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					       Regulating        Freedom of Expression over the Global

I.      Introduction
II.    What is filtering software
III.    Pros & Cons of filtering software-Limitations and drawbacks
IV.     Current U.S. Legislation on Regulating the Net
V.          Self censorship-arguments for cyber independance
VI.     Conclusion
VII. Bibliography

I. Introduction

Back when the Television and radio came about,                     restrictions were put in
place by government authorities as to the content of its programs. There
were and are certain topics that society deemed inappropriate for the
public and therefore governments have regulated the content of what we
see and hear on television and the radio.              With the ever evolving
internet and its       ability to transmit speech rapidly and in greater masses
than any other medium know in history1, is there a way to effectively

regulate its content!   Is there a need to regulate the internet or does
regulation become an infringement on ones freedom to speak his or her
mind?     Prior to there ever being an internet, in North America free
speech came with certain regulations or guidelines with which individuals
were and still are required to follow.   Its a balancing act between ones
freedom of expression and human rights.

This essay will look at the assumption that there is a need to protect
children from indecent and    obscene material that can be found on the
world wide web.    Various scholarly articles will be looked at and their
views on various issues relating to the regulation of cyberspace.     The
Governments (namely U.S.) role in the protection of minors is tricky in
that they need to balance there goal of protecting the children and
limiting the restriction they impose on free expression (of adults) over the
net.   True there will continue to be groups such as The American Civil
Liberties Union, and Electronic frontier foundation who will fight against
the governments intervention over free expression over the web but this
could lead to the development of web rules that the majority can live by
and not feel as though there rights are hugely infringed upon.
Assuming harm is done to a child who is subject to such information:
what steps are needed to ensure our childrens safety.

For the purpose of this essay, the scholarly literature and the laws it is
relating to is based on    the United States. The situations may be
related to other countries, but for simplicity I have narrowed in solely to
the U.S.

II. What is Filtering Software?

Filtering software (also known as blocking software) is                             that which blocks,
filters, or monitors Internet use.2                The software is used as a censorship
tool. It is usually marketed to consumers concerned with children s
exposure to sexually explicit material on the net. Other markets that may
be targeted are: violence and hate speech information, alcohol and illicit
drug information, cult and satanic information, and militant and extremist
information.         The software packages can be designed for home use,
business use, and educational use.                      Public libraries, if using filtering
software, usually need to alter the program to meet the needs of that
library.     Some libraries may install the software only in the children s
section, others may install it throughout but turn off the software at the
request of an adult doing research.                       Screaning of internet content is
accomplished in one of four ways:
   1-   Blocking by domain name
   2-   Blocking everything except a whitelist or allow list
   3-   Blcking by word or phrase
   4-   Blocking entire categories such as games, email (this option commonly used by libraries)

        Christine Peterson,
                                 Filtering Software: Regular or Decaf?
                                          <> (last visited
Does filtering software offer enough protection against minors viewing offensive material? Filtering
   software is not   100% effective              therefore parents,        librarians, and
   teachers should not rely solely on the capabilities of such software
   and should be aware of                 of the possiblity that not matter what
   measures are taken their is still a chance for minors to come
   accross indecent material.                   As much as filters are useful,              there are
   ways of disabling or turning off the software and there are even
   sites, such as Peacefire,4 that provide information on how to turn off
   filtering software.          You can also find sites that provide information
   on the kinds of sites blocked by the various packages available.
   Most filters have there own websites and have test software that
   can be downloaded to see if it meets your needs.

Recent technology has created a new form of filtering called PICS,
   Platform for Internet Content Selection, this software offers a
   common language for an internet rating system.
A rating service can rate a document into various categories such as
   violence, sex, nudity, and adult language.                       This rating can be
   viewed as similar to that movies.                    Two rating systems that are
   currently available are Safesurf and RSACI, both of which allow
   content providers to rate there own websites.                          A PICS system can
   also have ratings assigned by the writer of the filtering software or
   by a third party.

    Ibid para 16

Examples of current filtering software and there websites are:

1. Cyberpatrol-
2. CYBERsitter-

III. Pros & Cons of filtering software-Limitations and

Filters are viewed by some as a valuble tool in aiding in the
  prevention of minors gaining access to sexually explicit or indecent
  material over the internet.                As with just about any computer
  program filters do have problems and issues relating to its use.
One problem is that blocking software may cause consumers to miss
  out on informative information due to deliberate exclusion of certain
  material,       sites that are not yet rated, and the improper labelling of
  sites.5 Some may see this as a small price to pay in protecting a
  childs innocence.            Another issue is that blocking of material is
  becoming more and more complicated each day as the number of
  new web pages are growing, and old pages are being deleted or
  URL s are changed or not labelled which makes rating a
  cumbersome task.

      Jonathan Weinberg,   Rating the Net , (1997)19 Hastings Comment L. J. 453.
Some of the problems with the PICS specifications is that different
  groups may establish rating services that reflect their own values, as
  there is currently no criteria for such labeling.   Currently   not all
  web sites are rated, since this is a realatively new form of
  censorship, and not all content providers want to take the time to
  rate their sites.   At the moment    there is no incentive for content
  providers to to do so.    Some suggest that in order to ensure
  participatin in self-rating systems the government may need to step
  in and force or persuade content providers to self-rate.6

IV.    Current U.S. Legislation on Regulating the Net.

 Some legal issues that have presented themselves in the past few
  years have
evolved due to an effort in protecting children from obscenity, violence,
  pornography and other materials deemed inappropriate for minors on
  the net. The use of filtering software in libraries for example has
  caused adults to go running to the courts claiming its an
  infringement on their first amendment rights(US). Is this really the
  case or should adults to lose out on certain speech in order for our
  children to be to be protected.     Some people may argue that it is
  not up to the government and the public to protect children from the

   Ibed para.33
     indecent material found on the net.                         Instead      parents should take a
     more active role in monitoring their children s activities.

Some of the more current legislation that has government officials back
     at the drawing board is the CDA or Communications Decency Act
     and COPA or Child Online Protection Act. An                                article written by M.
          Baughman compares the latest US legislation                            COPA with that of
     its predessor theCDA.                   The CDA caused an uproar in the activist
     community with Americans claiming the CDA was unconstitutionally
     vague,          overbroad, and that it ignored their first amendment rights.
          COPA addresses many of the issues that the court felt were poorly
     addressed with the CDA. There are                            six provisions that distinguish
     COPA from the CDA.
1.        Standard for prohibited transmission content,7 COPA contains a
     prohibition on material that is deemed harmful to children as defined
     by the U.S. constitution.8
2. COPA s prohibition applies only to information transmitted over the
3. COPA only applies to communications made                                    for commercial
4. COPA specifically                  exempts carriers providing telecommunications
     services, businesses providing Internet access servicesor information
     The CDA prohibited Internet transmissions that were         obscene or indecent   or   patently
     offensive.      47 U.S.C.   223(a)(1)(B)(2) and (d)(1)(B)
     47 U.S.C.       231(e)(6)
     47 U.S.C 231(d)(1)(A)
         47 U.S.C.   231(a)(1)
  location tools.11
5. COPA removed the reequirement previously on the CDA relating to
  restricting access to minors.12
6.COPA forms a committee to look into ways of reducing childrens
  access to inappropriate material

       exemptions are specifically defined under 47 U.S.C. 231(e)(4)(5)
   47 U.S.C. 231(C)(1)(A)(B)(C)
 Two of these provisions could be seen as the most                            constitutionally
  troublesome          if they reach the federal court.13
These provisions are:
          1) the standard of prohibited content
          2) the burden on adult speech.
The author believes that the COPA should survive "constitutional
  scrutiny" because in relation to the standard of prohibited content it
  is no longer vague and its requirements probable do not create
  undue burden on adult speech.
The comparison of the CDA and COPA seems to suggest that COPA
  has now addressed the issuesthat the CDA failed in.                            Is this really
  the case?        The arguments supporting COPA's                     cures for the
  inadequate CDA appear to solve the problems.                          As time goes on
  though, the internet will advance and a set of regulations now will in
  future become inadequate.               Nothing is ever as simple as it first
  appears and as technology advances we will soon see the internet
  becoming more complex than it was ever thought possible.                                This is
  a more postive look at the newly redefined CDA.                           Now we will look
  at a different       view to net regulation. G. Simon, author of
       Cyberporn & Censorship , although agreeing that the CDA was
  unconstitutional, argues that future regulation needs to be clearer so
  as not to jeopradize free expression.                    Also, Simon suggests the
  idea that any regulations that attempts to restrict the material adults
  have access to will continually find itself                 back in the courts and
   Matthew Baughman,    Regulating the Internet , (1999) Vol.36 No.1 Harvard Journal on
  Legislation 230-41
  under scrutiny as the CDA was.                       The task of attempting to restrict
       speech over the internet is beleived to be too massive a task for
  any government14.            The CDA may be "unconstitutionally overbroad
  with the right of adults to engage in protected speech, but do we
  not have a greater responsibility in protecting our children.                               Even
  though the chances of a child coming accross sexually explicit
  material       is a remote possiblity,           should governments waste their
  time on trying to regulate speech?                   Instead of fighting against
  governments and tieing up the courts, activists efforts in protecting
  there rights may be better served if they quit bashing heads with
  the government and instead                  join forces in combating this ever
  growing problem.
The likely hood of governments backing out on trying to regulate the
  internet in severly remote.               Governments are probably more
  compelled to protect the rights of children first and foremost and
  therefore will continue to step on alot of toes but sooner or later
  there will be some level of control.

   G.E. Simon,   Cyberporn & Censorship: Constitutional Barriers,   (1998)88   No. 3 Journal of
  Crimminal Law and Criminology
V.Self censorship-arguments for cyber independance

Even though only a small fraction of web pages actually contain
  sexually explicit material            the need for cyber censorship in inevitable
  it it simply a matter of time and alot of energy.

The view that in order to achieve cyber-independence all governments
  must stop
trying to regulate the net and leave internet regulation up to "groups of
  self-appointed self-regulators" is considered vitually unrealistic.15                     It s
       a given that each country will try to regulate the net in a way that
  conformes to their laws              to ensure that the net provides a "positive
  role in their democracies"16 so instead of fighting against
  governments, work with them.                  This way you ensure that it is not
  "Net-ignorant legislators"17 making the regulations.                     This idea is not
  new and has been used for centuries.                     Two heads are always
  better than one.

Some argue           that the solution for objectionable speech in                  more

   James J. Black,    Free Speech and the Internet: The Inevitable Move Toward Government
  Regulation,   (Winter 1997)4 RICH J. L. & TECH 1
   Ibed par 4
   Ibed par 3
  speech .18
How this idea works I am unsure.                   As I do not see how more speech
  would reverse the negative implacations some speech can have on
  individuals.        This argument seems to have no foundation.                        Another
  arguement for self censorship is that the net is a separate place
  that has no borders as defined in the real world therefore the
  problem arises of how does the government enforce regulation on a
  person who does not live in the U.S.                    And is not a US citizen.
  Although most may agree that some form of regulation is needed
  for the net whether it be by government intervention or self
  regulation the issue still arises as to where and when do those
  regulations apply.


Even though the scope of this essay relates to U.S. regulation the

   James J. Black,    Free Speech and the Internet: The Inevitable Move Toward Government
  Regulation ,   (Winter 1997) 4 RICH. J.L. & TECH. 1.
problems relating to the internet can be viewed on a global scale.
 Cyberspace poses numerous issues on how to deal with unwanted
content.   It is unclear whether any one method is self sufficient in
handling an ever increasing and changing problem.           Due to the
fact that information on the web can be        generated anywhere in the
world from any computer that has internet access,          the control of
such information may need to be looked at more widely than a
countries own backyard.     The problems are universal and the
sooner governments, netizens, activists, and the like come to terms
with this fact, the world may actually develop a means with         which
to   effectively rate and regulate the net without compromising to
much of    an individuals identity and still   hold   value in protecting
the children of society.
VII. Bibliography

Baughman, M.,      Regulating the Internet , (1999)36 No.1 Havard
  Journal on Legislation 230-41

Black, James J.,     Free Speech & The Internet: The Inevitable Move
  Towards Government Regulation , (winter 1997) 4 RICH. J. L. &

Boehm, Sarah B,      A Brave New World of Free Speech: Should
  Interactive Computer Service Providers Be Held Liable for the
  Material They Disseminate? , (winter 1998) 5 RICH. J. L.& TECH.

Cate,   Fred H.,    Indecency, Ignorance, and Intolerance: The First
  Amendment and the Regulation of           Electronic Expression , (1995) J.
  Online L. art. 5.

Cleaver,    Cathleen A.,      The Internet: A Clear and Present Danger? ,

Giordano, Philip,     Invoking Law as a Basis for Identity in Cyberspace ,
  1998 STAN. TECH. L. REV. 1

Krantz,    M.,     Censor s Sensibility ,   (1997) All Politics CNN Time-
  The World Wide Web.

Peterson, Christine,      Filtering Software: Regular or Decaf ,

Simon, G.E.,       Cyberporn & Censorship: Constitutional Barriers , (1998)
  88 No.3        Journal of Criminal Law and Criminology .

Weinberg,     Jonathan,      Rating the Net ,   (1997) 19 HASTINGS
  COMM/ENT L.J. 453.

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