Expression on the Net

• Is it possible to control what is seen and by whom on the network?• Like a book? Newpapers? Phone call? Television?• Where to regulate: source->ISP->cloud->ISP->desitination• Publisher or Distributor? Product manufacturer or trucker?• If content is managed/filtered then acting as a publisher (see Oakmont v. Prodigy). Resulted in ISP’s not trying to filter content.• Miller test - Community standard with the “average person” test – but where is the community? Bits can go everywhere. (Dirmeyer of Tenn. v. Thomas of CA and the “Nastiest Place on Earth”) In this instance bits were like books

ITEC 102

Communications Decency Act• CDA passed in 1996 in response to cyberporn access• Crime to use “any interactive computer service to display in a manner available to a person under 18 years of age …”• Display provisions ruled unconstitutional• Legally put the control at the point of exit from the cloud• Result was a “Good Samaritan” clause added to CDA allowing ISP filtering attempts• Zeran case – poor taste T-shirts and no recourse due to anonymous postings. In this case ISP was a knowing distributor

ITEC 102

Who is being harmed?• Child Online Protection Act (COPA) 1998 passed but never took effect due to likely unconstitutional – restricted access to under 17•Cannot reliably tell if communication link is with human, computer, minor, etc.• COPA’s reach ended at U.S. boarders – how to deal with bits from abroad?• Speech illegal when incites “imminent lawless action” – rarely met by printed words. Internet bullying problems have resulted in many state anti-bullying laws and proposed federal laws.• Hard to specifically define “annoying” – used in 2006 Violence against Women Act – on books gov. but does not pursue•current Deleting online predators act (DOPA) and its variations stuck in congress• Technological changes happen faster than legal changes

ITEC 102