QAs

Regulating Cyberspace

 Should certain forms of speech in cyberspace be regulated?

 If so, which kinds of speech:  hate speech?

 speech that can cause physical harm to others?

 obscene speech?

 How should those forms of speech be regulated?

Regulating Cyberspace (Continued)

 John Weckert (2007) notes that concerns about cyberspace regulation raise two distinct questions:  (1) Should cyberspace be regulated?

 (2) Can it be regulated?

Regulating Cyberspace (Continued)

 Assuming that cyberspace can be regulated, who should be responsible for carrying out the regulatory functions:

 the government?

 private organizations?

 Internet users themselves?

Cyberspace Regulation (Continued)

 Two additional questions involving cyberspace regulation need to be considered:  (1) What, exactly, do we mean by

cyberspace?

 (2) What is meant by regulation (and, in particular, by "regulation" as it applies to cyberspace)?

The Ontology of Cyberspace

 What, exactly, is cyberspace?  Cyberspace is roughly equivalent to the Internet,

i.e., the network of interconnected computers.

 Is cyberspace a place, or is it a medium of some sort ?

 – i.e., is it a virtual space (consisting of all of the data and information that resides in the connected servers and databases that make up the Internet), or is it a new kind of (broadcast) medium?

Cyberspace as a Medium

 Mike Goodwin (2003) believes that the Internet is a new kind of medium that is significantly different from earlier media, such as the telephone or television.  The telephone is a “one-to-one medium”

 Television is a “one-to-many medium.“

 Goodman suggests that the Internet be characterized as a “many-to-many medium.”

Cyberspace as a Medium (Continued)

 Camp and Chien (2000) note that there are four traditional types of media:  publisher,

 broadcast,

 distributor,

 common carrier.

Cyberspace as a Medium) (Continued)

 Camp and Chien argue that none of the traditional media models are appropriate for understanding cyberspace.  An example of a publisher would be a newspaper

or a magazine.

 Examples of broadcast media include television and radio.

 Telephone companies and cable companies are examples of common carriers.

Cyberspace as a (Public) Place

 Camp and Chien believe that a spatial model is a more plausible way to conceive of cyberspace.

 They view cyberspace as a “public space with certain digital characteristics.”

 The model we choose will influence our decisions about how to frame public policies affecting cyberspace regulation.

Figure 9-1: The Ontology of Cyberspace

Cyberspace

Public Space (or Place) Broadcast Medium

(bookstore model) (common carrier model)

Two Different Senses of “Cyberspace Regulation“

 To "regulate" typically means to monitor or control a certain product, process, or set of behaviors according to certain requirements, standards, or protocols.

 Two different senses of “regulation” have been in the debate about whether (and which aspects of) cyberspace should be regulated:

 regulating content (in cyberspace), e.g., online pornography, hate speech, and so forth.

 regulating processes – i.e., rules and policies – for commercial transactions in cyberspace.

Regulatory Agencies in Physical Space

 Content-based examples:  Food and Drug Administration (FDA);

 Local and State Boards of Health;

 Liquor Control Board.

 Process-based examples:  Federal Trade Commission (FTC);

 Federal Communications Commission (FCC)

 Security and Exchange Commission (SEC).

Figure 9-2: Two Modes of Cyberspace Regulation

Cyberspace

Regulating Content Regulating Process

Speech Commerce

Four Modes of Regulating Cyberspace: The Lessig Model

 Lawrence Lessig (2000) describes four distinct but interdependent constraints or "modalities," for regulating behavior:

 laws,

 social norms,

 market pressures,

 architecture.

Analogy: Regulating Smoking Behavior in Physical Space

 Applying the Lessig model to issues affecting smoking, we can:  1. Pass laws against smoking;

 2. Apply social pressure (i.e., norms);

 3. Apply market pressure (e.g., in pricing practices);

 4. Use architecture (e.g., not permitting cigarettes to be sold in vending machines).

Regulation by Code

 In cyberspace, Lessig notes that code is law.

 Software code is analogous to architecture in physical space.

 Lessig compared the architectures of “NET 95” (at the University of Chicago) to “NET 98” (at Harvard University), noting that:

 Net 95 favored anonymity (of users).

 Net 98 favored control (i.e., “regulation by code”).

Digital Rights Management (DRM) Technology

 DRM technologies allow content owners to regulate the flow of information in digital media by:

blocking access to it via encryption mechanisms, and enabling access to it through the use of passwords.

 The combination of DRM technology and the DMCA (Digital Millennium Copyright Act), described in Chapter 8, make it possible to

regulate and enforce policies and laws in cyberspace to a degree that never existed in the physical realm.

DRM (Continued)

 Samuelson (2003) notes that DRM technology allows content owners to exercise far more control over uses of copyrighted works in digital media than what is provided by conventional copyright law.

 She also believes that DRM systems may violate the fair-use provision of copyright law.

 Grodzinsky and Bottis (2007) also argue that DRM threatens the fair-use provision of copyright law.

 They believe that because of the way DRM is designed to protect digital content, our conventional understanding of “private use as fair use” has changed.

DRM and the Music Industry

 One controversy involving DRM and the music industry has involved “interoperability” across the devices on which digital music can be played.

 Interoperability enables users to download and play music on a variety of digital devices.

 But it also challenges the notion that downloadable content can and should be restricted to proprietary devices controlled by the company that owns an “online store,” such as iPods in the iTunes store.

DRM and the Music Industry (Continued)

 Internationally, there have been some efforts to promote interoperability.

 E.g., in 2006, France’s National Assembly passed a law that would force distributors of online music in France to remove DRM so that music can be played on any device.

 Some believe that this move could pave the way for other EU countries to follow (Hesseldahl, 2006).

 But many distributors of music content believe that removing DRM to support interoperability could also open the door to file sharing of copyrighted material without compensation for owners.

DRM (Continued)

 Some critics worry about the ways DRM systems can be abused by content owners to control users’ computers and to spy on unsuspecting users.

 Some critics also believe that DRM technology has gone too far.  E.g., as in the Sony Rootkit controversy (described

in the textbook) involving a DRM system used by Sony BMG.

DRM (Continued)

 DRM-related controversies in the Sony BMG case raise the following questions:  Can users trust content owners, such as Sony

BMG, who are:

 easily able to spy on them;

 able to control aspects of their computers via the use of DRM technology?

 Was Sony’s practice justified on that grounds that entertainment companies, like Sony BMG, need DRM systems to protect their intellectual property?

DRM, Regulation by Code, and Privatization of Information Policy

 Niva Elkin-Koren (2000) worries that because of embedded controls (in code) made possible by DRM, our policies affecting information and digital media are becoming increasingly privatized.

 She also notes that this trend toward privatization has enabled software companies  to design code that reflects their own interests

and values.  not to have to worry about any adverse effects

that this can have for the public’s interests.

Privatizing Information Policy

 Jessica Litman (2002) also argues that information policy in cyberspace is becoming increasingly privatized.

 She describes some events in 1998 that “transformed the Internet into a giant American shopping mall.”  The US Congress passed three copyright-related acts that

favored commercial interests: the DMCA, SBCTEA, and the NET Act.

 The Recording Industry tried to pressure computer manufacturers to embed code in their future computer systems that would make it impossible to use personal computers to download MP3 files and to burn CDs.

Internet Domain Names and “Cybersquatting”

 The National Science Foundation (NSF), a government-sponsored organization, formerly controlled the licensing of domain names, which are expressed as

 www.domainname.com/gov/org.

 ICANN (Internet Corporation of Assigned Names and Numbers) took over the process from NSF.

 ICANN has been criticized as being more business friendly than NSF.

Anti-Cybersquatting Act

 In 1999, the US Congress passed the Anticyberquatting Consumer Protection Act.  This Act protected against “trademark

infringements” and “dilutions” for trademark owners.

 Examine the debate in the Amazon Bookstore v. Amazon.com case (described in the textbook).

HTML Metatags

 Metatags are used in the Hyper Text Markup Language (HTML) Code to design Web sites.

 Two types of metatags:keyword metatags and descriptive metatags.  Keyword metatags, such as <football> and

<Peyton Manning>, enable Web page designers to identify search terms that can be used by search engines.

 Descriptive metatags enable designers of Web pages to describe the contents.

 For example, the description of a Web site for Peyton Manning might read: “Peyton Manning...quarterback for the Indianapolis Colts...named NFL Most Valuable Player in 2008-2009...”

HTML Metatags (continued)

 Controversial cases involving the (mis)use of HTML metatags.

 Examine the hypothetical scenario (in the textbook) involving “Keith,” a student at Technical University.

 An actual case involved Bihari v. Gross.  Gross, a former associate of Bihari, registered "bihari.com"

and "bahiriinteriors.com" domain names

 He was eventually forced to relinquish both domain names;

 Gross then embedded the keyword metatag "Bihari Interiors" in the HTML code for his Web site and included derogatory remarks about Bihari on his Web site.

Hyperlinking and Deep Linking on the Web

 Examine the scenario involving TicketMaster vs. Microsoft (described in the textbook), where Microsoft included a direct link, or hyperlink, to a sub-page on TicketMaster’s Web site:  The controversy underlying deep linking involving

TicketMaster was eventually settled out of court and thus never fully resolved in terms of a clear legal precedent.

 In controversies affecting hyperlinking and deep linking, an important question to consider is whether a Web site is analogous to property.  Examine Richard Spinello’s hypothetical scenario

(in the textbook) involving Maria’s Online Gallery.

Spam

 Keith Miller and James Moor (2008) point out that according to some estimates, as much as 80% of email sent could qualify as spam.

 But they also note that there are “dramatically different definitions” of what can count as spam.

Spam

 Spam is generally described as e-mail that is:  (1) unsolicited,

 (2) promotional,

 (3) sent in bulk to multiple users.

 Can these three characteristics adequately distinguish spam from other forms of e-mail?

Spam (Continued)

 Because spam is unsolicited, it can also be viewed as a form of communication that is nonconsensual.

 But not all nonconsensual e-mail that one receives should necessarily be considered spam.

Spam (Continued)

 Although Spam is viewed as email that it is commercial, not all commercial email is spam.

 Some commercial email we receive can be in the form of advertisements that we have authorized a commercial Web site to email that information.

 E.g., you could have registered on an email distribution list for a department store at which you frequently shop, requesting to be informed about upcoming sales and discount items.

 The emails you receive from this site, while commercial or promotional in nature, would not qualify as spam.

Spam (Continued

 Spam is also distributed in bulk, but not all email distributed in that form necessarily qualify as spam.

 E.g., some messages sent in bulk form (i.e., to an e-mail list) might have been directed to people in the group who are known by the sender.

 Also, there could be some personal or professional connection between the sender and receiver of the e-mail message.

 So, our initial working definition of spam as email that is “unsolicited, promotional, and sent in bulk” to multiple users would not seem adequate.

Spam (Continued)

 Miller and Moor believe that much of the popular discussion about spam in terms of what they describe as Unsolicited Commercial Bulk Email (UCBE) is both “confused and degraded” because it fails to distinguish between:

 UCBE that is “deceptive” and “intended to harm”

 UCBE that is not.

Spam (Continued)

 Miller and Moor believe that the problems affecting email spam can be better analyzed by focusing on a series of distinct, but interrelated, criteria such as the:

 content of the email,

 intent of the sender,

 consequences of the receiver,

 consent of the receiver,

 relationship between the sender and the receiver,

 accountability of the sender and the degree of deception,

 number of identical emails sent.

Spam (Continued)

 Miller and Moor believe that it is possible to distinguish between UCBE advertisements that

 (a) “misrepresent and are fraudulent”

 (b) “present information in a favorable light.”

 They refer to the former as F-UCBE and distinguish it from the non-fraudulent version they call NF-UCBE.

 Miller and Moor also believe that NF-UCBE requires a more complex ethical analysis than F-UCBE.

Why Is Spam Controversial?

 Richard Spinello (2006) notes that spam “shifts costs”  from the advertiser  to several other parties, including ISPs and the

recipients of their service.  Because others must bear the cost for its delivery,

Spinello notes that spam is not “cost free.”

Spam Controversies (Continued)

 Spinello also points out that spam consumes valuable computer resources because it:  is sent through ISPs and thus results in wasted

network bandwidth;  puts an increased strain on the utilization of

system resources such as disk storage space.

Is Spam Unethical?

 Spinello argues that spam is morally objectionable because it:  (a) has harmful consequences;

 E.g., it degrades the “fragile ecology” of the Internet.

 (b) violates the autonomy of Internet users.

 E.g., it does not respect individuals who use email.

 So, Spinello believes that spam is unethical on both utilitarian and deontological grounds (see Chapter 2).

Is Sam Unethical? (Continued)

 Miller and Moor argue that an adequate ethical analysis of spam also needs to take into consideration criteria such as accountability and deception  E.g., generally, the “more deceptive the content and

the less accountable the sender, the more blameworthy the sender becomes.”

 They believe fraudulent UCBE should always be condemned, but that some cases of NF- UCBE might be ethically justifiable.

What Can Be Done About Spam?

 Miller and Moor believe that spam is analogous in some ways to unsolicited commercial phone calls.

 They point out that those kinds of calls have been significantly reduced in the U.S. through legislation, even though they have not been eliminated.

 But Miller and Moor also note that because of the “open” nature of Internet architectures and protocols, spam has been far more resistant to the kinds of legislative and technological solutions used to discourage unsolicited commercial phone calls.

The CAN SPAM Act

 The U.S. Congress passed the CAN SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act, which went into effect in 2004.  This Act specifies criminal penalties that include a

fine of $250 for each spam email.

 But critics of the CAN SPAM Act note that spammers who use ISPs outside the U.S. to send their spam e-mail cannot be prosecuted under this act.

Free Speech vs. Censorship in Cyberspace

 Should certain forms of speech on the Internet be censored?

 Do all forms of speech (at least in the U.S.) deserve protection under the Constitutional guarantee of free speech.

Free Speech (Continued)

 According to the First Amendment of the U.S. Constitution

Congress shall make no law...abridging the freedom of speech, or of the press...

 However, the right to free speech is a conditional right only (not an absolute right).

Censorship

 Kay Mathisien (2008) characterizes censorship as “limiting access to content,” by deterring either:

 (a) the speaker from speaking, or

 (b) the hearer from receiving the speech.

Censorship (Continued)

 According to Mathisien, to censor is to:

restrict or limit access to an expression, portion of an expression, or category of expression, which has been made public by its author, based on the belief that it will be a bad thing if people access the content of that expression. [Italics Mathiesen]

Censorship (Continued)

 Jacques Catudal (2004) believes that an important distinction can be drawn between two kinds of censorship:

 censorship by suppression,

 censorship by deterrence.

 Both forms of censorship presuppose that

some “authorized person or group of persons” has judged some text or “type of text” to be objectionable on moral, political or other grounds.

Censorship by Suppression

 Censorship by suppression affects the prohibition of the objectionable "text" or material from being:

 published,  displayed,  circulated.

 Banning certain kinds of books from being published and prohibiting certain kinds of movies to be made would be examples of censorship by suppression.

 E.g., pornography and other objectionable forms of speech would not be allowed to exist on the Internet.

Censorship (continued)

 Censorship by deterrence is a less drastic means of censoring because it:  (a) does not suppress or block out objectionable

material or forbid it from being published;  (b) depends on threats of arrest, prosecution,

conviction, and punishment against those who make an objectionable "text" available and those who acquire it;

 (c) can use heavy fines and possible imprisonment to deter the publication and acquisition of this objectionable content.

Pornography in Cyberspace

 The concept of pornography is often debated in the legal sphere in terms of notions such as obscenity and indecent speech.

 The Miller v. California case (1973) established that material is obscene when it:

 1. depicts sexual (or excretory) acts whose depiction is specifically prohibited by law.

 2. depicts these acts in a patently offensive manner, appealing to prurient interest as judged by a reasonable person using community standards.

 3. has no serious literary, artistic, social, political, or scientific value.

Pornography (continued)

 The Miller Case has been problematic in enforcing pornography laws, in part, because it includes three controversial notions:

 1”prurient interest,“

 2 “reasonable person,“

 3 “community standards.”

Censorship (Continued)

 The term prurient is usually defined as having to do with lust and with lewd behavior.

 It has been challenged as being vague and arbitrary.

 We can ask who would count as a “reasonable person.”

 The notion of a “community standard” is no longer simple and straightforward because we can ask:

 What is a community in cyberspace?

 Where multiple communities are involved in a dispute involving pornography, whose community standards apply?

Censorship/Pornography

 The Amateur Action BBS (Bulletin Board System) located on a server in California made sexually explicit images available to its members.

 Because the BBS was an electronic forum, its contents were available to users in other states, and in other countries, who had Internet access.

The Amateur Action BBS (Continued)

 A person living in Memphis, Tennessee downloaded on his computer in Tennessee sexually explicit pictures from the BBS.

 Including sexually explicit images on a BBS was not illegal in California, but viewing such images was illegal in Tennessee.

 Criminal charges were brought against the operators of the California-based BBS, who were prosecuted in Tennessee.

Censorship/Pornography

 The California couple was found guilty under Tennessee law of distributing obscenity, under the local “community standards” that applied in Memphis Tennessee.

 But what, exactly, do we mean by "community standards" on the Internet?

 What is a “community” in cyberspace?

 We examine these issues in Chapter 11.

Internet Pornography and Protecting

Children Online

 in 1995, many first learned about the amount of pornographic material on the Internet in a story entitled CyberPorn in Time Magazine.

 Time reported that there were 900,000 sexually explicit pornographic materials (pictures, film clips, etc.) on the Internet.

 Critics point out that the study (A Carnegie Melon report) on which the Time magazine story was based was seriously flawed.

Internet Pornography and Protecting Children Online (Continued)

 While the study accurately reported the number of pornographic images and pornographic Web sites, it did not put this information into proper perspective.

 E.g., the study made no mention of the fact that the percentage of pornographic sites relative to other sites on the Web was very low.

Online Pornography Laws

 Many U.S. lawmakers were outraged when they learned about the amount of pornography on the Internet from the account in TIME Magazine.  The report influenced politicians, who drafted

legislation in response to what they saw as a growing online "pornography industry."

 As a result, the Communications Decency Act (CDA) was enacted into law in early 1996.

Online Pornography Laws (Continued)

 The CDA was controversial because of the section of the bill referred to as the “Exon Amendment,” which dealt exclusively with online pornography.

 In the summer of 1996, CDA was struck down by a U.S. District Court in Philadelphia on grounds that it was too broad and that it violated the U.S. Constitution.

 However, a portion of the CDA, known as the Child Pornography Protection Act (CPPA) of 1996, was determined to be constitutional.

Child Pornography Laws (Continued)

 In 1998, the U.S. Congress passed the Child Online Pornography Act (COPA).

 But in 1999, the U.S. Supreme Court ruled that COPA was unconstitutional.

 So, by 1999, the only remaining federal law specifically directed at online pornography that had withstood constitutional scrutiny was the CPPA of 1996 (a section of the original CDA).

Child Pornography Laws

 CPPA was also controversial because it broadened the definition of child pornography to include entire categories of images that many would not judge to be either:  “child pornographic,” or  pornographic at all.

 Child pornography, according to CPPA, is: ...any depiction, including a photograph, film, video, picture, or computer or computer- generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct...

Child Online Pornography Laws (Continued)

 According to the CPPA, it was a crime

to "knowingly send, receive, distribute, reproduce, sell, or possess more than three child pornographic images."

 In 2002, the U.S. Supreme Court, in a ruling of 6-3, struck down a controversial section of CPPA as unconstitutional.

Online Child Pornography Laws (Continued)

 In 2000, the U.S. Congress enacted into law the Children’s Internet Protection Act (CIPA)  CIPA was designed to address concerns about

children’s access to “offensive content” over the Internet on school and library computers.

 CIPA was targeted specifically to schools and libraries.  It affected any schools or public libraries that

receive federal subsidies in the form of E-Rates, i.e., discounts which make certain technologies more affordable for eligible schools and libraries.

Pornography (Continued)

 Under CIPA, schools and libraries cannot receive the discounts offered by the E-Rate Program unless they certify that they have an “Internet safety policy” in place.

 This policy includes technology protection measures to block or filter Internet access by minors to pictures that are:  (a) obscene,

 (b) child pornography,

 (c) harmful to minors.

Pornography (Continued)

 Both the American Library Association (ALA) and the ACLU filed suit to prevent the enforcement of CIPA’s filtering requirement in public libraries.

 In 2002, a U.S. district court ruled that the CIPA filtering mandate was unconstitutional.

 But in 2003, the district court’s decision was overturned by the U.S. Supreme Court, which upheld CIPA in a 6-3 decision.

Table 9-1: Internet-specific Child Pornography Laws

CDA (Communications Decency Act) Passed in January 1996 and declared unconstitutional in July 1996. The lower court's decision was upheld by the US Supreme Court in 1997.

CPPA (Child Pornography Protection Act) Passed as part of the larger CDA, but was not initially struck down in 1997 with the CDA. It was declared unconstitutional in April 2002.

COPA (Child Online Pornography Act)

__________________________________

CIPA (Children’s Internet Protection Act)

Passed in June 1998 and (portions) declared unconstitutional by the US Supreme Court in February 1999. ______________________________

Passed in December 2000 and declared unconstitutional by a U.S. district court in 2002. The Supreme Court overturned the lower court’s ruling in June 2003.

Child Pornography Laws and “Sexting”

 Sexting is typically defined as the use of cell phones (or similar handheld electronic devices) to send nude or semi-nude photos of oneself to others.  In some cases these photos become widely distributed

and can eventually end up on the Internet.

 Review the scenario (in the textbook) involving the sexting incident at Greensburg Salem High School.

Child Pornography Laws and Sexting (Continued)

 Should the six teenagers at Greensburg Salem High School have been charged with either dissemination or possession of child pornography?

 Were the original felony charges brought against them too harsh?

 Alternatively, are misdemeanor charges too lenient in sexting cases?

 There does not yet seem to be any clear consensus on the answer to this question.

 Yet, the number of reported sexting incidents involving teenagers has increased sharply in recent years.

Child Pornography Laws and Sexting (Continued)

 Julie Hilden (2009) believes that instead of applying older child pornography laws that were designed for “graver and much more exploitative contexts,” we should

“craft new laws designed specifically for sexting.”

 She agrees with critics of the Greenburg case, that the initial charges brought against the six Pennsylvania teenagers were too harsh.

Child Pornography Laws and Sexting (Continued)

 Hilden believes that lawmakers should consider two kinds of “exceptions” to child pornography laws in sexting cases:

 (1) a “Romeo and Juliet” exception (which is sometimes used in statutory rape laws where consensus is involved);

 (2) an “age-specific” exception.

 She believes that the Romeo and Juliet exception could apply when the two parties to an act of sex are close in age (say 18 and 16, or 15 and 17).

Child Pornography Laws and Sexting (Continued)

 It would seem Hilden and other critics are correct in noting that that most teenagers who have been prosecuted for sexting have not engaged in behavior that meets the threshold of crimes intended for prosecution as felonies under child pornography laws.

 But there is also evidence to suggest that sexting is a serious offense and that it needs to be dealt with appropriately in the legal and judicial systems.

 The best short-term solution in the U.S. would be drafting some kind of federal standard that could be applied to sexting cases occurring in all states.

Two types of Controversial Speech in Cyberspace

 In addition to pornography, two additional kinds of speech that have been controversial in cyberspace are:

 hate speech;

 speech that can cause physical harm to others (i.e., to individuals and communities).

Hate Speech

 The U.S. has tended to focus on controversial Internet speech issues that involve online pornography.

 European countries such as France and Germany have been more concerned about online hate speech.

 In 1997, Germany enacted the Information and Communications Act, which was directed at censoring neo-Nazi propaganda.  However, the German statute applies only to

persons who reside in Germany.

Hate Speech (Continued)

 Hate speech on the Internet often targets members of certain racial and ethnic groups.  E.g., white supremacist organizations such as the Ku Klux

Klan (KKK) can include on their Web pages offensive remarks about African Americans and Jews.

 Because of the Internet, international "hate groups," such as "skin heads" in America, Europe, and Russia, can spread their messages of hate in ways that were not previously possible.

Hate Speech (continued)

 Another controversial form of hate speech on the Internet is one that has involved radical elements of conservative organizations.  Extreme right-wing militia groups, whose ideology

has often been anti-federal-government, can broadcast information online about how to harm or even kill agents of the federal government.

 Consider the kind of anti-government rhetoric that emanated from the “militia movements” in the U.S. in the early 1990s, which some believe led to the Oklahoma City bombing.

Web Sites Designed to Combat Hate Speech

 “Hate-watch” Web sites, such as the Southern Poverty Law Center’s (SPLC) “Intelligence Project” (http://www.splcenter.org), have been constructed.  These sites have exposed the existence of various hate

organizations to the public.

 SPLC’s Intelligence Project counted 762 active hate groups in the U. S. in 2004.  SPLC also includes a detailed map with physical locations of

various hate groups, which it identifies under categories such as Ku Klux Klan, Neo-Nazi, Racist Skinhead, etc.

Web Sites Designed to Combat Hate Speech (Continued)

 Information available on these sites also provides an easy way for consumers of hate speech to locate and visit particular hate sites that serve their interests.

 Some hate sites use deceptive metatags to lure unsuspecting users to their sites.  E.g., a racist hate group could use keyword or

descriptive metatags such as “Martin Luther King, Jr.” to intentionally mislead persons interested in acquiring information about Dr. King by directing them instead to its racist Web site.

Speech That Can Cause Harm to Others

 Some forms of hate speech on the Internet are such that they might also result in physical harm being caused to individuals.

 Other forms of this speech are, by the nature of their content, biased towards violence and physical harm to others.

Speech That Can Cause Harm to Others (Continued)

 Recall the Amy Boyer cyberstalking scenario (described in Chapter 1 of the textbook).  Was the posting on Liam Youen's Web site,

describing Youen’s plans to murder Boyer an example of hate speech?

 It resulted in physical harm to Boyer – viz., her murder.

 Should the ISPs that enable users to design Web sites that contain this form of speech be held legally liable for any harm(s) that result?

Speech That Can Cause Harm to Others (Continued)

 Two examples of how certain forms of speech on the Internet can result in serious physical harm:  information on how to construct bombs;

 information on how to abduct children for the purpose of molesting them.

 Should such information be censored in cyberspace?

Software Filtering Programs as an Alternative to Censoring Speech on the Internet

 Software filters can be defined as programs that screen Internet content and block access to unacceptable Web sites.

 Some believe that software filtering provides an reasonable alternative to censoring speech on the Internet.

 Others, including Lessig, are skeptical about using filters to regulate speech.

Software Filtering Programs (Continued)

 Some filters have been criticized because they screen too much, and others because they screen too little.

 Filtering out objectionable material through the use of the keyword "sex" could block out important literary and scientific works.

 E.g., it could filter put access to access certain works by Shakespeare, as well as books on biology and health.

 Filtering schemes that are too broad, on the other hand, might not successfully block non-obvious pornographic Web sites

 such as the www.whitehouse.com site, which is not the URL for the White House but for a pornography site.

Some Objections to Filtering

 Lessig (2000) believes that filtering programs that use “architectures” like PICS (Platform Independent Content Standard) are a form of “regulation by code.”

 He argues that PICS is a “universal censorship system,” which can be used to censor any kind of material, not just pornography and hate speech.  E.g., critics like Lessig worry that software filters

could be used to block unpopular political speech or dissenting points of view.

Objections to Software Filtering (Continued)

 Rosenberg (2001) notes that filters could also be used by conservative school boards to block out information about evolutionary theory.

 The American Civil Liberties Union (ACLU) also opposes the use of filtering

 In a report (in 2001), the ACLU suggested that using censoring mechanisms such as filters may “burn the global village to roast the pig.”

Mainstream Loudon v. Board of Trustees

 Adult members of the Loudon County public libraries sued the Board of Trustees of the library for “the impermissible blocking of access to Internet sites.“

 The library claimed that it used filters to block child pornography and obscene material.

 The plaintiffs complained that the filtering devices also blocked access to non- pornographic sites, such as the Quaker Home Page, the American Association of University Women, and others.

Mainstream Loudon Case (continued)

 The district court in Virginia ruled in favor of the plaintiffs.  It determined that the installation of filtering

software on public access computers in libraries violates the First Amendment.

 But no clear direction was given as to how to resolve the problem.

 One solution would have been for libraries to provide no Internet access at all.

 But this would not have been a satisfactory alternative for obvious reasons.

Mainstream Loudon Case (Continued)

 Another solution would be for the library to set aside one or more sections for children, in which computer with filtering programs could be provided.

 Because children were then protected under the Child Pornography Protection Act (CPPA) of 1996, it was argued that it would be permissible for libraries to include filtering devices on computers intended for use by children in restricted sections of the library.

Defamation in Cyberspace

 Richard Spinello (2001) defines defamation as communication that harms the reputation of another and lowers that person's self esteem in the eyes of the community.

 Defamatory remarks can take two forms:

 (1) libel, which refers to written or printed defamation;

 (2) slander, which refers to oral defamation.

Defamation in Cyberspace (Continued)

 Mawhood and Tsyver (2000) point out that in addition to words, a person can be defamed through pictures, images, gestures, and other methods of signifying meaning.

 They note that a picture of a person that has been scanned and changed by merging another image can also suggest something defamatory.  Mawhood and Tsyver also note that anyone who

passed on such an image could also be held liable by the person filing defamation charges.

Defamation (Continued)

 Libelous speech on the Internet can be distinguished from certain kinds of inflammatory speech.

 Inflammatory remarks made in online forums are sometimes referred to as "flames."  A person who is the victim of such a remark is

described as someone who has been "flamed.“  However, most “flames” do not meet the legal

standards of defamation.

The Role of Internet Service Providers (ISPs) in Defamation

 In the 1991 case of Cubby, Inc v. Compuserve, the court ruled that Compuserve was not liable for disseminating an electronic newsletter with libelous content.

 The court determined that Compuserve had acted as a distributor, and not as a publisher because:  the service provider did not exercise editorial

control over the contents of its bulletin boards or other online publications.

The Role of ISPs in Defamation (Continued)

 A different interpretation of the role of ISPs was rendered in the1995 case of Stratton Oakmont v. Prodigy Services Company.  A court found that Prodigy was legally liable since

it had advertised that it had "editorial control" over the computer bulletin board system (BBS) it hosted.

 The court noted that Prodigy had positioned itself as a proprietary, family-oriented, electronic network that screened out objectionable content, thereby making the network more suitable for children.

ISPs and Defamation (Continued)

 ISPs argued that they provide the "conduits for communication but not the content."

 This view of ISPs was used in the Zeran v. AOL case in 1997, where AOL was found not to be legally liable for content disseminated in its electronic forums.

Defamation and ISPs (Continued)

 The Zeran case was the first to test the new provisions for ISPs included in Section 230(c) of the Communications Decency Act (CDA), which we examined earlier in our discussion of on-line pornography.

 The 1996 law protects ISPs from lawsuits similar to the one filed against Prodigy.

 According to the relevant section of the CDA: no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Defamation and ISPs (Continued)

 Spinello (2001) argues that simply because an ISP presents an "occasion for defamation" does not necessarily imply that ISP is accountable.

 For an ISP to be accountable, two conditions are required:

 (a) the ISP must also have had some capability to do have done something about the defamation;

 (b) the ISP failed but failed to take action.

Defamation and ISPs (Continued)

 In Spinello’s scheme, ISPs would be required to take three steps to avoid responsibility:

 (1) prompt removal of the defamatory remarks;

 (2) the issuance of a retraction on behalf of the victim;

 (3) the initiation of a good faith effort to track down the originator so that the defamation does not reoccur.

Implications of ISP Responsibility in the Amy Boyer Case

 Should Tripod and Geocities, the two ISPs that enabled Liam Youens to set up his Web sites about Boyer, be held accountable (in a moral sense) for the harm caused to Boyer and to her family?

 Should both ISPs be held morally accountable, even if they were not responsible (in the narrow sense) for causing harm to Boyer and even if they can be exonerated from charges of strict legal liability?

 One might argue that it would be reasonable to hold both ISPs accountable if it also could be shown that the ISPs were capable of limiting the harm to persons that result from their various online forums.