies that specialize in obscenity via mail.

What is the point of this case?

What is the point of this picture?

It’s been a great semester

Although CIPA is well-meaning, I believe that it sets some very scary precedents. Adults can ask the librarian to disable internet filtering, but doing so can come with some potentially embarrassing connotations. This is a clear deterrent for users who want to view material that is protected under the 1st amendment. Recent media events have indicated that such well-meaning censorship is still powerful in its potential to undo our 1st amendment rights.

In April of last year Howard Stern, famous radio shock jock, and one of his syndicated broadcasters, Clear Channel Communications, received the biggest fines in the history of broadcasting, from the FCC. His employer, Infinity Broadcasting, also received very heavy fines shortly after. I admit that the things Howard was discussing in this case, the subjects of the fines, would probably be considered lewd and indecent by most communities’ decency standards; this is not what worries me. What does worry me is the fact that the man who received these fines is one of the most outspoken anti-Bush public personalities.

Howard Stern had been talking about indecent things on the radio for years, and had never received such fines. However, as it neared election time, he stepped up his Bush criticism more than ever. The newly appointed chairman of the FCC seemed to have it out for him. These fines were so large that it became a liability for any broadcaster to syndicated the Stern show, and it was announced that he would no longer be broadcast over public radio waves, and would instead move to the much smaller, less-developed satellite radio market. If this isn’t disturbing enough, here’s another interesting fact: the new FCC chairman was none other than Colin Powell’s son. If anyone owed Bush a favor for being placed in a position of power that he probably didn’t rightly deserve (I’ll leave the reasons why for another post elsewhere…), it was Michael Powell.

FCC censorship and regulation is quite a nice, well-meaning idea and set of laws. It was, in my opinion, used in a very disingenuous way. I could see CIPA being misused in a very similar way. The idea of our current conservative government blocking out sites concerning contraception and birth control has been mentioned, but I could also see this government blocking many other things. Certain particularly violent anti-Bush sites could be blocked, since such criticism of the President is indecent; sites that are particularly insistent that evolution is a correct theory and that creationism is hogwash could be blocked, since evolution is just a theory and it’s indecent to not give creationism the same weight; sites that criticize the war in Iraq could be blocked, since it’s indecent to criticize our brave troops; etc, etc, and more etc.

I find government-mandated censorship in general to be a very slipper slope. Instead of investing in ineffectual filtering technologies, I think it makes much more sense to hire an extra worker at libraries. Children cold be banned from the computers altogether, and allowed to use them only with adult supervision, including the supervision of that one extra library worker who has been hired. I would much rather entrust the child to that adult than violate everyone’s 1st amendment rights. In addition, that adult will be able to filter what the child sees according to local decency standards, rather than a blanket system which is too restrictive in some communities and not restrictive enough in others.

When talking about “community standards” with respect to the Internet, I agree with the proposal in class for a “network community.” With regard to obscene or indecent material on the Internet, it is difficult to draw parallels to real-life situations, especially when talking about pornography.

There are three main reasons that I believe it can be acceptable for someone to distribute pornography online. These characteristics can define an “online” or “network community.” First, people must sign up for the service. Second, the material must be password protected. Third, it should be very difficult for minors to obtain the material.

The reason I believe people must sign up for the service is because this shows a positive action on their side. When somebody signs up online in order to view or download this material, they are, in effect, joining the “online community.” Because they have decided to join this community, knowing what it entails, members cannot later say that they did not want to have access to this material.

The second characteristic that needs to be included is to password-protect the material. This can be either members logging in with their own passwords, or all using one password to view the material. The main goal of this provision is to make it difficult or impossible for anyone not in this “community” to accidentally gain access to the material. By being forced to enter a password to view the material, the community is, in effect, protected.

The third characteristic, difficult access for minors, is the toughest to achieve. However, there are ways to make it more difficult. Forcing members to use a credit card, acknowledge that they are over 18, or something of the sort can help accomplish this.

The reason that I believe an “online community” is possible is because of the difference in access as opposed to a real-life situation. If obscene/indecent material is posted on a billboard, sold in a store, or distributed via mail, the community as a whole is exposed to it, and their values should be considered. However, an online community has a different set of values, since everyone who joined this community, knew what kind of material would be available.

If a community is formed online in this manner, I feel that it should be allowed to exist and distribute its material regardless of the physical location their members exist. Once members sign up for this online community, they agree to respect its values and rules.

In the U.S. v. American Library Association, the pertinent question in Justice Souter and Justice Ginsburg’s dissent is “whether a local library could itself constitutionally impose […] restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no.” (p.4) That question is more fundamental than the question of the Constitutionality of the Children’s Internet Protection Act (CIPA). I reach the same opinion as the plurality saying that libraries have a compelling interest to protect minors from objectionable material. I will attempt to argue against the points put forward by Justice Souter in my blog, essentially stating that library restriction of adult usage of public computer terminals is a violation of free speech.

For Justice Souter, library limitation of internet usage is rooted far more deeply than the mechanisms by which it is achieved. It extends beyond the imperfections of filtering technology; it is not even an issue of how responsive librarians are in unblocking the filtering technology. Souter says that allowing libraries to filter information to adult patrons is like “buying a book and then keeping it from adults lacking an acceptable ‘purpose,’” or “buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.” (p.7 of dissent) This analogy doesn’t seem to fit quite right. The purpose of the limitation is to reduce the secondary effects of exposing minors to objectionable material. Adults “suffer” the consequences of the stricter standards, but presumably most libraries would not invest in materials widely found objectionable. The nature of the internet is such that materials available are not subject to publisher discretion, are not subject to constraints of shelf space, and are not subject to any form of community standards as are even periodicals on sale in book stores. While that freedom makes the internet an ideal forum for free expression of ideas, it also allows for populations not intended to access materials that have relatively little consequence with regard to the exchange of ideas if we assume that most of the material objectionable does not satisfy the Miller Test of having some artistic, political, or literary merit.

Seven out of the nine justices agree to varying degrees that libraries have an interest in limiting children’s access to pornographic materials. Justice Stevens, the only dissenting opinion in that count of seven states that “I agree with the plurality that it is neither appropriate not unconstitutional for a local library to experiment with filtering software as a means of curtailing children’s access to Internet Web sites displaying sexually explicit images.” (p.1 of his dissent) He finds the act unconstitutional for its reliance on unreliable filtering technology that overblocks legitimate material and underblocks objectionable material. So, it seems that libraries should have some means of recourse, limiting patron access where a simple glance at a computer monitor would expose minors to the equivalent of public obscenity.

So, it seems reasonable for libraries to limit patron access to uses that would not, at a casual glance, grossly offend the general community standards (I know, many disagree with the notions of community standards but that discussion is saved for other posts) of public decency, especially in the context of minors. I want to echo Chris’ suggestion in class that an appropriate method of discouraging such use would be to put signs up around computer terminals, informing patrons that objectionable uses may result in fines or confiscation of future usage privileges. This would seem to pass the time, place, and manner standard generally applied to First Amendment cases where it is not a content-based restriction, but the context of the situation that does not afford protection.