-
Differences Between the Internet and
Other Mass Media
-
The Internet permits virtually unlimited
users/"publishers"
-
The Internet requires no licenses or
large capital investment
-
The internet is not easily controlled or
regulated
-
The Internet largely is not bound by the
physical world
-
First Amendment Issues
-
Internet "Threats." While
direct threats of imminent illegal acts can be punished under the
constitution, U.S. v Baker (district court case) 1998 found that "musings
about possible crimes" on the internet are protected speech.
Alternately, in Planned Parenthood v ACLA 1998 a jury found that an
anti-abortion web site listing names and addresses of abortion clinic doctors
and recording which ones were killed represented a "true threat" and awarded
damages to Planned Parenthood.
The appeals
court initially overturned the district court noting that a "true threat" required knowledge
someone would carryout illegal actions as a result of the messages on the web
site and that was not shown in this case but later the entire circuit court
panel reversed and concluded the threat of illegal action was sufficient to
represent a "true threat." Appeals to SCOTUS were not accepted.
-
Sexually Explicit internet
materials.
-
In 1996 Congress passed the
Communications Decency Act (CDA) prohibiting a wide range of activities
including discussions of abortion, exchange of obscene materials and child
pornography, and provision of "indecent material" to minors. In Reno v
ACLU 1997 the SCOTUS found the CDA unconstitutional because it restricted adult
communication on behalf of children and due to overbreadth and vagueness (of
indecency definition). This is the first case ot explicitly extend first
amendment protection to cyberspace.
-
In 1998 Congress passed the Child
On-line Protection Act (COPA) outlawing "speech harmful to minors" (re:
obscenity) used for commercial purposes. For example, this law would
require use of a credit card to access pornography sites. The SCOTUS in
ACLU v Ashcroft (COPA) 2002 found the law constitutional inspite of its
content-based regulation.
-
In U.S. v Thomas 1996 the appeals court
found that obscenity charges can be filed in the jurisdiction where internet
materials are downloaded using community standards there (not where the server
or the sellers are located).
-
In general, Miller v California
rules concerning obscenity apply to the internet as they do elsewhere
-
Defamation: In Cubby
v Compuserve (1991) and Stratton Oakmont v Prodigy (1995) courts have
distinguished between ISPs who are distributors (no effort at editorial
control = no liability for defamation) and publishers (who do provide some
form of control and thus become liable for defamation).
This distinction is codified in the Digital Millenium Copyright Act providing
a "safe harbor" (recently reaffirmed) for ISPs and similar "non-editing" web
servers that protect them from charges of copyright infringement due to the
postings of individuals who use their services.
-
Privacy: In ACLU v
Miller 1997 courts ruled that laws prohibiting anonymous messages in
cyberspace violate the first amendment.
-
Secrecy:
-
In 1986 Congress passed the Electronic
Communications Privacy Act (ECPA) which prohibited government eavesdropping or
intercepting private transmissions without search warrants or subpoenas (see
pp 396-7). Much of this act has been reversed by the US Patriot Act
passed after 9-11. All court tests of the Patriot Act have not yet come to
fruition but for the most part Federal Courts have upheld Patriot act
provisions and, thus, limited 1st Amendment protections in Cyberspace.
-
In the 1990s government agencies
attempted to prohibit export of encryption technology and require government
access to encrypted messages. By 1999 the government largely gave up
these attempts as impractical. One result of this effort, however, was
that in Junger v Daley 2000 courts found that computer source code is
protected expression under the first amendment.
-
Libraries: In Mainstream
Loudin v BOT Loudin County Library 1998 courts struck down internet filter
requirements for library computers. In a related case ALA v US (2003)
the Child Internet Protection Act, which requires all libraries to use CIPA
filtering software, was upheld on appeal to SCOTUS.
-
MP3 Techonolgy : In two
cases, UMG Records v MP3.com 2000 and A&M v Napster 2001, courts found
that distributing digital copies of songs even in a new format, violates
copyright.
-
In MGM v Grokster 2003 an
appeals court dismissed charges against the P2P service because they
were not directly involved in file sharing since they operated no
central server as Napster did.
-
The current administration appears to be
supporting international treaties on "pirating" that would create
substantial new limits on file sharing and major risks and punishments
for thoese alledged to have illegally shared copyrighted material.
|