Andreas von Bonin, LL.M. '98
Copyright Andreas v. Bonin, 1998.

Content Control on the Internet -

Substitutes for Government Regulation




Seminar Paper for

"Free Speech on the Information Superhighway"

S. Shapiro

Columbia Law School, Fall 1997

Content Control on the Internet - Substitutes for Government Regulation

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A.Introduction 3

I. Why Content Regulation ? 3

II. Is Cyberspace Different ? 4

III. Non-Governmental Interest in Abridging Speech 5

B. Why Government Cannot Control Content on the Internet 5

I. Constitutionality of Government Mandated Content Regulation on the Internet 6

1. Unprotected Speech 6

2. Protected Speech 6

II. Effectivity of Government Mandated Content Regulation on the Internet 9

1. Technical Feasibility 9

2. Enforceability 10

C. Content Control Without Government Participation 11

I. Whose duty is it? 12

1. The Look Upward 12

2. The Look Downward 12

II. How Can It Be Done Effectively ? 13

1. The Reception of Unwanted Content 14

a. The "Cyberspace Sovereignty" Approach 14

b. The Empowerment Approach 16

2. The Disclosure of Private Information 20

a. The "Cyberspace Sovereignty" Approach 21

b. The Empowerment Approach 21

3. Comparison of the Two Approaches 22

III. Will We End up in an Industry-Dominated World With Even Less Free Speech and Privacy? 23

1. A More Pessimistic View 23

2. A Government Duty to Reinstall Free Speech and Privacy? 24

D. Conclusion 26

A. Introduction

The easy availability of forbidden or otherwise socially undesirable content on the Internet is one of the few dissonances in the worldwide euphoria that has accompanied the advent of this new medium. Attempts were first made in the USA to keep Cyberspace clean as it becomes a playground and a market place for more and more Americans.

I. Why Content Regulation?

The question as to why content should be regulated at all has long been settled by the American society. It rejects the notion that what constitutes conversation is "just speech" and thus hurts no one. Society does not want to leave the victims of defamation, plagiarism or propaganda alone in self-defense. It wants to protect their intellectual property and their dignity with the full force of governmental authority. And minors should be kept from being exposed to content that might be harmful to them. Not only but also in Cyberspace, the need to ban certain speech is felt and so is the need for content regulation on the Internet(1). But at the same time we insist that our governments protect certain areas from infringement of words, sounds and pictures, we want to see everyone's freedom of speech be guaranteed to a substantial extent. This calls for a constant balancing of two competing interests: that of upholding the rights of Free Speech against that of protecting those vulnerable in society.

II. Is Cyberspace Different?

This very battle has been fought in every medium. When it comes to the Internet, some say that the application of existing laws is sufficient(2), some say we need a whole new legal framework(3). Both might be right. Libel and slander are no less worth punishing whether committed in a newspaper or on a website. Trademark and copyright infringements are not permitted by the law B whether in the physical world or on the Net. Society does not want drug dealing, be it on the street corner or via mailing list, e-mail or chat room. Sexually explicit material should not be available to minors - not in a bookstore(4) nor on a computer screen.

On the other hand, one has to consider that the Internet like no other medium offers vast opportunities to the individual. Everyone can access all kinds of content more easily than ever before and communicate with friends and strangers no matter where they are, but everyone can also become a publisher to a worldwide audience with one mouseclick. The cost of these enormous advances might be lower standards in veryfiability of content(5); in protection against unwanted communication(6); in privacy(7) and in defending intellectual property rights.(8)

III. Non-Governmental Interest in Abridging Speech

Not only governments but also commercial entities have an interest in regulating content on the Internet. As mass use of the Internet takes off, companies and businesses want to advertise, invest and provide service in a medium that they can market as family-friendly. Afraid of pornography and hate speech, the average American family is likely to stay unwired, thus preventing further commercialization and profits. Service providers wish to avoid possible liability for third party content they transport to the unsuspecting user(9). To reach these goals, companies active on the Internet will attempt to shape their contractual relationships accordingly. Unlike the government interest in abridging speech, commercial interests to the same end are not controlled by any Free Speech guarantees but Aonly@ by the market. The First Amendment only blocks governmental action, not industrial policy(10).

This threat to the variety of speech in a medium undergoing commercialization has to be kept in mind when substitutes for government regulation on the Internet are examined.(11)

B. Why Government Cannot Control Content on the Internet

Whether any national government is able to effectively ban undesirable speech from the Internet is a controversial matter. Two issues feature prominently. First, the question arises as to whether government can constitutionally regulate content on the Internet. After recent Supreme Court decisions, the answer to that question is clearer (see infra I.) If so, the second question becomes whether government can effectively regulate content on the Internet (see infra II.).

I. Constitutionality of Government Mandated Content Regulation on the Internet

1. Unprotected Speech

The First Amendment to the United States Constitution only protects certain kinds of speech. Some areas of speech, e.g. obscenity, have long been declared unprotected and can therefore be prohibited from the Internet.(12)

2. Protected Speech

Indecency(13), speech advocating violence(14)or being otherwise dangerous(15)as well as speech that might infringe copyrights of third parties(16)are, to some degree, protected by the First Amendment.

Any federal(17)regulation that attempts to keep certain content from the Net is - as a content-based regulation - subject to strict First Amendment scrutiny(18). Consequently, the regulation has to pursue a compelling state interest and has to be narrowly tailored to that purpose.What constitutes a compelling state interest cannot be answered theoretically.(19)

The protection of minors is at least one.(20)Some say, Government has no compelling interest at all in regulating computer speech, because the medium is not pervasive and many means of effective user-control exists.(21)Still, the possibility is there that an active legislature will decide to target other interests, particularly the prevention of crime such as child abuse which is arguably promoted by the consumption of violent or sexually explicit material in Cyberspace. Supporters of such restrictions have attempted to justify such regulation with reference to the "secondary effects" doctrine. This doctrine supports that a questioned law not be directed at the speech itself, but rather at the secondary effects caused by the "establishments that engage in such speech."(22)

If clear evidence is shown, that the regulation targets secondary effects, it escapes strict scrutiny as a mere "time, place and manner restriction".(23) But the doctrine has been limited by the courts. To avoid direct regulation of protected speech under the label of the "secondary effects" doctrine, the "emotive impact of speech on its audience is not a secondary effect".(24)

In the cable medium, the zoning of indecent content to leased access channels was recently struck down on overbreadth reasons.(25) In Reno v. ACLU, the majority with some ease rejected the argument that the CDA was a mere "zoning law". The framing of the statute clearly indicated that its purpose was to "protect children from the primary effects of 'indecent' and 'patently offensive' speech, rather than any 'secondary' effect of such speech.(26) Nonetheless, the zoning approach might be a possible avenue for government regulation in the future.(27)

Even if promoting a compelling state interest, the statute must survive the second prong of the strict scrutiny test, namely whether it is narrowly tailored to the compelling interest(28). Given the technical situation of today's world, every regulation that attempts to ban content for a specific age group fails this test. This is because for the Internet services of email and newsgroups no effective method of age verification exists(29). Although not yet adjudicated, it is unlikely that regulations banning violent or otherwise dangerous content (such as bomb-making instructions) will pass constitutional muster given the vagueness of the terms and the resulting chilling effects on protected speech(30).

With respect to copyright law, the courts have so far attempted to maintain the same standard of protection on the Internet as in the physical world.(31)Government is constitutionally able and mandated(32)to protect intellectual property. There can be no Free Speech right to distribute other people's content freely. Legally - this does not change in Cyberspace.

Summing up, it can be said that since ACLU v. Reno government cannot prohibit any kind of speech protected by the First Amendment on the Internet, based on the compelling interest of protecting a specific (age) group. Constitutionally unprotected speech, third party distribution of copyright protected content and probably the "time, place and manner" of content reception can still be regulated without being subject to strict scrutiny.

II. Effectivity of Government Mandated Content Regulation on the Internet

Even for obscenity and other types of constitutionally unprotected speech incrimination only makes sense if it is technically feasible and if there is a chance of enforcement.

1. Technical Feasibility

It is highly debated whether the Internet, designed to overcome obstacles like a total breakdown of substantial parts of the network, is responsive to government regulation.(33) Massive regulation of the hardware structure of the Net, such as a complete shift to a hierarchic network with a monitorable bottleneck, as is done in China and Singapore, is surely out of the question in the US and most democratic countries. The existing decentralized structure of the Net, a government bound by basic rights and the ongoing worldwide efforts to privatize the telecommunication sector precludes large scale government intervention.(34)

Installation of firewalls and blocking software might be a technically feasible solution, but even, if government mandated, they face the same constitutional problems as attempts to regulate speech directly.(35)

2. Enforceability

Today, half of the content on the Internet comes from outside the US. As an international medium by nature, the Internet can hardly be regulated according to national values and borders. The place, where information enters the pipeline matters as little as the place where it is downloaded. Many, with some reason, question the legitimacy of laws based on geographic boundaries, since no group can make a greater claim to regulate the Internet than another.(36) Even among those countries that might be willing to engage in content regulation, reasons for regulation are as diverse as the cultural heritage.

Nevertheless, American citizens have been convicted for violations of American content regulations(37). One might conclude that a strong domestic enforcement system can at least eliminate part of the content this community considers improper. But criminal sanctions are a pointless exercise when foreigners who commit the same crimes do so with impunity, and the offending material remains accessible(38). If local authorities attempt to regulate content only because it is accessible from within their jurisdiction, they will have to accept that any other local authority - motivated by a different set of values - has the same right to do so.(39)This leads to the conclusion that refraining from top down regulation may prove the more viable way of dealing with content on the worldwide Internet, at least if alternative control mechanisms are likely to emerge (see infra C.).

Copyright infringement happens daily on the Internet. Cutting, copying, pasting and reshaping content presents few problems in a digital medium(40). Sometimes information is copied automatically for technical reasons.(41)

In any case, regulating, litigating and proving every copyright infringement on the Net - be it the use of a Mickey Mouse on a private homepage, an inline-link, or copying a newspaper article and sending it via email(42)- is a practical impossibility.

On the whole it can be said, that even for speech than can constitutionally be banned, (a national) government indeed is not the appropriate entity to regulate the content of information transmitted across Cyberspace.(43)

C. Content Control Without Government Participation

Most Americans are skeptical about government involvement in Internet content regulation. In 1995, only 6 % believed that it should be the duty of government.(44)

Whose duty is it then? How can it be done effectively? Will we end up in an industry-dominated world with even less Free Speech and Privacy?

I. Whose duty is it?

Once the premise is accepted that a national government is not the appropriate entity to govern content-related issues on the Internet, commentators look both upward and downward.

1. The Look Upward

Those who believe, the major problem lies in the international character of the Internet, tend to favor multi-national / international regulation. Particularly the European Union has spearheaded this option.(45)

But this alternative seems to create more problems than it solves. In the first instance, there are still governments and politicians involved. International rulemaking has never been bound to the strict standards of national First Amendment protection, instead it has to be orientated to the smallest common denominator. Second, international lawmaking is an evolving field. There are few reliable procedures. Enforcement is flawed and there is the risk of differing applications between countries. Finally, regardless of the international framework (UN, OECD, ITU) involved, international lawmaking takes an inordinately long to reach agreement.

2. The Look Downward

Writers who come from an Internet background and are familiar with the particularities of an on-line community propose a different approach: Their solution lies in handing regulatory power down to users, markets and communities. Two key-concepts should be distinguished: "Cyberspace sovereignty"(46)and "user empowerment"(47). Both concepts share certain characteristics, e.g. they reject traditional government activity in actual regulations and they envision the informed, prepared-to-make-choices type of consumer / user.

II. How Can It Be Done Effectively ?

Any means of content control is effective that meets the interests of both speakers and listeners most reliably at the lowest possible cost. This means it should not limit the speakers' ability to say what they want to say as long as the listeners have the ability to protect themselves or their dependants against exposure to unwanted speech. At the same time speakers must be able to determine the amount of information they want to convey on a case-by-case basis according to the cost they are willing to pay for protecting this information. Effectivity thus also means transparency and flexibility: Listeners must have the capacity to constantly know what they have chosen to reject,(48)and speakers must know what they have chosen to convey. Both must have the possibility to alter their preferences at any given time. Although the most effective system is one that produces no failures, we nevertheless want to see compliance enforced.

Consequently, two main issues have to be addressed to determine effective means of content regulation: The "reception of unwanted content"(49)and the "disclosure of private information"(50). Both are two sides of the same coin.

1. The Reception of Unwanted Content

Unwanted content can include more than material that is "harmful to minors" or generally "obscene", "violent" or "defamatory". Government defined categories of speech matter little because government cannot be enforced independent of the category of speech. Users and communities can define themselves which content they declare "unwanted". Email spamming(51), certain political speech and pointcast advertisement might be as unwanted as obscenity for the individual user. Thus, even speech that enjoys First Amendment protection, may be rejected by considerable a number of users.

a. The "Cyberspace Sovereignty" Approach

The "Cyberspace sovereignty" approach recognizes that interaction on the Net is completely unrelated to geographical boundaries in the "physical world."(52)

Instead of territorial jurisdictions some kind of self-regulated government (or a variety of them) will exist in Cyberspace. It may be diffuse and based on common sense but an entity (or multiple entities) will develop a set of rules for conduct in the virtual space. There will be values that, although perhaps different from community to community, will be enforced and failure to comply will be sanctioned. The analogy drawn by the promoters of this approach is the "Law Merchant" of the middle ages.(53)

The Law Merchant was a set of rules that emerged from the customs of the travelling merchants. It existed in addition to incumbent laws and was enforced by special merchant courts. The judges sitting on these courts were senior merchants themselves and thus recognized the need for speedy, practical and flexible dispute resolution.(54)

The process of rule-making in Cyberspace should consequently start with low-level regulations such as self-help and contracts(55). As these solutions are found reasonable by more and more people of this community, they become a universally accepted (customary) rule of the "Law Cyberspace". In addition to that, model codes, provider policies(56)and "netiquette"(57) - a set of rules of behavior from the early days of Internet(58) - shall be relevant sources of law. Although this view also mentions the competition between several governments, this is seen as an intermediate stage on the way to the development of an overall set of rules, the "Law Cyberspace".

In this model, a user who does not want to be exposed to certain kinds of content would in first place shield herself by not accessing it, ultimately by the use of filtering software. Where mere self-help is not sufficient because of external effects (e.g. when pornography affects the moral tenor or the physical safety of the whole community(59)), the user will resort to negotiating with his service provider to block pornography at the highest possible level of the network(60). Where the problem is a lack of knowledge (e.g. a user does not want any material that infringes someone's copyright, but she cannot determine what material to block), she would have to rely on the enforcement of a netiquette rule or a policy of the providers' association. If this does not exist, she has to start a campaign against copyright violation or open her own service and thus try to establish a custom.

b. The Empowerment Approach

This approach recognizes the same means of regulation such as self-help and contracts, but it does not focus on the creation of an overall body of law in Cyberspace. Although it defines different layers of "jurisdiction", the underlying rationale remains that on the Net, "governments" can coexist and "citizenship" under one jurisdiction is voluntary.(61)

More sophisticated technology and market forces, according to this view, will provide the individual user with sufficient means to create the form of virtual environment, she wants. Rating and filtering software plays an important role in this model as it deals with the question of avoiding exposure to unwanted content. Based on the PICS-System(62) it is possible to give every user a powerful tool to select content. Esther Dyson, a long-term Net activist, describes PICS in her recently published book Release 2.0:(63)

"PICS is the underlying technology for tools to create and publish labels and for the filters and other tools to recognize them. It allows a Website owner or a third party to label a site or individual page, and it allows any PICS-enabled browser or other software tool to find and interpret the label or rating. The label can either be physically on the site, or ratings can be collected elsewhere by a third-party ratings bureau that users and browsers can refer to automatically over the Net. Anyone can rate and label his own site, and anyone - interest group, commercial service, community manager - can set up a ratings bureau. And vice versa: A user can specify not just which ratings, but which rating service he wants. Just as in other markets, some rating services will be more widely consulted than others, but the PICS standard in principle means an open, decentralized market where content descriptions and people's (or parents') preferences can be matched.

"Service bureaus will maintain electronically readable lists of ratings not posted on the sites themselves. Thus you could go to, say, the Sunny Valley site and find everything about tigers approved by the PTA for kids aged eight to ten. You could also, with slightly more sophisticated software, have your browser consult several services: 'I want only sites rated 'A' by the Catholic Church; 'D2' by Healthy Living and 'suitable for nine and up' by the Sunny Valley PTA.' (...)

"Over time, this technical approach of labels and selection can do more than just protect children. (...) (I)t could allow an adult to find articles rated 'insightful' by a favorite critic, all recipes rated spicy by Julia Child, or all sites rated 'pure French' by the French government. (...)

"PICS also offers a way of specifying the source of the ratings, so that you can search for labels from a rater you trust, and some means of authenticating the rater, the item rated, and the rating. Optionally, of course. Anyone could rate something anonymously, and anyone else could decide whether to pay attention to such unsourced ratings."

Today's technology makes it possible to attach to any Website a discussion about its content from different point of views. It provides the user with means to decide which voices to listen to in that "rating discussion". Nevertheless, the broad implementation of rating systems illustrates the following problems:

(1) Unrated sites: Given the vast amount of content that is present on the Internet, rating of all sites by one rating bureau appears to be an impossible task(64); to assume 100% self rating with one type of software is equally unrealistic. Thus, either defaulted one way or the other(65), the user has to decide whether he wants his browser to block all unrated sites or to let them all through. The first alternative would be coercion to self-rate. The second option would fail as it is likely that all the "problematic" sites will offer an "unrated version". The only solution to this problem is to encourage rating competition and to encourage the use of software that supports a variety of rating systems on a "non-discriminatory basis".(66)

(2) Who decides on the standards? Self-rating will probably help to increase the percentage of rated sites quickly, but it lacks objectivity(67). Third-party rating, like every theater critic or book review, depends heavily on the background and policy preferences of the rater.(68) The categories offered by the major built-in and stand-alone rating programs can never reflect the full context and nuances of the content in question and can never hop to satisfy individual wants and needs.(69)

But, as there is no government action involved in this process, the absence of equal treatment, objectivity, due process and uniform correctness is not actionable. Instead, market and competition are supposed to deal with these shortfalls. Every group may rate the sites of its interest first. No matter how ideologically motivated the ratings are invariably there will be one voice in the discussion about this site and the user will have to decide whether he wants to hear it. As long as a variety of competing systems evolves and survives, no incumbent rater can afford to mis-rate a competitor's site intentionally. Reputation means a lot in a market environment. Furthermore, in an ideal model, filtering software will be able to distinguish different categories. An educational site like the "Critical Path Aids Project"(70)might receive a "crude" or "explicit" rating in the "sex" category, but will be rated "important" in an "educational value" category. So parents can set their software to filter "explicit sex" unless it has "important educational value" and make the site available to their children.

(3) Rating might encourage more government regulation: Once we commit ourselves to content control through ratings, government might want to secure the accuracy of labels through legislation criminalizing mis- or / and non-rating.(71)Such a statute would face various constitu