Zoning speech on the internet: A legal and technical model

Michigan Law Review

Volumn 98, Issue 2, 1999, Pages 395-429

  Lessig, Lawrence ^a   Resnick, Paul ^a  

^a NONE

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EID: 0005470307     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290343     Document Type: Article

References (113)

1. See Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38 JURIMETRICS J. 629, 638-39 (1998).
2. See Ginsberg v. New York, 390 U.S. 629 (1968).
3. We reserve the term "censorship" for blanket restrictions on the distribution of speech that apply regardless of the recipient or the context. Access control is a broader concept that includes not only censorship but also restrictions on speech that may depend on the recipient or context.
4. See Communications Decency Act of 1996, § 502, 110 Stat. 133, invalidated by Reno v. ACLU, 521 U.S. 844 (1997); Child Online Protection Act, § 1403, 47 U.S.C.A. § 231 (Supp. 1999).
5. "Spam" signifies unsolicited commercial email. See infra Part IV.
6. See Kim L. Rappaport, In the Wake of Reno v. ACLU: The Continued Struggle in Western Constitutional Democracies with Internet Censorship and Freedom of Speech Online, 13 AM. U. INT'L L. REV. 765, 766-67, 788-90 (1998).
7. See Geremie R. Barmé & Sang Ye, The Great Firewall of China, WIRED, June 1997, at 138, 147; Philip Shenon, 2-Edged Sword: Asian Regimes on the Internet, N.Y. TIMES, May 29, 1995, at 1.
8. See Geremie R. Barmé & Sang Ye, The Great Firewall of China, WIRED, June 1997, at 138, 147; Philip Shenon, 2-Edged Sword: Asian Regimes on the Internet, N.Y. TIMES, May 29, 1995, at 1.
9. Child Online Protection Act, 47 U.S.C.A. § 231 (Supp. 1999).
10. Communications Decency Act of 1996, § 502, 110 Stat. 133, invalidated by Reno v. ACLU, 521 U.S. 844 (1997).
11. See Reno v. ACLU, 521 U.S. 844 (1997).
12. See ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).
13. A cynic might believe that this repetition is no accident. After all, Congress gets rewarded for what it passes, not what sticks. Protecting kids is great politics. Why do it only once, the cynic might ask, when one can do it every two years?
14. See the cases cited in Lessig, supra note 1, at 638 nn.26 & 27.
15. We describe this model below in Section II.D. Congress was aware of this alternative. See 144 CONG. REC. S12795 (daily ed. Oct. 21, 1998) (comments of Sen. Leahy).
16. There is an important ambiguity in the concept of "jurisdiction" that we ignore here. Some rules depend upon where the person acts, rather than where the person is a citizen. If the drinking age in one state is 21, it does not matter that in the jurisdiction where X comes from, the drinking age is 18. But some rules may depend upon where someone comes from. We do not distinguish those cases in this version of the argument.
17. An example would be Cyber Patrol's CyberNOT list. See Cyber Patrol Main Page (visited Sept. 9, 1999) 〈http://www.cyberpatrol.com/〉.
18. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55 (1972), which held that an injunction could be used so long as adequate procedures to determine obscenity had been used. This would probably not be permitted absent a judicial finding. See Rowan v. United States Post Office Dep't, 397 U.S. 728, 738-39 (1970).
19. Again, the sender does not know the recipient; the recipient does not know the content of the item; the intermediary does not know either. See supra Section I.A. This does not mean that there would not be extreme, and therefore easy, cases. The speaker would certainly know, therefore, whether some kinds of speech were highly likely to be permitted. Banalities about the weather constitute fairly safe speech acts anywhere; sadistic child porn is fairly unsafe in most jurisdictions.
20. For an excellent analysis of a property regime for dealing with access control, see Developments in the Law - The Law of Cyberspace, 112 HARV. L. REV. 1574, 1634-57 (1999).
21. See infra Part II.
22. By "uncertainty" we mean simply not having a given type of information - for example, information about the jurisdiction from which a receiver comes.
23. We do not claim at this point that either default would, for all types of speech, be constitutional under the U.S. Constitution. Nor do we speak about the burdens of proof under a particular statute. We assume throughout that the state bears the burden for all elements of the charge. Cf. Smith v. California, 361 U.S. 147 (1959) (finding it unconstitutional to hold a bookseller criminally liable regardless of the bookseller's knowledge of the obscene contents of books sold). Rather than claim what is constitutionally possible, our defaults help clarify the relationship between the proscription and uncertainty. Like Schauer's article, our objective is to further explore this relationship, and the constitutional implications of uncertainty. See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. REV. 685, 725-29 (1978).
24. It is distinct because there exists no requirement to not send, but rather simply a punishment for sending without indication that the sending is legal. We concede this is a fine line, but with our defaults we aim, as we have explained above, not so much to limn the contours of American constitutionalism, but to understand the relationship between these rules and uncertainty.
25. The Model Penal Code equates specific intent with "acting knowingly." The relevant section reads: A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. MODEL PENAL CODE § 2.02(2)(b) (1962).
26. See infra Section II.A.
27. The RESTATEMENT (SECOND) OF TORTS §282 (1965) defines negligence as "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm."
28. Our conclusion, however, will be that the social costs of enabling blocking by intermediaries are in fact quite high. See infra text accompanying notes 58-60.
29. See, e.g., Reno v. ACLU, 521 U.S. 844, 887 & n.2 (1997) (O'Connor, J., concurring in the judgment in part and dissenting in part).
30. A web server, for example, knows the IP address of the client computer that requests a web page, but usually knows little else about the recipient. An IP address does not readily identify a geographic location, because the administrative practices surrounding IP address allocation have not been based solely on geography. By analogy with the telephone numbering system, IP addresses have been allocated more like 800-numbers than like the numbers in regular area codes. Moreover, there is currently no single up-to-date database indicating the location of the computer using each IP address. (In practice, to facilitate routing, address allocations do roughly follow geography, which means that such a database might not be too unwieldy if it were assembled.) An IP address does not even uniquely identify a recipient computer, since dial-up connections through an Internet service provider typically are assigned a different address each time they dial.
31. Though the use of the word has become quite general, we attempt in this essay to follow Schauer's definition of "chill," which refers "only to those examples of deterrence which result from the indirect governmental restriction of protected expression." Schauer, supra note 22, at 693.
32. See Hamling v. United States, 418 U.S. 87, 104-06 (1974).
33. Reno v. ACLU, 521 U.S. at 876.
34. See e.g., Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1394 (8th Cir. 1986); see also M.S. News Co. v. Casado, 721 F.2d 1281, 1287-91, 1295 (10th Cir. 1983) (upholding a requirement that obscene-as-to-minors magazines be placed in "blinder racks"). Under Ginsberg, "minors may constitutionally be denied access to material that is obscene as to minors," but adults may not. Reno v. ACLU, 521 U.S. at 895 (O'Connor, J., concurring in the judgment in part and dissenting in part) (citing Ginsberg v. New York, 390 U.S. 629, 633 (1968)). Material is obscene as to minors if it is patently offensive, appeals to minors' prurient interest, and completely lacks socially redeeming value for minors. See id.
35. See generally A. Michael Froomkin, The Essential Role of Trusted Third Parties in Electronic Commerce, 75 OR. L. REV. 49 (1996) (describing digital certification techniques).
36. See id. at 58-62.
37. See VeriSign Digital ID Center (visited Sept. 16, 1999) 〈http://www.verisign.com/ client/index.html〉.
38. David Chaum was an early proponent of such characteristics certificates rather than identity certificates. See David Chaum, Security Without Identification: Transaction Systems to Make Big Brother Obsolete, 28 COMM. ACM 1030 (1985).
39. Note that even though the technology for this solution is already in place, we refer to it as a possible architectural change because a widespread change in social practices would be necessary for the technology to be used in this way.
40. One version of this regime would have recipients provide child-IDs, which we discuss below when considering COPA. See infra Section II.D.
41. Another possibility would be for the server to send a request of the form "if you are in jurisdiction X or Y and you are under 18, please provide a child ID," which would further reduce the burden of the system.
42. Currently, the InterNIC maintains a database of the assignations of IP addresses to organizations. This database is public, and a copy of it may be queried from any computer on the Internet. Unfortunately, some entries in the database are incomplete or out of date, and they do not necessarily identify the location of computers using the IP addresses. It has been suggested, however, that such a database be used as a starting point for developing an IP to jurisdiction mapping. See Philip McCrea et al., Blocking Content on the Internet: A Technical Perspective, app. 5 (visited Sept. 16, 1999) 〈http://www.noie.gov.au/〉.
43. See, e.g., Paris Adult Theater I v. Slaton, 413 U.S. 49, 55 (1972).
44. See Schauer, supra note 22, at 725-29. The closest case is perhaps Bantam Books v. Sullivan, 372 U.S. 58 (1963), where the Court invalidated a "blacklist" Commission. The preclearance idea is not quite a blacklist - the result of the submission would be a promise not to prosecute, not a determination that the material was "obscene." Again, however, we concede that the line is a difficult one to sustain.
45. See supra Section I.B.
46. It would be different, of course, if the sender were considered as a bookstore, without knowledge, or any simple way to get knowledge, about the content of its books. See Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 139-40 (S.D.N.Y. 1991). We would consider such a "sender" to be an intermediary in our analysis.
47. This depends upon the level of knowledge required for someone to be guilty under such a provision. If the statute were criminal, the knowledge requirement would be quite strong, so inadvertent liability would not be possible. But for a lesser prohibition, the knowledge requirement may be less.
48. See supra Section II.A.1.
49. See id.
50. The labels could be expressed in PICS format, see generally Platform for Internet Content Selection (last modified Aug. 4, 1999) 〈http://www.w3.org/PICS/〉, or the new RDF format, see generally Resource Description Framework (last modified Aug. 9, 1999) 〈http://www.w3.org/RDF〉, and distributed along with the items.
51. The labels could be expressed in PICS format, see generally Platform for Internet Content Selection (last modified Aug. 4, 1999) 〈http://www.w3.org/PICS/〉, or the new RDF format, see generally Resource Description Framework (last modified Aug. 9, 1999) 〈http://www.w3.org/RDF〉, and distributed along with the items.
52. If many people voluntarily adopted a "prohibited unless permitted" filter, then the market demand for labels might sufficiently encourage sender self-labeling, even if the state mandated only the less strict "permitted unless prohibited" regime. For example, consumers might turn on the facilities in Microsoft's Internet Explorer (version 3 and higher) or Netscape Navigator (version 4.5) to voluntarily block access based on senders' PICS-formatted self-labels.
53. The "compelled speech" doctrine forbids the government from forcing individuals to assert the views of the government. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 804-06 (2d ed. 1988) and the cases cited therein.
54. See, e.g., R. Polk Wagner, Filters and the First Amendment, 83 MINN. L. REV. 755, 777-98 (1999).
55. The government's own ratings are not always determinative of whether speech was delivered or not, absent a judicial finding. See Rowan v. United States Post Office Dep't 397 U.S. 728, 738-39 (1970). To force individuals to label their content would, we believe, often require them to make judgments about the character of the material they were labeling. But the labels in this context are not objective, nor independent of a viewpoint about the nature of the material. To have to assert the character of the material, then, can be to require individuals to make what is in essence a political statement. If a newspaper cannot be forced to publish a story it does not otherwise want to print, see Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), then neither should a web site be forced to publish a story about itself (i.e., that it carries materials of type X) that it does not otherwise want to print.
56. A URL identifies both a computer to connect to and a path or file name to request. Thus, URL blocking enables some files from a Web server to be blocked, while others are not blocked.
57. For a more complete description of application layer and network layer blocking, see McCrea et al., supra note 41, at 25-31.
58. It would be possible, though expensive, to make an international phone call to access an IAP in another jurisdiction.
59. McCrea et al. detail these and other ways that senders and recipients might bypass intermediaries' blocks. See McCrea et al., supra note 41, at 35, 37.
60. Many corporate firewalls prevent employees from using experimental applications that the corporate proxy or gateway is not configured to handle. See WILLIAM R. CHESWICK & STEVEN M. BELLOVIN, FIREWALLS AND INTERNET SECURITY: REPELLING THE WILY HACKER 76 (1994).
61. ICQ ("I Seek You") maintains a worldwide registry of users and their status (online, busy, away, etc.), allowing users an easy way to keep track of friends and acquaintances. The ICQ client software interacts with the registry updating a user's information and receiving information about others on that user's "contact list." The ICQ client also acts as a platform for chat and other message exchange between any two registered ICQ users. See How to Use ICQ (visited Sept. 9, 1999) 〈http://www.icq.com/icqtour/〉; What Is ICQ? (visited Sept. 9, 1999) 〈http://www.icq.com/products/whatisicq.html〉.
62. ICQ ("I Seek You") maintains a worldwide registry of users and their status (online, busy, away, etc.), allowing users an easy way to keep track of friends and acquaintances. The ICQ client software interacts with the registry updating a user's information and receiving information about others on that user's "contact list." The ICQ client also acts as a platform for chat and other message exchange between any two registered ICQ users. See How to Use ICQ (visited Sept. 9, 1999) 〈http://www.icq.com/icqtour/〉; What Is ICQ? (visited Sept. 9, 1999) 〈http://www.icq.com/products/whatisicq.html〉.
63. See McCrea et al., supra note 41, at 31.
64. They are a special case as well in that, relative to other mandated access control, the content here is easier to identify. The model becomes far more complex if content such as "defamatory" or "seditious" speech were considered. Likewise, the problem becomes far more difficult if the recipient always has an incentive to evade the regulation. Regulating "kids" is a special case because, at least sometimes, the parent has an interest in enforcing the regulation.
65. The Court in Reno v. ACLU made it clear that the relevant question is whether parents are enabled in protecting kids, not whether the state is. 521 U.S. 844, 865 & n.31 (1997). If a parent decides to give kids access, that decision cannot, for the range of speech being discussed here, be overridden by the state.
66. Manufacturers of browsers and operating systems would presumably make it difficult to modify the kids-mode configuration without a password. In practice, this would require both that the kids-mode browser configuration not be easily changed, and that the operating system prevent installation of a fresh browser where the child could choose whether to set it in kids-mode. Eventually, we might expect that the kids-mode setting would migrate entirely into the operating system, with all browsers' behavior determined by the operating system setting.
67. "Cookies are a general mechanism which server side [sic] connections (such as CGI scripts) can use to both store and retrieve information on the client side of the connection. The addition of a simple, persistent, client-side state significantly extends the capabilities of Web-based client/server applications." Persistent Client State HTTP Cookie, Introduction (visited Oct. 6, 1999) 〈http://home.netscape.com/newsref/std/cookie_spec.html〉. See generally Cookie Central (visited Oct. 6, 1999) 〈http://www.cookiecentral.com〉.
68. "Cookies are a general mechanism which server side [sic] connections (such as CGI scripts) can use to both store and retrieve information on the client side of the connection. The addition of a simple, persistent, client-side state significantly extends the capabilities of Web-based client/server applications." Persistent Client State HTTP Cookie, Introduction (visited Oct. 6, 1999) 〈http://home.netscape.com/newsref/std/cookie_spec.html〉. See generally Cookie Central (visited Oct. 6, 1999) 〈http://www.cookiecentral.com〉.
69. Ginsberg implies that suppliers can be burdened to separate "harmful to minor" speech from other speech. Ginsberg v. New York, 390 U.S. 629, 643-45 (1968).
70. This analysis follows the test created by the Supreme Court regarding the constitutionality of speech-restrictive regulations involving the protection of children. See infra note 80 and accompanying text.
71. Child Online Protection Act, 47 U.S.C.A. § 231(a)(1) (Supp. 1999).
72. 47 U.S.C.A. § 231(c)(1).
73. See 47 U.S.C.A § 231(c)(2).
74. See supra Section I.A.
75. 47 U.S.C.A § 231(c)(1).
76. 47 U.S.C.A § 223(e)(5)(A).
77. See Reno v. ACLU, 521 U.S. 844, 881-82 (1997).
78. See 144 CONG. REC. 139, H9902-11 (1998).
79. See Reno v. ACLU, 521 U.S. at 887-88 (O'Connor, J., concurring in the judgment in part and dissenting in part).
80. See, e.g., ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999) (preliminarily enjoining COPA).
81. The "burdensome" test is structurally similar to the test in abortion cases. See Planned Parenthood v. Casey, 505 U.S. 833 (1992).
82. See Casey, 505 U.S. at 833.
83. See Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
84. See Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989) (plurality permitting regulation of "dial-a-porn" to protect kids); Ginsberg v. New York, 390 U.S. 629 (1968) (upholding New York statute that required keeping of material harmful to minors from minors).
85. Child Online Protection Act, 47 U.S.C.A. § 231(c)(1)(C) (Supp. 1999).
86. See supra note 81 and accompanying text.
87. See ACLU v. Reno, 31 F. Supp. 2d 473, 492 (E.D. Pa. 1999).
88. Reno v. ACLU indicates quite clearly, we believe, that the state's interest is limited to facilitating the choice by parents. See supra note 62. The government in Reno had argued that the state had an interest, beyond the interest of parents, to protect kids from speech "harmful to minors" even if the parents did not so wish. See Transcript of Oral Argument, Reno v. ACLU, 521 U.S. 844 (1997), available in 1997 WL 136253, at *19-24 (Mar. 19, 1997). But the Court did not embrace this broader restriction. See Reno v. ACLU, 521 U.S. at 865 & n.31.
89. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681.
90. Children's Online Privacy Protection Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681-728 (to be codified at 15 U.S.C. §§ 6501-6506).
91. Reno v. ACLU, 521 U.S. 844, 874 (1997).
92. One possible way to evade the limitation would be for a kid to download another browser and set it up to be free of the kids-ID restriction. But this possibility could be addressed. Again, the browser manufacturers could easily segregate download locations, based on whether the browser making the request were kids-ID enabled. If it were kids-ID enabled, then the company would download a kids-ID set browser only. Alternatively, the kids-ID could be enabled in the operating system ("OS"), making substitution of an adult OS for a kids OS significantly more difficult.
93. See infra Part III.
94. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 402(2) & cmt. e.(1987) For example, the Child Sexual Abuse Prevention Act, 18 U.S.C. § 2423(b) (Supp. I 1995), criminalizes traveling abroad to engage in illegal sexual acts with children. For an interesting discussion of this provision, see Margaret A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 FORDHAM INT'L L.J. 1852, 1902-12 (1995).
95. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 402(2) & cmt. e.(1987) For example, the Child Sexual Abuse Prevention Act, 18 U.S.C. § 2423(b) (Supp. I 1995), criminalizes traveling abroad to engage in illegal sexual acts with children. For an interesting discussion of this provision, see Margaret A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 FORDHAM INT'L L.J. 1852, 1902-12 (1995).
96. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 402(2) & cmt. e.(1987) For example, the Child Sexual Abuse Prevention Act, 18 U.S.C. § 2423(b) (Supp. I 1995), criminalizes traveling abroad to engage in illegal sexual acts with children. For an interesting discussion of this provision, see Margaret A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 FORDHAM INT'L L.J. 1852, 1902-12 (1995).
97. Obviously, the most significant concern here would be jurisdictions outside of the United States or outside of places where a strong free speech right exists. The norms that the United States sets for the Net, however, would certainly spill over into those places and our view is that this spillover ought to be reckoned in any regulatory regime.
98. In fact, voluntary access controls were the main motivation for the creation of PICS.
99. For a demonstration of Alta Vista's "Family Filter," using ratings from SurfWatch, click on the Family Filter link at 〈http://www.altavista.com/〉 (visited Sept. 17, 1999). For a discussion of the implications, see Jonathan Weinberg, Rating the Net, 19 HASTINGS Comm. & Ent. L.J. 453 (1997).
100. See Rikki McGinty, Safety Online: Will It Impede Free Speech?, MEDIA DAILY, Dec. 5, 1997.
101. Cf. Weinberg, supra note 93, at n.108.
102. See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 21-23 (1995).
103. See Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 238-40 (1996).
104. Lawrence Lessig, Tyranny in the Infrastructure, WIRED, July 1997, at 96.
105. See Paul Resnick, Filtering Information on the Internet, SCI. AM., March 1997, at 62; PICS, Censorship, & Intellectual Freedom FAQ (Paul Resnick, ed.) (last modified Aug. 4, 1999) 〈http://www.w3.org/PICS/PICS-FAQ-980126.html〉.
106. See Paul Resnick, Filtering Information on the Internet, SCI. AM., March 1997, at 62; PICS, Censorship, & Intellectual Freedom FAQ (Paul Resnick, ed.) (last modified Aug. 4, 1999) 〈http://www.w3.org/PICS/PICS-FAQ-980126.html〉.
107. See Ann Beeson & Chris Hansen, Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet (visited Oct. 5, 1999) 〈http://www.aclu.org/issues/cyber/burning.html〉.
108. Spam is defined roughly as unsolicited commercial email. Various proposed regulations have grappled with how to operationalize this definition. For an excellent analysis, see ALAN SCHWARTZ & SIMSON GARFINKEL, STOPPING SPAM: STAMPING OUT UNWANTED EMAIL AND NEWS POSTINGS (1998).
109. In email transmission protocols such as SMTP, there is no preliminary end-to-end session set up that would enable the recipient to send a certificate indicating its jurisdiction or type. Email transmission is effectively a one-way communication.
110. This is the essence of one part of Senator Robert Torricelli's Electronic Mailbox Protection Act of 1997, S. 875, 105th Cong.
111. Without sender tagging, automated filtering is still possible, but will never be completely accurate at separating spam from non-spam messages. This is the essence of Senator Frank Murkowski's Unsolicited Commercial Electronic Mail Choice Act of 1997, S. 771, 105th Cong.
112. See SCHWARTZ & GARFINKEL, supra note 101, at 85-93.
113. Ecash is simply a digital object that could be attached, as a file is, to an email message. For a discussion of ecash, see David Chaum, Achieving Electronic Privacy, SCI. AM., Aug. 1992, at 96, 96-97.