Filtering the Internet like a smokestack: how the children's Internet protection act suggests a new Internet regulation analogy.

• Author: Chrislip, Jared
• Position: Essay

1. INTRODUCTION

   The development of new technologies often presents society with novel legal issues. Rarely, however, do technological innovations present problems that are wholly unique. For example, a new medium of communication used to disparage a person's reputation would likely fall under the doctrine of libel. To apply traditional, print media libel precedent to a case when the slanderous speech is electronic, the law analogizes the electronic medium to the printed page. The law's relevance in the face of new technology, therefore, relies on its use of analogies that frame unforeseen legal issues in terms of established principles.

   The application of established law to the multi-faceted Internet, however, resists a single, overarching analogy. Instead, courts, lawmakers and commentators have had to employ an evolving set of metaphors in their attempts to analyze the medium. Regulation of the Internet has been promoted with the "information superhighway" metaphor, analyzed with the "cyberspace" conception and explored with the "Internet as real space" comparison. (2) The government's interest in protecting minors from harmful Internet content has even been likened to the zoning of real property, like distancing schools from adult-oriented commercial spaces. (3)

   Although Internet filtering technology continues to develop and improve, filters are currently unable to analyze the content of images on the Internet. (4) The Children's Internet Protection Act (CIPA), (5) however, is based on a policy that requires the use of Internet filters that can discern between appropriate and inappropriate Internet images. (6) The statute's apparent technological infeasibility raises unresolved questions regarding the interpretation and application of CIPA's Internet filtering provisions.

   Although no single metaphor is sufficient for analogizing the myriad legal issues presented by the Internet, CIPA necessitates an appropriate analogy to address the statute's unresolved regulatory concerns. (7) Fortunately, environmental law has encountered and resolved analogous technological infeasibility issues. (8) In bridging the gap between current regulatory aspirations and potentially available technological tools, environmental law has established a vocabulary of statutory construction and interpretation that forces technology to develop in order to accomplish forward-looking regulatory goals. (9) Reading CIPA as a technology-forcing goal statute like the Clean Air Act (CAA) (10) explains how the apparently infeasible Internet filter statute may be interpreted and applied in the face of technological limitations.

   After reviewing free speech concerns and Congress' interest in protecting minors from harmful Internet content, this note will summarize the history of Congress' efforts to regulate online pornography. The paper will then describe current Internet filtering technology and compare CIPA to the CAA. Borrowing from environmental principles such as the "best available technology" standard, this note will then suggest an approach to interpreting CIPA that resolves the law's technologically problematic positions.

2. INTERNET REGULATORY POLICY AND THE FIRST AMENDMENT

   The First Amendment to the United States Constitution protects both the expression and the receipt of information. (11) In United States v. Am. Library Ass'n, (12) the Supreme Court of the United States considered whether CIPA, a congressional act that conditions the receipt of public library Internet subsidies on the library's use of filtering software, violates the First Amendment. (13) Upholding the Act, the Court held that, at least facially, it does not violate First Amendment rights. (14) The Act's mandate to employ a "technology protection measure" capable of blocking access to obscene images is, however, virtually impossible to comply with.

   That the First Amendment does not cover all speech is well established. Since its drafting, the amendment has been interpreted to intentionally omit obscene and profane forms of expression from its protection. (15) The constitutionality of laws aimed at outlawing such obscene speech, however, is a source of perennial controversy.

   1. Protected and Unprotected Speech

      The Court labored at the outset to formulate a practical and justified definition of obscenity. Anti-obscenity jurisprudence soon bifurcated the issue of constitutional speech restriction. (16) While obscene speech could be prohibited, the government's interest in shielding children from other harmful speech allowed indecent speech to be restricted as well. (17) Obscene speech was defined as that which an average person, applying contemporary community standards, would find appeals to the prurient interest, describes or depicts sexual conduct, and lacks literary, artistic, political or scientific value. (18) Indecent speech, on the other hand, has been loosely defined as material that the local community deems harmful to minors. (19)

      While courts recognize the government's compelling interest in protecting the well-being of children, the difficulty associated with differentiating between protected speech and unprotected speech has vexed legislative efforts to restrict speech that is harmful to minors. (20) The statutory language used to criminalize obscene or indecent speech must notify potential offenders of the particular speech outlawed and provide prospective juries with an adaptable yardstick for reckoning the severity of an alleged offense. (21) The Court explained that regulation of such speech must be performed with adequate procedural safeguards to ensure against the curbing of constitutionally protected expression. (22) The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. (23) Any differentiation between legitimate and illegitimate speech, the Court admonished, should be attempted only with "sensitive tools." (24)

   2. Congress Takes Aim at Unprotected Internet Speech

      CIPA, enacted by Congress in 2001, is an effort to subsidize public library Internet access while curtailing the use of that access for viewing pornography. (25) A public library's receipt of federal Internet access subsidization funds is conditioned upon its implementation of Internet filters that significantly limit access to images that are "harmful to minors." (26) CIPA mandates that filters must be in operation even when adult patrons use the library terminals, but allows library staff to disable a filter upon request to facilitate "bona fide research." (27)

      1. Early Failures

         Congress' war on Internet pornography did not begin, however, with CIPA's filtering policy. Beginning in 1995, as the Internet sprawled through American cyberspace and the nation's consciousness, Congress turned its attention to the alarming availability of pornographic content online. (28) The first federal attempt to regulate obscenity and indecency on the Internet treated the novel medium like traditional broadcast media. (29) Enacting the Communications Decency Act (CDA) in 1996, Congress made it illegal to post adult-oriented material online where children could access it. (30) Within a year, however, the overbroad, content-based speech restriction was struck down. (31)

         In an attempt to remedy the CDA's overbreadth, Congress passed the Child Online Protection Act (COPA) in 1998. (32) COPA provides civil as well as criminal penalties for knowingly posting material "harmful to minors" and accessible by minors in furtherance of either interstate or foreign World Wide Web commerce. (33) The statute's definition of material "harmful to minors" represents Congress's attempts to draft a constitutionally permissible restriction of indecent and obscene speech. (34) While more narrowly tailored than CDA, COPA is by no means clearly constitutional.

         The day after President Clinton signed COPA into law, the American Civil Liberties Union and others brought an action challenging the statute on free speech grounds. (35) Six years later and after a trip to the Supreme Court, COPA's future remains uncertain. What is clear, however, is that at the nexus of Internet regulation and free speech, Internet filters have received significant endorsement as the potentially harmonizing mechanisms through which the competing interests relating to Internet regulation may be resolved. (36)

      2. A Compelling Interest

         Despite its First Amendment complexities, the federal government's desire to protect children online is certainly a compelling interest in a growing societal problem. It is estimated that over 260 million Web pages are pornographic and as many as 28 million new pornographic pages are added each month. (37) According to some figures, Internet pornography accounts for the annual expenditure of $57 billion worldwide, with $12 billion spent in the United States alone. (38) Meanwhile, children and teenagers use the Internet more than any other age group in the United States, with significant numbers of children using school and public library computers to go online. (39) The government has legitimate cause for concern over the socially harmful combination of increasing obscenity and child activity on the Internet.

      3. CIPA Passes Muster

         At trial the court for the Eastern District of Pennsylvania ruled that CIPA, like its predecessors, violated the First Amendment. (40) Given the constitutional difficulties surrounding Congress's attempts to regulate Internet speech, the ruling with respect to CIPA's Internet filtering policy initially appeared to be in line with cyber-speech precedent. On appeal, however, the Supreme Court employed a different analysis that upheld the statute as facially valid. (41) Combining Congress's power of the purse and local librarians' discretionary power in assembling library collections, the federal government crafted a constitutional restriction of Internet material potentially harmful to children. (42)

         CIPA's...