determining place regulations on the internet

8/15/2019 Determining Place Regulations on the Internet

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Place Regulationson the Internet

Burning the Global Village

to Roast the Pig

John S. Gossett and Tami SutcliffeUniversity of North

Texas

http://www.informationart.org/symbolic.html
http://www.informationart.org/symbolic.htmlhttp://www.informationart.org/symbolic.html


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Any content-based regulationof the Internet,

no matter how benign the purpose,

could burn the global

village to roast the pig.

The Internet is a far more

speech-enhancing medium than

print, the village green, or the mails (opinion by Judge Stewart Dalzell, United States District Court for the Eastern District of Pennsylvania in ACLU v. Reno,

929 F. Supp. 824 (E.D.Pa. 1996).
http://www.law.duke.edu/boylesite/aclureno.htmhttp://www.law.duke.edu/boylesite/aclureno.htmhttp://www.law.duke.edu/boylesite/aclureno.htmhttp://www.law.duke.edu/boylesite/aclureno.htm


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John S. Gossett & Tami Sutcliffe, University of North Texas 2007 3

What are time, place and manner regulations?

content-neutral justifications for restricting free

speech in government-owned spaces

subject to over-breadth challenges

subject to"compatible use" tests:

Is the activity suitable for the physical location?

Will the tangible limits of a given space work efficiently with a

particular activity?


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What is Public Forum Doctrine?

How time, place and manner regulations

have been historically applied to free

speech issues in government-owned spaces

measurablephysical characteristics (Davis v. Massachusetts, 167 U.S. 43).

legal jurisdiction determined byphysical location

includes spatial tactics, spatial neutrality and spatialtailoring (Zick, 2006)


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Where are time, place and manner regulations

enforced?Government-owned space includes three tiers:

Non-public forums: heavily regulated, with statesexercising control. [prisons,

military bases, polling places, a school district's internal mail system, airport terminals]

Limited public forums: Regulated based on the

nature of the physical property itself[university meeting facilities, municipal theaters, school board meeting rooms.]

Traditional public forums:[publicly accessible locations such as streets, sidewalks, parks]


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When are place restrictions constitutionally

valid?1. Serves an important governmental interest

2. Government interest is unrelated to the suppression of

a particular message

3. Narrowly tailored to serve the government's interest

4. Leaves open ample alternative means for

communicating this message


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So, what is the Internet?

An international network of interconnectedcomputers (Reno v. ACLU, 521 U.S. 844 [1997])

A unique and wholly new medium of worldwidehuman communication" (ibid)

An international hardware network of

interconnected computers not limited to a single

physical or tangible entity


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How is the Web different from the Internet?

FYI: TECHNICAL ISSUE:

The Internet:

international

hardware network

interconnected

older than the Web

tied to physical place

The World Wide Web

nonspatial

ever-shiftingnavigational software

less directly related

to geographical location

Physically removing a networked computer from a library

building is a form of place restriction, as is filtering a list of

words from a library search engine


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What type ofpublic forum is the Internet?

Thephysical location of any given Webserver on the Internet is usually irrelevant tothe messages being communicated.

The data does not stay in one place, nor canit be identified by either its source nor itsdestination.

Immediate, anonymous, inexpensive andseemingly borderless" (Franda, 2001).


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MORE Reasonsthe Internet

is a problematic forum Jurisdiction online is currently based on the

physical place the server resides.

Even if the content is illegal in some countries,no laws can be enforced on the server itself.

Internet Service Providers are not the equivalent of

publishers in the physical world.Publishers actually do know everything they

publish while ISPs cannot.


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Can placerealistically be used

to regulate Internet expression?

Since 2002, twenty five states have passed

or are considering passing Internetcensorship laws (ACLU 2006)

But traditional vocabularies of physicalplace fail to describe the Internet, so howwill these laws ever be viable?


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Can placerealistically be used

to regulate Internet expression?

Obviously, governments and the private

sector must come to an agreement oninternational legal standards for the free

flow of information and privacy (Weitzner,

2006.).


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Place restrictions applied to online communication

Restriction Type I: governmental agency limits the

way an individual may use the Internet in a public

setting.

Restriction Type II:public school limits the way a

student may use the Internet in a private setting.

Restriction Type III: governmental agency censors

the entire contents of an Internet-wide provider in apublic setting.


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Examples of traditional place restrictions applied to online communication

EXAMPLE:The Children's Internet Protection Act (CIPA)requires libraries and schools to install filters on their

Internet computers to retain federal funding. The filters

remove materials determined by the commercial vendors

who produce the filters. There is no organized oversight ofthe filter content selection process.

Restriction Type I: governmental agency limiting

the way an individual may use the Internet in a

public setting.
http://www.ala.org/ala/washoff/WOissues/civilliberties/cipaweb/legalhistory/cipatext.pdfhttp://www.ala.org/ala/washoff/WOissues/civilliberties/cipaweb/legalhistory/cipatext.pdf


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Restriction Type I: governmental agency limiting

the way an individual may use the Internet in apublic setting

--fromIamBigBrothers web site:

"IamBigBrother Records everything secretly.

As with all of our monitoring software, IamBigBrother

runs in total secrecy, and is very hard to find.

IamBigBrother will not slow down your computer, or

do anything noticeable to the user.

History of U.S. online speech regulation in libraries:

http://www.software4parents.com/bigbrother.phphttp://www.informationart.org/placeregulations6.htmlhttp://www.informationart.org/placeregulations6.htmlhttp://www.software4parents.com/bigbrother.php


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EXAMPLE: Eighth-grade student Jessica Schoch was notallowed to attend school or participate in extracurricular

activities after school officials discovered a MySpace.com

profile she created at home on her own time that parodied

a school administrator.

Restriction Type II: public school limits the way a

student may use the Internet in a private setting.
http://www.aclu.org/freespeech/youth/25381prs20060427.htmlhttp://www.aclu.org/freespeech/youth/25381prs20060427.htmlhttp://www.aclu.org/freespeech/youth/25381prs20060427.html


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John S. Gossett & Tami Sutcliffe, University of North Texas 2007

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Restriction Type II: public

school limits the way a student

may use the Internet in a

private setting.

Free speech issues related to student

http://www.ncac.org/action_issues/Youth.cfmhttp://www.facebook.com/http://www.ncac.org/action_issues/Youth.cfm


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EXAMPLE:In July of 2006,India's Department of Telecommunications instructed

Internet service providers to block access to the three

largest blogging domains including blogspot.com,

typepad.com, and geocities.com. and refused to provideany explanations for the blockade.

Restriction Type III: governmental agency censors

the entire contents of an Internet-wide provider in a

public setting.
http://tailrank.com/posts/562949953736899/BlogSpot_blocked_by_Indian_ISPshttp://tailrank.com/posts/562949953736899/BlogSpot_blocked_by_Indian_ISPs


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Restriction Type III: governmental agency censors the

entire contents of an Internet-wide provider in a

public setting.

Google's capitulation to the Chinese g

to ban certain kinds of online content.

Department of Justice

subpoenas of search data from

Microsoft, Yahoo and Google.

http://www.wired.com/news/technology/0,71107-0.htmlhttp://www.informationweek.com/news/showArticle.jhtml?articleID=177102061http://www.informationweek.com/news/showArticle.jhtml?articleID=177102061http://www.wired.com/news/technology/0,71107-0.html


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3 important debates:

Is human behavior really different online?

Can we define speech vs action?

Is there really a "pornography problem" online?


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Is human behavior really

different online?

NO

Cyberspace is not much

different than any other form

of human communication and

existing systems of law

should be able to deal with

online conflicts fairly well.

(Goldsmith, 1998).

YESInternational nature of the network

and the anarchic/transient

characteristics of law breaking

allow speed & anonymity

Internet tends to complement

rather than displace existing media(Robinson, 2003).


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Speech oraction?

Online communication smudges somedivisions between speech and conduct

(sometimes considered "non-speech"). Posting files, sending emails and

responding in online discussions are acts.

Writing a blog and designing a web pageare perhaps morepurely speech alone.

When should these activities be censored?


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Is there really a

"pornography problem" online? Cyber-sex Scare of 1995.

Time and Newsweek cover stories related toCarnegie Mellon study on pornography use online

Media-induced hysteria over online childpornography was largely unfoundedThe incidence of pornographic imagery

appearing online probably reflects the incidence ofsuch materials appearing in society as a whole(Hamilton, 1999).
http://www.time.com/time/magazine/article/0,9171,983116,00.htmlhttp://www.eff.org/Misc/Publications/Declan_McCullagh/www/rimm/cmu.htmlhttp://www.eff.org/Misc/Publications/Declan_McCullagh/www/rimm/cmu.htmlhttp://www.time.com/time/magazine/article/0,9171,983116,00.html


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So what to do?

Context of the message and not the

technological characteristics should be the

central criteria in deciding First

Amendment protection.

The Internet is often described as a common

enterprise community so self regulation will

be most effective


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Cohen v California (1971)

"Unwelcome views and ideas cannot be

totally banned from the public dialogue"

Discussions of harm versus offensivenessmust always consider the chilling effect of

online censorship (403. U.S. 15).


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Guidelines

Is the audience captive?

Is the message likely to cause a breach of

the peace?


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Final Questions

Can the state ever forbid the use of certain words,even in "the public good"?

While filtering may be encouraged in the privacyof a home, should filtering without oversight beenforced by law in public settings such aslibraries?

END NOTE:


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Greetings from the world of

Radical MilitantLibrarians

FBI documents from2003 reveal a series of e-

mails in which FBI

agents complain about

"radical, militant

librarians" interfering

with the use of secret

warrants authorized

under Section 215 of the

USA PATRIOT Act.

-- Electronic Privacy Information Center (EPIC)

END NOTE:
http://www.epic.org/privacy/terrorism/usapatriot/foia/fbi_email1.pdfhttp://www.epic.org/privacy/terrorism/usapatriot/foia/fbi_email1.pdf


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http://www.epic.org/privacy/terrorism/usapatriot/foia/fbi_email1.pdf


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In recognition of the

efforts of librarians to help

raise awareness of the

overreaching aspects ofthe USA PATRIOT Act,

the

American Library Associat

Office for IntellectualFreedom is offering

librarians an opportunity

to proudly proclaim their

"radical" and "militant"

support for intellectual

freedom, privacy, and civil

liberties.
https://www.ala.org/ala/oif/basics/basicrelatedlinks/radicalbutton.htmhttp://www.cafepress.com/buy/radical+militant+librarians/-/pv_design_prod/p_1487768.42604837/pNo_42604837/id_10417555/fpt_/opt_/c_360/pg_1http://www.cafepress.com/buy/radical%20militant%20librarians/-/pv_design_prod/p_storeid.41093295/pNo_41093295/id_10201060/opt_/pg_/c_/fpt_https://www.ala.org/ala/oif/basics/basicrelatedlinks/radicalbutton.htm

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