Differences Between the Internet and Other Mass Media
 

1. The Internet permits virtually unlimited users/"publishers"

2. The Internet requires no licenses or large capital investment

3. The internet is not easily controlled or regulated

4. The Internet largely is not bound by the physical world

First Amendment Issues

1. 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.
    

2. Sexually Explicit internet materials.

   1. 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.
      

   2. 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.
      

   3. 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).

   4. In general, Miller v California rules concerning obscenity apply to the internet as they do elsewhere
       

3. 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.
    

4. Privacy:  In ACLU v Miller 1997 courts ruled that laws prohibiting anonymous messages in cyberspace violate the first amendment.
    

5. Secrecy: 

   1. 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.

   2. 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.
       

6. 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.
    

7. 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. 

   1. 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.

   2. 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.