Markkula Center of Applied Ethics

Laws and Legal Issues

A quick public response to the explosion of sexually-explicit sites on the Internet was initially legislative. In the United States, there were municipal and state regulations on the local use of the Internet, including attempts at cyberspace decency laws in New York, Oklahoma, and Virginia (only the New York law has yet been challenged). Yet the greatest legislative breakthrough was the passage of the Telecommunications Decency Act of 1996 (CDA). The CDA mandated that anyone who, using a telecommunications device,

...makes, creates, or solicits, and initiates the transmission of...any... communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age...shall be fined...or imprisoned not more than two years, or both... [Sec. 223, Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996)]

The law was passed to keep sexually-explicit material from inadvertently making contact with children. Internet and free speech activists were immediately up in arms, and it did not take long for a three-judge federal court in Philadelphia to rule that portions of the CDA, such as the passage cited above, "...trampled on the First Amendment and amounted to illegal government censorship" (Brekke). This ruling successfully prevented the implementation of the CDA until the Supreme Court heard the case (Reno v. ACLU) in March 1997. On June 26, 1997, the Supreme Court decided in favor of the Philadelphia court's ruling, declaring important sections of the law unconstitutional.

The Court wrote that, "...the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes". Supporters of the CDA have promised to draft a new version, with the hope of clearing up some of the ambiguities the Supreme Court found problematic. Many question whether a revised CDA will be able to accomplish its goals through legislation without becoming some form of government censorship. In the United States, it does not look hopeful for legislated regulation of the Internet, but lawmakers will continue to try. The White House Internet Decency Summit of July 16, 1997 made plans for a Families Online Summit in October,1997. Both summits were established to explore the role of government in solving the problem we are addressing here.

If the U.S. represents one extreme in the Internet regulation debate, countries such as China and Singapore represent the other. Both nations have established strict Internet content policies, and both attempt to restrict access to more than sexually-explicit sites, confirming the fears of many opponents of Internet censorship in the United States. China, in addition to pornography, blocks access to certain news, human rights, and politics sites to all of its users. Singapore's regulatory agency, the Singapore Broadcasting Authority, blocks access to "areas which may undermine public morals, political stability or religious harmony," registering and regulating all sites dealing with politics or religion. And Germany recently passed the world's first cyberlaw, holding Internet service providers (ISPs) partially responsible for providing cyberpublic access to sites containing illegal content, such as pornography and hate speech. Activists cite these as examples of a "slippery slope" down which even U.S. Legislation could fall.

Locally, we understand that County Counsel will offer an opinion about the legal issues which have arisen during our research. Because the people who favor limited access seek to block illegal pornography on the Internet, we have spoken with lawyers at Santa Clara University and at the National Law Center. No one was able to give us a clear definition of "illegal pornography on the Internet." The Miller test was mentioned many times, but we understand that some local law must first be in place in order to use the Miller test. There seems to be no current local or California state law that applies to public libraries.

Further, as this issue proceeds, it will be important to define "obscenity," "indecency," "harmful matters," and "protected speech" as they relate to the Internet, especially in light of the overturning of the Communication Decency Act (see Appendix 13 for a brief description of this ruling).

In lieu of clear definitions, the CAC and JPA are still left with a question raised during the limited access discussion: even if the libraries can't be legally held to protect minors through the use of filters on the computers, why wouldn't they do it anyway?

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