Chapter 7: You Can’t Say That on the Internet‚ Guarding the Frontiers of Digital Expression
Do You Know Where Your Child Is on the Web Tonight? … Metaphors for Something Unlike Anything Else … Publisher or Distributor? … Neither Liberty nor Security … The Nastiest Place on Earth … The Most Participatory Form of Mass Speech … Protecting Good Samaritans‚ and a Few Bad Ones … Laws of Unintended Consequences … Can the Internet Be Like a Magazine Store? … Let Your Fingers Do the Stalking … Like an Annoying Telephone Call? … Digital Protection, Digital Censorship‚ and Self-Censorship
[The Deleting Online Predators Act,] DOPA, which has not been passed into law, is the latest battle in a long war between conflicting values. On the one hand, society has an interest in keeping unwanted information away from children. On the other hand, society as a whole has an interest in maximizing open communication. The U.S. Constitution largely protects the freedom to speak and the right to hear. Over and over, society has struggled to find a metaphor for electronic communication that captures the ways in which it is the same as the media of the past and the ways in which it is different.
The intent [of the Good Samaritan provisions of CDA, the Communications Decency Act] was to allow ISPs [Internet Service Providers] to act as editors without running the risk that they would be held responsible for the edited content … . So the CDA included a provision absolving ISPs of liability on account of anything they did, in good faith, to filter out obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable… material. … Strangely, the Good Samaritan clause … has been used to protect an ISP whose chat room was being used to peddle child pornography. In 1998, Jane and John Doe, a mother and her minor son, sued AOL for harm inflicted on the son. The Does alleged that AOL chat rooms were used to sell pornographic images of the boy made when he was 11 years old. … The Florida courts held AOL blameless. Online service providers who knowingly allow child pornography to be marketed on their bulletin boards could not be treated as though they had published ads for kiddie porn. …
The 2005 Violence Against Women and Department of Justice Reauthorization Act…assigned criminal penalties to anyone who utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet … without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person… Annoy? People put lots of annoying things on web sites and say lots of annoying things in chat rooms. There is even a web site, annoy.com, devoted to posting annoying political messages anonymously. Could Congress really have intended to ban the use of the Internet to annoy people? …
The annoyance… clause of the Violence Against Women Act stands, but only because the Government says that it doesn’t mean what it says. DOPA, with which this chapter began, remains stuck in Congress. Like the CDA, DOPA has worthy goals. The measures it proposes would, however, probably do more harm than good. In requiring libraries to monitor the computer use of children using sites such as MySpace, it would likely make those sites inaccessible through public libraries, while having little impact on child predators. The congressional sponsors have succumbed to a well-intentioned but misguided urge to control a social problem by restricting the technology that assists it.