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Closely related to attempts by governments to regulate the Internet are moves to enforce specific legislation that is currently on the books or to draft and pass bills in order to combat a perceived threat on-line. By looking at the developed world, one can examine not only the legislative attempts to control Internet access and content but also their differences and levels of success. In the United States, ACLU vs. Reno, a case which has already become a touchstone in discussions of Internet censorship, came about as a result of one section of the 1996 U.S. Telecommunications Reform Act (TRA). This fifth section, known as the Communications Decency Act (CDA), contained two subsections: 223(a) and 223(d), which respectively outlawed the knowing transmission and display of obscene or "indecent" materials to minors over the Internet. Immediately after U.S. President Bill Clinton had ratified the TRA in early 1996, over 20 plaintiffs filed suit against the U.S. Attorney General and the U.S. Justice Department, challenging the constitutionality of 223(a) and 223(d). One week later, a federal court issued a temporary restraining order against the enforcement of 223(a), claiming that the subsection did indeed violate the principles of freedom of expression guaranteed under U.S. law. Soon thereafter a second suit resulted in similar legal action taken against 223(d). Not satisfied with these two decisions, the U.S. government filed for an appeal and the case was taken to the U.S. supreme court. The appeal opened early 1997, and was decided, in favour of the American Civil Liberties Union (ACLU) et al., in June of that year. |
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Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
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In their decision, the Supreme court judges isolated the concept of free speech as the central civic liberty undermined by subsections 223(a) and 223(d) of the CDA. "We presume," they explained, "that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest of encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." Refusing the government's various arguments to the contrary, the supreme court concluded that the 1996 CDA cast a "far darker shadow over free speech" than proponents of the act were willing to concede. Unlike the majority of legal precedents set to date concerning internet censorship, ACLU vs. Reno comes out against the government and its proscription of unwanted communication. While the U.S. government was manoeuvring to legislate some form of control over the Internet, in Germany, one of the most hotly debated of these instances of anti-speech legislation occurred only months prior to the ACLU vs. Reno ruling. In this case, legislation was used to go after a specific Internet service provider. In April 1997, Bavarian prosecutors announced that they had indicted Felix Somm, national director of CompuServe in Germany, on charges of facilitating the distribution of illicit materials over the Internet. The government claimed that since CompuServe provided access to Internet sites containing sexual and political materials deemed illegal in Germany, Somm, as director of the ISP's regional activities, was culpable of allowing access to such sites on German soil. Previous to Somm's indictment, German officials had made several attempts to regulate cyberspace, including an earlier 1995 campaign against CompuServe which forced the ISP to block access to over 200 newsgroups. In a statement issued from its headquarters in Columbus, Ohio, CompuServe Inc. referred to the charges levied against their employee as "entirely groundless," an outlook shared by the numerous individuals who petitioned the German authorities to desist in their prosecution of the ISP director. A far cry from the ACLU vs. Reno decision, in which the principle of free speech was championed rather than choked by the courts, one might argue that Somm's indictment is nonetheless equally significant as legal precedent. Despite the fact that its failure to promote free speech aligns it with the vast majority of legislative actions involving the problem of free expression and the Internet, the Somm case would seem to present the first instance in which an ISP was charged for merely providing access to information already available on the Internet. Protesters writing to German Chancellor Helmut Kohl afterwards sought to point out the misguided nature of such a measure, arguing that the sheer volume and mirroring potential of individual sites rendered any effective policing strategy virtually impossible. Moreover, with explicit regard to the novel character of this judicial ruling, they expressed their concern that "the charge against CompuServe will establish a harmful precedent, and may encourage other governments to censor speech, limit political debate... and otherwise deny the opportunity for individuals to be fully informed." In Canada, legal history is presently being forged with respect to the issue of freedom of expression on-line. In an unprecedented move, the Canadian Human Rights Commission has ordered that a human rights tribunal be appointed to investigate complaints arising from anti- semitic propaganda written by Ernst Zundel and made available on the Internet. The case is unique in that the Web site, entitled the "Zundelsite", where Zundel's writings are available, is actually based in the U.S. state of California and maintained by someone other than Zundel. In order to avoid legal entanglements involving extraterritoriality, the tribunal is considering whether the Internet is a telephonic communication and can be regulated. (Telephonic communication can legally be regulated by the Canadian Human Rights Commission.) As well, the Commission is seeking to have established that Zundel, who resides in Canada, effectively controls all editorial aspects of the site, most of the messages from which are directed at Canadians. This is the first-ever investigation into the validity and feasibility of censorship in cyberspace commenced by the Canadian Human Rights Commission. Zundel must await a legislative outcome which promises to inform the way in which both the mechanics of censorship and the purveyors of cyber-hate are viewed by human rights judicial bodies in Canada and elsewhere.
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