Place Regulations on the Internet

Burning the Global Village to Roast the Pig

John S. Gossett and Tami Sutcliffe                                                               University of North Texas http://www.informationart.org/symbolic.html

“Any content-based regulation of 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).

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?

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

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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
–measurable physical characteristics (Davis v. Massachusetts, 167 U.S. 43). – legal jurisdiction determined by physical location –includes spatial tactics, spatial neutrality and spatial tailoring (Zick, 2006)

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

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Where are time, place and manner regulations enforced?
Government-owned space includes three tiers:

• Non-public forums: heavily regulated, with states exercising 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]
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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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

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

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So, what is the Internet?
• “An international network of interconnected
computers” (Reno v. ACLU, 521 U.S. 844 [1997]) • “A unique and wholly new medium of worldwide human communication" (ibid) • An international hardware network of interconnected computers not limited to a single physical or tangible entity

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

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FYI: TECHNICAL ISSUE:

How is the Web different from the Internet?
The Internet: The World Wide Web

nonspatial international ever-shifting hardware network navigational software less directly related interconnected to geographical location Physically removing a networked computer from a library older than the Web building is a form of place restriction, as is filtering a list of words from a library search engine tied to physical place
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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What type of public forum is the Internet? • The physical location of any given Web server on the Internet is usually irrelevant to the messages being communicated. • The data does not stay in one place, nor can it be identified by either its source nor its destination. • “Immediate, anonymous, inexpensive and seemingly borderless" (Franda, 2001).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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MORE Reasons the 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.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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Can place realistically be used to regulate Internet expression?
• Since 2002, twenty five states have passed or are considering passing Internet censorship laws (ACLU 2006) • But traditional vocabularies of physical place fail to describe the Internet, so how will these laws ever be viable?

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

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Can place realistically be used to regulate Internet expression?
Obviously, governments and the private sector must come to an agreement on international legal standards for the free flow of information and privacy (Weitzner, 2006.).

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

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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 a public setting.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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Examples of traditional place restrictions applied to online communication

Restriction Type I: governmental agency limiting the way an individual may use the Internet in a public setting.
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 of the filter content selection process.

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

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Examples of traditional place restrictions applied to online communication

Restriction Type I: governmental agency limiting the way an individual may use the Internet in a public setting
--from IamBigBrothers 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:
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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Examples of traditional place restrictions applied to online communication

Restriction Type II: public school limits the way a student may use the Internet in a private setting.

EXAMPLE: Eighth-grade student Jessica Schoch was not allowed 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.

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

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Examples of traditional place restrictions applied to online communication

Restriction Type II: public school limits the way a student may use the Internet in a private setting.
Free speech issues related to students:

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

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Examples of traditional place restrictions applied to online communication

Restriction Type III: governmental agency censors the entire contents of an Internet-wide provider in a public setting.
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 provide any explanations for the blockade.

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

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Examples of traditional place restrictions applied to online communication

Restriction Type III: governmental agency censors the entire contents of an Internet-wide provider in a public setting.

•Google's capitulation to the Chinese govern to ban certain kinds of online content. • Department of Justice subpoenas of search data from Microsoft, Yahoo and Google.

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

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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?

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

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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).

YES
•International 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).

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

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Speech or action?
• Online communication smudges some divisions 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 page are perhaps more purely speech alone. • When should these activities be censored?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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Is there really a "pornography problem" online?
• Cyber-sex Scare of 1995.
– Time and Newsweek cover stories related to Carnegie Mellon study on pornography use online

–Media-induced hysteria over online child pornography was largely unfounded –The incidence of pornographic imagery appearing online probably reflects the incidence of such materials appearing in society as a whole
(Hamilton, 1999).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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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

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

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Cohen v California (1971)
• "Unwelcome views and ideas cannot be totally banned from the public dialogue" • Discussions of harm versus offensiveness must always consider the chilling effect of online censorship (403. U.S. 15).

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

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Guidelines
• Is the audience captive? • Is the message likely to cause a breach of the peace?

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

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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 privacy of a home, should filtering without oversight be enforced by law in public settings such as libraries?

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

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END NOTE:

Greetings from the world of Radical Militant Librarians

FBI documents from 2003 reveal a series of emails 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) Freedom of Information Act (FOIA) request 2003

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

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

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“In recognition of the efforts of librarians to help raise awareness of the overreaching aspects of the USA PATRIOT Act, the American Library Association Office for Intellectual Freedom is offering librarians an opportunity to proudly proclaim their "radical" and "militant" support for intellectual freedom, privacy, and civil liberties.”
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007

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