Back to Vol. 2, No. 2 Table of Contents

Obscenity and Indecency on the Usenet:
The Legal And Political Future of Alt.Sex.Stories[ 1 ]



Blake T. Bilstad
Cooley Godward LLP

Full Screen

Table of Contents

Abstract

     This paper discusses the emerging prevalence of erotica and pornography on the Internet (in particular on the Usenet) and addresses legal and political questions raised in light of news events such as: University of Michigan cyber-stalker Jake Baker; convicted BBS-porn operators Robert and Carleen Thomas; and the passage of the Communications Decency Act of 1996 (the "CDA") . In particular, one of the most popular Usenet discussion groups, "alt.sex.stories," has come under recent fire. However, the Usenet is not an easily regulatable zone and evades many contemporary legal notions of jurisdiction and agency. In turn, this paper discusses: (1) legal standards under the First Amendment, (2) the regulation of BBSs, (3) the regulation of the Usenet, (4) specific activities on alt.sex.stories, (5) the CDA, and (6) market-based alternatives to legislation. Ultimately, the author concludes that software products such as "SurfWatch" present better alternatives to federal legislation that infringe upon the First Amendment.

Introduction


         Nick Forro, alt.sex.stories posting, We Must Stop These Pedo Stories, May 1995.

           ShadowMist, alt.sex.stories posting, Re: We Must Stop These Pedo Stories, May 18,1995.

At one time, the most popular discussion group on the Usenet was "alt.sex.stories," logging a total of half-a-million users per month.[ 3 ] Indeed, alt.sex.stories is dedicated to the reprinting of "[s]tories and poems that contain some form of erotica in them." [ 4 ] The newsgroup's unofficial guide, also known as the group's Frequently Asked Questions ("FAQ"), states: "There are NO other limitations on what the stories can or cannot contain, despite what others may complain they don't like to see." [ 5 ] Accordingly, a wide range of "erotica" can be found on alt.sex.stories, ranging from accounts of monogamous heterosexual encounters, to stories about animals, rape, and child molestation. [ 6 ] However, despite the inclinations of some alt.sex.stories participants (see the above-listed posting by "ShadowMistv), all such speech is not protected by the First Amendment of the Constitution. [ 7 ]

Obscenity, on the one hand, does not receive First Amendment protection. [ 8 ] In addition, the Constitution does not protect indecent speech when it can be readily accessed by children. [ 9 ] However, many obscenity laws were written to manage physical objects (e.g., books) and physical space (e.g., storefronts). These laws are now "straining" to handle many of the new technologies such as CD-ROMs, databases, and the global computer network known as the Internet. [ 10 ] Staking ground in these new uncharted applications of the law, some federal courts have held that bulletin board system ("BBS") operators on the Internet will be held criminally liable if the material available on their systems violates the obscenity statutes of a given state.[ 11 ] Although controversial, finding liability against BBS operators (or "Sysops") was perhaps predictable given the fact that a Sysop is an identifiable person, often with a financial stake in the BBS. [ 12 ]

Nevertheless, a trickier legal problem arises when considering the context of the Usenet. Not to be confused with privately-run BBSs or the Internet as a whole, the Usenet is a system of public newsgroups which are "neither owned by anyone nor subject to any central authority." [ 13 ] Regulating the Usenet is a problematic venture since often there are no identifiable agents toward whom to direct regulatory actions. There are no Sysops, very few newsgroup managers, and a slew of private individuals using anonymous (and virtually untraceable) IDs and usernames.

In turn, the U.S. Congress pushed forward with prohibitive legislation designed to curb obscenity and indecency on the Internet. In February of 1996, President Clinton signed into law the Communications Decency Act of 1996 (the "CDA"), part of a larger legislative overhaul of the Communications Act of 1934. The CDA's original sponsor, Senator James Exon (D-Neb.), was seeking to amend current telecommunications laws designed to prevent harassing or indecent phone calls and apply the laws to all forms of electronic transmissions. [ 14 ] However, the history of this legislation has been marked with controversy. [ 15 ] The final version of the statute retained Senator Exon's original language prohibiting "indecent" electronic communications, thus bringing the CDA’s constitutionality into question. Moreover, with uncertain liability being attached to universities and other computer servers (rather than to virtually unreachable anonymous users), it was not entirely clear whether the CDA would serve to hinder the backbone of the Usenet system in the U.S. [ 16 ] In June 1996, a federal court in Pennsylvania rejected the CDA as unconstitutional with a stinging denunciation, (in three separate opinions), stating in part that the CDA was "profoundly repugnant to First Amendment principles." [ 17 ]

Nevertheless, one still might ask what is the future legal and political prognoses for Usenet groups such as alt.sex.stories? To be sure, under current obscenity laws, some of the posted activity on alt.sex.stories can already be considered illegal. However, enforcement of current laws (not even considering the CDA) will continue to be a problem. Only unwitting offenders (e.g., the non-anonymous Jake Baker) will likely be caught within law enforcement's web. [ 18 ] In addition, the question of jurisdiction is also important. "Obscenely illegal where?" is a question one must always ask. Ultimately, violations of the obscenity laws on the Usenet could merit: (1) greater probing into the legality of anonymous servers; (2) the possibility of attaching liability to non-discriminating Usenet sites (e.g., universities); and (3) additional legislation. In addition, operators of computer systems that provide Usenet services will have to determine whether they face liability for any obscene materials posted on the Usenet system. Given the fact the CDA sought to prohibit "indecent" electronic postings as well (but is unenforceable at present due to an injunction in the ACLU case), further considerations for Usenet providers might still be in order.

Ultimately, it appears that the marketplace will be the one likely avenue in which to correct enforceability problems under current obscenity and indecency laws. Several commercial software products have hit the shelves in the last year that are designed to protect children from undesirable newsgroups on the Usenet. [ 19 ] Accordingly, electronic screening has been a popular strategy of late given the government's backing of the V-chip (for TV broadcasts) and the computer industry’s pursuit of an electronic ratings systems called "PICS" (for World Wide Web sites). More sophisticated market products can also be expected, as perhaps can further enforcement of current obscenity laws. However, governmental efforts to regulate the inherently hard-to-regulate Usenet discussion groups will most likely be problematic at best. Indeed, solutions to objectionable materials available on the Usenet will, in all likelihood, have to come from the market and/or from the Internet participants themselves.


Constitutional Law Background


The Constitutional standard for obscenity can be found in Miller v. California. [ 20 ] In Miller, the Supreme Court established a three-part test for determining whether materials in question can be considered "obscene". All three parts of the test must be satisfied before the government can prosecute someone for handling such materials. Accordingly, the trier of fact must examine: (1) whether "the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [ 21 ]

For the purposes of this article,it is sufficient to note that the Miller test, in practice, is fairly flexible. There is no concrete standard for measuring the "value" of a work, much less its "serious value." [ 22 ] Justice Stewart once perfunctorily defined obscenity as: "I know it when I see it." [ 23 ] Even so, under the Miller test, one should recognize that the application of "community standards" only relates to the first two parts of the test. Law enforcement officers have the burden of proving that the material in question has no serious artistic value under a national, objective standard of worth. [ 24 ]

Under the current legal regime, state and federal laws against pornography primarily limit the dissemination of obscene materials or performances (as defined in Miller). Although the mere possession of obscene pornographic materials cannot be illegal (with the exception of child pornography), [ 25 ] the transport or sale of these materials is usually grounds for statutory regulation. Outright bans on pornography are not generally permissible. [ 26 ]

In order to address the grey-area category of materials not purely classifiable as "obscene," the Court came up with a second category of adult materials: "indecent materials." Unlike obscene materials, distribution of indecent materials receives protection as free speech under the First Amendment. [ 27 ] However, in FCC v. Pacifica Foundation, the Court held that a radio station's afternoon broadcast of George Carlin's famous "Filthy Words" monologue was unprotected indecent speech because of the "pervasive presence" of radio broadcasts and the unique accessibility of afternoon broadcasts by children. [ 28 ]

Although the government can always prohibit obscene activities from occurring in the confines of alt.sex.stories, under Pacifica, mere indecent activities might be proscribable if the Internet is viewed as sufficiently "pervasive" and easily accessible by children. However, the Court was careful to limit its holding in Pacifica. The majority wrote that "We have long recognized that each medium of expression presents special First Amendment problems." [ 29 ] Thus, the question of regulating mere indecency on the Internet is certainly not a given.

Nevertheless, in Sable Communications of California, Inc. v. FCC, the Supreme Court examined the constitutionality of § 223(b) of the Communications Act of 1934 (as amended in 1988), which banned all obscene and indecent interstate telephone messages for commercial purposes. [ 30 ] The party in question, Sable Communications, was a private supplier of telephone "dial-a-porn" services. Although the Court clearly upheld that "there is no constitutional stricture against Congress' prohibiting the interstate transmission of obscene commercial telephone recordings," [ 31 ] the Court unanimously decided that the total ban on commercialized indecent speech was unconstitutional.

In its decision, the Court reiterated that: "Sexual expression which is indecent but not obscene is protected by the First Amendment." [ 32 ] Accordingly, the government can only regulate the content of indecent speech in order to promote a "compelling interest", and must choose "the least restrictive means to further the articulate interest". In the words of Justice White: "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." [ 33 ]

Indeed, the FCC had argued that a total ban on indecent commercial telephone communications was justified because nothing less could prevent children from gaining access to such messages. [ 34 ] However, the Court, reiterating Justice Frankfurter's words from Butler v. Michigan, [ 35 ] said that "Surely this is to burn the house to roast the pig." [ 36 ] Justifying the ban on indecent materials merely because children might be able to see it was "unpersuasive". [ 37 ] Moreover, "the government may not 'reduce the adult population . . . to . . . only what is fit for children.'" [ 38 ]

Interestingly enough, though, Congress seemed to rely on the same arguments made by the FCC in Sable in its recent passage of the Communications Decency Act.


Regulating BBSs: United States v. Thomas


The 1994 case of Robert and Carleen Thomas attracted a significant amount of attention in the legal and national press. [ 39 ] Indeed, it was reputed to be the first-ever federal criminal conviction for transmitting obscene materials over a computer network. [ 40 ] The Thomases were convicted under 18 U.S.C. § 1465 (1988) which prohibits the knowing transport in "interstate or foreign commerce" of any "obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print," etc. However, the distinguishing feature of the case was that the couple was convicted under local "community standards" by a jury in Tennessee, and not in their home state of California (where their electronic bulletin board was located and operated).

Critics of the district court's handling of the case cite the improper application of Tennessee's "community standards." Arguably, the use of these standards restricts all BBS operators to materials that are acceptable in only the most restrictive of communities. Moreover, the Electronic Frontier Foundation ("EFF") had argued that the Thomases' BBS was not the one "traveling" between jurisdictions; rather, it was the user who downloaded the files. [ 41 ] "This case is operationally indistinguishable from one in which a Tennessee resident travels to California and purchases a computer file containing adult-oriented material that he brings back to his home." [ 42 ] However, a three-judge panel for the Sixth Circuit unanimously affirmed the Thomases' convictions. [ 43 ] In its decision, the court stated that "venue for federal obscenity prosecutions 'lies in any district from, through, or into which' the allegedly obscene material moves." [ 44 ] Moreover, in a significant move, the court held that "under the facts of this case, there is no need for this court to adopt a new definition of 'community' for use in obscenity prosecutions involving electronic bulletin boards." [ 45 ]

The Thomas case was scheduled for appeal to the U.S. Supreme Court. [ 46 ] Nevertheless, it seems that holding Sysops liable for the distribution of obscene materials (even to the most morally-restrictive jurisdictions) has a good chance of remaining law. According to one communications policy expert: "As long as money is changing hands . . . the courts are not going to be swayed by these arguments of the global community. They are going to say the business is responsible for these awful images popping up. . . ." [ 47 ] Of course, this probably seems unfair to Robert Thomas, who claimed that the "alt.sex" newsgroups can show the same obscene images, or worse, for free and without the age restrictions that he enforced on his BBS. [ 48 ] However, these more diffuse Usenet newsgroups, without the presence of overseeing Sysops, are not so easily targetable by the authorities. Thus, these newsgroups are less likely to provide comparative excuses for BBS operators such as the Thomases.


Regulating the Usenet


The Usenet, one of the most unique and popular aspects of the Internet, is merely a system of public newsgroups which are "neither owned by anyone nor subject to any central authority." [ 49 ] It is helpful to conceive of the Usenet as a "floating system" of discussion groups administered by some relatively simple organizational software. [ 50 ] Invented in 1980 by students at Duke University and the University of North Carolina, [ 51 ] the Usenet remains one of the Internet's more popular activities, consisting in 1996 of about 17,000 public newsgroups that are "created and maintained by users at sites throughout the United States and the world." [ 52 ] As it works, when someone posts a message to a newsgroup, the message is propagated from computer to computer until it reaches every system on the Usenet. This process was described by one source as a "million notes that classmates pass across schoolroom aisles." [ 53 ]

Accordingly, regulating obscenity and indecency on the Usenet is complex and difficult. Although some Usenet newsgroups will appoint a moderator whose sole job is to screen all messages before posting, most newsgroups, and especially newsgroups as large as alt.sex.stories (500,000 users a month), do not have such moderators. For all practical purposes, there are no Sysops and no administrators. The only exception would perhaps be the Usenet's various limited-role volunteers. To be sure, individual posters could be punished by the government for any obscene activities. However, this approach is often circumvented by the reality that people can readily forge messages, as well as employ anonymous IDs and encryption technology.

Regulating the Usenet "sites" (e.g., universities)would also be difficult. Holding institutions like Harvard liable for any obscene messages could conceivably shut down the Usenet in this country. Universities in particular do not have the resources, nor the desire, to put up with such an administrative burden (and its accompanying risks). In addition, requiring universities to discriminate among their newsgroups would likely be ineffective due to cross-posting among groups and the constant creation of new newsgroups. [ 54 ] In addition, when a server begins to discriminate in part, they could be held liable in toto because they have assumed the responsibility for filtering.

For example, Prodigy, which monitored messages in public discussion groups, faced the possibility of massive liability in the case of Stratton-Oakmont, Inc. v. Prodigy Services Co. [ 55 ] a New York state court ruled that Prodigy could be sued for libel because it acts as a publisher and is therefore liable for the content of subscribers' electronic messages. [ 56 ] However, CompuServe, which contracted with a third party for the management and editing of the online publication "Rumorville U.S.A.," avoided defamation liability in Cubby v. Compuserve. [ 57 ] The court reasoned that CompuServe was like a "bookstore," and made no pretense of being a monitor of content. [ 58 ] Without specific knowledge, CompuServe could not be held liable for any libelous remarks.

Generally speaking, government regulation in this country seems to be most effective only when dealing with large, centralized entities (such as corporations). These entities need to pay taxes, file documents, utilize the courts, etc. These entities are also willing to put up with a number of impositions because of their overriding interest in attaining profits. However, when we are dealing with an entity that is not driven by profits and a decentralized activity that has no real controlling agent (i.e., the Usenet), the regulatory system seems to break down. The only channel of consequence to the Usenet is one of existence. Its demolition (perhaps the only real regulation available) would be a regrettable loss to society.[ 59 ]

Moreover, even though banning the structure of the Usenet could technically be instituted in the U.S., its center of gravity would most likely shift abroad and be imported through Telnet or other methods. In that case, as with any undesirable overseas activity, a customs system could be established if there was a strong enough governmental interest. However, such a system would pose a huge burden to the international flow of information. Certainly, the argument could be made that the U.S., in implementing such an Internet customs system, might be crippling itself economically for the commerce of the future.

Finally, one should note that the regulation of the Usenet by foreign nations can potentially affect Usenet services in this country. For example, a German prosector in Munich ordered CompuServe to discontinue service of over 200 "alt.sex" and related newsgroups on charges that they contained illegal pornographic material. [ 60 ] Since CompuServe lacked the technical means with which to tailor Usenet content simply for German subscribers, the company blocked access to these newsgroups for all of its subscribers worldwide. [ 61 ] Although CompuServe corrected its technical problem within a matter of weeks, the incident received tremendous criticism domestically. [ 62 ] One source even characterized the event as "the most dramatic and far-reaching attempt to restrict the free flow of information online." [ 63 ]


Specific Activities on alt.sex.stories


Indeed, a conceptual problem arises when considering alt.sex.stories [ 64 ] under the obscenity laws, given that the postings on the newsgroup are primarily written, and that they often can have a literary bent. According to the newsgroup's FAQ, only "stories and poems" are meant to appear in the newsgroup. [ 65 ] Normally, this limitation would bode well under the First Amendment. The third part of the Miller test can usually be satisfied when the material in question is published [ 66 ] (or is a video with at least some dialog). [ 67 ] Still-photos usually receive the most scrutiny under the serious artistic value test, because they often lack an additional redeeming context. [ 68 ] Nevertheless, the courts have yet to rule on whether online text files receive the same protection as printed works under the obscenity laws.

Even so, postings on alt.sex.stories are not always limited to written material. Graphic photos, and other clearly obscene material such as child pornography, also find their way onto the newsgroup. Under Osborne, photos of child pornography can presumptively be considered obscene and subject to state or federal regulation. [ 69 ] However, apart from these clear-cut cases of obscenity (and also given their regulatory and enforcement problems on the Usenet (see supra parts I-III), we should ask whether the generally dominant written materials that appear on alt.sex.stories could ever be subject to regulation under the Constitution. In answering this question, we must note that some of the stories that appear on alt.sex.stories blatantly eroticize children and even infants. These stories pose a real problem in light of the special restrictions afforded to depictions of child pornography.[ 70 ] Constitutional limitations on child pornography are well established, but are primarily limited to visual depictions. [ 71 ] The rationale for such protection is that the governmental interest in protecting children from exploitation (i.e., money-making from erotic pictures of children) is so great as to merit an exception under normal First Amendment law. [ 72 ] However, when the stories are purely fictional, does such a limitation still apply? [ 73 ] Arguably, no real children are being hurt or exploited. Furthermore, the propagation of such stories may do nothing to harm children in the future.

At the crux of this issue is whether written pornography might have a causal effect in eroticizing criminal activities. One case that dealt with this issue indirectly is American Booksellers Association v. Hudnut, [ 74 ] which struck down a municipal ordinance banning pornography that depicted women in exploitative ways. However, the court conceded that it saw some evidence of a causal relationship between pornography and anti-social behaviors. [ 75 ] In this light, the traditionally strict restrictions against child pornography might apply if a firmer causal link could be established between pornography and illegal activity. Nevertheless, the American Booksellers court said nothing about purely written pornography. Although the Supreme Court in Kaplan v. California held that books without illustrations could still be held obscene, [ 76 ] future courts, it seems, might have to explore this issue further.

Indeed, it might be that written materials on alt.sex.stories will only be considered criminal when they violate statutory offenses other than the obscenity laws. For example, notorious alt.sex.stories snuff-writer Jake Baker was not prosecuted under an obscenity statute, but rather, a statute preventing interstate communication of a threat to kidnap or injure. [ 77 ] Baker, a student at the University of Michigan, regularly posted violent rape and murder fantasies of young women to the alt-sex.stories Usenet newsgroup. However, Baker made the mistake of including a real-life student in one of his stories, and the authorities concluded that this was a "fairly classic threat case" under the law. [ 78 ] Baker, a 20 year-old sophomore, is characterized as meek and harmless by many people who know him. Even so, the authorities have treated him as a dangerous (virtual?) predator, or, in the words of U.S. District Court Magistrate Thomas A. Carlson, as "somebody who probably should not be walking the streets." [ 79 ] As a result, Baker served 29 days in jail for his posted story. Although the case was thrown out by a federal district court judge in June of 1995 on First Amendment grounds, the U.S. Attorney's Office in Detroit has appealed the decision to the Sixth Circuit. [ 80 ] Indeed, Baker could still face up to five years in prison.

A few observations can be taken from the Baker case. One point is the global nature of the Internet. Under the facts of the case, a sixteen year-old girl in Moscow read Baker's story in question and reported it to her father, a Michigan alumnus. The father then alerted the university by e-mail, which then investigated the matter. [ 81 ] A second point, however, is the power of mere written words. Although prosecutors deemed Baker's additional e-mail correspondence to be his prime demonstration of a threat, much like the stories, these communications were arguably just written expressions of fantasy. [ 82 ]

Ultimately, it appears that obscenity prosecutions rising out of the alt.sex.stories newsgroup will be the exception rather than the norm (and probably only in the cases of identifiable posted photos and photos of child pornography). Written stories will most likely be considered "indecent," unless the courts decide to expand the definition of dangerous child pornography to purely written erotica. However, one should note that the status of indecent postings would be changed entirely with the enforcement of the CDA. What appeared to be constitutionally protected under Pacifica and Sable was, in this new legislation, deemed illegal. Arguably, almost all postings to the alt.sex.stories group, Jake Baker-esque or otherwise, would be in violation of the indecency portions of this federal statute. Despite the resounding defeat of the CDA in U.S. district court, final judicial resolution of this issue is, at present, far from pre-determined. Indeed, review by the Supreme Court appears imminent for sometime later in 1996. [ 83 ]


Criminalizing Indecency on the Internet:
the Communications Decency Act of 1996


On February 8, 1996, President Clinton and the Congress enacted the Telecommunications Deregulation Act of 1996 (the "TDA"), subsequently amending the Communications Act of 1934, 47 U.S.C. 1 et seq. (1988). The Communications Decency Act of 1996 (the "CDA") included therein, essentially criminalized indecency on the Internet. Violators of the act would be subject to $250,000 fines and jail terms of up to two years. The CDA's original sponsor, Senator James Exon, stated his reasons for pursuing such legislation were "to make this exciting new [information] highway as safe as possible for kids and families to travel. . . . The framers of the Constitution never intended for the First Amendment to protect pornographers and pedophiles." [ 84 ] Sen. Exon further justified the legislation based on the Supreme Court's decision in Pacifica: "[The] Court has ruled that in areas accessible to children - radio programs for example - reasonable restrictions on indecent material are warranted." [ 85 ]

Despite Senator Exon's assurances (and as confirmed by the federal court in the ACLU case), criminalizing the transmission of indecent materials under the CDA is most likely unconstitutional under Pacifica and Sable. First, in Pacifica, a case which upheld restrictions against indecent material on daytime radio, the Supreme Court was careful to state: "It is appropriate, in conclusion, to emphasize the narrowness of our holding." [ 86 ] Furthermore, the majority wrote that the Court has "long recognized that each medium of expression presents special First Amendment problems." [ 87 ] Pacifica clearly limited itself to radio broadcasts. Whether or not Internet transmissions fall under a similar category is highly debatable. Indeed, legislators, perhaps unfamiliar with the technology, are viewing the Internet "as an autonomous agent -a 'thing' that distributes porn . . so 'it' must be regulated." [ 88 ]

In the ACLU case, Chief Judge Sloviter (sitting in from the Third Circuit) stated that the Internet was not comparable to the radio broadcasts at issue in Pacifica. Rather, more like telephone dial-a-porn from the Sable case, "an Internet user must act affirmatively and deliberately to retrieve specific information online." [ 89 ] As a result, another judge on the three-judge panel concluded that the "few clicks" of a mouse necessary to access sexually-explicit material are of "immense legal significance." [ 90 ]

; Under Sable, the Supreme Court made a strong statement against total bans on indecent material within a given medium. [ 91 ] The CDA, despite its provisions for "knowing" transmissions and a required "accessibility" by children, has done little to show that it is not a total ban on indecent material given the medium that it is trying to regulate. Indeed, the Internet is a free-flowing, interconnected, and worldwide system that, as Senator Exon acknowledges, is a medium children are more likely to understand and be able to manipulate than their parents. [ 92 ] Thus, given the greater accessibility of this medium for children, the Exon legislation is essentially putting a choke-hold on all indecent communications on the Internet - a total ban. Given that we are dealing with a law that imposes strict criminal penalties, and also one that is regulating a clearly protected form of content-specific speech, we should be applying only the strictest degrees of scrutiny. As Sable instructs us, we must have not just a reasonable or an important governmental interest, but a "compelling" one. [ 93 ] Moreover, we must be dealing with a law that does not just appropriately address the government's interest, but one that is "narrowly tailored." [ 94 ]

Indeed, Judge Sloviter of the ACLU case blasted the CDA as not being narrowly tailored for three reasons: (1) the fact that the CDA uses criminal penalties; (2) the good faith defenses offered under the CDA are not yet technologically feasible; and (3) the terms "indecent" and "patently offensive" are inherently vague. [ 95 ]

Finally, and perhaps most important of all, this narrowly tailored legislation must embody the "least restrictive means" possible to address the government's compelling interest. [ 96 ] Given that: (1) several computer software products can already "screen" out most of the objectionable material present on the Internet for parents and their children; [ 97 ] (2) less restrictive, yet effective, legislation was proposed by Rep. White (R-Wash.) to protect against material "harmful to minors" and was rejected; and (3) the Department of Justice opposes the current legislation because it has "made it clear that it has all the laws it needs to police the Net" [ 98 ] and that the legislation would: (i) "significantly thwart enforcement of existing laws regarding obscenity and child pornography," (ii) "create several ways for distributors and packagers of obscenity and child pornography to avoid criminal liability," and (iii) "threaten important First Amendment and privacy rights," [ 99 ] it seems clear that the Communications Decency Act of 1996 was neither narrowly tailored, nor the least restrictive means available, in which to pass constitutional scrutiny.

Consequently, the recent opinions handed down in the ACLU case confirmed many of these arguments for the unconstitutionality of the CDA. In the words of Judge Dalzell, the CDA’s regulation of the Internet would "burn the global village to roast the pig." [ 100 ] Ultimately the case was decided on strict First Amendment grounds. "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." [ 101 ] Accordingly, the CDA failed miserably under such a strict scrutiny.

Indeed, over the past year and a half, public outcry against the CDA has been intense. Some condemned the law as "an outrage to all who abhor censorship, and as ineffective, fuzzily defined morality legislation." [ 102 ] Another commentator stated: "The Exon Act would be the most sweeping imposition of governmental censorship in American history . . . deliberately and directly aimed at a new technology [going] far beyond any previous ways of communication." [ 103 ] Others have noted that the law could lead "to the ridiculous situation in which newspapers would be allowed to use such words as 'breast' and 'penis' in their paper-and-ink editions but not on-line." [ 104 ] In sum, David S. Bennahum of the N.Y. Times assessed the situation as follows: "Cyberspace, with 20 million users worldwide, connecting 145 nations, is too rich and complex an environment for a law as general and misinformed as the Communications Decency Act." [ 105 ]

Ultimately, it appears that the Supreme Court will get the final say on the fate of the CDA. Barring some drastic reversal of judicial opinion, Congress will either have to start again with the drafting of the CDA, or scrap its content-based efforts at regulation in this arena entirely. Indeed, the continued pursuit of alternatives to regulation appear to be the most appropriate step.


Concluding Remarks: Anonymous Servers and "SurfWatch"


Certainly, a deeper exploration of this topic would require an examination of the various legal implications of anonymous servers. [ 106 ] A recurring theme throughout this paper, the widespread presence of anonymity on the Internet raises a number of serious problems concerning liability and accountability as it relates to obscenity and indecency. It should be noted that there are a number of areas where anonymity is indeed necessary on the Usenet. Consider a victim of child-abuse sharing her story with a support newsgroup; or of a Chinese dissident publishing one of his banned writings; or of an employee discussing the pros and cons of "blowing the whistle" on his employer. [ 107 ] All of these persons have a vested stake in preserving anonymity. Accordingly, an outright ban on anonymity would be an overly harsh measure by government.

However, commercial markets seem to be picking up where legal enforcement mechanisms have fallen behind. With the goal of protecting children from obscene newsgroups on the Usenet, there are now several products on the market such as "SurfWatch," "Cyber Patrol," and "NetNannyquot; which screen out selected newsgroups for a given household. [ 108 ] SurfWatch software, for example, costs around $50, with an additional $6 charge for monthly upgrades. In addition, Jostens Learning Corp. has marketed a similar product called "Advantage Worldware" available for use in schools. [ 109 ] Indeed, the future need for more such products has become readily apparent. Further adaptations by the market could altogether pre-empt the need for overly restrictive legislation such as the Communications Decency Act of 1996.

Nevertheless, the political currency the CDA carries is still undeniable. In an election year, a bill that posited itself as a champion against child pornography was a political "no-brainer" for those Congressional incumbents seeking reelection. Perhaps this rationale could explain why Reps. Pat Schroeder and John Conyers cast their surprising (yet deciding) votes in the House-Senate conference committee that reintroduced the word "indecent" back into the legislation. [ 110 ]

Ultimately, though, with the exception of clearly obscene material, it is only in the interests of protecting children that banning pornography on the Internet becomes justified. Given the regulatory and enforcement problems inherent to alt.sex.stories and other Usenet newsgroups, future products like "SurfWatch" and "Net Nanny" appear to be the right compromise needed in order to buffer the surge of obscene and indecent materials currently creating legal and political problems in this unique area of cyberspace. The only question now (at least in this author's opinion) is whether the U.S. supreme court will agree.

Finally, given the world-wide impact of the Internet, even if the CDA remains struck down in the U.S., the law might serve as an indicator of what may be in store on a more global scale. Already, countries such as China and Singapore have demonstrated a practical intent to develop restricted forms of the Internet or government-run "Intranets," that would attempt to screen out any objectionable materials. [ 111 ] Strict laws against content providers would also serve to enforce these prohibitions. However, success of these and other countries’ systems, as well as their speech-restrictive laws (which will undoubtedly be harsher than the CDA), remains to be seen.


Footnotes

  1. This paper was originally written for the seminar on Law, Information, & Technology at Harvard Law School in May 1995 and has been modified in part to reflect more recent developments.
  2. Nick Forro also received a battery of other disapproving postings. Responses were strikingly unmindful of the legal and political issues Forros raised, perhaps characterized best by Kevin D. Lee: Quit trying to repress people just because you don't agree. Get a life and leave people alone. Kevin D. Lee, Re: We Must Stop These Pedo Stories, alt.sex.stories posting, May 19, 1995.
  3. Tim Blangger, Debate on Decency Bill Heats Up, MORNING CALL, Apr. 18, 1995, at D1 (cited statistics were compiled by the Digital Equipment Corporation); J. M. Lawrence, College Students Gaining Access to Cyberporn, BOST. GLOBE, Feb. 5, 1995, at 1 (citing statistics from WIRED MAGAZINE). However, according to a recent (and highly controversial) Carnegie Mellon study conducted by Marty Rimm, alt.sex.stories ranks ninth worldwide in terms of popularity behind: (1) news.announce.newusers; (2) news.answers; (3) rec.humor.funny; (4) alt.sex; (5) rec.humor; (6) misc.forsale; (7) misc.jobs.offered; and (8) comp.unix.questions. See Marty Rimm, Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories, 83 GEO. L.J. 1849, 1872 (1995). Apparently, no source was credited for these statistics.
  4. Josh Laff, FAQ: A.S.S & A.S.S.D, alt.sex.stories posting, Apr. 10, 1995, at &2. Despite the intended purpose of the newsgroup, more than just stories and poems appear in alt.sex.stories. Commentaries, advertising, and graphic binary images also appear in the newsgroup.
  5. Id. (emphasis in original). For a good discussion of the purpose and use of FAQs on the Usenet, see George P. Long, Who Are You?: Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1181 n.25 (1994).
  6. One of the most infamous stories came from a University of Michigan student, Jake Baker, who detailed a violent rape and murder fantasy of a young woman in his Japanese studies class. See generally Megan Garvey, Crossing the Line on the Info Highway; He Put His Ugly Fantasy on the Internet. Then He Ran Smack into Reality, WASH. POST, Mar. 11, 1995, at H1. Pornographic photos are also regularly posted to alt.sex.stories.
  7. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. I.
  8. Roth v. United States, 354 U.S. 476, 484-85 (1957) ("[I]mplicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . [We therefore] hold that obscenity is not within the area of constitutionally protected speech or press.")
  9. See FCC v. Pacifica Found., 438 U.S. 726, 748-50 (1978) (holding that an afternoon broadcast of George Carlin's famous "Filthy Words" monologue was unprotected indecent speech because of the "pervasive presence" of radio broadcasts and the unique accessibility of afternoon broadcasts by children).
  10. Aaron Zitner, A Byte in the Law; Copyright, Libel and Obscenity Statutes Stretch to Keep up on the Electronic Frontier, BOST. GLOBE, Jan. 25, 1995, at 33.
  11. See United States v. Robert A. Thomas and Carleen Thomas, No. CR-94-20019-G (W.D. Tenn. 1994), aff'd, 74 F.3d 701 (6th Cir. 1996). To date, this case represents the first criminal prosecution, or at least the first prosecution to proceed to trial, involving the distribution of obscene materials using an electronic bulletin board system. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197, 204 n.32 (1995).
  12. SeeZitner, supra note 10.
  13. David Landis, Sex, Laws & Cyberspace; Regulating Porn: Does It Compute?, USA TODAY, Aug. 9, 1994, at 1D.
  14. Sen. Exon's bill was called the "Communications Decency Act of 1995", S. 314, and was later tacked onto the omnibus communications reform legislation being considered by Congress. See Blangger, supra note 3. The text of the original bill can be found at: S. 314, 104th Cong., 1st Sess. (1995), available in LEXIS, Legis library, Bills file.
  15. See, e.g., Mike Holderness, Internet: Bringing in Big Brother, GUARDIAN, Apr. 13, 1995, at 4; James Harrington, Should the Plug Be Pulled on Cyberporn? Beware of Chilling Freedom of Expression, DALLAS MORNING NEWS, Apr. 9, 1995, at 1J; Editorial, Hobbling the Internet, WASH. POST, Feb. 26, 1995, at C; Howard Rheingold, Beware of Tyranny in Guise of "Decency," S.F. EXAMINER, Feb. 15, 1995, at C3.
  16. For an in-depth discussion of the potential liability of Usenet policies at universities (Harvard, in particular), see Emel Aileen G`kyigit, Managing Usenet News Access at Harvard: An Analysis of the Legal, Institutional, and Technical Responsibilities of the University in Addressing Obscene and Indecent Material (April 9, 1996) (unpublished paper on file with author). In addition, it has been shown that laws overseas can interfere with the delivery of Usenet services in this country. For more details, please refer to the discussion of CompuServe and its troubles with a German prosecutor, infra notes 60-63 and accompanying text.
  17. ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *198 (E.D. Pa decided June 11, 1996) (Dalzell, J., concurring).
  18. See supra note 6. Note that Jake Baker was charged under 18 U.S.C. § 875(c) (1988), a federal statute that prohibits transmitting threatening communications across state lines.
  19. A handful of products that screen out unwanted words, files, and online locations were introduced last year including: SurfWatch, Internet in a Box for Kids, Net Nanny, CYBERsitter, and Crossing Guard. See In the Porn Fight, Parents Are First, Best Defense, USA TODAY, Dec. 7, 1995, at 10A; Leslie Miller, Products Shield Kids from Adult Material On-Line, USA TODAY, June 27, 1995, at D1.
  20. 413 U.S. 15 (1973).
  21. Id. at 24.
  22. Lance Rose, Netlaw: Your Rights in the Online World 250 (1995).
  23. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
  24. See Pope v. Illinois, 481 U.S. 497 (1987).
  25. Compare Stanley v. Georgia, 394 U.S. 557 (1969) (holding that the mere private possession of obscenity cannot be made a crime) with Osborne v. Ohio, 495 U.S. 103 (1990) (justifying total ban on child pornography due to the compelling state interest in protecting children).
  26. See American Bookseller's Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985).
  27. Rose, supra note 22, at 253.
  28. 438 U.S. 726 (1978).
  29. Id. at 748.
  30. 492 U.S. 115, 117 (1989).
  31. Id. at 124.
  32. Id. at 126.
  33. Id.
  34. Id. at 128.
  35. 352 U.S. 380, 383 (1957) (unanimous decision).
  36. 492 U.S. at 127.
  37. Id. at 128.
  38. Id. (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73 (1983) and Butler v. Michigan, 352 U.S. 380, 383 (1957)).
  39. United States v. Robert A. Thomas and Carleen Thomas, No. CR-94-20019-G (W.D. Tenn. 1994), aff'd, 74 F.3d 701 (6th Cir. 1996).
  40. Zitner, supra note 10.
  41. See Electronic Frontier Foundation, Amicus Curiae Brief at 6-7, Thomas v. United States, Nos. 94-6648, 94-6649 (6th Cir., Apr. 19, 1995).
  42. Id.
  43. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996).
  44. Id. at 709 (quoting United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981)).
  45. Id. at 712.
  46. See Joyce Price, Community Standards Ruling Stands; online Porn Judged by Download Site, WASH. TIMES, Feb. 16, 1996, at A6.
  47. Stephen Bates, Senior Fellow, Annenberg Washington Program in Communications Policy Studies, quoted in Zitner, supra note 10.
  48. See Zitner, supra note 10.
  49. David Landis, Sex, Laws & Cyberspace; Regulating Porn: Does It Compute?, USA TODAY, Aug. 9, 1994, at 1D.
  50. A more technical definition of the Usenet is: Aa distributed, network-scale computer conferencing system that manages multiple public conversations, organized hierarchically into specific topics. Byassee, supra note 11, at 201 n.16.
  51. Today's Newsgroups Trace Roots to Students Experimenting at Duke, PLAIN DEALER, Apr. 16, 1995, at 4I [hereinafter Today's Newsgroups].
  52. Rimm, supra note 3, at 1862; see also John Markoff, Online Service Blocks Access to Topics Called Pornographic, N.Y. TIMES, Dec. 29, 1995, at A1 (providing 17,000 newsgroups total).
  53. Byassee, supra note 11, at 201 n.16. Each system will communicate a post with two or three other computers, which then exchange all of their new posts. Each of these computers then talks to two or three other computers. Within two hours, one post will have spread to 50 countries worldwide. See Today's Newsgroups, supra note 51, at 4I. Since no single global routing table is used for the distribution process, no single node has control of the Usenet network. Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV. J.L. TECH. 65, 137 (1992).
  54. In November of 1994, Carnegie Mellon University implemented a policy that eliminated all of the alt.sex newsgroups from their Usenet service. Administrators justified the censorship by citing fears that the university could be subject to liability for knowingly distributing sexually explicit materials to minors. J. M. Lawrence, College Students Gaining Access to Cyberporn, BOST. HERALD, Feb. 5, 1995, at 1. The policy was criticized on a number of grounds: (1) violation of free speech, (2) overinclusion (due to the elimination of certain abstinence-advocacy and counseling support newsgroups--e.g., alt.sex.NOT, alt.sex.safe, and alt.sex.fat), and (3) condescension to women (because the ban was also largely justified to prevent the harassment and exploitation of women). See L. Jean Camp & Donna M. Riley, Women, Children, Animals and the Like: Protecting an Unwilling Electronic Populace, FIFTH CONFERENCE ON COMPUTERS, FREEDOM & PRIVACY 120-38 (Mar. 1995).
  55. See generally Robert B. Charles, Computer Libel Questions in 'Stratton v. Prodigy', N.Y. L.J., Dec. 13, 1994, at 1, 4.
  56. Constance Johnson, On-Line: Courts Struggle with Definition of Cyberspace, WALL ST. J., July 27, 1995, at B1. Stratton-Oakmont and Prodigy eventually reached a settlement requiring only an apology by Prodigy. Even though the parties urged the New York court to vacate its earlier decision, the court refused to do so because it said such a move would "remove the only existing New York precedent in this area, leaving the law further behind the technology." Susan Bentelman, Judge Sticks to Decision on Computer Services, NEWSDAY, Dec. 14, 1995, at A57.
  57. 776 F. Supp. 135 (S.D.N.Y. 1991); see Rex S. Heinke & Heather D. Rafter, Rough Justice in Cyberspace: Liability on the Electronic Frontier, COMPUTER LAW., July 1994, at 1, 2-3.
  58. Id.
  59. Such a total ban, whether directly or indirectly brought about, would most likely be considered an overinclusive restriction of speech under the First Amendment.
  60. See Nathaniel Nash, Holding CompuServe Responsible, N.Y. TIMES, Jan. 15, 1996, at D4.
  61. See Sex on the Internet, ECONOMIST, Jan. 6, 1996, at 18.
  62. See, e.g., id.; Amy Cortese et al., Alt.sex.bondage Is Closed. Should We Be Scared?, BUS. WK., Jan. 15, 1996, at 39; Michael Meyer, A Bad Dream Comes True in Cyberspace, NEWSWEEK, Jan. 8, 1996, at 65; Jared Sandberg, CompuServe Bans Its Internet Access to Sexual Material, WALL ST. J., Dec. 29, 1995, at B2. Particularly controversial was the fact that the ban included newsgroups such as a sexuality support group for the handicapped and a bulletin board for homosexuals that served as a lifeline for thousands of gay youth.
  63. Pulling the Plug on Porn; Can German Laws Limit What We Say Online?, TIME, Jan. 8, 1996, at 62.
  64. Alt.sex.stories was created by an anonymous computer user at Rutgers University in the summer of 1992. One month later, 610 computers had subscribed to the newsgroup. See Today's Newsgroups, supra note 51.
  65. See supra note 4 and accompanying text.
  66. Rose, supra note 22, at 246 ("The First Amendment's protection of freedom of the press is historically strongest for printed works, and adult bookstores are loaded with books that would never be found obscene in court.").
  67. Id. at 257-58 ([It is] very difficult for any court to conclude that [a] video, taken as a whole, lacks serious artistic value.).
  68. Id. at 258 (Isolated shots of highly charged sexual materials do not, by themselves, come off as part of any story, but are readily seen as a reduction of focus to the sex act itself -- a much easier case for obscenity prosecutions.)
  69. Osborne v. Ohio, 495 U.S. 103 (1990); see supra note 23.
  70. See id.; see also New York v. Ferber, 458 U.S. 747 (1982) (distribution of child pornography provides economic motivation for production and justifies a ban)
  71. Under 18 U.S.C. § 2252 (1988), child pornography is defined as any visual depiction of sexually explicit conduct. Rose, supra note 22, at 256.
  72. Ferber, 458 U.S. 747.
  73. It should be noted that purely written matter can be held obscene under Kaplan v. California, 413 U.S. 115 (1973), but, in practice, books (with or without illustrations) are almost never held obscene under the Miller test today.
  74. 771 F.2d 323 (7th Cir. 1985).
  75. "People often act in accordance with the images and patterns they find around them. . . . Therefore we accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination." 771 F.2d at 328-29. The court went on to say, though, that "this simply demonstrates the power of pornography as speech" and overruled the ordinance. Id. at 329.
  76. 413 U.S. 115 (1973).
  77. See supra notes 6, 18; see also Philip Elmer-Dewitt, Snuff Porn on the Net, TIME, Feb. 20, 1995, at 69.
  78. Garvey, supra note 6 (quoting U.S. Attorney Saul Green). The key to the case, though, was e-mail correspondence between Baker and an Ontario man detailing actual rape and murder scenarios that they could commit together, one of which involved a strategy for accosting women in the bathroom across from Baker's room.
  79. Id.
  80. See David Josar, U.S. Ready to Charge Student Again, DETROIT NEWS, Nov. 17, 1995, at C3.
  81. For a detailed timeline of events in the Baker case, see http://krusty.eecs.umich.edu/people/pjswan/Baker/timeline.html.
  82. For a thoughtful and insightful account of both the horror of Jake Baker's writings and the inconsistencies of his prosecution, see Charles Platt, ANARCHY ONLINE, Part 5 (forthcoming 1996), available on the World Wide Web, at http://anarchy-online.dementia.org/book/section.5.html.
  83. See Leslie Miller, Cyberporn Law Isn't Censorship, Government Says, USA TODAY NATION, May 12, 1996, available in World Wide Web, at http://lcs.usatoday.com/life/cyber/tech/ct005.htm. Nevertheless, the Supreme Court might not decide to take on the case at all, thus allowing the district court decision to stand as law. See Editorial, Back to Court on 'Indecency', WASH. POST, July 8, 1996, at A14.
  84. Senator J. James Exon, Should the Plug Be Pulled on Cyberporn?; Keep Internet Safe for Families, DALLAS MORNING NEWS, Apr. 9, 1995, at 1J.
  85. Jim Exon, New Law Will Protect Kids, USA TODAY, Mar. 13, 1995, at 14A.
  86. FCC v. Pacifica Found., 438 U.S. 726, 749 (1978).
  87. Id. at 748 (emphasis added).
  88. Mike Holderness, Internet: Bringing in Big Brother, GUARDIAN, Apr. 13, 1995, at 4; see also Editorial, Hobbling the Internet, WASH. POST, Feb. 26, 1995, at C6 ("[The Exon legislation] is just one example of the danger of pushing through a law based on a careless analogy from one technology to another, and choking off a robustly growing communications enterprise in pursuit of an ideal of "decency" that is adults' own business.").
  89. ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *94 (E.D. Pa decided June 11, 1996) (Sloviter, C.J.).
  90. Id. at *182 n.19 (Dalzell, J., concurring).
  91. See supra notes 29-37 and accompanying text.
  92. Sen. Jim Exon, How Congress Can Help Protect Children from Computer Smut, ROLL CALL, Oct. 23, 1995, at ___.
  93. 492 U.S. at 126. "Compelling" is defined as: "1. tending to compel [to force or drive, esp. to a course of action]; overpowering: compelling reasons. 2. having a powerful and irresistible effect: a compelling drama." RANDOM HOUSE WEBSTER'S COLLEGE DICTIONARY 276 (1995).
  94. 492 U.S. at 128.
  95. ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, **108-12 (E.D. Pa decided June 11, 1996) (Sloviter, C. J.).
  96. 492 U.S. at 128.
  97. See supra note 19 and accompanying text. In addition, researchers at MIT have developed a system for stamping ratings onto Web sites which would restrict younger viewers from access. See Michelle V. Rafter, MIT Group Proposes Community-Based Internet Ratings System, REUTER BUS. REP., Sept. 20, 1995.
  98. Julian Dibbell, Muzzling the Internet: Can This Congress Find a Way to Preserve Civil Liberties While Curbing Cyberporn? So Far, No, TIME, Dec. 18, 1995, at 75 (author is summarizing statements from the DOJ).
  99. U.S. DEP'T OF JUSTICE, May 3, 1995 letter to Senator Patrick Leahy (D-Vt.), quoted in Charles Levendosky, Parental Guidance Suggested: Congressional Efforts to Legislate Cyberspace Will Create a Decency Monster - and It's Coming After You, SUN-SENTINEL (Fort Lauderdale), Aug. 6, 1995, at 1G.
  100. ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *199 (E.D. Pa decided June 11, 1996) (Dalzell, J., concurring); cf. Butler v. Michigan, 352 U.S. 380, 383 (1957).
  101. ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *204 (E.D. Pa decided June 11, 1996) (Dalzell, J., concurring).
  102. Howard Rheingold, Beware of Tyranny in Guise of "Decency", S.F. EXAMINER, Feb. 15, 1995, at C3.
  103. Nat Hentoff, When Privacy Doesn't Compute: A Senate Vote to Censor Cyberspace Could Mean That Speech That Is Fully Protected in Books, Magazines and Newspapers Is Subject to Sanction If Made Available over the Internet, SAN DIEGO UNION-TRIB., Sept. 3, 1995, at G-4.
  104. Editorial, An Internet Indecency, BOSTON GLOBE, Dec. 13, 1995, at 22.
  105. David S. Bennahum, Getting Cyber Smart, N.Y. TIMES, May 22, 1995, at A15. In his online publication, controversial cyber-commentator Brock Meeks assessed the situation in a somewhat different fashion. "The move is akin to ramming a hot poker up the ass of the Internet. And under the 'indecency' language, that last sentence, if somehow viewed by a minor, could make Dispatch criminally liable for a $100,000 fine [now $250,000] and toss my ass in jail for two years." Brock Meeks, editor of Dispatch, quoted in Dan Kennedy, Doing the 'Indecent' Thing in Cyberspace, BOSTON PHOENIX, Dec. 15, 1995, ' 1, at 9.
  106. For a complete discussion of anonymity on the Internet, see, e.g., Long, supra note 5, at 1177-1213; Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639 (1995). The most famous of the anonymous servers was anon.penet.fi, run by a man named Julf Helsingius in Finland. Long, supra note 5, at 1178.
  107. Long, supra note 5, at 1178.
  108. See supra note 19 and accompanying text.
  109. See Reid Kanaley, Internet Sex Due for Cold Shower?, RECORD, Apr. 3, 1995, at A1.
  110. The conference committee vote was only 17 to 16, and usurped a compromise proposal by Rep. Rick White (R.-Wash.) approved only moments earlier by a 20 to 13 vote. Albert R. Karr, Conferees Pass Rule Covering On-Line Smut, WALL ST. J., Dec. 7, 1995, at A16. Rep. White's compromise had used the words "harmful to minors" instead of "indecent," and was generally considered to be more constitutionally enforceable.
  111. See Joseph Kahn et al., Chinese Firewall: Beijing Seeks to Build Version of the Internet That Can Be Censored, WALL ST. J., Jan 31, 1996, at A1; Darren McDermott, Singapore Unveils Sweeping Measures to Control Words, Images on Internet, WALL ST. J., Mar. 6, 1996, at B6.


About the Author

     Blake T. Bilstad is a 1996 graduate of Harvard Law School, where he was the Executive Editor of the Harvard Journal of Law & Technology. He received a B.A. in History from Duke University in 1991, graduating Phi Beta Kappa and magna cum laude. He won the Irving Oberman Memorial Award for the best paper on "Law, Information, and Technology." Bilstad specializes in the fields of multimedia and high-tech business law and is an attorney with the San Diego office of Cooley Godward LLP.