Cyber Space Law
Right now there is a very interesting war being waged in the court rooms across America. It is a battle for the rights of citizens on the Internet. The Internet is a fairly new medium gaining wide popularity in 1994. Because of it’s incredible growth in popularity in a very short amount of time it has been hard to regulate.
The first act to come out regarding the Internet and Freedom of Speech was PL 99-508 the Electronic Communications and Privacy Act of 1986 . This act consisted of two parts, title I and title II.
Title I – Interception of Communications and Related Matters. Basically takes the existing laws and updates them to include computers. Where before it was illegal to intercept private telephone calls, it now says it is illegal to intercept private computer transmissions. It also includes a provision to make it legal to intercept public radio transmissions like it is with public radio programs. It also allows Internet Service Providers to keep a log of who called and their activity on-line to protect themselves.
Title II – Stored Wire and Electronic Communications and Transactional Records Access. This provision adds sections to Title 18 of the United States Code (USC). In section 2701 – Unlawful Access to Stored Communications. It makes it a federal offense to hack into a computer system. Actually what it says is that it is not illegal to gain access but once you do gain access, by mistake or intention, it is illegal to continue to access the computer system. This crime is punishable by $5000 or up to six months in jail. Section 2703 of USC Title 18 is the section that instructs Internet Service Providers to keep a back-up record of your activities on-line with a court order from a government entity. Then after the government notifies the individual in question, the material is either used by the agency or is destroyed.
Probably the biggest battle yet over the first amendment rights so far has been the Communications Decency Act or CDA. In March 1995 Senator Jim Exon introduces legislation to criminalize online publication of any material deemed “obscene, lascivious, filthy or indecent.” This legislation was attached to a larger and popular Telecommunications Reform Bill. The Senate and the House voted to approve the Telecommunications Reform Bill in February 1996. After President Clinton signed the bill the ACLU filed a suit claiming it violated their First and Fifth Amendment rights. Eight days later US District Court Judge Ronald Buckwalter issues an order temporarily blocking the CDA and ruled that the CDA was unconstitutionally over broad and vague.
In June 1996 a panel declares the CDA unconstitutional, the Department of Justice appeals the decision to the Supreme Court. On March 19, 1997 the Supreme Court hears the Shea vs. the ACLU case regarding the CDA. On June 26, 1997 the Supreme Court decided for the ACLU saying that the District Court was correct in holding that the CDA violated the First Amendment because it was too broad in definition. The Supreme Court however did not agree that the CDA violated the Fifth Amendment because it was too vague. With that loss, proponents of the CDA have vowed to bring new legislation.
Another Bill that Was introduced into legislation is the Child Online Protection Act or COPA. In March of 1998, the Child Online Protection Act was proposed to make it a federal crime for
“Whoever, in interstate or foreign commerce, by means of the World Wide Web,
knowingly makes any communication for commercial purposes that includes any
material that is harmful to minors without restricting access to such material by
minors pursuant to subsection(c)should be fined not more than $50,000, imprisoned not more than 6 months, or both.”
The ACLU and other groups immediately filed a federal court complaint challenging the law. A temporary restraining order was granted enjoining enforcement of the law by a federal court. On February 1, 1998 a US District Court Judge Lowell Reed entered a preliminary injunction blocking the COPA. An appeal is expected.
In Virginia there is a law that became effective July 1, 1996 that prohibits state employees, including employees of state colleges and universities, from using state-owned or leased computer equipment to “access, download, print or store any information infrastructure files or services having sexually explicit content,” except with the express permission of their agency head for “a bona fide, agency-approved research project or other agency-approved undertaking.” This law has been called the Virginia Net Decency Act. It is similar to the CDA law that was proposed in Congress. Six Professors from Universities or state colleges in Virginia sued to have the law repealed citing that it was unconstitutional because it:
(a) violates their rights and the rights of other state employees to freedom of speech under the First and Fourteenth Amendments of the United States Constitution; (b) is unconstitutionally over broad and vague; and (3) violates the First Amendment and Due Process rights of public employees by establishing a system of prior restraint under which they may not speak or receive information and ideas without prior government approval.
The State argued that while State employees were at work, they were public employees and not private citizens and therefore did not enjoy the same rights as private citizens. The court found for the plaintiffs saying that the Act is unreasonable because it restricts speech far beyond what is necessary. Moreover the act fails to come up with content neutral alternatives. The act was also cited as being overinclusive and underinclusive in content. Because of all this, the state of Virginia lost their case.
A law that was recently argued in NY’s District Court was particularly interesting to me. The law made it illegal to use any speech on the Internet that was deemed to be offensive or harmful to a minor. The ACLU fought the ruling saying that the law was an unconstitutional restriction on free speech. Interestingly enough, The ACLU called on the Commerce Clause. Citing as precedent the Supreme Court case that prohibited an Arizona law that restricted train lengths to 14 cars, the ACLU got the law overturned. They said restricting speech in New York could restrict the commerce of an Internet site in Texas. The Judge agreed and the ACLU won the case.