Comparative Telecommunications Law Spring, 2007 Prof. Karl Manheim 17: Internet IV (Content Regulation) Copyright © 2007

Spring, 2007CTL2 Content Regulation Communications Decency Act (CDA) Part of 1996 TCA Invalidated in Reno v. ACLU (1997) Child Online Protection Act (COPA) Invalidated in Ashcroft v. ACLU (2004) Obscenity Covered under existing state and federal laws Interesting jurisdictional issues  Passive vs. Active web sites

Spring, 2007CTL3 Miller v. California (1973) Standards for unprotected obscenity Works that depict or describe sexual conduct Taken as a whole, appeals to the prurient interest in sex (contemporary community standards) Portray sex in patently offensive way (hard core)  intercourse, masturbation, excretion, lewd exhibition of genitals Taken as a whole Taken as a whole, do not have serious literary, political, or scientific value  objective national standards

Spring, 2007CTL4 Reno v. ACLU (1997) Communications Decency Act (CDA/TCA) prohibits "knowing" transmission of "obscene or indecent" messages to any recipient under 18y Held: CDA violates the 1 st amendment  Gov’t has compelling interest in protecting children  But, CDA swept too broadly In operation, it suppressed speech that adults had const’l right to send and receive  Less restrictive means were available E.g., filtering software Giving parents the choice to allow access

Spring, 2007CTL5 Ashcroft v. ACLU (2004) Child Online Protection Act (COPA) Prohibits online material harmful to minors  Grafts “to minors” on to Miller standard trying to expand this category of unprotected speech Didn’t work: obscene “to minors” isn’t unprotected  Exception: material made unavailable to minors to address overbreadth problem in Reno ok, but less restrictive alternative test still applies filters, school/library restrictions, etc. may work better COPA exacerbates problem by driving industry offshore COPA applies only to web, not other Internet uses Stevens: community standards test incompatible with the Internet worked for Breyer, Rehnquist, O’Connor

Spring, 2007CTL6 United States v. ALA (US SCt 2003) Children’s Internet Protection Act (CIPA) Requires libraries and schools to install filters on computers to retain federal funding CIPA is constitutional for children, but may not be for adults. Adults must be able to request filters are turned off if they are using a terminal.

Spring, 2007CTL7 LICRA/UEJF v. Yahoo! (TGI, 2000) Sale of Nazi memorabilia on auction site French Criminal Code Article R645-1  Prohibits insignias and emblems which "recall those used" by an organization declared illegal by Art. 9 of the Nuremberg Statute (e.g., Nazis) Yahoo! is a Delaware Corp. Web sites hosted somewhere in US Viewable in France; caused “public nuisance”

Spring, 2007CTL8 LICRA/UEJF v. Yahoo! (TGI, 2000) Judgment of TGI: Ordered to exclude French Internet users  Technologically feasible?  Court-appointed expert report: roughly 70% of French internet users could be identified as such by the use of DNS databases Result: Yahoo! was required to Monitor / remove offending items from website Pay appropriate fines to France.

Spring, 2007CTL9 Yahoo! v. LICRA/UEJF (9th Cir, 2006) Yahoo! Sought to bar enforcement in US Holding Yahoo! Has no 1st Amendment right in France Exercise of French jurisdiction was consistent with requirements of "minimum contacts"  (1) the non-resident defendant has purposefully availed himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws;  (2) the claim arises out of or relates to the defendant ﾕ s forum-related activities; and  (3) the exercise of jurisdiction is reasonable.

Spring, 2007CTL10 Internet Censorship in China “Provisional Directive on the Management of International Connections by Computer Information Networks in the PRC” “Government in charge of planning & protocols for all international computer connections” All international networked computer communications must go through network channels provided by Ministry of Posts & Telecommunications Computer networks may not be used for any activities that might endanger state security or disseminate pornographic or obscene materials “All networks are subject to administration and monitoring by one of four major state agencies”

Spring, 2007CTL11 Internet Censorship in China What is prohibited? Information on Taiwan, Tibet, Tianamen Square, Falun Gong, and the biographies of most of its political leaders. Pornography Weak on enforcing copyright and trademark laws (except as regards the symbols of the 2008 Olympics)

Spring, 2007CTL12 Internet Censorship in China “The Great Firewall of China” Filtering on the basis of web server IP address On the basis of domain name server IP address DNS redirection Filtering on the basis of keywords in URL  Search Engine searches Filtering on the basis of keywords or phrases in HTML response  Search engine responses

Spring, 2007CTL13 OpenNet Initiative Consortium U of Toronto, Harvard, Cambridge University Case Studies: Internet Filtering in Burma in 2005 Internet Filtering in Singapore in Internet Filtering in Iran Internet Filtering in China Internet Filtering in Bahrain in Internet Filtering in UAE in Internet Filtering in Saudi Arabia in 2004

Spring, 2007CTL14 Coverage for Remaining Classes 1. Cybersquatting 2. Digital Rights Management / DMCA 3. Regulating Broadcast TV & Radio 4. Rollout of Digital and HDTV 5. MVDS (Cable & Satellite) 6. Other?