For all its millions of pages of content, the Internet1/ is a moral vacuum that cannot filter the good from the bad, or the virtuous from the profane. Many of the early users and proponents of the Internet passionately argue that its greatest value comes from its absolute freedom. But just as the Internet has crept into the lives of mainstream America, so the laws of the mainstream have crept into Cyberspace. This article surveys recent developments in this arena as they relate to censorship, "spam," and defamation.
Censorship
In a recent survey, only 30% of Internet users reported that they were "very" or "extremely" concerned about pornography on the Web. However, over 70% of users expressed concern about the "desire of special interest groups to restrict what is available over the Internet" and about "government censorship of what is available on the Internet."2/ This contrasts somewhat with a May, 1997 poll in which 80% of respondents from the general population agreed that "the government should take steps to control access to pornographic or sexually explicit material on the Internet to protect children and teens under 18 years of age."
In 1996, President Clinton signed the Communications Decency Act (CDA)3/ into law as part of omnibus legislation affecting the entire landscape of American communications law. The CDA outlawed the transmission of "indecent" and other sexually explicit materials to minors over computer networks. The Act defined indecency as that which is "patently offensive" by "contemporary community standards."
On June 26, 1997, the United States Supreme Court's 7-2 decision in Reno v. ACLU struck down the "indecency" provisions of the CDA, holding that they violated the First Amendment's guarantee of freedom of speech.4/ The Court held that the government must grant the Internet the same level of protection as books or magazines (a level significantly higher than that granted to speech on television or over the telephone). The decision agreed with the lower federal court's conclusion that the Internet is "the most participatory form of mass speech yet developed," and is entitled to "the highest protection from governmental intrusion."5/
In that context, the CDA was viewed as a "content-based blanket restriction on speech" that "fail[ed] to provide any definition of 'indecent' and omit[ted] any requirement that 'patently offensive' material lack socially redeeming value." Moreover, the Act "neither limit[ed] its broad categorical prohibitions to particular times [and places] nor base[ed] them on an evaluation by an agency familiar with the medium's unique characteristics." Ultimately, the CDA's "burden on adult speech [was] unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. . . . The Government [did] not prove[] otherwise." The Supreme Court also pointed out that the decentralized nature of the Internet made it difficult to apply the "community standards" test for obscenity law. The Reno decision suggests that any legislation affecting the Internet must be narrowly tailored so as to fall within the standards of liberal as well as conservative communities.6/
The Reno case provides an interesting contrast to United States v. Thomas, wherein the federal government brought charges in Tennessee against a California couple who posted sexually explicit material on a members-only electronic bulletin board service (BBS).7/ The Tennessee federal court applied Memphis community standards and convicted the California couple of obscenity violations. The Thomas Court stressed the fact that the defendants very easily could have controlled access to the BBS by refusing to give its phone number to people in jurisdictions in which the defendants did not wish to provide service. In contrast, it is not possible to exercise this control once material is posted on the seamless and global Internet.
The political and public forces behind the CDA continue to push for regulation of adult material on the Internet. In 1997, Senator Dan Coats (R-IN) introduced S. 1482 (called "CDA II" by its critics) which was designed to punish commercial distributors of material deemed "harmful to minors." On July 22, 1998, the Senate approved the bill's text as an amendment to a massive $33 billion spending bill for the State, Justice, and Commerce Departments.
Last year, several states also attempted to fashion their own regulations on Internet speech. New York, for instance, passed a law making it a crime to engage in online communications which are "harmful to minors."8/ Yet, in what is perhaps a demonstration of the difficulties these "state CDAs" face, the court in American Libraries Association v. Pataki soundly rejected the New York statute.9/ The Pataki court based it reasoning on the interstate commerce effects of the New York law:
First, the Act represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject of state legislation, the burdens on interstate commerce resulting from the Act clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.10/
Other significant players concerned with the access of children to indecent materials have taken less expansive approaches. In early 1997, for instance, the White House requested that online content providers adopt "ratings" to alert Internet users of possibly objectionable content.11/ Indeed, the latest release of Netscape's browser will offer users the option of excluding sites of a certain rating, such as adult content sites.12/ Certain Internet providers have embraced the use of commercially available "filtering" programs which allow parents to control what types of content their children can access.13/ In fact, two bills pending before Congress effectively would require Internet service providers to make filtering software available to all subscribers.14/
The installation of software filters in public libraries and schools already is progressing rapidly-a growth driven partially by legislation and also by the threat of lawsuits.15/ The California Assembly, for instance, presently is considering a bill which would require all public libraries that receive state funds to adopt a policy prohibiting minors from accessing "harmful" matter on library Internet terminals.16/ A bill sponsored by Senator John McCain (R-Arizona), S. 1619, would require that schools and public libraries receiving federal Internet grants install as-yet-unspecified blocking and filtering software on any and all public-use computers so as to shield minors from "inappropriate" material.
Some free speech advocates have expressed concern that these content filters may block important and valuable information along with the obscene and violent. They question the appropriateness of filters in government institutions like public libraries.17/ For instance, the Gay & Lesbian Alliance Against Defamation last year protested one software filter's optional screening of "gay content." Other filtering programs give users the option to block material dealing with women's issues, human rights, and prisons.
Several courts have given at least preliminary consideration to these arguments. In April, 1998, a federal judge in Virginia rejected a motion to dismiss a challenge to Internet filtering at a public library. The judge held that "the Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech" unless they meet the highest level of constitutional scrutiny.18/ In another library case from Livermore, California, a religious-rights group sued a local library on behalf of the mother of a 12-year-old boy. The suit contends that the library wasted public funds and created a public nuisance by allowing minors, like the plaintiff's son, to access images of "seminude and nude women positioned in sexually alluring and explicit poses."19/
Ultimately, it is unclear whether U.S. laws aimed at regulating Internet content will have a major substantive effect. The Internet, after all, is a global network. Americans may access a Web site based in Amsterdam as easily as one based in Akron. Thus, even if the potential for legal action drives some U.S.-based adult sites out of business, adult sites in other countries remain only mouse clicks away from American Internet users.
Spam
"Spam" (also called "junk e-mail"and "unsolicited commercial email" ("UCE")), is an unwelcome mass mailing to electronic bulletin boards, newsgroups or lists of e-mail addresses.20/ Most spam messages advertise products or services such as phone sex lines, adult web sites, quack health products, and "get rich quick" schemes.21/ It is estimated that roughly half of unsolicited commercial e-mail messages contain fraudulent or deceptive content.22/
Spam differs from junk postal mail in several fundamental ways. First, while junk-mailers must pay for the cost of mailing lists, postage, paper and envelopes, spammers pass most of the cost onto their recipients. Internet service providers ("ISPs") report that spam accounts for anywhere between 5% and 30% of their e-mail volume; consequently, they must spend millions of dollars per month on extra bandwidth and employee time to accommodate and control this load 23/ Spikes in the volume of spam have even caused several major ISPs to crash, disrupting service to paying customers for extended periods.24/ According to one estimate, $2 of a consumer's monthly ISP bill ultimately goes to handling spam-related expenses.25/ Spammers, on the other hand, pay pennies per name to purchase e-mail or newsgroup lists, and can even "harvest" the information themselves with software that grabs e-mail addresses from newsgroup postings and the Web. The cost of actually sending spam messages is negligible; indeed, many spammers in fact use free e-mail accounts to disseminate their messages.26/
Second, there is no centralized process for identifying the source of the spam. Therefore, recipients cannot request to be removed from spam lists as they can from conventional mailing lists. Because many people respond to spam with angry reply messages, spammers use these replies to verify active e-mail addresses while hiding their own identities by using other service names in their return addresses. This strategy does the additional harm of exposing innocent ISPs to the wrath of angry spam recipients. Courts, however, are beginning to respond to this particular problem. In June, 1998, Northern District of California Judge James Ware permanently enjoined spammers from using the name of Microsoft's e-mail service, Hotmail, in spam return addresses.27/
Certain commercially available software programs can filter spam messages from ISP computers or home e-mail accounts. At best, however, such software offers only a partial solution; the burden for avoiding spam still falls on the recipient. Spam filters do not, for instance, reduce the cost and space required to administer the spam that enters the system (even if it is later eliminated). These software programs also sometimes fail to defeat spammers' increasingly sophisticated techniques to evade filtering.
ISPs have been attempting to block and filter-out spam messages, and are pushing for solutions and legislation to control the problem. Spammers, led by Cyber Promotions, Inc., have objected that this blocking interferes with their right to free speech.
In CompuServe Incorporated v. Cyber Promotions, Inc.,28/ the court addressed this issue and concluded that nothing in either the federal or applicable state constitutions required that a private property owner tolerate a trespass "whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner."29/ Under a consent decree, Cyber Promotions ultimately agreed to cease sending unsolicited e-mails to CompuServe subscribers. The court rejected Cyber Promotions' argument that CompuServe was exercising powers that are traditionally the exclusive prerogative of the state.30/
Several bills in the 104th Congress attempt to help control spam on the Internet. Representative Chris Smith's (R-NJ) H.R. 1748, the Netizen Protection Act of 1997, would extend the Telephone Consumer Protection Act of 1991 prohibition against "junk faxes" to cover unsolicited commercial e-mail. Recipients of unwanted spam would be able to obtain $500 from a spammer for each spam message. Damages would be tripled if the court finds that the spammer "willfully" or "knowingly" violated the law.
The Senate already has passed spam legislation as part of S. 1618, a bill designed to prohibit long-distance phone companies from "slamming" (switching customers' long-distance carriers without their consent).31/ The spam-related amendment to the bill would require that all commercial unsolicited e-mail contain the actual name, postal address, e-mail address and phone number of the sender. It also would mandate that spammers create a system through which junk e-mail recipients could request that they be removed from e-mail lists. The FTC would have authority to investigate violations of these standards and to impose civil fines of up to $15,000.
In August 1998, the House Telecommunications Subcommittee approved
H.R. 3888, the House equivalent of S. 1618. The House and Senate provisions differ only as to where in the message the sender must identify his or her message as spam. In the Senate bill, the spammer must include such an identification in the subject header, thus enabling ISPs and individuals to easily filter out such e-mail. The House bill, however, requires identification only in the body of the message, making it much more likely that a user would have to open the spam before realizing what it is. Importantly, these bills would pre-empt any state spam legislation passed after July 1, 1998, trumping more aggressive laws like California's A.B.1629, which prohibits unsolicited advertising e-mail. The State of Washington's anti-spam law would not be preempted as it went into effect on June 11, 1998.32/ It allows recipients of unsolicited commercial e-mail to collect $500 in damages for each occurrence, while Internet service providers may collect up to $1,000.33/ This law also prohibits the use of third party's domain name, the misrepresentation of message origin, and the use of a false or misleading subject line in commercial e-mail messages. However, the law applies only to e-mail sent or received from Washington state, illustrating the limits of state regulation. Yet, even in spite of this obstacle one Washington resident already has extracted a monetary settlement after threatening to sue under the law,34/ and another resident has sued for damages.35/
Defamation
The Internet has made it cheap and easy to distribute potentially defamatory material to millions of people. There are several models for liability, depending on the nature of web sites: a web site may be a "publisher" of information and therefore will be responsible for its editorial decisions and content. Sites such as CNN Interactive, the OPA and others mentioned in this article appear to fall into this category. A site may be a "distributor," which under traditional law is not liable for the material of others unless it knows or has reason to know of the defamatory character of the content. Moreover, a site may be a common carrier, which acts solely as a transmitter of information and bears no liability for content. The majority of web sites probably would be characterized as publications because their authors exercise editorial control over their content.
ISPs and web sites that host web forums are good examples of the distributor model, as most conduct at least a cursory editorial screening to keep vulgarity, obscenity, and extreme incivility off of their sites. In Zeran v. American Online, Inc., the federal trial and appellate courts defined ISP liability in such cases.36/ In the weeks following the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, anonymous individuals attached plaintiff Kenneth M. Zeran's name and telephone number to a series of AOL electronic "bulletin board" advertisements for T-shirts with slogans like "Finally, a day care center that keeps the kids quiet-Oklahoma 1995." Zeran sued AOL for allowing these notices to remain and reappear on AOL'S "bulletin board" despite his prompt complaints. Both the U.S. District Court in Virginia and the Fourth Circuit Court of Appeal ruled that AOL was not liable for postings on its bulletin boards-decisions which the Supreme Court refused to review. In their ruligs, the courts cited a so-called "good Samaritan" provision of the Telecommunications Act of 1996, which directs that interactive computer services should not be "treated as the publisher or speaker" of content posted by a third party just because the provider makes voluntary, good-faith measures to remove obscene, lewd, harassing, or otherwise objectionable material.36/
"Hate pages" are a phenomenon in many ways unique to the Internet. Some public relations consultants estimate that there are as many as 1,000 such pages, defined as web sites devoted entirely to airing grievances about companies, products and services.37/ The ranks of these sites include "GTE Sucks;" the "I Hate McDonald's Page;" "ToysRUs Sucks;" "I Hate Bill Gates!!!;" "The Official Packard Bell Hate Page;" and "Why America Online Sucks." Most targets of these pages choose not to respond with defamation suits for fear of giving their critics a publicity bonanza.38/ Should they choose to take legal action, however, it is possible for targeted companies to learn the identity of their attackers. A federal court recently ordered AOL to disclose to the Orange County Register the real name of a subscriber responsible for the "Orange County Unregistered Press," a site devoted to complaints about the paper. The subscriber had identified himself on-line only by his AOL screen name"Slave4OCR."39/
Conclusion
In many ways, the law is playing catch up with respect to the explosive growth of the Internet. Plainly, the legal framework of Internet speech will continue to develop. "Netizens" will need to monitor developments closely in this important area.
You may reach Eric J. Sinrod at EJSinrod@hrblaw.com, and Barak D. Jolish at BJolish@hrblaw.com.
1/Eric J. Sinrod is a partner in the San Francisco office of the international law firm Hancock Rothert & Bunshoft, LLP. His trial and appellate practice, which includes experience before the United States Supreme Court, has covered a number of important commercial, information and technology issues for domestic and international clients. Mr. Sinrod is an adjunct professor of law and has published and lectured extensively on information and communications issues.
2/Barak D. Jolish is a third-year student at the University of California Hastings College of the Law. Mr. Jolish has worked as a Summer Associate at the San Francisco office of Hancock Rothert & Bunshoft, LLP, and as Deputy Director of the Harvard Middle East Business Forum at Harvard University. While at Hastings, Mr. Jolish published an article on the reverse engineering of software and a review of a book about Cyberspace and the legal profession. 42/The "Internet" consists of countless linked networks and computers across the world that allow millions of people to share information. The "World Wide Web," or just "the Web," is the part of the Internet where everything is represented in the graphical, linked "pages." "Cyberspace" loosely to refers to virtual reality, the Internet, the World Wide Web, and many other kinds of computer systems in which users become immersed. CNET Glossary, CNET.COM (visited June 27, 1998)
3/Credit Card Security Greatest Internet-Related Concern Concludes Lycos Web User Study, Cyber Dialogue (March 5, 1998)
4/47 U.S.C. § 223(a), (d) (1996).
5/117 S. Ct. 2329 (1997).
6/Id. at 2340.
7/See id. at 2348.
8/74 F.3d 701 (6th Cir. 1996).
9/N.Y. Penal Law § 235.20(6) (1997).
10/969 F. Supp. 160 (S.D. N.Y. 1997).
11/Id. at 182.
12/See Online News Producers Oppose Site-content Ratings, CNN Interactive (August 29, 1997)
13/See Netscape Readies Communicator Upgrade to Version 4.5, CNN Interactive (June 18, 1998)
14/There are a variety of filters on the Market, including Cybersitter and Net Nanny. Companies like America Online Inc. and Walt Disney Co. have released release their own tools for parents who wish to screen Internet content.
15/See Representative Zoe Lofgren's (D-CA) H.R. 774, the "Internet Freedom and Child Protection Act of 1997," and Representative Joseph McDade (R-PA) H.R. 1180, the "Family-Friendly Internet Access Act of 1997."
16/ See Janet Kornblum, Post-CDA Filtering Under Fire, CNET NEWS.COM (July 3, 1997)
17/A.B. Res. 1793 (1997).
18/See ACLU, supra note 73.
19/Mainstream Loudoun v. Loudoun County Libraries, 1998 WL 164330 (E.D. Va. 1998).
20/See Courtney Macavinta, Court Asked to Drop Filtering Suit, Cnet News (July 10, 1998)
21/See CNET Glossary, CNET.COM (visited June 26, 1998)
22/About the Problem, Coalition Against Unsolicited Commercial e-mail (visited July 27, 1998)
23/Report to the Federal Trade Commission of the Ad-Hoc Working Group on Unsolicited Commercial Email, The Ad-Hoc Working Group on Unsolicited Commercial Email (visited July 27, 1998)
24/Neal Weinberg, A Day in the Life of a Spammer, CNN Interactive (June 29, 1998)
25/In March of 1998, for instance, an unprecedented load of spam over the course of four days caused sporadic disruption of Pacific Bell's Internet Services to its more than 175,000 California customers. See Chris Oakes, Well-Done Spam Cooked Pac Bell's Email, Wired News (April 15, 1998)
26/A Day, supra note 24.
27/Ad-Hoc Working Group, supra note 87. This "cost-shifting" is similar to that of "junk faxes," which became widespread after the popularization of the fax machine. The government killed the junk fax industry overnight with the Telephone Consumer Protection Act of 1991 ("TCPA"), which allows consumers to collect up to $500 for every violation of the Act's ban on "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Because most spam is also sent over telephone lines, the language of the TCPA may be sufficiently broad to potentially cover it. Though discussed, as of yet, the TCPA has not been used to prohibit e-mail spam.
28/Chris Oakes, Hotmail Bags Spammers, Wired News (June 16, 1998)
29/962 F.Supp. 1015 (S.D. Ohio 1997).
30/Id. at 1027.
31/See id. at 1025-27.
32/S.1618, 105th Cong. 1998
33/1998 Wa. ALS 149; 1998 Wa. Ch. 149; 1997 Wa. HB 2752.
34/Ed Murrieta, Spam Law Bares Teeth, Wired News (July 16, 1998)
35/Janet Kornblum, Settlement in First Antispam Law, Cnet News.com (July 16, 1998)
36/Engst v. Knight, No. 98-2-17831-1 (Wash. filed July 17, 1998)
37/958 F. Supp. 1124 (E.D. Va. Mar. 21, 1997), aff'd, 129 F.3d 327 (4th Cir. Nov. 12, 1997), cert. denied, 1998 WL 111522 (1998).
38/The Supreme Court did not strike the good Samaritan provision when it declared unconstitutional several elements of the Telecommunication Act of 1996 in ACLU v. Reno.
Note that the CDA and the court's interpretation overrule the earlier district court cases of Cubby v. CompuServe, 776 F. Supp. 135 (S.D. N.Y. 1991) (finding ISP liable for defamatory content if ISP monitors content and fails to remove defamatory material) and Stratton Oakmount v. Prodigy Services Co., 23 Media L. Rep (BNA) 1794 (N.Y. Sup. Ct. 1995).
39/Leslie Goff, YourCompanySucks.com: Angry Consumers Slam Companies on the Web, CNN Interactive (July 22, 1998)
40/Many companies may have learned a lesson from Britain's vaunted "McLibel" case. The 313 day trial that resulted from McDonald's Corp.'s suit against two vegetarian activist leafletters gave the activists millions of dollars' worth of free publicity. See McDonald's Prevails in Long-running Libel Case, CNN Interactive (June 19, 1997)
41/See Kaitlin Quistgaard, Paper Gets AOL Member Name, Wired News (July 21, 1998)
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