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The purpose of this paper is to explore the legal and policy implications of regulating material accessible on the Internet (Internet "content") if Internet services were made widely available in China. The paper first explores the feasibility and commercial considerations related to the start up of a hypothetical company called "Global Telecommunications, Inc." (or "Global Telecomm") which would form a joint venture with the government of the People's Republic of China to provide Internet services. It then discusses the policy and legal issues raised, to the extent that sources are available, as they are addressed in Chinese law. The United States' experience is discussed in comparison, focusing on free speech and the limitations to regulation that the technology of the Internet presents. The argument is that the Internet collapses nearly every medium of communications technology and is accessible from any point globally. Because of that technological uniqueness, the traditional notions of regulation and enforcement are not easily applied to it. Either new or alternative ways of achieving regulatory policy goals--in the case of this paper, the goal of protecting users from undesirable material--must be sought.
Throughout, the reader should bear in mind two questions. One is whether the traditional legal systems are able to respond effectively to the challenges of rapidly changing technology. Is the Internet simply another of many historical communications media or does its technological uniqueness dictate that it be treated differently? Another question is whether regulation of what is accessible on the Internet on a country-by-country basis is possible given that laws of nations extend only as far as their borders while the Internet knows no borders.
Both the United States and China have attempted to control Internet "content" (the substance of what is accessible to Internet users) via the World Wide web, newsgroups and email. This paper examines the two has been to control the substantive content accessible on the Internet (via the World Wide Web, newsgroups and email.) This paper examines the two governments' attempts to exercise control locally over material on the Internet which can be sent or received from any point globally. As a vehicle to demonstrate the obstacles to regulation, this paper examines the two governments' attempts to protect certain Internet users within its borders from offensive or damaging materials.
Part I discusses China' approach to this policy goal. Part II discusses the tension in American free speech jurisprudence, comparing the treatment of this new medium in a recent United States Supreme Court case to the treatment of other regulated media. Part III offers alternative approaches to achieving the same policy goal.
China is a "sleeping giant" commercially because of its tremendous potential on the supply as well as demand side. The Peoples' Republic of China (PRC) has been a one-party state controlled by the Chinese Communist Party since 1949. Thus, much of what is taken for granted by western business people (such as hard profit margins and losses) have become important to Chinese enterprises only since the transition from a planned to a market economy. Yet, by the end of 1993, many companies with hard profit margins were established in China in the form of foreign joint ventures, joint stock companies, wholly owned foreign companies as well as domestic enterprises and partnerships. The perception of China as a waking economic giant is borne out in China's economic profile. 1 In 1996 (third quarter) China's GDP rose by 9.3% over the previous year. Total industrial output rose by 13.3%. 2 Demographic data also reflect that an enormous market exists for telecommunication and tele-information services such as the Internet services proposed by this paper. 3
In 1988, the PRC's National People's Congress adopted legislation which addresses certain aspects of commercial entities. The Sino-Foreign Contractual Joint Venture Law is the definitive source of law regulating the establishment of foreign joint ventures in China. 4 A business venture in China must conform to one of the legally recognized commercial entities in China. Broadly, foreign investments take one of three forms under Chinese law. These are:
»Equity Joint Venture
»Cooperative Enterprise (or contractual Joint Venture); and,
»Wholly Foreign-Owned Enterprise. 5
The hypothetical enterprise proposed in this paper, the "Billion Dollar Bonanza", be a joint venture and governed by these provisions.
Though the concept of operating a company for profit is relatively new in China, and the laws supporting a corporate culture recent developments, 6 numerous multi-national companies ("MNCs") are already operating there. Among the larger telecommunications and information systems companies are: Intergraph Background Information (provides cable TV services to Beijing); Clever Co. (a Beijing-based educational software firm); Cabletron (a New Hampshire-based computer networking service provider); Legend Group (based in Beijing and the largest computer firm in China); IBM, China; Southwestern Bell, China; and, Microsoft.
These and other companies' experiences in China highlight a potential problem Global Telecomm should anticipate, namely, the potential incompatibility of China's domestic goals with a company's commercial goals.
The automobile market is a good example of how a company must tailor its commercial policies to the government's political and social policies. Volkswagen has a joint venture with a state-owned car making works in Shanghai. It has been profitable since 1986 and accounts for 54% of China's passenger-car market. 7 By contrast, Mercedes' Benz' proposed venture for the production of mini-vans in China has been delayed for over two years. The government insists that the factories be located in certain geographic areas in order to distribute development. 8
Rupert Murdoch has a joint venture with the Peoples' Daily News Xinren Information Technology called "ChinaByte". Murdoch initially jeopardized his dealings with China in 1993 by making the statement that "advances in the technology of telecommunications have proved to be an unambiguous threat to totalitarian regimes everywhere." 9 Today, Murdoch's ChinaByte is the largest chinese-language Internet joint venture. The original cooling of negotiations, and their subsequent revival demonstrates the importance of the political sensitivities of doing business in China.
This paper proposes a joint venture between the government of the Peoples' Republic of China and Global Telecomm to provide Internet services to meet presently unsatisfied demand for them. The joint venture would seek to become China's primary Internet service provider. The ultimate goal would be to achieve vertical integration of Internet and product lines including hardware, software and telephones. At an operational level, the project would envision the following:
1. Provide Internet access within and between major cities and provinces desired by, and at the discretion of, the PRC government;
2. Concentrate on the urban areas of China; and,
3. Vertically integrate Internet services and related products (hardware, software, modems, telephones) and services (telephone, technical support and on-line services) related to Internet services.
The Motorola Company's success in the electronics market provides a useful model of the feasibility of entering a narrow market and expanding it into related products and services. Based on Motorola's example, Global Telecomm would be operational quickly.
Motorola China Electronics, Ltd. (MCEL) was incorporated in March 1992. The company broke ground on its first major manufacturing facility in the Tianjin Economic Development Area in 1992. The facility was operational a year later. It produces pagers, cellular telephones, communications components and semiconductors which are for sale in mostly China and other markets in Asia.
Motorola has other joint ventures in China, with the Leshan Radio Factory (manufacture of discrete semiconductors) and with the Nanjing Panda Electronics Group Corporation (home computers and pagers). In September 1995, Motorola announced plans to build a large-capacity integrated circuit wafer fabrication plant in Tianjin. The plant manufactures semiconductor wafers for automotive systems, communications, personal computers, peripherals and digital consumer markets. It has also signed a joint manufacturing research Center at China's MIT Qinghua University in Beijing. 11
While its headquarters are in Beijing, Motorola China has branch offices in Shanghai, Guangzhou, Tianjin, Harbin, Nanjing and Chengdu as well as a Motorola hardware support service and software center in Beijing and Tianjin. It is planning sales and service offices in another twenty cities throughout China.
Global Telecomm would follow a similar strategy. It would first establish telephone services in and between major cities then move into related areas including Internet-related goods and services. It would provide everything from the hardware, software, technical support necessary for Internet access. The main offices would be located in each of the larger urban centers.
The electronic transmission of information (by telephone, television, radio et cetera) has converged. The lines separating the distinctions between technologies become blurred. 12 In consequence, issues such as privacy of information, freedom of speech and intellectual property issues become problematic in this new context.
In the area of intellectual property, trademarks become potentially more confusing on the Internet because the relevant consumer population is no longer confined to geographically limited markets for goods. For example, The name of a well-known purveyor of french beignets and coffee in New Orleans, which calls itself "Cafe du Monde" might easily be confused with a small espresso bar in Seattle which provides access to the World Wide Web to its patrons at each table and therefore publishes a web page with the name "Cafe de Monde". A trademark infringement analysis would assess the likelihood of confusion of the relevant consumer market that would result, but that analysis would be more complicated because the relevant consumer market is at least potentially, a global one.
Adequate treatment of each is beyond the scope of this work, however, to the extent that a joint venture such as the one proposed in this paper envisions the PRC government as its joint venturer, the potential scope of, and policies behind regulation of the Internet are issues that are relevant to both members of the enterprise. And, as will be explained below, since the Internet's technology itself dictates the form and degree to which content regulation can be achieved, both China and the United States face a common problem.
Global Telecomm must consider the potential regulatory scenarios which will affect its ability to carry out its business goals. This paper raises some of the issues which Global Telecomm should examine.
The communications industry is controlled by the government in China. One question it faces is who should have access to the Internet and to what should they have access? This question of what is acceptable material for access highlights a tension between cultural attitudes in the east and west. In China, there is a deep suspicion of the western cultural attitudes and values which pervade the Internet. This reflects, perhaps, differing social values, ideologies, and world view. For example, traditional Asian cultures value moral and economic order and official enforcement. From a western perspective, some methods of enforcement would offend values of personal privacy and autonomy. 13 Indeed, the very structure of the open, chaotic exchanges characteristic of the Internet conflicts with Asian ways of more guarded and subdued communication. Internet access is restricted to an exclusive class of government-approved entrepreneurs, academics, researchers and government functionaries in China. All government-controlled service providers signa pledge not to "harm the nation" or to offer access to banned sites. 14
China's Ministry of Posts and Telecommunications (or the "MPT") is the exclusive provider of postal service and public voice and data communication facilities in mainland China. 15 Power over Internet access is also shared with the Shanghai Post and Telecommunications Administration Bureau which registers all Internet users. 16 Through the MPT, the Chinese government has sought to eliminate what it deems "culturally undesirable materials" from access on Internet in China. Because the government has officially recognized the Internet as primarily a research and educational tool, it is not surprising that its use as a vehicle for recreational, artistic and political purposes is tightly controlled.
Instead of issuing a set of standards of what materials may be accessed or posted, the MPT initially regulated by controlling prices for Internet access and by limiting the number of service providers. By keeping prices for service high, it limited quantitatively, the supply of Internet services as a consumer good. The goal was to stem the spread of perceived dangers such as political dissident expression and socially "damaging" influences of pornography.
Later, price controls were supplemented by a campaign of filtering the actual flow of the kinds of material into the country over the Internet. In early 1996, the Shanghai Post and Telecommunications Administration Bureau--the agency that oversees Internet access in China--began to monitor user access to particular "undesirable" sites to block undesirable influences from the outside. The agency ordered its computer technicians to block access to specifically designated sites at the already limited computer gateways to the Internet. 17 During the summer of 1996, it shut down bulletin boards, and deleted "offensive" materials--articles and messages defined as anything outside "education and research." 18 This was extremely tedious and required the screening of an enormous volume of information. 19
However, blocking access also conflicted with the government's goal to simultaneously expand China's computer infrastructure. The limits to "site blocking" were quickly recognized; by late 1996, the futility of the effort was clear and resulted in the wholesale removal of the blocks by the beginning of 1997. 20 China's latest attempt at Internet content control is to create a Chinese "intra-net" called "China Web", free of the "spiritual corruption" of politically dissident views and sexually explicit materials. 21 The government commitment to punish users for the transmission of information which is "harmful to the security of the nation".
Putting aside the question of whether a government is "right" or "wrong" in controlling information this way, a policy of Internet control can still be assessed as successful as a matter of technological feasibility or rational as a matter of economics. A government interested in allowing zero dissident influences over the Internet, for example, would have to rely on a filtering technology which may not even exist. That is, the policy goal may be called "technologically infeasible" because no filtering mechanism for excluding unwanted materials from access by Internet users in China is possible. On the other hand, even were it possible, the utility of devoting a huge amount of human and capital resources to keep out each last bit of the offending material may be very great. Depending on the strength of the commitment to that policy goal, the high costs of doing so may or may not be worth it to the government adopting this method.
The design and construction of an expensive, autarchic internal version of the Internet in underway in China today. The policy question is no longer whether the government can successfully regulate the Internet, for the Internet for the goal is to replace it by a different, purely internal equivalent. Under this approach, assuming it can be achieved technologically, the remaining question is whether it is worth it to the government to forego the benefits of the world-wide Internet in favor of constructing a purely internal one.
Global Telecomm, as a joint venturer with the PRC must, of course, be sensitive to political and cultural sensibilities in China. Also, however, it should also be aware of possible negative perceptions of this enterprise abroad as well. Its commercial activities may be viewed as assisting the PRC government's repression of political dissidence. In United States, the great importance of freedom of expression and speech is evident by the fact that those guarantees are ensconced as Amendments to the Constitution.
While analogous laws do not exist formally in China, the sense that there exists a universal right of persons to freedom of speech and expression oneself is strongly felt in the United States. Since this sentiment can translate into economic behavior it is a consideration which Global Telecomm should not ignore: negative perceptions of its business activities can reflect unfavorably a company's image in the press can have a real impact in consumer preferences globally in the form of boycotts. Since the venture envisions the PRC as the sole Internet service provider, Global Telecomm should consider whether that commercial purpose will have repressive effects from a commercial standpoint as well as a moral standpoint.
The lesson from the Chinese experience is that regulatory control of the Internet from the "supply" or the content side, is limited by the technology of the Internet itself. Control through registration of Internet service providers and site blocking is limited by cost because of the magnitude of the task of filtering unwanted material. An Internet regulatory policy which insists upon direct regulation over posted and accessed content may simply be too expensive an endeavor. This means that a government may either give up its policy goals or look to other ways of achieving them. China has chosen the latter by constructing its own "Intranet." There option too involves costs of construction as well as foregoing the benefits of the global Internet. By severing itself off from the global network, a country raises the cost of obtaining useful intellectual and cultural resources which might otherwise flow freely between nations. The cost of otherwise obtaining that information is unnecessary. To the Chinese government, however, the goal of protecting against unwanted influences is worth those costs.
In the United States, the Internet is set within a legal framework which reflects a fundamentally different set of social values than China's. The constitutional guarantees of free speech required of an Internet policy are but one example. Since the discussion here is limited to the issue of protecting users from offensive sexually explicit materials, setting a standard of acceptability within constitutional limits is the primary issue. However, setting a minimum threshold of acceptability of material accessible on the Internet must be possible as a matter of technological feasibility as well.
The case law demonstrates that a communications medium's technological attributes (explained below) place unique limitations on the form and extent of the regulatory policy options. In light of the body of First Amendment jurisprudence, it would seem that regulation of the Internet must necessarily be treated differently given its technological attributes. As one judge has put it, it is not clear that government may regulate the Internet at all. 22 This section explains why that is so.
The analysis which follows explains the "technology constraint" as it is coupled with the doctrine of free speech and expression in media regulation. It then explores the regulatory alternatives with respect to content regulation on the Internet. The policy goal of protecting minors from access or exposure to offensive materials on the Internet is but one among many policy issues raised by the Internet. The issue presents problems similar to those faced by the Chinese government in its attempt to protect against certain undesirable social influences. Moreover, since the United States seems unlikely to move toward the kind of network autarky that the PRC has most recently pursued, alternative should be explored.
While access to the Internet is regulated in China by the Ministry of Posts and Telecommunications, in the United States, the authority to control of access is much less centralized. Service providers may limit the terms and conditions of access to users. Individual states may also pass laws which, for example, prohibit certain practices such as gambling or to protect against fraudulent consumer transactions. At the Federal level, the Congress may pass laws addressing virtually any aspect of the Internet. To the extent that it impacts upon the right of individuals to freely exercise their speech rights, however, the law must still pass constitutional muster whichever state body acts. The degree of allowable restraint varies given the strength of the governmental objective--here it is to protect minors against exposure to offensive or damaging materials on the Internet.
Charting a regulatory path through constitutional waters with respect to material on the Internet is constrained by the uniquely diverse ways in which the Internet allows communication. Certainly when a person posts an email to a newsgroup, interacts in a chatroom or posts images and text on a Webpage, this can be thought of as "speech" or "expression". Yet, the Internet allows communication in a way that collapses virtually every form of communication into one medium. For example, one can engage in simultaneous or "real time" conversation with another user anywhere in the world, much like communication on the telephone. Yet, the telephone caller has an expectation that that conversation will be private. And indeed, under the First Amendment, telephone conversations are generally thought to protected. Should electronic communications be treated the same? Should it matter to whom the caller/sender is speaking? Can the caller/sender always be certain to whom she is communicating? Or, should electronic mail be treated the same as regular mail?
Though communicating over the Internet can certainly be thought of as "speech" or "expression" not all speech is protected by the First Amendment, as will be discussed below. Speech with the highest protection cannot be banned outright or burdened by restrictions on it except by a showing by the government that it there is a compelling governmental interest state interest behind the law, and a showing that it is narrowly tailored to serve that purpose. Other kinds of speech are less protected and the government need not prove so pressing a need for it, nor as tight a fit to its purpose.
It is difficult to decide by what means and to what extent material accessible on the Internet can be regulated is difficult because protected speech--speech that enjoys the greatest constitutional protection under the First Amendment--is inseparably as accessible as materials which are "obscene" or unprotected by the Constitution.
The Internet allowing speech in roughly six unique forms:
1. one-to-one messaging (email);
2. one-to-many messaging (listserv);
3. distributed message databases (USENET newsgroups);
4. real time communication (Internet relay chat);
5. real time remote computer utilization (telnet); and
6. remote information retrieval (such as FTP, Gopher and the World Wide Web). 23
Communication over the Internet may also be both anonymous and/or untraceable by its sender. The information may be disseminated and stored in a disparate computer sites 24 and the sender's identity concealed through technologies such as "remailers". Remailers and encryption technologies allow electronic images or text to be sent and remailed under a pseudonym which cannot be traced to the original sender. 25
Political expression enjoys the highest level of free speech protection. When a court looks at a statute which limits speech to see if it offends the First Amendment, it examines both how valuable the targeted speech is -- whether it constitutes political expression, commercial speech or is of little socially redeeming value such as pornography--and whether the statute is total ban or just a regulation of the speech. Laws that restrict the expression or exchange of ideas are rigidly analyzed. The fear of censorship of ideas is expressed best in Oliver Wendell Holmes' famous "marketplace of ideas" dissent in Abrams v. U.S.. 26 Holmes argued that it is not a government's place to suppress ideas because they are "wrong". Rather, he argued that a "free trade of ideas" must take place in order to arrive at truth; only where there is not time to expose evil ideas to prevent their harmful effect is government regulation justified. 27
Holmes' dissent has carried the day. The competition of ideas as a means to arrive at truth has become the gravamen of First Amendment protection of free speech rights. Modernly, therefore, if speech is political, it is deserving of the greatest protection in the Court's eyes. In this case, the law banning or burdening speech will be strictly scrutinized and be upheld only if it serves a compelling state interest and is narrowly tailored to serving that purpose. One famous illustration of the very great protection accorded to political speech, is the fact that the controversial act of burning the American flag was held protected by the First Amendment by the 1989 United States Supreme Court case, Texas v. Johnson. 28
Less protection is accorded to speech which is commercial in nature -- speech which is not misleading and which proposes a legal transaction. In Central Hudson Gas v. Public Service Commission 29 the Court used intermediate instead of strict scrutiny in holding that a ban on promotional advertising by electric utilities must employ the least restrictive means to achieve its goal of conserving energy and promoting a fair rate structure for electricity.
On the other hand, speech which is obscene, defamatory or which constitutes "child pornography" 30 enjoys no constitutional protection at all. In Miller v. California, the Supreme Court held that a statute may ban speech which an average person applying contemporary community standards would fine the work taken as a whole appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way and lacks serious literary, artistic, political or scientific value. 31 Statutes which regulate such speech are scrutinized only minimally by courts for some legitimate governmental purpose. This community-based definition of obscenity is a relative one and varies depending on what the standard is. 32
States are given greater latitude under the First Amendment to regulate speech in order to protect children from the dangers of exposure to, or exploitation as actors in, pornography. In New York v. Ferber, the Supreme Court held that material which is not necessarily obscene under the Miller community standards test, but which involves children engaged in sexual conduct, may be criminalized. 33 Later, in Ginsberg v. New York, the Court upheld a New York statute criminalizing the sale of sexually explicit materials to minors because the goal of protecting children outweighed the publisher's interest in the sale of the magazines. Nevertheless, the goal of protecting children may not so broadly restrict adults' access to such materials so as to constitute a total ban to all audiences. Hence, in Sable Communications v. FCC, 34 the Court held unconstitutional a portion of the Communications Act which banned dial-up pornography services which allowed a caller to listen to indecent (but not necessarily obscene) telephone recordings. The Court held that the ban on all such services was overly burdensome on the free speech rights of adults who had a constitutional right of access to such materials.
The technological impossibility of segregating material that is appropriate for adults from that which is appropriate for children is at the heart of the problem of the Internet free speech problem. Adults who have a right to view or post certain kinds of sexually explicit materials because they are deemed a legal valid exercise of free speech rights. Yet, both adults and minors have access to the Internet. And, what protected sexually explicit material is available on line is as easily accessible as material which may be banned by criminal statutes because they are either deemed "obscene" 35 or depict "child pornography". 36
Regulation of the various media has been constrained the First Amendment considerations and by their own technological attributes. The locus of the analysis of Internet speech regulation, therefore, is around three issues:
1. Advancement of a compelling, important or legitimate regulatory goal;
2. in a manner which is limited to its purpose, and,
3. which is constrained by the technological attributes of the medium over which regulation is sought.
It is the third factor, the technological characteristics of this medium, that creates conflict and renders the coexistence of the three impossible within a legally coherent and practicable regulatory policy.
Moreover, even if the tensions are resolved between the three issues it may still fail because of enforcement and jurisdictional problems. United States law applies only to the United States. However, materials that are deemed obscene, indecent, or perfectly acceptable may be received from senders anywhere on this global network. It may be that, in the absence of an international agreement establishing standards of acceptability and enforcement, the Internet is an area in which domestic law has reached its limits. An assessment of alternative and indirect means to accomplish the same policy goal is offered in conclusion.
The challenge to the Communications Decency Act 37 now pending resolution by the United States Supreme Court, in the case ACLU v. Reno 38 demonstrates these issues amply. In Reno the Court will address the constitutionality of Congress' attempt to regulate the indecent display or transmission, and the display of patently offensive materials over the Internet. 39 (Note: shortly after this paper was completed, ACLU v. Reno was decided by the United States Supreme Court in its decision at 403 U.S. 15. Finding protions of the CDA unconstitutional the court severed and struck §223(a) and §223(d) from the rest of the Act as unconstitutionally vague and overbroad. However, the Court upheld the restrictions as to "obscene" material. An analysis of the extent to which issues raised here were actually resolved by that decision follows in the concluding portion of this paper.)
The CDA is fraught with a host of problems including jurisdictional, constitutional and technological ones. Moreover, the protection of minors that it seeks may prove impossible to accomplish because the law extends only to those materials published on the Internet within the United States' boundaries and not to the global community of the Internet world. Yet, minors can still access those foreign-published materials which may be as or even more harmful as any criminalized by the CDA.
In Reno v. ACLU the Supreme Court addresses the dilemma of protecting minors from offensive material on the Internet to which adults have a constitutionally guaranteed right of access in the face of the "technology constraint" of the Internet. At least in theory, there are two ways of regulating material on the Internet. One way is to restrict directly what is may be posted on the Internet. The other way is to limit access by minors to it. The two provisions of the Communications Decency Act of 1996 ("the CDA") take the former approach.
Section 223(a)(1)(B) applies to "telecommunication devices" and makes it a felony to transmit obscene or indecent messages knowing that the recipient of the communication is a minor. The term "indecent" is left undefined by the statute. Section 223(d) makes criminal,
[. . .] knowingly sending or displaying patently offensive messages in a manner that is available to a person under 18 years of age, and comment, request, suggestion, proposal, image or other communication depicts or describes in terms "patently offensive" as measured by contemporary community standards, sexual or excretory acts or organs regardless of whether the user initiated the communication. 40
It also makes it a crime to "use an interactive computer service to send such material to a specific person or persons who are minors and makes it a crime to display it in a manner available to a minor. 41
In federal district court a three-judge panel unanimously granted a preliminary injunction against the United States Attorney General from enforcing the challenged sections of the CDA. The panel found the disputed provisions of the CDA at issue overbroad and unconstitutionally vague.
The government argued that other provisions of the Act (§223(e)(5)) provide affirmative defenses for anyone "who has in good faith taken effective and appropriate actions to restrict or prevent access by minors such as requiring use of a verified credit card, debit account, adult access or adult personal identification number." 42
However, no technology yet exists which makes it possible to block minors' access to inappropriate material on chat rooms, newsgroups or email by verifying their age. Nor does there exist technology that makes it possible to block access to only offensive material and still allow access to the remaining materials even if the remaining materials are not offensive. 43 Moreover, material on the Internet It can be received or posted in any state, in any country, from any point on the globe. It may even be done so anonymously (with no traceable authorship) or pseudonymously (authorship traceable only to a fictitious name such a "netgirl" or "superman").
Since the obstacles are myriad and extremely complex, it is natural to look to methods used in other media to draw analogies to the Internet. However, the reason that different constitutional limitations on the speech content over the various media have been regulated on individually is because their technology distinguished one from another. That the Internet represents the convergence of those forms into one extraordinary medium means not that all the limitations apply, but that the constitutional limitations simply do not fit.
Popular expressions such as "Webcasting" and "advertising on the net" give the impression that the Internet is like a bandless, boundless radio frequency over which people are free to broadcast their speech in the forms enumerated above. However, important distinctions distinguish the Internet from radio. In the district court, the government in the ACLU v. Reno litigation 44 argued that the principle laid down by the United States Supreme Court in FCC v. Pacifica Foundation 45 should apply to the Internet. In Pacifica, a splintered Supreme Court held in a plurality decision that a radio station's broadcast of comedian George Carlin's "Seven Filthy Words" monologue -- a comedy routine which contained sexual and excretory references -- did not deserve the highest level of constitutional protection requiring a strict scrutiny analysis. Instead, the Court analogized the broadcast to nuisance law, arguing that a normally lawful broadcast may be enjoined if it unduly intrudes on neighbors.
The Court used intermediate instead of strict scrutiny, signaling that, although the broadcast was not entirely outside of the First Amendment's protection, it lacked the value of the kind of speech that compelled great protection. Moreover, according to the Pacifica court, broadcasting, of all forms of communication, enjoys the most limited First Amendment protection. 46 This is so, the Court reasoned, because the broadcast media are deemed to have a uniquely pervasive presence in the American home such that patently offensive broadcasts are unavoidable--they cannot be averted even by turning off the radio until after the offense has impacted the listener. 47 The Pacifica Court's intermediate level scrutiny analysis was based upon its finding that the speech at issue was undeserving of the highest level of protection.
The court's four-point rationale also demonstrates that the Internet does not share the technological attributes on which the Court's holding hinged. The Pacifica court reasoned:
1. Children have access to radios and, in many cases, are unsupervised by parents;
2. Radio receivers are located in the home, a place where people's privacy interests are entitled to extra deference 48
3. Unconsenting adults may be subjected to offensive material that is being broadcast; and,
4. There is a scarcity of spectrum space which the government has an interest in licensing in the public interest. 49
Under Pacifica, broadcasting was also deemed to be uniquely accessible to children such that it "undermined the parents claim to authority in their own household". 50 But, by contrast, the same cannot be said of the Internet's presence in the home. There is little that is "passive" about accessing the Internet, nor particularly prurient material once a person is logged onto it. Exposure to potentially damaging speech from a radio broadcast requires little more from the child or the potentially offended listener than the mere switching on of the mechanism. Accessing indecent or offensive materials on the Internet requires several affirmative acts including switching on the machine, connecting via a modem, submitting a password, accessing the Internet, searching for, or following links to prurient sites. And, many of these sites have warnings to minors or those who might be offended. Disclosure of the potentially offensive content of the site is often plainly made and consent is expressly solicited.
Pacifica is also inapposite for reasons beyond the "passivity" and "vulnerability" which justified a lower level of constitutional protection in the broadcasting context. 51 Though the Internet could be viewed as a pervasive force which is located in the home and perhaps to which children often have unsupervised access, it cannot be overemphasized that, in Pacifica, other ways of achieving protection were possible. That means was simply a matter of changing the timing of the offending broadcast. It was not overly burdensome much less prohibitively or impracticably costly.
If technology had existed that enabled parents to filter out the "filthy words" of the Carlin monologue or to anticipate and block them from the earshot of minors instead of redirecting the timing of the broadcast, the Court may well have found that means of accomplishing the policy goal appropriate. Had it found, however, that at no time could the broadcast be made without offending or that the cost of providing access was very great, Pacifica's principles might more closely fit to the technological impasse that the Internet presents.
Further, as the district court in Reno made clear, there is no ability to verify the age of the accessing party despite that the government argued that this was an effective affirmative defense to prosecution under the CDA.
The Court has also held that sexually explicit materials conveyed over a dial up porn service cannot be banned if minors' access can be screened for and barred. In Sable Communications v. FCC, 52 the Court found that a dial up porn service could be subjected to the obscenity standard of each community from which any caller telephone in but only because the callers could be screened for consenting age. In other words, what was said on the porn service's end could be deemed obscene by one caller's state standard but not another callers. In order to avoid violating any state's obscenity standards, therefore, the porn service would have had to either screen its callers to ensure they were of majority or it would have had to temper the content to make it no more offensive than would be acceptable to a minor.
The Court found that such speech could not be banned outright because the ban was not narrowly tailored to preventing only minors from access. Thus, it limited speech more broadly than was necessary to achieve protection of children. 53 Still, to the extent that this could be achieved by screening for age, burdening that speech was deemed constitutionally acceptable. Sable stood for the proposition that the FCC must employ the least restrictive method of which would bar minors' but not adults' access to the materials. The key to the Court's analysis was the availability of a less restrictive means: in Sable, the Court considered requiring credit cards for verification one such acceptable method.
The issues in Sable are distinguishable from the Internet also because in Sable, all the material at issue in the case was either obscene or indecent; that is, all of the speech at issue was undeserving of heightened constitutional protection. Moreover, as in Pacifica, verification of the age of the caller affected by the speech was technologically possible -- it was possible to verify the age of the callers because each call was also a commercial transaction and required payment via credit card.
Unlike the dial-up born service in Sable, the Internet contains an unsegregable mass of material in which the offensive and inoffensive are inseparably mixed. And, the Internet's content, unlike the content of the phone calls in Sable cannot withheld by verifying a user's age because the technology to do so does not yet exist. Under the CDA, the only Internet content legally possible therefore, is that which is appropriate only for minors. This was not the result in Sable, because the porn service was able to comply with the statute by implementing available age-verification technologies. In the case of the Internet, however, even if such technology existed it would force each person posting text or images, perhaps even sounds to the Internet with the same responsibilities. A person would have to ensure that no underage Internet User could access it by requiring verification and screening technologies or face criminal penalties provided for in the CDA.
Moreover, since in Sable, all the speech was without question either obscene or indecent, the court decided the case without having to address the restriction its holding would place simultaneously place on other cultural, political and educational materials as is unavoidably the case on the Internet. Since a person posting to the Internet would have no way of knowing the age of a person accessing their posting, and because screening would be burdensome if possible at all, he is likely to not post his materials at all to avoid possible criminal liability. The effect would be to impose a children's standard on all who might have posted speech to which many adults have a constitutional right and which might be valuable politically, scientifically or culturally.
It is worth noting, too, that in Sable, the Court distinguished the telephone service from broadcasting in Pacifica by citing the very same kinds of affirmative steps callers would take to access the offensive material on the Internet. 54 Thus, the "invasive" quality of the telephone was much less great than a radio broadcast. Since accessing the Internet takes even more steps to obtain access to the materials than a telephone call, it is that much less invasive to the American home than the telephone.
In the area of free speech in general and with respect to protecting children in particular, the Court uses a balancing test to evaluate laws which affect speech rights. In Ginsburg v. New York, 55 the Court upheld a law that criminalized the sale of a pornographic magazines to magazine to a sixteen year old boy. In Ginsburg, the Court weighed the publisher's interest in distributing pornographic material against the state's interest in protecting children. The Internet is unlike a magazine vendor who knows his customer, who can see him and ask for verification at the point of sale as was the case in the dial up porn case. And, as in Sable, the speech which is burdened is exclusively obscene or indecent.
The CDA would practically have the practical effect of disallowing the offensive material to be communicated to recipient if the sender knows that even one of the possible recipients may be a minor. Since there is no way of knowing who will be present in a chatroom, who will have access to a bulletin board or who visits a Website, the sender will not post at all to be safe.
A simple hypothetical demonstrates the point. Let us suppose that one member of a newsgroup in State A knows that another member in State B has a son whom the sender knows has access to the newsgroup by his father's computer. Because that minor may view a message posted by the member in State A even if, under State A's obscenity standard, the message may be acceptable, the sender will be barred from posting the offending message at all. No members of the newsgroup, possibly persons from all fifty states and all over the world, are barred from viewing the message simply because one minor may have access to it.
In effect, the CDA creates a national standard of decency because the only material which may be posted without risk of criminal sanctions would be that which satisfies the lowest standard of acceptability. In both Sable and Ginsburg, the only persons whose access was effectively blocked were those who could not prove their right of access to them by their age. In the case of the CDA, all are denied access because there is no way of verifying the right of access of a few. A fortiori, under the logic laid out in Sable, the CDA should be deemed overly broad and unconstitutional because the speech rights of those affected will be far more than those whom the law seeks to protect.
Moreover, the CDA will affect speech which falls into all categories. Material on the Internet is not exclusively indecent or obscene. Nor are the offensive parts accessible able to be reprogrammed in such a way as to limit the exposure of youngsters to only the educational or culturally beneficial aspects. For both reasons, protecting minors by placing the burden of the content or the "supplying" end of the material on Internet is impracticable and ineffective because of cost.
Even if all of those posting offensive materials in the United States were stifled, the same materials may could be posted from abroad as demonstrated by the Chinese experience, supra. The problem is that unacceptably offensive materials at particular sites are accessible even if the site is "blocked" in a country or particular community because a simple telephone connection to a country which will allow it to be posted will give the person access. The District Court in Reno recognized this as well, noting that the upshot of the CDA would be to allow foreign pornographers to access American audiences and encourage American pornographers to relocate abroad. 56
Regulating content in the absence of a global agreement on Internet standards and enforcement is problematic because traditional notions of jurisdiction are based on physical boundaries. Yet, the Internet is neither physically situate in, nor administered by a single political division. It has no recognizable physical or jurisdictional borders. Thus, it is unclear not only which state's (or country's) law should apply to a particular problem nor when personal jurisdiction may be had over a defendant.
The Sixth Circuit's decision in U.S. v. Thomas, demonstrates the difficulties in applying community-based standards of defining obscenity to the Internet. In Thomas, a couple in Milipas, California operated a bulletin board system (or "BBS") from which pornographic images could be posted or downloaded by Internet users. Though the images did not violate California's community standards, the Thomases were convicted in Tennessee on several counts of obscenity even though they had never been there nor had operated the BBS there. 57 Thomas seems to suggest the creation of a national standard of obscenity which the Court declined to find in Sable. There, the Court found that the operators of the porn service were able to tailor their services to the community standards of those jurisdiction which they chose to serve.
Yet, under Thomas, the jurisdictional overlap is inevitable given the ubiquitous character of the Internet's structure. With a BBS or a Website, the operator of it would have to know the standard of each jurisdiction and allow access only to that material which is suited to it, based on each person accessing it. Since such a task is probably impossible and at best impracticable, the operator is left in position to allow posting of only that which would meet the most stringent of all community standards or the BBS operator could potentially be haled into the court of any jurisdiction. 58
In civil actions, a state must have person jurisdiction, or the physical power over a defendant, to force compliance with its judgment. For example, when a tort has been committed in one state, that state must bring the defendant, who may not reside within its borders, into its courts to answer to the act. This power traditionally depended on either the physical presence of a person in a state 59 or through the intent of a defendant to reside in the state indefinitely. Modernly, a defendant's "minimum contacts" with that state will bring her within the state's power if, balancing the state's interest in protecting its citizens with the defendants contacts, doing so will not offend notions of fair play and justice. 60
What sort of minimum contacts with a state will give rise to jurisdiction has arisen mostly in the context of commercial activity. Receiving life insurance premiums from a policyholder in California was sufficient to bring a Texas insurance company under a California court's jurisdiction because of the strong state interest in protecting its citizens from insurance companies. 61 Similarly, a defendant national magazine which sold thousands of magazines within New Hampshire was within the jurisdiction of that state. 62 There, the United States Supreme Court held that its publishers should reasonably anticipate being haled into court in each state in which the magazine was sold. 63 The logic is that a defendant who purposefully avails himself of the benefits and privileges of doing business in a state, it is fair to allow a court to exercise its authority over him.
Yet, where a defendant's contacts are attenuated, unrelated and inconsistent, it is deemed a violation of due process to exercise personal jurisdiction over him. 64 A company whose executive officer had made a single trip to Texas, negotiated a contract and had accepted checks in matters unrelated to the facts in a wrongful death action were held insufficient under the minimum contacts rule. 65 And, where a New York defendant's only connection with the forum state of Oklahoma was the sale of a defective car which later caused an accident in Oklahoma, the connection was similarly deemed too tenuous. 66
Though it is less clear that traditional notions of jurisdiction apply where a harm is done over the Internet, courts have sought to make the traditional logic of in-personam jurisdiction fit the Internet. The issue of personal jurisdiction has split the federal courts that have considered the issue to date. In Compuserve, Inc. v. Patterson, 67 the Sixth Circuit found that a Texas subscriber to Compuserve, an Internet service provider, could be held bound by a declaratory judgment in an Ohio court because the Texas subscriber had both signed up for Compuserve services and had entered into an agreement to sell software via Compuserve's services over the Internet. Citing Burgerking v. Rudzewicz 68 the Sixth Circuit found that the Texas subscriber had purposefully directed his business activities toward Ohio such that he could reasonably anticipate being haled into court there. In Burgerking, the United States Supreme Court held that a franchisee in Pennsylvania of the well-known restaurant chain whose headquarters were in Florida could be held to answer to a breach of contract claim in Florida. The court emphasized that the Pennsylvania defendant was a sophisticated businessman whose course of dealings gave rise to a claim in Florida and that this did not violate notions of fair play and substantial justice. 69
In Bensusan Restaurant Corp. v. King a district court in New York found that the simple act of posting information on a website which is accessible to users in other state jurisdictions creates sufficient grounds for personal jurisdiction. 70 And, where a user interacts with a host computer, a sliding scale measuring the level of interactivity and commercial nature of the exchange of information has been used to determine the sufficiency of the contacts with the forum state. 71
Yet, in Hearst Corp. v. Goldberger, a court found that where an attorney had created a Website called "Esq.wire" attorney services, this was deemed insufficient contacts with the state of New York where a publishing company of the magazine "Esquire" sought to sue for unfair competition. 72 In Hearst, The court succinctly stated its reasoning,
"Defendant has not contracted to sell or actually sold any good or service to New Yorkers. Finding personal jurisdiction on the basis of an Internet Website would mean that there would be nationwide (indeed, worldwide) personal jurisdiction over anyone and everyone who establishes a website. Such nationwide jurisdiction is not consistent with traditional personal jurisdiction nor acceptable to the Court as a matter of policy." 73
While it is clear that the basis of personal jurisdiction rests on physical notions of place -- i.e. some connection with the physical entity of the forum state by which to justify dragging him into court there it is equally clear that there is no physical space which can be called "cyberspace". Thus, it is not clear where a harm takes place, where the act of the offending actor takes place, not to what extent it can be said that the actor has purposefully availed himself of the privileges of conducting business in a state.
Moreover, as Hearst demonstrates, the tests of fairness in the personal jurisdiction analysis have come out of cases which involved commercial activities as demonstrated in the cases above. The "purposeful availment of the benefits of doing business" in a state that triggers jurisdiction is based on the notion that the defendant has benefited from the state's privilege of doing business there. 74 Where a driver passes through a state upon its highways, he may be answerable in an automobile accident because he has benefited from the use of those highways. 75 Where the offending acts does not involve an act of commerce, it is not clear that a person has availed himself of the privileges and benefits of doing business in any state. And since there is no one state which maintains the paths of cyberspace, anyone using them does not avail himself of any particular state's laws.
While there are no easy answers to the problem of jurisdiction. It is at least clear, however, that the traditional justifications for allowing a state to reach the long arm of its laws outside of its physical borders to drag in a defendant elsewhere are at odds with the technological structure of cyberspace. Consequently, when jurisdiction over a defendant in cyberspace may be properly exercised, based on the traditional rationales, is anything but uniform.
David Johnson and David Post have argued for specialized body of "the law of cyberspace" and have recognized that the notion of jurisdiction must also apply to the countries. 76 Such a body of law, they argue, must be distinct from country-specific regulation which would be fair to those who volitionally pass over what they call "the electronic boundary." Post and Johnson argue that territorial notions of jurisdiction lack legitimacy because no single country has a more legitimate claim to regulate the Internet than another. Further, they argue, users are unaware of their moving from one legally significant space or jurisdiction to another since virtual space has no physical borders and no borders marking them. 77 The basic fairness that the Post and Johnson approach embodies questions the very basis for allowing a court in-personam jurisdiction over a defendant based on concepts of notice fairness that do not apply to cyberspace.
Certain types of Internet communication also either elude or make extremely difficult and inconsistent the implementation of a law. Enforcing a standard of decency, over electronic mail, even were such regulation constitutionally possible, could prove impossible or impracticable.
Email can be sent anonymously and untraceably. Widespread use of encryption tools and remailers make this possible. 78 Remailers operate as "pass-throughs" which effectively launder the email of the senders' identity and replace it with a pseudonym. The original sender may be identified, theoretically, if the remailer operator divulges his or her records of that identity, if such records are even kept. Such remailers, therefore, are not impervious to identification but the process is extremely difficult. 79
The situation is like a postal carrier who glances up and records from what address each piece of mail lacking a return address was sent. To take the metaphor a step farther, where a single address and password is shared by many users--that is, where there are many people living at the same household, it is unclear which person is responsible for a particular email transmission. If legal liability attached to a single email as would be the case under the "display and transmissions" provisions of the CDA, to whom would the liability attach?
There is at least one example of a remailer operator being forced to divulge the identify of a sender where the operator, under local Finnish law, believed that he had a duty to surrender the information. 80 However, many remailer operators refuse to keep records as a matter of principle.
Thus, the upshot of creating an Internet decency policy which is ambiguous as to standards, methods of enforcement jurisdiction would result in a haphazard piecing together of enforcement methods. This creates both uncertainty in the minds of Internet users as well as unevenness of results. If a regulation of the Internet is possible, the CDA is not, as drafted, the proper means by which to accomplish this task.
In the Internet, direct regulation has reached its limits. One alternative is for individual countries to agree among themselves what should and should not be accessible on the Internet. Enforcement must also be a joint effort if it is to be effective. Another alternative is that technology be developed to more effectively and efficiently block access or filter out undesirable materials. Finally, indirect methods of blocking access to offensive Internet content should be employed. Judge Dalzell writing for the district court in Reno offered what is likely to be the least restrictive, most effective and least costly means of protecting children from Internet porn:
"[...] Parents can install blocking software on their home computers, or they can subscribe to commercial on-line services that provide parental controls [...] More fundamentally, parents can supervise their children's use of the Internet or deny their children the opportunity to participate in the medium until they reach an appropriate age." 81
Judge Dalzell's words ring particularly true in the face of the demonstrated costliness and overly restrictive methods of direct regulation. Later in the Reno opinion, Dalzell also wrote, "There is a compelling need for public education about the benefits and dangers of this new medium and the Government can fill that role as well. Similarly, Judge Sloviter wrote, "Congress...could have chosen to assist and support the development of technology that would enable parents, school and libraries to screen such material from their end." 82 That the parental role must take up where regulation leaves off is acknowledged even by developers of Internet content labeling software who urge content providers to self-identify the content so as to facilitate this task. 83 Not surprisingly, the underlying concepts of such parentally-administered protection mirror the "nuisance" theory idea described in Pacifica.
The consortium group "Platform For Internet Content Selection" sponsored by the Massachusetts Institute of Technology advocates development of software directed on the "reception rather than distribution" aspect of the problem. 84 PICS acknowledges that country-specific restrictions on the reception of materials that are legal in other countries but not their own can be achieved through means less crude than the "off button" or disconnecting from the entire net. 85 Their finer-tuned approach depends on three factors:
1. The Supervisor: parenting styles differ as philosophies of management and government;
2. The Recipient: what is appropriate for one fifteen year old may not be for an eight year old or all fifteen year olds; and,
3. The Context: a game or chat room that is appropriate to access at home may be inappropriate at work or school. 86
The logic parallels the Court's treatment of materials which are offensive to minor audiences but not adult audiences in Pacifica and also recognizes the impossibility of content regulation. Other tools and services are available which allow parents to block access to sites which include particular terms which occur in a "dictionary" of terms which may be edited by the parent, which provide for rating Internet content, and which post sites inappropriate for children to give parents a head-start on blocking access to children. 87
While blocking software is an important tool in protecting children, the most important one is the guidance parents exert personally in monitoring the materials children access in cyberspace. The most effective steps a government can take in assuring that the goal of a policy is carried out in fact is to assist through mean other than direct governmental intervention, the encouragement of user responsibility and supervision.
What guidance, if any, is there from the other media in controlling the Internet? The Internet's technological characteristics demonstrate that the it is unlike any other communications medium yet regulated by the government. Thus, piecing together the underlying policy rationales in the radio, television, telephone media results in an incoherent and badly fitting policy merely draped onto the Internet. This is so because those policies were driven by the specific technological attributes of those media impacted on free speech. Thus, while it is a formidable task to create an entirely new set of rules by which to achieve the same goal, protection of children from offensive or harmful material for example, piecing together a set of rules from the existing repertoire of regulatory tools may be a flawed approach.
In late June of 1997, after this article was completed, the United States Supreme Court struck §223(a)(1)(b) (indecent transmission provision) and §223(d)(1) and (2), (patently offensive display provision) part as unconstitutionally vague and overbroad. The Court did sever off and uphold the provision for investigation and prosecution of obscenity and child pornography on the Internet.
Essentially the Reno decision is the Supreme Court's acknowledgement of the reality of the "technology constraint" or the limitation that technology places on media regulation -- in this case, Internet content. Far from resolving the tensions in the law of with respect to this new medium, the Court's opinion recognizes the problems without solving them.
It is at least clear that the Internet is recognized as a completely unique medium, distinct from the form of and rationale for regulation of other media. In recognizing technological attributes as limits to the scope of regulation of the Internet, Justice Stevens wrote:
"We observe[d] that each medium of expression...may present its own problems. Thus some of our cases have recognized special justifications of the broadcast media that are not applicable to other speakers[. . . .] these factors are not present in cyberspace. Neither before nor after the CDA have vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry"... 88
Accordingly, the Court held the CDA incapable of limiting itself its restrictions by noting that:
1. No single organization controls any membership the web;
2. There is no central point from which Individual Websites can be blocked;
3. Once a provider posts its content it cannot "effectively" prevent it from entering any community; 89
4. Content is not encountered accidentally because of warnings;
5. Technology exists which allows parents to control a home computer's access to sources on the Internet;
6. Age verification technology, though existing, is too burdensome financially to require of non-commercial Internet users;
7. Internet access requires several affirmative steps to receive communication;
8. The fact that the CDA restricts speech on chatgroups, newsgroups and mail exploders, but allows speech on the Web is an inappropriate characterization of the Internet as a physical "zone" because where a statute bans speech outright, a "time place and manner" analysis is inapplicable.
9. (Justice O'Connor's concurring opinion noted that) even though the Internet may be likened adult-zoned physical space, without age-screen technology, cyberspace remains effectively unzoned and unzoneable to protect children from access.
The Court failed to address the very real problem of protecting children from harm on the Internet from material which way not be within the obscenity or child pornography category. Indecent and patently offensive material--undefined and fatally vague in the CDA, may still represent a genuine concern which should not be understated in the face of the admittedly positive aspects of this new medium.
In rejecting the governments argument that this protective function of the CDA is at least as important as its goal of fostering Internet growth, Justice Stevens wrote, "The government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves of their children to harmful material. We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ides contradicts the factual basis of this contention. The record demonstrates that the Internet has been and continues to be phenomenal."
Justice Stevens' position assumed that parental Internet users will forego entirely, the benefits of its use if they cannot protect their children. However, it may be that parents who recognize and appreciate the positive aspects of the Internet--indeed, perhaps even depend on it for their professional livelihood, does not mean that by using it, they have abandoned concern for their children's welfare. In fact, there is no reason at all to assume that simply because the number of users is increasing that there are not a great many would=be users who are refraining from availing themselves of the benefits for fear of harm to their children. Thus, the increasing numbers could be larger were it not for the inability to protect against certain offending types of material. It may be that that fraction of Internet users recognizes that there is simply no way technologically to filter out the harmful from the beneficial in cyberspace.
Moreover, at the same time the Court recognizes the technological impossibility of enforcing content regulation by quoting Judge Dalzell's opinion that Congress may not empowered to legislate in this area at all, it fails to address the impossibility issue standing alone. Coupled with its preservation of the power to regulate as to obscenity and child pornography on the Internet, this failure sends a signal to states. That signal will send states groping about blindly for a legal basis for jurisdiction in enforcing obscenity laws across state lines in cyberspace.
Such state by state enforcement in the borderless, jurisdiction-less realm of cyberspace promises a host of conflicting and confused attempts by states to procure judgments against defendants whose "contacts" with the forum state may only be in cyberspace. Indeed, such a signal to states invites rather than deters that which jurisdictional laws seek to prevent--forum shopping.
Justice O'Connor wrote in her concurring opinion that there is a certain "geography of cyberspace" within which it is possible to construct barriers and gateways to protect against entry by children. This does not suffice because such zones address only where a child may go and where he may not. Rather, what is needed is degree of uniformity of opinion between states, indeed, between countries, as to which country the source of applicable law should originate and in what situations. Justice O'Connor's opinion concurrence gives little guidance to when jurisdiction may be had over defendants in cyberspace, much less when and where an actionable injury may be said to have occurred. The United Supreme Court's opinion in Reno v. ACLU reflects a lost opportunity for the Court to decide the issue. Both Internet users as well as the Court, however, recognize that the last word has not been had on the law of the Internet.
As technology pushes the frontiers of this free speech domain outward, the law will ever struggle to keep up. Indeed, from the time the District Court heard the case to the time it was granted review in the Supreme Court, technology moved so quickly that the technology to block minors' access to certain material came into existence in the brief interim. It is clear that, to restate the thesis of this paper, it is the technology that leads and constrains the law. At best, the law can be reactive. The speed with which software manufacturers dealt with the problem of access by minors by creating software to accomplish this is but one example. It may be that the Internet can itself address the problems it creates, thus obviating a need for a legislative remedy altogether.
1. Recent data from the World Bank suggests that the size of the Chinese economy may be smaller, estimating gross domestic product, on a "purchasing power parity" basis which adjusts for local costs of living, at around $1,800 per capita in 1994 (by comparison, the World Almanac, 1997 cites GDP at $2,500.
2. The Economist, Nov.16, 1996 at 110.
3. Population: 1,210,004,956 Density: 327 per sq. mile Geography: 3,696,100 sq.miles Local Divisions: 23 provinces; 5 autonomous regions, 3 municipalities Largest Cities: Shanghai (7.5 mil) Beijing (5.8 mil) Tianjin (4.6 mil) ' Shenyang (3.6 mil) Wuhan (3.3 mil) Canton (Guahnzhou) (2.9 mil) Urbanized areas: 29% Languages: Mandarin (official); Yue, Wu, Kahha, Xiang, Gan, Minbei Ethnic Groups: Han Chinese (92%); Tibetan, Mongol, Korean, Manchu Literacy 82% Electricity 746 bil kWh Televisions 1 per 5.2 persons Telephones 1 per 62 persons Labor force 60% agricultural 25% commercial and industrial GDP (1994) 2.61 tril (per capita 2,500) Trade Partners +Imports ($115.7 billion) of which Japan 25% Taiwan 11% US 10% +Exports ($121 billion) of which Hong Kong (24%) US 19% Japan 17%
4. Law of the Peoples Republic of China: Sino-Foreign Contractual Joint Venture Law adopted April 18, 1988 Articles 1-28 <http://www.qis.net/chinalaw/prclaw14.htm>
5. Liu Chu, Laws and Regulations Concerning Business Enterprises with Foreign Participation, in Chinese Foreign Economic Law: Analysis and Commentary, Supp.3, at 3:1,(Rui Mu & Wang Guiguo, eds., 1994).
6. Guiguo Wang, China's Company Law: The New Legislation, in Butterworth's Asia (1994).
7. Businessweek, Feb.3, 1997 p.58.
8. Id.
9. Teresa Poole, China Takes A Byte, the Independent, Jan. 20, 1997 at 13.
10. Motorola China (visited Mar. 25, 1996) <http://www.mot.com>
11. id.
12. See discussion by Thomas G. Krattenmeier, The Telecommunications Act of 1996, 29 Conn.L.Rev. 123, 124 (1996)
13. Amy Knoll, Any Which Way But Loose: Nations Regulate the Internet, 4 Tulane J.Int'l and Comp. L. 275, 302 (1996).
14. Gary Chapman, China Represents an Ethical Quagmire in the High-Tech Age, L.A. Times Jan. 27, 1997 at D1.
15. The central MPT organization encompasses ten internal administrative departments, two major posts and telecommunications academies, two design centers, and three manufacturing and engineering units. The primary spheres of operation of the MPT include planning, regulation, service administration, engineering, manufacturing, and research and development. Charles D. Paglee, PRC Laws and Regulations (visited May, 1997) <http://www.qis.net/chinalaw/resume.htm>
16. Nick Wingfield and Courtney Macavinta, "China's National Intranet" (visited Jan. 15, 1997) <http:www/news.com/News/Item/0,4,7025,4000.html>
17. Steven Mufson, Chinese Protest Finds a Path on the Internet, Washington Post Sept. 17, 1996, at A09.
18. China Restricts Dissemination of Finance Data National Security Cited In Move to Rein in Flow of Business News, Asian Wall St. J., Jan. 17, 1996 at 1.
19. In the United States, this lesson was learned in the context of libel law where a federal court concluded that it would be impossible for a bulletin board operator to assume editorial control by monitoring every publication for potentially libelous material. Cubby, Inc., v. Compuserve, Inc., 776 F.Supp 135, 139-40 (S.D.N.Y. 1991) (visited Aug.5, 1997) <http:www.rbvdnr.com/lit/cubby.html>
20. Graham Earnshaw, China Relaxes Controls on Internet Accounts, REUTERS NO. AMER. WIRE, Sept. 25, 1996
21. Nick Wingfield and Courtney Macavinta, China's Intranet,(visited Jan. 15, 1997) <http://www.news.com/News/Item/0,4,7025,4000.html>
22. ACLU v. Reno, 929 F.Supp. 824 (visited Aug. 5, 1997) <http://www.aclu.org/court.cumm-95.html>
23. See, discussion of structure and uses of the internet at ACLU v. Reno, supra note 22, 824 (visited Aug.5, 1997) <http://www.aclu.org/court.cumm-95.html>
24. See Francis Auburn, Usenet News and the Law, 1 Web J. Current Legal Issues, (1995) <http://www/ncl.ac.uk/~lawwww/admin/wjclidex.html>
25. See, Michael Froomkin's discussion of the ways in which the internet facilitates anonymous speech on the internet in Regulation and Computing and Information Technology: Flood Control on the Information Ocean: Living With Anonymity, Digital Cash and Distributed Databases, 15 J.L. & Comm. 395, 414.
26. Abrams v. U.S. 250 U.S. 616 (1919) (visited Aug. 5, 1997)<http://www.findlaw.com/cgi-bin/getcase.pl?court=US&navby=vol&vol=250>
27. Id.
28. Texas v. Johnson, 491 U.S. 397 (1989), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=491&page=397>
29. Central Hudson Gas. v. Public Service Commission 447 U.S. 557 (1980), (visited Aug. 5, 1997) <http://www.findlaw.com/cgi-bin/getcase.pl?court=us&vol=447&invol=557>
30. New York v. Ferber, 458 U.S. 747 (1982), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=458&page=747>
31. Miller v. California, 413 U.S. 15,(1978), (visited Aug. 5, ,1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=413&page=15>
32. Even defining an "act" within the meaning of such statutes is problematic. For example, if material is based on the actual depiction of sexual abuse of a child, it is illegal despite any community standard or any artistic value which might otherwise allow it. (Ferber, at 763). However, since images on the internet may be altered without ever having the event take place, this conduct-based standard would seem to bring such digitally-created material outside of the unprotected ambit of the Ferber holding.
33. New York v. Ferber, 458 U.S. 747 (1982), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=458&page=747>
34. Sable Communications of Cal. Inc., v. FCC, 492 U.S. 115 (1989), (visited Aug. 5, 1997) <http://www.findlaw.com/cgi-bin/getcase/pl?court=US&vol=492&invol=115>
35. FW/PBS, Inc. v City of Dallas 493 U.S. 215, 252 (1990),(visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court= us&vol=493&page=215>
36. New York v. Ferber, 458 U.S. 747 (1982), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=458&page=747>
37. 47 U.S.C. '223(a) and ' 223(d) <http://www.hamlet/FC.edu/labrinyth/laby/decision.HTM.
38. Reno v. ACLU 65 U.S.L.W. 4715, (visited Aug.5, 1997) <http:www.fact.org.supcourt/opinions/96-97/95-1184.ZO.htm>
39. 47 U.S.C.A '223(a) and '223(d) (Supp. 1997)
40. 47 U.S.C.A. '223(a) (Supp. 1997) and, summary of challenged provisions at, ACLU v. Reno, (visited Aug. 5,1997) <http://www.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=95-511>. Also see, Communications Decency in full text <http://www.hamlet/fc.edu/labrinyth/laby/decision/htm>
41. See, Communications Decency in full text (visited Aug. 5,1997) <http://www.hamlet/fc.edu/labrinyth/laby/decision/htm>
42. Id.
43. ACLU v. Reno, supra n.9, 842.
44. Id. at 850.
45. FCC v. Pacifica Foundation, 438 U.S. 726; 98, (visited Aug.5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=438&page=726>
46. Id. at 748.
47. Id. at 748.
48. FCC v. Pacifica Foundation 438 U.S. 726 (1978) citing Rowan v. Post Office Dep't 397 US 728 (1970), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=397&page=728>
49. Id. at 731.
50. FCC v. Pacifica, supra at note 49, citing Ginsberg v. New York 390 U.S. 629, (visited Aug. 5,1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=39&page=629> for the recognized governmental interest of its youth in disallowing bookstores and theater to make indecent material available to children
51. FCC v. Pacifica, supra, at 748-749.
52. Sable Communications of Calif., Inc. v. FCC, 492 U.S. 115, (1989), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=492&page=115>
53. Id. at 128.
54. Id. at 128
55. Ginsburg v . New York 390 U.S. 629 (1968), (visited Aug. 5,1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=390&page=629>
56. Id. at 683 note 22.
57. U.S. v. Thomas 74 F.3d 701 (6th Cir. 1996), (visited Aug. 5, 1997) <http://www.law.emory.edu/6circuit/jan96/96a0032p.06.html>
58. On appeal, the court found that the Thomases in fact could exercise control over downloaded images by virtue of passwords in Tennessee, though the court was silent as to the establishment of a national standard of obscenity.
59. Burnham v. Superior Court 495 U.S. 604 (1990), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=495&page=604>
60. International Shoe Co. v. Washington, 326 U.S. 310 (1945), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=326&page=310>
61. McGee v. Int'l Life Insurance Co. 355 U.S. 220 (1957), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=355&page=220>
62. Keeton v. Hustler Magazine 465 U.S. 770 (1984), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=465&page=770>
63. Hanson v. Denckla 357 U.S. 235 (1958), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=357&page=235>
64. Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408 (1984), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=466&page=408>
65. Id.
66.Worldwide Volkswagen Corp. v. Woodson 444 U.S. 286 (1980), (visited Aug. 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=444&page=286>
67. Compuserve, Inc., v. Patterson, 89 F.3d 1257 (visited May 23, 1997) <http://www.law.emory.edu/pub-cgi/6circuit/july96/96a0228p/06.html>
68. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985, (visited August 5, 1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=471&page=462>
69. Id.
70. Bensusan Restaurant Corp. v. King 937 F.Supp. 295 (S.D.N.Y. 1996)
71. Maritz, Inc. v. Cybergold, Inc., 940 F.Supp. 96, (E.D. Mo. 1996)
72. Hearst v. Goldberger No. 96 Siv 3620 (PKL), (visited Aug. 5, 1997) <http://www.jwls.edu/cyber/cases/esqwire/html>
73.Id.
74. Hanson v. Denckla, supra at note 63, 237.
75. Hess v. Pawlowski 274 U.S. 352 47 (1927), (visited Aug. 5,1997) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=274&page=352>
76. David Johnson and David Post, Surveying law and Borders: the Rise of Law in Cyberspace, 48 Stanford L.Rev. 1367, 1380 (1996), (visited Aug. 5, 1997)<http://www.cli.org>
77. Id. at 1375.
78. See Froomkin, supra note 26, at 414.
79. See Froomkin, supra note 26 at 414.
80. Ron Newman ,Church of Scientology v. the Internet, describing the legal efforts undertaken to acquire the information (visited Jun. 28, 1997) <http://www2.thecia.net/users/rnewman/scientology/home.html>
81. ACLU v. Reno, supra note 23, at 883 citing Fabulous Assoc., Inc. v. Pennsylvania Pub. Util. Comm'n 896 F.2d 788-89 (3d Cir. 1990)
82. ACLU v. Reno, supra at note 23, 856.
83. Platform for Internet Control (PICS) for example is a developer of software by which internet content-providers can voluntarily label their materials. See, "PICS: Internet Access Controls Without Censorship" (visited Aug. 5, 1997)<http://www.w3.org/PICS>
84. See step by step explanation of the way PICS - type controls operate at James Miller, Flexible Blocking,(visited Aug. 5, 1997) <http://www.w3.org/PICS.>
85. Id.
86. Id.
87. See various softwares allowing filtering of various types including nudity, drug cultures, sexual acts and by timing, i.e., days of the week or time of day: <http://www.microsys.com/cyber/cp.block.htm>; <http://www.netnanny.com/netnanny/product/html.>; <http://www.surfwatch.com/>; and, about parental control generally, <http://www.vtw.org./pubs/ipcfaq>
88. Reno v. ACLU, supra at note 38, quoting Red Lion Broadcasting v. FCC 395 U.S. 367 (1969).
89. Thus, the statute's affirmative defense at '223(e)5) for "good faith, reasonable, effective and appropriate steps to prevent access" was deemed illusory in the Court's eyes
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