www.Obscenity.com: an Analysis of Obscenity and Indecency Regulation of the Internet

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals July 2015 www.Obscenity.com: an Analysis of Obscenity and Indecency Regulation of the Internet Kelly M. Doherty Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Constitutional Law Commons, First Amendment Commons, Internet Law Commons, and the Juvenile Law Commons Recommended Citation Doherty, Kelly M. (1999) "www.Obscenity.com: an Analysis of Obscenity and Indecency Regulation of the Internet," Akron Law Review: Vol. 32 : Iss. 2 , Article 2. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol32/iss2/2 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Doherty: www.Obscenity.com WWW.OBSCENITY.COM: AN ANALYSIS OF OBSCENITY AND I NDECENCY REGULATION ON THE I NTERNET “ ‘Uncle Sam Out Of My Homepage!’ ” 1 I. INTRODUCTION Imagine that you sit down at your personal computer and log on to the Internet to access Independent Counsel Kenneth Starr’s recent report on the alleged relationship between President Clinton and Monica Lewinsky.2 To your surprise, a screen appears requesting you input your credit card number to prove you are of the requisite age to view the report. Now imagine you have no credit card, or more realistically, you do not feel comfortable giving your credit card number to an unknown party over a communication system which spans the globe. Therefore, because you do not own a credit card or you wish to maintain your privacy, you are prohibited from reading constitutionally protected material regarding the developments in our nation’s democracy. Unfortunately, this is the reality of the Child Online Protection Act (COPA),3 Congress’ latest attempt to regulate Internet content. This comment explores the constitutionality of federal regulations as applied to Internet content and alternatives to government regulation. Part II provides background on the Internet, First Amendment obscenity and indecency law as applied to communications media, and past and current legislation enacted to regulate Internet content. Part III analyzes the constitutionality of COPA, and discusses why other alternatives are more effective and preferable to government regulation. Part IV concludes that protecting children from harmful Internet content is the responsibility of parents, and therefore, Internet regulation should begin at home. II. BACKGROUND A. The Internet: Its History and How it Works The Internet began in 1969 as a project of the Advanced Research Project Agency Network, ARPANET, a branch of the Department of Defense. 4 The Agency set up a 1 Janelle Brown, CDA--The Sequel, SALON M AGAZINE (Sept. 23, 1998) <http://www.salonmagazine.com/ 21st/feature/1998/09/23feature2.html> [hereinafter Sequel]. 2 The government released the Starr Report over the Internet on September 11, 1998. USA Today Tech Report (visited Oct. 15, 1998) <http://www.usatoday.com/life/cyber/tech/ctd392.htm>. The report was available on the following government web sites: <http://thomas.loc.gov/icreport>, <http://www.house.gov/icreport>, http://www. access.gpo.gov/congress/icreport>, <http://www.house.gov/judiciary>. 3 PUB . L. NO. 105-277, 112 STAT . 2681 (codified at 47 U.S.C. § 231 (1998)). On November 19, 1998, the United States District Court for the Eastern District of Pennsylvania granted a motion for a temporary restraining order and halted enforcement of COPA until a court resolves its constitutionality. Michael Rubinkam, Judge Suspends Internet Law, The Child Online Protection Act Seeks to Protect Children From Online Pornography,YORKDAILY RECORD (Philadelphia), Nov. 20, 1998, at A-02. On February 1, 1999, United States District Judge Lowell A. Reed issued a preliminary injunction blocking enforcement of COPA. Leslie Miller, Judge Block’s Net Porn Law Ruling Cites Free-Speech Protection, USA TODAY, Feb. 2, 1999 at 01A, available in Westlaw PAPERS File. 4 Maureen A. O’Rourke, Fencing Cyberspace: Drawing Borders in a Virtual World, 82 Published by IdeaExchange@UAkron, 1999 1 Akron Law Review, Vol. 32 [1999], Iss. 2, Art. 2 AKRON LAW REVIEW [Vol. 32:2 computer network via phone lines designed to withstand nuclear attack so that the government and researchers could communicate over great distances, regardless of the type of computer used.5 Computers from universities, corporations, and individuals began to connect to the network and by the late 1980’s, it evolved into a giant network of networks.6 The Internet consists of computers linked together to form small networks, and those networks are linked to other networks through routers7 and software protocols.8 The first step in reaching speech on the Internet is obtaining access through a service provider.9 Next, the user’s computer is linked to that of the provider through a modem.10 Once logged on, users may access various methods of communication such as e-mail, 11 electronic bulletin boards,12 or the world wide web.13 The world wide web M INN. L. REV. 609, 615 and n. 13 (1998) (describing the origins of the Internet and noting how the Department of Defense wanted to make computer communication available between government-funded researchers and the government, regardless of their geographic location and the type of machine being used). 5 Id. at 615 and n.14; John T. Delacourt, The International Impact of Internet Regulation, 38 HARV. INT’L L.J. 207, 218 n.59 (1997) (discussing how the United States Department of Defense developed the Internet in an effort to maintain communications during war time). 6 See, e.g., GRAHAM J.H. SMITH, INTERNET LAW AND REGULATION 1 (2nd ed. 1997); ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997) [hereinafter Reno I]; Lesli C. Esposito, Note, Regulating the Internet: The New Battle Against Child Pornography, 30 CASE W. RES . J. INT’L L. 541, 548-49 (1998) (discussing the history of the Internet, examining the regulation of child pornography on the Internet, and concluding an international structure of regulation and enforcement is necessary for successful regulation). 7 SMITH, supra note 6, at 3. Routers are computers designed to receive and forward data. Id. 8 Id. at 1-3 (describing an overview of the Internet); Henry H. Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. CHI. LEGAL F. 261, 286 (1996). This system enables anyone with a computer and a modem to connect the computer to the telephone line and communicate with anyone also connected in the same way. O’Rourke, supra (...truncated)