Congress shows continued interest in regulating Internet

Wednesday, May 12, 1999

(Editor’s note: This story originally appeared in the Next Media Reader: New Technology and the American Newsroom, a publication of the American Society of Newspaper Editors.)

The U.S. Congress has its regulatory eye on the global medium of cyberspace, focusing particularly on issues involving pornography, personal privacy and e-mail (both unsolicited and commercial).

Although the Internet affords the average citizen unparalleled opportunities to become a publisher and pamphleteer and is, in the words of federal Judge Stewart Dalzell, “the most participatory form of mass speech yet developed,” government officials are more concerned with the “dangers” posed by this open, almost-instantaneous medium of communication.

As First Amendment expert Robert Corn-Revere warned in 1997: “The culture of regulation is marshaling its forces for a multi-faceted assault on Internet freedom.”

While U.S. Internet restrictions are nowhere near as draconian as those established by the governments of China, Singapore, Iran and Burma, Congress has proposed an impressive array of limitations on cyberspace communication.

The battle over pornography intensified dramatically when Congress enacted the Communications Decency Act of 1996 (CDA) three years ago. Two provisions in that law criminalized the online transmission of “patently offensive” and “indecent” communications. However, the U.S. Supreme Court struck the provisions down, ruling in Reno v. ACLU that speech on the Internet is entitled to the highest degree of First Amendment protection.

Undaunted by the court’s rejection of key provisions in its initial effort to regulate Internet speech, Congress in 1998 passed a law with a somewhat narrower focus: the Child Online Protection Act (COPA). Rather than prohibiting “indecent” and “patently offensive” online communications, Congress in COPA adopted a harmful-to-minors standard, asserting that because COPA targets online communications made “for commercial purposes,” it would apply only to commercial pornographers.

On Feb. 1, 1999, however, a federal judge in Philadelphia issued a preliminary injunction preventing enforcement of COPA pending the outcome of a full trial. He reasoned that filtering or blocking software could well be a less restrictive alternative to this broad law and its stiff fines and prison terms.

The lawsuit that prompted the injunction was filed by the American Civil Liberties Union and 16 other plaintiffs — none of whom are commercial pornographers. The plaintiffs, including Salon magazine, a leading online publication; Philadelphia Gay News, the leading print newspaper for the gay and lesbian community of Philadelphia; and the Internet Content Coalition, a nonprofit professional organization that includes The New York Times, Time, Inc. and MSNBC, argued that the law’s harmful-to-minors standard would chill their speech on a broad range of sexually oriented issues. They cited as an example the fact that some communities might consider it a crime under COPA for an online news outlet to post the Starr Report.

Even before the preliminary injunction against COPA came down, the 106th Congress had already introduced bills requiring public schools and libraries that receive federal funds for Internet connections to install blocking software on their computers. The Children’s Internet Protection Act was introduced on Jan. 19 by Sens. John McCain. R-Ariz., and Ernest Hollings, R-S.C,. A House version was introduced on Feb. 3 by Reps. Bob Franks, R-N.J., Charles Pickering, R-Miss., and Michael Oxley, R-Ohio, — the latter a primary sponsor of COPA.

The Children’s Internet Protection Act closely resembles the 1998 Internet School Filtering Act, which the Senate had unanimously voted to attach to a large appropriations bill. That legislation died, however, having never been reconciled with the House spending bill.

The 1999 version of the filtering bill employs a “harmful-to-minors” standard rather than the more vaguely worded “inappropriate for minors” language used in the 1998 act. Hollings calls the new measure “an important step in the battle to protect children from the dark side of the Internet” — a sentiment apparently shared by the vast majority of his colleagues.

Passage of an Internet filtering bill for public schools and libraries appears to be gaining momentum in reaction to a federal court decision last year in Virginia striking down a library board policy mandating filters for all patrons, adults as well as children. The push for a legislative solution intensified further when a California state judge threw out the lawsuit of a woman who sued the city of Livermore after discovering her son had downloaded scores of pornographic pictures from an unfiltered computer at the city library. These two decisions, Mainstream Loudoun v. Board of Trustees of the Loudoun County Library and Kathleen R. v. City of Livermore, have filtering proponents calling on Congress for a legislative response.

While filtering measures attract the major headlines, other Internet-related bills to protect privacy interests by restricting dissemination of information have already been introduced this year. Though it is debatable whether such measures, if passed, would violate the First Amendment, these proposals do restrict the free flow of information. Currently under consideration are:

  • The Consumer Internet Privacy Protection Act of 1999, introduced Jan. 6 by Rep. Bruce Vento, D-Minn., which would prohibit an interactive computer service from disclosing to a third party any “personally identifiable information” concerning a subscriber without the subscriber’s written consent.
  • The Social Security On-line Privacy Protection Act of 1999, introduced by Rep. Franks, which regulates the use by interactive computer services of Social Security numbers.
  • The Children’s Privacy Protection and Parental Empowerment Act of 1999, introduced Jan. 19 by Rep. Franks, which would prohibit the sale of personal information about children without their parents’ consent.
  • The Protection Against Scams on Seniors Act of 1999, introduced Feb. 4 by Rep. Robert Weygand, D-R.I., provisions of which would extend the federal criminal fraud statute to include the Internet and empower the Federal Trade Commission to establish rules regulating “deceptive acts” transmitted through “unsolicited commercial electronic mail.”

Two other measures, while not directly raising First Amendment concerns about speech on the Internet, show that Congress is carefully monitoring Internet materials it considers harmful.

The first bill, introduced by Rep. Nick Lampson, D-Texas, authorizes appropriations for the U.S. Customs Cybersmuggling Center. The language of the bill — “child pornography, a worldwide industry that was all but eradicated in the 1980s has resurfaced with a vengeance, because of computer technology” — indicates additional congressional attempts to combat sexual material on the Internet.

The second bill is a House resolution, introduced on Feb. 2 by Rep. Robert Wexler (D-Fla.), that condemns the “racism and bigotry espoused by the Council of Conservative Citizens.” This resolution declares that the organization “promotes racism, divisiveness, and intolerance” through its Web site. The resolution indicates that Congress may soon consider more measures to restrict so-called “hate speech” on the Internet.

Congress is also likely to wade in with regulations in the area of unsolicited commercial e-mail, or spam. Last session, at least eight different anti-spam bills were introduced. Though none of them passed, House Commerce Committee Chairman Thomas Bliley (R-Va.) has already called for the passage of legislation this session.

In fairness, not all of the bills concerning speech on the Internet present potential constitutional concerns. At least one bill shows that Congress realizes the Internet’s information-enhancing power, especially for the average citizen.

On Feb. 9, Sen. McCain introduced the Congressional Openness Act, which would provide Internet access to many congressional documents, including research-service publications, lobbying filings and joint committee documents.

The proposal states that “the public should have easy and timely access, including electronic access, to public records of the Congress.” A House version of the bill, called the Congressional Research Accessibility Act, was also introduced on Feb. 9.

While the vast majority of legislative restrictions on online communication may not directly affect online newspapers, the continual stream of proposals shows a clear trend toward greater governmental regulation of cyberspace — a development that the “watchdog of a free society” should monitor carefully.

David Hudson is a research attorney with the First Amendment Center. He can be reached at