Censorship in law and practice

CPSR has written a Filtering FAQ to explain the social and policy implications of rating and blocking services. (A Spanish version is also available.) A paper by German activists details the problems with filtering and rating. An article on free speech explains the importance of this issue for Internet users and why it attracts so many people to the Internet. Another general defense of free speech on the Internet has been published by the Global Internet Liberty Campaign.

After a superbly argued ACLU lawsuit (which CPSR and many other organizations participated in) the Supreme Court declared that the Communications Decency Act is unconstitutional. Transcripts from the lawsuit are available, as well as updates from the ACLU and the EFF. Related materials include pages from the Center for Democracy and Technology and some fine background discussion from the libertarian Cato Foundation.

Undaunted by this sweeping ruling, a new bill targeting obscene material that is “harmful to minors” was passed by the 105th Congress. Officially called the Child Online Protection Act, it is commonly known as CDA 2 because it tries to achieve an effect similar to the CDA in a more narrow manner: it covers only speech on commercial Web sites. This bill was barred from enforcement in an order from a federal judge, but it will continue to be litigated. The Justice Department claims it does not violate the First Amendment because it requires only that some kind of filter be installed--it does not specify what (if anything) should be blocked. This theoretical claim ignores the reality that most filters block completely legal material and that users don't even know what most filters are blocking. A narrower bill affecting the Internet is the Child Pornography Prevention Act of 1996, which criminalizes the distribution of erotic materials that appear to involve children. The Supreme Court agreed in April 2001 to hear a case against the bill.

To avoid the head-on confrontation and regulatory difficulties created by bills directly restricting content, Congress has repeatedly tried bills to require filters in schools and libraries that accept federal funds through the universal service (E-rate) program. The measure finally became law in December 2000 by the old strategem of attaching it at the last minute to the annual federal spending bill. The ACLU plans to challenge it as they did other censorship bills, and the American Library Association is similarly planning a suit. (Appropriately enough, this spending bill also contained a section prohibiting low-power radio, which has long been used as a forum by community groups and was recently approved by the FCC.)

An epidemic of teenage violence in 1999 has predictably enflamed the censorship debate. In addition to the usual attacks on Hollywood, video games, and music industry, old calls are being revived to regulate Internet material that shows violence or describes activities that could be used in the pursuit of violence, such as how to make explosives. One proposed amendment to the Consequences for Juvenile Offenders Act, defeated by a wide margin, would prohibit the sale of any material with “explicitly sexual” or “explicitly violent” content to minors.

Other regulations of Internet activities—such as growing calls to ban gambling on the Internet, attempts to restrict sales of controlled substances like alcohol or Viagra, and regulation of unsolicited email—are not always categorized as “speech” but raise the same issues. For instance, if gambling is banned, how does a prosecutor know who is offering or using a gambling site without privacy intrusions? Are ISPs liable for gambling traffic? How can the law be applied to sites outside the country?

The CDA does not stand alone as an attempt to control the Internet. Similar laws and prosecutions are taking place in many states of the U.S. and in other countries, including the United Kingdom, Korea, Ireland, and Australia. Pornography is not always at the center of the debate; neo-Nazi or “Holocaust revisionist” materials (illegal in many countries) and other hate speech often arouse concern, especially in countries historically beset by racism and anti-Semitism such as Germany and Argentina.

A French court recently set a historic precedent by requiring that Yahoo! block French Internet users from bidding on Nazi documents and memorabilia. The court found that blocking French users (based on domain names or Internet addresses) would be feasible and effective. Yahoo! responded simply by removing the offending materials. But the court action shows that a desire to place a barrier around a geographic segment of the Internet is not limited to censoring regimes like China or Saudi Arabia; it could well become commonplace.

South Australia is close to passing one of the most draconian laws concerning Internet content anywhere in the developed world. It would require the Office of Film and Literature Classification to rate Web sites as if they were films, and would levy a large fine on any site where material “inappropriate for children” is found. In its current form the bill is absurd, because it covers such ephemera as newsgroup postings and gives the administrator no chance to remove material before it is condemned and the fine is levied. Around the beginning of 2000, the national government passed a similar law that extends a strict moral code from films and television to the Internet. The law was protested by Electronic Frontiers Australia and others, going so far as street demonstrations that drew hundreds of people.

Protests initiated by CPSR include one to French ministers and to the German government when they arrested Internet Access Providers and tried to make them police newsgroups. A German court convicted a manager of CompuServe of distributing child pornography, just because it appeared on newsgroups that passed through the CompuServe servers, even though German laws have been amended specifically to exempt Internet providers of such liability—and even though the prosecutors themselves changed their mind during his trial and asked for the conviction to be reversed!

A European Parliament resolution “on illegal and harmful content on the internet,” was widely criticized. One unusual development is the attempt of a British government agency to suppress one of its own reports, called the JET Report, about the mishandling of accusations regarding Satanic rituals.

Censorship is practiced by other forces besides governments. Blocking or filtering software, which comes in many forms and boasts a standard called PICS, may filter out sites one would not expect. A follow-up standard, PICSRules, facilitates censorship even more through such features as blocking a whole domain.

One zealous filtering product got into a tangle with an anti-censorship organization called Peacefire, but similar dangers lurk in other such software. A summit discussing these products drew right-wing pro-censorship forces as well as groups claiming to be anti-censorship. Many districts are forcing schools or libraries to install filters, although the ACLU reports that court challenges against government filtering are proceeding. An important case in Loudon County, Virginia, came down against filters in public libraries.

Campaigns of disruption and denial-of-service can also shut down sites, as happened in July 1997 to the progressive Institute for Global Communications. A statement against such disruptions was issued by the GILC in English and Spanish.

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Last updated: November 21, 2001

Suggestions to: cyber-rights-owner@cpsr.org