The problems of regulating the internet appear to be becoming a regular feature on the Court's docket, and will no doubt continue as such into the future. Each year, the technological advances made on the world-wide system create new problems for those who would regulate them, and raise new issues how traditional concepts, such as the First Amendment guarantee of freedom of speech, should apply.
The most serious problem on the internet, as far as Congress is concerned, is pornography, and it is also one of the World Wide Web's most profitable enterprises. Since the late 1990s, Congress has contemplated or passed over a half-dozen measures primarily designed to protect children. First there was the Communications Decency Act (CDA), signed into law as part of the Telecommunications Act of 1996. The law would have required, among other things, that material considered "indecent," including pornography, be outlawed in public forums such as the internet that were accessible by children. The Supreme Court overturned the indecency parts of the law in Reno v. American Civil Liberties Union (1997), on grounds that its provisions were vague and over-broad.
Next came the Children's Online Privacy Protection Act, signed into law in 1998, which attempted to protect children's privacy from online marketers. No one knows how effective it is, but so far it has not been challenged in the courts. That same year Congress passed COPA, the Child Online Protection Act, which penalizes Web site operators who allow children to view pornography, whether or not it is legally protected speech. Designed only to apply to the internet, Congress hoped it would pass constitutional muster where the CDA had failed. It never went into operation, however, since a federal judge froze it following a legal challenge. The appeal on that case reached the high court this term.
A third law, the Children's Internet Protection Act (CIPA), required public schools and libraries to install filters on their computers so children and adults could not view "inappropriate" information on the internet. Schools and libraries that failed to install filters could lose the federal "E-rate" funding for internet access and other technological tools. In court challenges, the government claimed that local communities could determine at what level they wanted to set their filters; moreover, they had the option of not installing filters and foregoing federal funds. Opponents, including the American Civil Liberties Union and the American Library Association, responded that filters were at best an imperfect tool, and their haphazard use would suppress the rights of students and adults to view material that was in fact protected by the First Amendment. Last Term the Supreme Court upheld the law in a 6-3 decision in United States v. American Library Association (2003).
This Term the Court dealt with COPA. The ACLU, representing booksellers, artists and others challenged the law as a damper on free speech. The law, it claimed, could make criminals out of people who used the Web for legitimate purposes, such as those who operate Web sites about gynecology and safe sex. The ACLU pointed to the example of Mitch Tepper, who posts explicit how-to sexual advice for disabled people. The Court of Appeals for the Third Circuit had twice struck the law down as riddled with problems that make it "constitutionally infirm."
The Bush Administration appealed, arguing that children are "unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web." According to Solicitor General Olson, COPA provided a reasonable solution to that problem. The law, he claimed, only targeted commercial pornographers.
Last Term the justices sent the case, Ashcroft v. ACLU, back to the Third Circuit for reargument, on the grounds that the lower court decision had been too narrowly focused. After the appeals court again ruled the statute unconstitutional, the Court granted cert, and then upheld the lower court. By a vote of 5-4, the Court held that the government still had not proven that the criminal penalties imposed on certain internet providers would protect children without unduly limiting the speech rights of adults.
"Content-based prohibition, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people," Justice Anthony Kennedy wrote. "To guard against that threat the Constitution demands that content-restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality."
Unless the Justice Department could convince a federal judge that COPA's provisions are the only meaningful way to prevent children from finding inappropriate sexual material on the Internet -- an option that after this opinion has little chance of success -- then the 1998 law is dead. Jerry Berman of the Center for Democracy and Technology said that the government would find it very difficult to convince a court that "a criminal statute is less restrictive than voluntary filtering and blocking technology, given the global nature of the Internet." Justice Department spokesman Mark Corallo voiced disappointment, and pledged that the Department would continue "to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web."
The vote in the case, as it often is when First Amendment issues are involved, scrambled the usual line-up of moderates and conservatives. Justice Kennedy and Clarence Thomas, the latter arguably the Court's most conservative member, were joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Voting to uphold the law were Chief Justice Rehnquist, Justices Sandra Day O'Conner, Antonin Scalia, and Stephen Breyer, the latter one of the more liberal members of the Court. In his dissent Breyer voiced the minority's exasperation by asking "What else was Congress supposed to do?" COPA, he wrote, "imposes a burden on protected speech that is no more than modest." In their view, because COPA involved only a narrow part of the full spectrum of speech -- sexual material on the internet -- it should not have been subjected to normal First Amendment standards.
The decision raises questions whether any effort by Congress to limit access to the internet could meet constitutional requirements. Pepperdine University law professor Douglas Kmiec likened the Internet to "the wild, wild West. It's anything goes, and anything goes because it has no discernible boundaries and you never know who's at the other side of the mouse." Congress recently passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT) that, among other provisions, would outlaw digitally "morphed" images made to appear as if children are having sex or being used in pornographic images. The law is an effort to answer the Court's decision in Ashcroft v. Free Speech Coalition (2002) that digital images of children apparently engaging in sexual acts was not the same as real children doing so, and therefore not subject to the same penalties that the Court had previously approved in regard to child porn. Morphed porn would be illegal if prosecutors could prove beyond a reasonable doubt that the maker intended others to believe that the images were actual child pornography. The producers would also have to show that real children had not been involved in the making of the programs.
But the World Wide Web is just that, and its millions of sites form a jungle in which any and all products may be offered. While major internet access suppliers like AOL have people working to identify and screen out sites that are pornographic, new ones rise up faster than the old ones can be identified. Moreover, what is illegal in the United States is not necessarily illegal in other countries, and so long as those countries take no action to close down child porn producers, they will have little trouble putting their wares up for sale and finding buyers here.
In a low court decision, a panel of the Court of Appeals for the First Circuit ruled that a company that provides e-mail service to its employees has the right to copy and read any message bound for its customers, a ruling that could lead to greater monitoring by businesses or the government of their employees' use of e-mail. In differentiating between companies reading e-mail and listening in on telephone conversations, the court ruled that because e-mail is stored, even momentarily, in computers before it is sent on to recipients, it is not subject to the same laws that apply to eavesdropping of phone calls, which are continuously in transit.
Privacy advocates quickly condemned the ruling, which will probably be appealed. Peter B. Swire, an Ohio State University law professor and privacy expert, said the ruling means that an e-mail provider "can intercept all your e-mail with impunity, and can read them and use them for its own business purposes." The large internet providers such as AOL, Microsoft, Earthlink, Comcast and Yahoo quickly disclaimed any intent to read their customers' mail. All have policies in place that govern the terms of service, and they cannot read e-mails or disclose personal information unless required by law enforcement agencies.