Though the Internet4 began as a government project, it spent its early years entirely unregulated.5 Indeed, as the province of scientists and academicians, for nearly two decades the Internet focused largely upon technical and research issues.6 As the medium has evolved into a fixture of mainstream American life, mainstream regulations have begun to work their way into Cyberspace. This article presents examples of recent developments and practical implications in the areas of on-line censorship, "spam," and defamation.
I. Censorship
Graphic, hard-core pornography has been a crucial component of the development of the Internet.7 Pornographic web sites attracted audiences when the medium offered few other services, and found a way to profit when others were still using their sites as glorified bulletin boards. Adult sites were also on the cutting edge of Internet technology, finding ways to more effectively transmit their pictures, sound, video, and interactive services.8 Though Cyberspace now offers a diverse world of content-books, insurance and news, for instance-the adult sector continues to flourish. One Internet monitoring firm found that in April, 1998, about 15 percent of all Internet users had logged on to one or more of the ten most popular cybersex sites.9 Forrester Research conservatively estimated that online pornography would generate $185 million in 1998, out of $4.8 billion for all online business.10
The sheer volume and often shocking nature of adult content on-line has sparked a backlash. In 1996, Congress and the President passed the Communications Decency Act ("CDA"),11 which outlawed the transmission of "indecent" materials-images and pictures which are "patently offensive" by "contemporary community standards"-to minors over computer networks.12 Though the Supreme Court's 1997 Reno v. ACLU decision soundly rejected the "indecency" provisions of the CDA as abrogating the free speech rights of adults,13 the political forces behind the CDA continue to push for regulation of offensive material on the Internet.
Most successful in this drive was the Child Online Protection Act ("COPA") of 1997.14 Called "CDA II" by its critics, COPA requires that commercial Website operators offering material "harmful to minors" verify that each of their visitors is an adult. Like CDA, COPA appears poised to fail constitutional challenges. In American Civil Liberties Union v. Reno ("Reno II"), the same coalition of civil liberties groups, news publishers and online merchants that challenged CDA won a preliminary injunction against the enforcement of COPA.15
In granting this injunction, the Reno II court again focused on the law's impact on the First Amendment rights of adults. First, the court found that, "as a content-based regulation of [nonobscene sexual expression], COPA is presumptively invalid and is subject to strict scrutiny."16 The government thus could limit the content of such speech only through narrowly tailored regulation which furthers a compelling interest by the least restrictive means available.17 While the court acknowledged a compelling government interest in protecting minors from harmful materials, it found that COPA failed to use the "least restrictive means" to achieve its goal.18 Indeed, the court found that Internet "filtering software" may be just as effective.19 The court also observed that regardless of COPA, minors might access harmful material on foreign Web sites, non-commercial sites, and on-line protocols such as ftp.20
The Reno II court ultimately found that COPA imposed an undue burden on speech because sites may self-censor their content to avoid the costs of age verification systems.21 The court observed that there is, no way to restrict access of minors to harmful materials in chat rooms and discussion groups, which the plaintiffs assert draw traffic to their sites, without screening all users before accessing any content, even that which is not harmful to minors, or editing all content before it is posted to exclude material that is harmful to minors. . . This has the effect of burdening speech in these fora that is not covered by the statute.22
Others concerned about the access of children to pornography have advocated for software Internet filters, which purportedly block objectionable material from reaching the computer screen. Some free speech advocates have, however, expressed concern that content filters also may block valuable non-obscene information, and argue therefore that such filters are inappropriate in public forums. The Censorware Project, for instance, found that one filter blocked "gay-themed" sites even though the sites did not contain nudity, violence, or obscenity.23 A more recent study found that another product blocked pages containing the Declaration of Independence and the Koran.24
At least one court has expressed a similar discomfort with Internet filters. In Mainstream Loudoun v. Loudoun County Libraries, Leonie Brinkema, a Virginia federal district court judge, recently ruled that a Virginia public library's Internet filtering policy violated the First Amendment.25 In making this ruling, Judge Brinkema held that, as with the CDA and COPA, the policy in question was subject to strict scrutiny. In examining the evidence before her, the judge found that the county's citation of isolated complaints in other libraries was insufficient to establish that the regulation was necessary. She also found that the policy was not narrowly tailored, and she cited three less restrictive means that the county had not tested: privacy screens around Internet terminals, library staff monitoring of Internet use, or the installation of filtering software on only some Internet terminals designated for the use of minors.
Judge Brinkema held that the library's filtering policy was over-inclusive "because, on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles."26 Judge Brinkema finally ruled that the county had imposed an unconstitutional prior restraint because its policy "includes neither sufficient standards nor adequate procedural safeguards to allow for prior judicial determinations before material is censored."27 The judge was particularly troubled that the library would abdicate the responsibility of censoring speech to a private party-the software filter publisher.
Several bills in the 106th Congress nonetheless would mandate some form of filtering. Senator John McCain and Representative Bob Franks have introduced bills which would require schools and public libraries receiving federal Internet grants to install filtering software in public-use computers; these efforts, like prior ones, would shield minors from "inappropriate" material.28 Such laws might be constitutionally viable even in light of Loudoun's reasoning because they mandate only that libraries install filtering software on "one or more" computers.29 Judge Brinkema suggested that libraries may install filters on computers available to children if they also allow adults unfiltered access.30
II."Spam"
"Spam" (also called "junk e-mail" and "unsolicited commercial e-mail" ("UCE")), is an unwelcome mass mailing to electronic bulletin boards, newsgroups or lists of e-mail addresses.31 Most spam messages advertise products or services like phone sex lines, adult web sites, "miracle" health products, and "get rich quick" schemes.32 It is estimated that roughly half of unsolicited commercial e-mail messages contain fraudulent or deceptive content.33 Spam also may be looked at as theft of service; by one estimate $2 of the average consumer's monthly ISP bill ultimately goes to handling spam-related expenses.34 Many Internet service providers ("ISPs") report that spam accounts for a substantial volume of their e-mail volume; consequently, they must spend significant sums on extra bandwidth and employee time to accommodate and control this load. Spikes in the volume of spam have even caused several major ISPs to crash, disrupting service to paying customers.35
Though the 105th Congress failed to pass legislation to control spam,36 several state initiatives have created a "jigsaw" puzzle of legislation. Virginia's governor, for instance, recently signed a tough bill making unauthorized spam a misdemeanor punishable by fines of up to $500 per offense.37 The law also makes it a felony to send "malicious" spam -- spam which causes a victim losses over $2,500. This law is especially significant because Virginia is the home of America Online, which serves 16 million of the estimated 50 million US Internet users, and because the liberal jurisdiction clauses of the law allow its application to messages which originate from outside the state.38
California has taken a more conservative approach, enacting laws requiring unsolicited bulk e-mailers to label appropriately the subject line of messages selling goods and services.39 Thus, for instance, adult-oriented spam would have to be labeled "ADV:ADLT." California also requires spammers set up a toll-free telephone number or accurate return e-mail address so that recipients can request to be taken off a spam list.40 A second law allows any e-mail provider to sue spammers for trespass on their computer systems, and to recover losses caused by network clogs or crashes.41 California finally makes it a crime to use knowingly and without permission the Internet domain name of another individual, corporation, or entity to send bulk e-mail.42
Many Internet Service Providers are not waiting for comprehensive regulation. AOL, for example, has taken an active approach toward fighting spam so as to free-up valuable mail server space and to promote a user-friendly environment. AOL thus took on a notorious spammer, Sanford Wallace, in AOL v. Cyber Promotions.43 The case ended in a settlement whereby AOL members now are able to block spam from Cyber Promotions by use of a domain name filter offered by AOL. Similar cases filed by AOL have made their way through the court systems of Virginia, Iowa, California, New York and Florida, illustrating AOL's aggressive approach in utilizing state laws to combat this problem. Most state laws contain a federal preemption provision, so a well-written federal law potentially could remedy the "jigsaw puzzle" problem of state legislation.
True to the libertarian nature of the Internet, one group has come up with its own approach to the problem. The Mail Abuse Prevention System ("MAPS") Realtime Blackhole List ("RBL") is a subscription system for creating "intentional network outages" that "limit . . . the transport of known-to-be-unwanted mass e-mail" or spam.44 The list contains the IP addresses of known spammers and networks that are known to be friendly to spammers. ISPs thus can configure their mail systems or routers to query the specific DNS server that is populated by the RBL list. Traffic from listed IP addresses is dropped into the RBL and effectively lost in transmission to subscribing ISPs. The legality of this practice has not yet been challenged.
III.Defamation
The Internet greatly increases the speed and scope of potentially defamatory statements. The Internet presents a potential audience of millions of persons, and many Internet users are emboldened by the perception that their statements are anonymous.
One line of interesting cases involves alleged defamatory statements posted in newsgroups or on electronic bulletin boards. This raises the question of whether the hosts of these forums are liable for the content. Zeran v. American Online, Inc., confronted this question head-on.45 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 such as, "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 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. In their rulings, the courts cited 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-even if the provider takes voluntary, good-faith measures to remove obscene, lewd, harassing, or otherwise objectionable material.46
Several companies recently have gone after people who post anonymous Internet messages. For example, the Wade Cook Financial Corporation sued ten "John Doe" defendants for posting allegedly slanderous rumors on a Yahoo! Business and Finance message board, and may subpoena Yahoo! to provide the real names of these "Does." 47 As another example, the ITEX Corporation of Oregon claims that it successfully identified anonymous Yahoo! users who allegedly made defamatory statements by subpoenaing their email addresses and then tracking them down through their ISPs. Such approaches raise interesting issues as to the obligation of ISPs and Web sites to protect the privacy of their users.
In addition to the foregoing, the Internet also has sparked a phenomenon related to defamation: hate sites, or web pages devoted to expressing displeasure with individuals or, more commonly, corporations. The proprietor of one such site-Netscapesucks.com-in 1998 received a letter from Netscape Communications ordering him to cease all use of the Netscape trademark in his site's domain name.48 Netscape claimed that his use of its trademark was "offensive and injurious," and "belies . . . respect for trademark rights."49 Several similar attempts to confront hate pages, however, have failed. Chase Manhattan has backed away from its threats to bring a trademark dilution action against the proprietor of Chasemanhattansucks.com, and Bally Total Fitness was denied a motion for trademark infringement against the owner of Ballysucks.com.50
It finally may be relevant to mention the recent federal jury verdict in Oregon which ordered the proprietors of an anti-abortion Web site-the Nuremberg Files site-to pay $107 million to a group of doctors they targeted. Though the site in question did not explicitly call for violence, it did list the addresses of abortion providers, the routes they drive to work, and the names of their children. The site also struck a line through the names of providers killed in anti-abortion violence, and listed in gray those providers who were injured. The jury rejected the Web site operators' contention that they were simply engaging in First Amendment speech and collecting data in anticipation of a day when abortion providers would be tried for murder. Indeed, the jury specifically found that the Web site constituted a threat to bodily harm and therefore violated racketeering statutes and a 1994 federal law protecting access to abortion clinics. In the wake of this defeat, the ISP took down the Nuremberg Files site, only to see it re-posted by an ISP in Holland.51
IV.Conclusion
What can we learn from the recent spate of activity regarding Internet speech?
Censorship:
The courts have held that the Internet deserves the maximum protections offered under the First Amendment. Publishers of Internet speech therefore should feel free to post any materials they would include in a newspaper or book. The case involving the Nuremberg Files Web site does, however, present an interesting caveat; the Internet is a new medium which, frankly, makes some people uneasy. This may mean that close questions in areas which skim the boundaries of the First Amendment-such as obscenity and incitement of violence-could play out differently in Cyberspace cases than they would in other contexts.
"Spam":
The patchwork of state spam-control laws are bad news for spammers. As the nature of the business makes it impractical to identify the physical location of spam recipients, spammers may find themselves subject to varying obligations in different forums. The passage of a federal spam law would create uniform nationwide regulation; however, such a law still could be tough on spammers.
Defamation:
Recent court rulings seem to reassure ISPs that they are not liable for content posted by third-parties. However, ISPs may be liable for information they post as publishers, just as if they were a magazine or newspaper. Individuals also must be careful not to place defamatory materials on the Internet.
Future developments moving at the speed of the Internet, of course, very well may change these conclusions.
ENDNOTES
1.Mr. Sinrod, a partner in the San Francisco office of Hancock Rothert & Bunshoft LLP, practices commercial litigation, Internet, information and communications law. He can be reached at ejsinrod@hrblaw.com or eric@sinrodlaw.com.
2.Mr. Jolish will join the San Francisco office of Hancock Rothert & Bunshoft LLP as an associate later in 1999. He can be reached at jolishb@uchastings.edu.
3.Ms. Koleczek is a website data protection manager at Netscape Communications Company. She can be reached at tess@netscape.com.
4.The "Internet" refers to a vast worldwide system of linked computer networks. The "World Wide Web" (or just "the Web") is the part of the Internet represented in graphical, linked "pages." "Cyberspace" refers more generally to the ethereal world of virtual reality, the Internet, the World Wide Web, and similar computer environments. See CNET Glossary, CNET NEWS.COM (visited Jan. 10, 1999)
5.See generally, e.g., ED KROL, THE WHOLE INTERNET USER'S GUIDE AND CATALOG 13-21 (2d ed. 1994). The Internet began in 1969 as a Department of Defense project to link research and command installations. Id.
6.See generally, e.g., Net Timeline, in PBS Life on the Internet, PBS (visited March 22, 1999)
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