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From "Dial-a-Porn" to "Cyberporn": Approaches to and Limitations of Regulation in the United States and Japan


Rieko Mashima
Finegan, Henderson, Farabow, Garrett and Dunner, Washington, D.C.

Katsuya Hirose
Department of Political Science
Hosei University, Japan

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Abstract


     While the Internet and the other on-line services have become powerful intellectual tools and forums of personal and group interaction, they have also turned out to be providers of pornography. Thus, protecting children from the latter aspect has become a great concern in many parts of the world In the U.S., the Senate recently passed the Exon Bill. The Bill aims at ensuring that the laws which already apply to obscene, indecent, and harassing use of telephones and mail should also apply to computer communications. On the other hand, in Japan, a similar problem regarding telephone use has been solved effectively by the private sector's voluntary self-control. NTT (a counterpart of ATT before its split) refuses to contract with telephone service providers intending to supply services of what might be considered obscene content. For NTT, which is a common carrier, (enjoying a monopoly in local telephone service) to refuse to contract with such information providers required administrative guidance (so-called gyoseishidoh) from the Ministry of Telecommunication. This typical Japanese approach involving gyoseishidoh is effective. It, however, lacks a democratic decision-making process or a judicial procedure to solve disputes concerning this system of self-control.

     This article examines the difference between American and Japanese approaches towards controlling obscenity online: legalism vs. substantialism (voluntary self-control). Then, it explores what might be a suitable (or acceptable) way to exert control over computer mediated communications, taking into consideration its new democratic value, the importance of the right to freedom of speech, and the (legal) culture of each nation.

Introduction


Cyberspace is both the popular media's new darling and new demon, revealing a new, expansive intellectual horizon but simultaneously providing easy access to an infinite, virtual Pandora's Box. So, while the Internet and the other online services are being hailed for providing the tools and for the exchange of ideas and information throughout the world, protecting children from cyberspace's vices has become a great concern in many parts of the world. This paper will consider the experiences of the United States and Japan in seeking to regulate cyberspace to protect children.

The two countries have taken distinct initial approaches to regulating cyberporn and the efforts of each are traceable from the distinct approaches they took to regulating a cyberporn forbearer, the so-called "dial-a-porn" or "phone sex" services. The distinct approaches of the two countries are interesting and informative because they arise from what we assume to be a similar basic legal and social environment, i.e., the constitutions of both countries guarantee freedom of speech, but both countries have laws that criminalize distribution of certain types of pornography in certain manners and both have other laws restricting pornography. Further, the social, if not the legal, standards of what constitutes pornography do not appear to be terribly different in the two countries; and in each there appears to be a strong and similar consensus pornography should, at the least, be sufficiently regulated to prevent exposure to minors and unconsenting adults. [ 1 ] From these similar background environments, different approaches have arisen to protecting children from exposure to pornography disseminated through telecommunications technologies. These approaches not only reveal interesting differences in how the U.S. and Japanese legal systems respond to the new issues that new technologies generate, but also serve as separate laboratories from whose "experiments" each country (and other countries) can learn.

Part One of this paper introduces each of the U.S.'s and Japan's approach to coping with "dial-a-porn." Part Two examines how these efforts carried over into the strategy of each country in combating pornography in cyberspace and offers a critique of each country's approach. Part Three considers alternative efficacious and acceptable means of exerting some control over cyberspace pornography.

Part One: The Regulatory Response to "Dial-A-Porn" in the U.S. and Japan to Combat "Cyberporn"


"Dial-a-porn" services offer sexually explicit messages, live or prerecorded, for a fee over telephone lines. The services emerged in the 1980s and in each of the U.S. and Japan grew into a sizeable industry. [ 2 ] Many parents in both countries were startled by dramatic increases in their telephone bills, and by the ease of their childrens' access to dial-a-porn content. In both countries restricting dial-a-porn became a significant political issue, but the U.S. and Japan adopted different regulatory approaches.

1. The United States' Approach: Legislation and Subsequent Interaction among the FCC, the Courts, and Congress


In the U.S., Congress acted promptly to create a specific criminal offense to control dial-a-porn services. However, it took almost a decade and complex interaction between the Federal Communications Commission ("FCC"), the courts, and Congress before the U.S. achieved a more or less final resolution to the dial-a-porn issue.

In 1983, Congress amended the Telecommunications Act ("the Act") to prohibit dissemination of obscene or indecent commercial telephone services in interstate or foreign communications to persons under eighteen years of age ("minors" [ 3 ] ). The amended Act imposes penalties of fine, imprisonment, or both for violations. The Act also authorized the FCC to draft defenses to be available to a defendant charged with violating the Act.

Pursuant to its authority under the Act, the FCC determined in 1984 that dial-a-porn providers would only be able to conduct business between the hours of 9:00 p.m. and 8:00 a.m. or must receive payment by credit card before transmitting an adult message. [ 4 ] In Carlin Communications v. FCC ("Carlin l"), [ 5 ] however, the Federal Appeals Court for the Second Circuit invalidated the FCC's time-of-day restriction, finding that the FCC could have adopted less restrictive alternatives for restricting free speech. (An established doctrine of free speech law is that the government may regulate the content of constitutionally protected speech to promote a compelling interest, if the government chooses the least restrictive means to further the interest). In 1985, the FCC thus proposed a new alternative, to require dial-a-porn content providers to transmit messages only to callers using an access code or personal identification code ("PIN code") available only to adults. [ 6 ]

In Carlin II, the Second Circuit addressed the legality of the FCC's access code regulation. It held the approach to be constitutional except in areas served by New York Telephone where implementing the access code restriction was not feasible due to a one-way, noninteractive system. [ 7 ] To solve the New York issue, the FCC once again amended its approach, by adding another defense, provision of message scrambling, to the existing defenses available to dial-a-porn providers under the Act (payment by credit card and use of access codes being the other two defenses). To have available the message scrambling defense, a dial-a-porn provider would have to scramble its messages, and sales of decoders required to unscramble the messages would be limited to adults by state law. [ 8 ]

In Carlin Ill, the Second Circuit finally upheld the FCC's amended regulation, but it held that § 223(b) of the Act, the underlying criminal provision, could not constitutionally be applied to "indecent" (as opposed to "obscene") dial-a-porn messages. [ 9 ] Despite, or perhaps in spite of, this ruling, Congress in 1988 (an election year) amended § 223(b) so that it would explicitly prohibit not only "obscene" but also "indecent" commercial telephone communications directed to anybody regardless of their age. This amounted to an effort to totally ban dial-a-porn.

In 1989, the U.S. Supreme Court, in Sable Communication of California v. FCC, [ 10 ] continued with its distinction between indecency and obscenity by upholding the ban on "obscene" interstate commercial telephone transmissions, but rejecting the ban on "indecent" telephone messages. [ 11 ] Though the Court had previously upheld the FCC's regulation of an indecent but not obscene radio broadcast (see note 9), it refused to apply this approach to dial-a-porn because of the different nature of private telephone calls and public radio broadcasting ("[Public radio b]roadcasting is uniquely pervasive, can intrude on the privacy of the home without prior warning as to program content, and is uniquely accessible to children, even those too young to read. . . . In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communication." [ 12 ] Conceding the point after the Sable decision, Congress in 1989 amended § 223 of the Act not to prohibit but to regulate "indecent" telephone communications. [ 13 ]

In the aftermath of Sable and further amendment of § 223, in 1990 the FCC issued a "Notice of Proposed Rulemaking in Regulations Concerning Indecent Communications by Telephone" and sought public comments on regulations it proposed to adopt pursuant to § 223. In response to the FCC's Notice, a telephone company, an individual and the attorney generals from six states, among others, filed comments. The FCC reviewed these comments and then adopted final regulations to establish the defenses to prosecution under § 223(b) (credit card authorization, use of PIN codes, or scrambling of transmissions).

In summary, the U.S. response to dial-a-porn services began with Congress passing specific legislation that criminalized certain dial-a-porn activities and directing the FCC to adopt regulations concerning defenses to prosecution. This approach proceeded then became bogged down in almost a decade of response and counter-response among the legislative, executive, and judicial branches, as legislation and regulations were developed that passed the court's constitutional scrutiny.

2. Japan's Approach: Combination of Voluntary Self-Regulation and Administrative Guidance


A. Background on Japanese "Dial-A-Porn"

The first wave of the dial-a-porn issue in Japanese communications media arose with the "Dial Q²" service of Nippon Telephone and Telegraph ("NTT," Japan's equivalent of AT&T before its split). Dial Q² is NTT's version of pay-per-call services. A customer can access the content of an information provider of the Dial Q² service (an "Information Provider") who sells information services through NTT's telephone line. The customer is then billed automatically by NTT together with its regular monthly telephone fee. Charges are based on the length of access time and automatically calculated by NTT's telephone exchange machines. With NTT providing the hardware and billing, small companies are easily able to enter into this information service market. [ 14 ]

Soon after Dial Q² service started in July 1989, pornographic content provided through Dial Q² provoked an intense social outcry against NTT. The concern about access by children was basically the same as in the United States (Japanese parents were shocked to realize that their children could access pornographic programs from home without parental knowledge) and they were shocked by the exorbitant phone bills that brought them the knowledge that the calls had been made (the typical dial-a-porn program lasted six minutes and cost 600 yen, approximately $6 at the current exchange rate).

When the Dial Q² service was introduced, there was no way for consumers to disconnect their telephone lines from Dial Q² programs. And because NTT billed the Dial Q² information service fee as part of the total telephone service fee without providing itemized statements, consumers could not ascertain the scope or source of their Dial Q² charges. To avoid having their telephone line disconnected, consumers could only pay the total amount.

NTT was initially not responsive to complaints, and informal channels available for resolving disputes did not exist. As a result, many parents concluded that their only option was to file lawsuits against NTT. Most lawsuits sought a declaratory judgment that parents had no obligation to pay the huge Dial Q² information charges their children had incurred without the parents' consent or notice and that NTT could not discontinue service because of a refusal to pay based on disputed Dial Q² charges. Using a very general provision of Japan's Civil Code that places a "good faith" requirement on private parties, [ 15 ]several courts ruled in favor of disgruntled parents, holding that NTT should have clearly stated in its terms of service or in a notification to customers that even if somebody (here, a child) other than the party contracting for service with NTT (the child's parent) used adult-oriented Dial Q² services without the contracting party's consent, the contracting party was still responsible for the Dial Q² charges. [ 16 ] In the face of widespread public criticism and the legalistic approach of some customers, NTT gradually began changing its policies concerning Dial Q² services.

B. The Approach of Voluntary Self-Regulation Supported by Administrative Guidance


In Japan, neither the public outcry over dial-a-porn nor the parents' lawsuits did lead to a rush to create specific dial-a-porn legislation as was done in the U.S. Instead, once NTT and ministry officials concluded that action was necessary, their response was to erect a system of voluntary self-regulation. Voluntary self-regulation has been in Japan a commonly used means of controlling sexual expressions in movies, videos, game software, and so on (for convenience all such items will hereinafter be referred to as "films"). In each industry, an ethical commission set up by an industry association functions as that industry's voluntary self-regulatory body. Whether a film has passed, or even been submitted to, the screening process has no formal legal effect; any film may be distributed independent of the screening process. However, Japan's Criminal Code makes distributing obscene materials illegal (see below), and, as in the U.S., enforcement is the responsibility of the police and government prosecutors. While a film cleared by a self-regulatory body could still be determined to violate Japan's obscenity statute and, conversely, a film that did not pass the voluntary screening could still be determined to be legal, in reality, enforcement authorities typically only take action against films that have not passed or have not been submitted to the appropriate voluntary screening process. Moreover, rarely, if ever, has a film that passed the screening process later been judged to be criminally obscene.

Most producers of films thus elect to submit them to the self-regulatory screening process and consent to any content changes necessary for the films to be deemed acceptable. Further encouraging producer compliance with screening measures is that major distributors will typically only handle what has been successfully screened. For example, almost all movie theaters in Japan are provided films by a few major film distributors. Because the major distributors only handle movies that have passed the self-regulatory screening, any movie producer who seeks significant commercial success must submit his or her product for screening. Consequently, to reduce the risk of prosecution, films not cleared by a screening body can only be distributed through special, limited distribution channels safeguarded from access by minors.

With respect to Dial Q² services, as the industry's sole distributor, NTT was in a position to ensure that Content Providers set up a self-screening system and that programming that did not pass the screening would not find an audience. In June 1991, NTT started to dissolve its Dial Q² contracts with Content Providers whose programming did not pass the screening of the All Japan Telephone Service Association (the "Association"), a voluntary self-regulation organization set up by Content Providers. NTT also revised its contracts with Content Providers to provide that it could terminate if they were indicted for criminal activities or if significant numbers of consumers refused to pay for their services. In order to continue their business, Content Providers thus had little choice but to form and to comply with the decisions of a "voluntary" self-regulatory body. NTT was careful, though, not to directly participate in the Association's screening process, to preserve its position that a carrier should not censure or alter the contents of the messages it carries. [ 17 ]

NTT's facilitation of the establishment of a voluntary screening process for dial-a-porn was also supported and encouraged by the administrative guidance of the Ministry of Postal Telecommunications ("MPT"). [ 18 ] Administrative guidance (gyosei shidoh) is "a common Japanese regulatory technique that, although generally nonbinding, seeks to conform the behavior of regulated parties to broad administrative goals." [ 19 ] In strict legal terms, compliance with administrative guidance is usually voluntary. There may be factors, however, that lead a private party to regard guidance as an "offer that may not be refused." Regulators may have a "stick" they can wield against the party on other matters, [ 20 ]or a "carrot" with respect to other matters that they can use it to entice a party to comply with particular guidance. While a private party may feel that certain guidance is "mandatory" rather than "voluntary", because Japanese regulators are typically careful to avoid giving guidance in the form of dispositive legal acts subject to judicial review, the party will have no legal recourse. [ 21 ]

In the dial-a-porn case, not only NTT, but also the MPT, as the regulator of the telecommunications industry, became the target of public criticism. MPT, in turn, criticized NTT's indifferent attitude toward the public outcry. [ 22 ] MPT was also in a position to take action. Not only does it have broad regulatory power over NTT, as a common carrier, but NTT had begun to be privatized in 1985 and had a strong incentive not to provoke a confrontation with MPT given that major decisions concerning the privatization were scheduled to be made in 1990 and 1995.

There are two other reasons NTT had incentive to follow MPT's guidance. First, NTT and MPT have had a long-standing close relationship (including that top MPT ministry officials can expect to "retire" into leading executive positions at NTT). Second, as is the case in some administrative guidance scenarios, NTT was quite willing to be "guided." Once MPT directed that NTT needed to take action on the dial-a-porn issue and that the action to take included facilitating establishment of a self-regulation process, [ 23 ] NTT could deflect criticism from disgruntled Content Providers onto MPT.

MPT did, though, also pressure NTT to take further steps. As a result, NTT began to offer consumers the option of disabling their connections to Dial Q² services, it lowered the upper limit for information charges for some kinds of adult-oriented services, restructured its bills to show itemized information charges, and it stopped discontinuing telephone service based on nonpayment for adult-oriented material. With these measures, the Association's voluntary screening and NTT's monopoly power, Content Providers found themselves forced to accept NTT's new dial-a-porn policies and dial-a-porn was retained in Japan.`

Thus, as is evident from the above discussion, for the purpose of keeping children away from pornography readily available over telephone lines, the U.S. legislated a specific criminal statute. There then followed almost a decade of formal legal process lawsuits over the legislation and related administrative rules, amendment of the rules and legislation and lawsuits over the amendments before the FCC was able finally to adopt implementing regulations. In Japan, though there were some lawsuits by private citizens that helped provoke a regulatory response, the response was, in legal terms, primarily an informal one, with the dial-a-porn issue being effectively resolved by establishment of a voluntary screening system and related action taken by NTT under the guidance of the MPT.

Part Two: U.S. and Japanese Approaches to Coping with Cyberspace Pornography


During the mid 1990s, children's access to pornography again became a major concern both in the U.S. and Japan, this time in the setting of computer­mediated communications including the Internet. Each country's approach to the dial­a­porn issue gives some hint to how they have approached regulation. In reacting to the issue of cyberspace pornography each country has chosen a path similar to that pursued with respect to dial-a-porn, but the unique nature of computer communications has created significant constraints on the appropriate and efficacy of their respective approaches.

1. The U.S. Approach


A. The Communications Decency Act


          (1) Basic Provisions of the CDA

The United States has adopted the same legislative approach to cyberspace pornography that it did for dial­a­porn services. By passage of the Communications Decency Act ("CDA") on February 9, 1996, as Title V of the Telecommunications Act, [ 24 ] Section 223 of the Telecommunications Act controlling dial­a­porn was modified to be applied to cyberspace porn as well. The CDA mainly aims to limit the transmission or display of objectionable materials to minors in computer­mediated communications including the Internet ("objectionable" will hereinafter be used as a generic term incorporating the concepts of "indecency" and "obscenity"). The CDA spells out the following four criminal offenses in interstate or foreign communications (the criminal offenses can also create the basis for civil liability):

(1) to knowingly create and transmit obscene or indecent materials to minors, using a telecommunications device (excluding interactive computer services),

(2) to knowingly permit use of a telecommunications facility under one's control to commit (1),

(3) to knowingly send to or display "patently offensive materials by contemporary community standards" in a manner available to minors, using interactive computer services, and

(4) to knowingly permit use of a telecommunications facility or interactive computer service under one's control to commit (3). [ 25 ]

"Interactive computer services" are defined under the CDA as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet . . . ." [ 26 ] On the other hand, the term "telecommunication facility" is not defined.

The CDA provides five defenses to criminal or civil liability, the first four of which are:

(1) solely providing access to a facility, system, or network not under that person's control, without creation of the content of the subject communication (the access­provider defense),

(2) taking, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict access by minors to the subject communication (the active good­faith defense),

(3) restricting access to the subject communication by requiring use of a verified credit card, debit account, adult access code or adult personal identification number (the access­restriction defense), and

(4) being an employer without knowledge, or in reckless disregard, of one's employees' behavior (the innocent employer defense) [ 27 ]

The fifth defense is designed to protect providers of interactive computer services from liability in the event they take action to prevent transmission of communications they think are obscene or otherwise objectionable. This "Good Samaritan defense" under the CDA provides that no provider or user of an interactive computer service shall be held liable based on efforts to restrict access to what the provider in good faith believed was obscene or otherwise objectionable, even though the materials turn out to be constitutionally protected. [ 28 ]

           (2) The Effect of the Basic Provisions

Though the CDA presents subtleties and ambiguities, some of which will be discussed in the next section, the basic provisions reviewed above suggest that the CDA is intended to do two things. Firstly, it is intended to discourage those who create or gain access to objectionable content from transmitting this to minors or placing it on networks accessible by minors. Content providers, whether commercial operations or individuals, and users can be held civilly or criminally liable for knowingly making objectionable content available to minors via a telecommunication facility or interactive computer network. [ 29 ]

Secondly, the CDA is intended to place some burden or incentives on those who operate network communications facilities to make a good-faith effort to monitor content or to erect barriers to minors accessing objectionable content. [ 30 ] Under the CDA's structure, interactive computer service providers may not be able to "turn a blind eye" and plead that the messenger bears no responsibility for the content of the message (though the access provider defense does exempt from responsibility those who merely provide a communications link to a network, e.g., the phone line link from a person's personal computer to an online service.). Interactive computer service providers are not, however, strictly liable under the CDA for all content that travels over their facilities; rather they are given incentives to take reasonable, good-faith action to restrict minors' access to objectionable content (thus making available to them the active good-faith and/or access-restriction defense). And, if in taking such action the network provider is overzealous and restricts access to, or declines to carry, content that is constitutionally protected, i.e., not obscene, then so long as its overzealousness was done in good faith it is protected from liability.

B. Problems with the CDA


          (1) The Problem of "Community Standards"

Perhaps in an attempt to avoid reversal by the courts, the third offense under the CDA, the one aimed at Content Provider's posting on interactive networks, parrots the U.S. Supreme Court's "community standards" approach to obscenity, that is, whether materials are "patently offensive is to be determined by a jury applying local "community standards." [ 31 ] A full discussion of the Supreme Court's approach to obscenity and of the problems of the community standards approach is beyond the scope of this paper. In a nutshell, however, it is sufficient to say that the approach has been very problematic and given rise to criticism even when applied in the community-based settings in which the typical obscenity cases arises (local bannings of books, closings of strip clubs, prohibitions on public screenings of pornographic movies). Applied to cyberspace, the community standards approach is completely unworkable.

Suppose a minor, M, who resides in community, X, which has very restrictive standards for expression, logs onto a network, views, and downloads information posted by Adult, A, who resides in a distant community, Y, which has very permissive standards. Which community's standards should be applied, Y's, as the place of posting, X's, as the place of downloading, or somewhere else? [ 32 ] Varying community standards place both A and the interactive computer service providers involved at great risk. A has no ability to block the access of M, or of any other minors in the most restrictive community in the United States. The one thing A could do--attach a header that the message is intended only for those 18 years old and above--may well make the message more likely to be downloaded by minors.

Community standards applied to cyberspace also present great problems for interactive computer service providers. Though the providers serving M and A may have, or could develop, tools to restrict minors' access, it would be unworkable to divide the U.S. into multiple supposedly distinct communities subject to varying levels of content filtering. Moreover, even if such filters could be developed, it would be impossible to monitor the large and growing volume of network communications. To be safe, content providers should never stray from the most benign of subjects, and network providers should make the fullest use of the "Good Samaritan" defense, vigorously erring in the direction of restricting protected speech. Alternatively, if the community standards approach is perceived as impossible to apply to the Internet and other networks, the CDA's structures may be taken as seriously as jaywalking laws, meaning minors will have received little benefit from Congress' effort.

Further complicating the problem of community standards is that cyberspace does not even know national, let alone community, boundaries. The Internet is the network of all networks, allowing access to vast amounts of useful and useless and virtuous and base information on millions of computers throughout the world. Reaching at least 180 countries, [ 33 ] it lacks any single focus of authority or control. On the World Wide Web, in particular, users may rapidly jump from one site to another -- i.e., from content produced in varying "communities" throughout the world -- simply by clicking words on a screen (i.e., via hyperlinks). Even while Congress was legislating the CDA, regulatory insiders raised such concerns about the impracticality of monitoring communication over a borderless medium, such as the Internet. The Justice Department's Director of its computer crime unit, Scott Charney, observed, "When people look at the Internet and try to draw analogies to existing communications, it doesn't work because the Internet is a little of everything." [ 34 ] Even if the CDA and its community standards approach were somehow workable and effective in the U.S., minors in the U.S. would have access to the most objectionable content the world had to offer.

           (2) A New Round of Lawsuits

In addition to the problem of applying a community standards-based definition of obscenity to a borderless medium, the CDA has other features that have already provoked legal challenges. Indeed, the litigation over the CDA began almost as soon as President Clinton signed the legislation into being. Concerned citizens and industry groups rushed to court to seek injunctions against its enforcement. e.g., ACLU v. Reno. In fact, because this was anticipated, Congress actually drafted into the CDA provisions designed to put it on the "fast-track" to review by the U.S. Supreme Court. [ 35 ] The challenges focused on the CDA's reference to the words "indecency" in the first two criminal offenses and "patently offensive materials by contemporary community standards" in the third and fourth criminal offenses. The cases were consolidated and the judge issued a temporary restraining order only concerning the "indecent" part of the above offenses because the undefined word "indecent" was considered unconstitutionally vague. ACLU v. Reno, No. 96-963, 1996 U.S. Dist. LEXIS 1617 (E.D. Pa. Feb. 15, 1996).

Litigation may also arise over what constitutes good-faith screening efforts by interactive computer service providers. Given not only the problem of defining obscenity but the volume of communications, the speed with which they travel, and the variety of forms they take, interactive computer services providers are unlikely to succeed in screening out all content that even in the most permissive of communities would still be considered objectionable. To the extent obscene content is thus accessible to minors, network providers will likely be subject to legal challenges over whether their screening efforts were sufficient to constitute good faith. [ 36 ]

Even with the expedited review provisions of the CDA, the legislation, however, appears likely to face, like the U.S.'s dial-a-porn legislation, a long period of multiple legal challenges during which the content of the law will remain in flux and it will not achieve its purpose. Moreover, the uncertain scope of the CDA during this period of protracted litigation may discourage and impede the growth of computer communications still in their infancy.

2. Japan's Approach to Controlling Cyberspace Pornography: The Move Towards Voluntary Self­Regulation


As was done in response to dial-a-porn in Japan, the principal Japanese approach to cyberporn has been to adopt a strategy of voluntary self­control supported by administrative guidance. Unlike the dial-a-porn case, however, the conditions for effective guidance of a voluntary regime do not exist.

A. The Issue in the Context of Criminal Arrests


In August 1995, the Kyoto police arrested a representative of Alpha Net, a so­called adult PC net, for suspected violation of Article 175 of the Japanese Criminal Code, which prohibits distribution, sale, public display of, and possession for the purpose of sale, of waisetsu (obscene) material. [ 37 ] Starting Alpha Net in 1993, the representative had installed approximately 1,200 kinds of "hardcore" pornography in an Alpha Net host computer and later distributed this material online to many, random Alpha Net subscribers. [ 38 ]

Several months later, on January 31, 1996, in Japan's first Internet pornography criminal case, Tokyo police arrested a twenty­eight year­old corporate employee who had distributed 67 types of pornographic material over the Internet to many, including randomly selected, people. The police searched both the man's residence and the premises of the Internet access provider to which he had subscribed. On April 22, 1996, the Tokyo District Court ruled that the company employee was guilty of displaying waisetsu material in public (violation of Article 175 of the Criminal Code) and sentenced him one year and six months in prison with a three­year probation. [ 39 ]

The media closely followed the August 1995 and January 1996 cyberpornography arrests. These arrests and other media reports demonstrated that cyberspace pornography was developing into a major public issue. Bureaucratic officials were concerned that the development of computer networks might be jeopardized if the issue was not swiftly addressed. In the case of Dial Q² , NTT's delayed response to the dial-a-porn issue had harmed the services' brand image and business development, and many consumers grew to perceive Dial Q² as nothing more than a tool by which NTT and Content Providers could profit by making pornography readily available in every home. Indeed, once NTT was prodded into toughening its self­regulatory policy, demand for Dial Q² sharply declined. [ 40 ]

Possible ways of dealing with concerns about cyberporn included imposing criminal and/or civil liability, and thus responsibility, on commercial online services, computer bulletin board systems ("BBSs") and direct Internet access providers (collectively, hereinafter "Network Service Providers") or facilitating a system of voluntary self­restraint by Network Service Providers and users. Resolution of this issue was affected by competition between MITI and MPT to regulate cyberspace, which exists at the intersection of the electronics and information services industries, principally regulated by MITI, and the telecommunications industry, principally regulated by MPT.

In part because MPT's reputation had been damaged by its slow response to the Dial Q² problem, MITI was able to assert primary authority with respect to the cyberporn issue. Moreover, MITI and Network Service Providers shared a strong interest in a voluntary regime. A regulatory approach based on making Network Service Providers responsible for monitoring content and/or providing effective screening devices would obviously be more burdensome for them (and raised the specter of Japanese versions of the Prodigy case), [ 41 ] and if such regulatory authority were to be exercised, it would almost certainly fall under MPT's domain, thereby frustrating MITI's assertion of regulatory authority.

MPT, in an effort to assert regulatory authority, reportedly set up an informal group to study ethical problems in computer communications. Though the content of the MPT study group's deliberations were not reported, it was believed the group thought the public was likely strongly to support governmental control over cyberporn and, perhaps, the imposition of potential liability on Network Service Providers. To counter MPT's efforts, MITI began working with the "Consortium," an industry association of BBSs, computer makers and software producers, [ 42 ] to demonstrate to the public that cyberspace was not a lawless frontier and that Network Service Providers could effectively tackle the problem of cyberspace pornography. [ 43 ]

To promote self­regulation by Network Service Providers and users, the Consortium drafted and disseminated in February 1996 the "Ethical Code for Computer Network Providers" (the "Providers' Code" [ 44 ] ) and the "Rules and Manners for Network Users" (the "Users' Code" [ 45 ]) (collectively, the "Ethical Codes"). The Providers' Codes promoted the principles that Network Service Providers should: (1) respect the Japanese Constitution and its provisions for freedom of speech and for defending "public order and good morals" ([ 46 ] "koojoryoozoku"), (2) give serious consideration to the concern that nobody be disadvantaged regarding intellectual property rights, and their human rights such as publicity and privacy rights, and (3) enlighten network users in good manners. The Users' Code, which constituted a means of Network Service Providers' adhering to the third of the foregoing principles, states that users should never post pornography or defamatory statements on electronic bulletin boards or in electronic conferences. [ 47 ]

The approach of MITI and the Consortium has been, then, to limit Network Service Providers' responsibility to enlightening users about the ethics of using computer networks but to place ultimate responsibility for content on users, i.e., Content Providers, both commercial and individuals. The Ethical Codes thus do not include any proposal for setting up a content monitoring or screening scheme.

The Providers Code does mention that Network Service Providers may regulate content. It states that "network service providers should endeavor to state in their terms of services users' obligations, prohibited behaviors, and how the network may react to prohibited behaviors." [ 48 ] The type of reaction or response, if any, is to be left to each provider.

The announcement of the Ethical Codes was timely: it came just after the well-publicized arrest of the company employee for displaying pornography over the Internet and several days before President Clinton signed the CDA into law in the U.S. Many newspapers and television news shows covered the Consortium's distribution of the Ethical Codes to hundreds of BBSs and major Internet access providers. Perhaps sharing freedom of speech concerns and a preference for voluntary regulation, the media gave the Ethical Codes a very positive spin, promoting the view that the problem of cyberspace pornography was appropriately being recognized as serious and effectively being tackled by an industry trade organization.

B. The Limitations of the Voluntary Self-Regulation Approach to Cyberporn


           (1) Lack of Conditions for Successful Administrative Guidance

As discussed above, there are various conditions that allow for successful application of administrative guidance in Japan. With respect to the cyberspace issue, unfortunately, none of these conditions are present. The ministries involved do not have access to a "carrot" or "stick" with respect to the industry, there is not a close and long­standing relationship between regulators and the regulated industry and there is not a limited number of participants in the regulated industry to organize.

Most of the Consortium's corporate members are commercial online services and BBSs. Because promoting the information service industry is considered within MITI's mandate, MITI was able to become deeply involved in the Consortium; for example, an organization under MITI's strict control acts as the Consortium's secretariat [ 49 ] and MITI bureaucrats have consistently attended as observers at the Consortium's meetings and study groups, including those which drafted the Ethical Codes. MITI, though, has no licensing, authorizing or permitting authority with respect to the Consortium or its members. Without the authority to impose significant penalties or grant significant benefits, MITI's regulatory influence arose from a weaker source, its mutual interest with the Consortium in avoiding an effort by MPT to support stricter regulation.

Despite Consortium members involvment in telecommunicating, MPT also lacked formal authority with which to assert administrative guidance, which is presumably why it appeared to be pursuing a strategy of building public support to give such authority. Under the Telecommunications Business Act of 1984, which provides the ground rules for competition in long­distance and local services, different regulations apply to different types of carriers. "Type I" carriers such as NTT, which own telecommunications facilities, are strictly regulated by MPT. "Special Type II" carriers, which provide large­scale nationwide services and/or international services, must register with MPT before starting services and must report tariffs to MPT in advance. Both Type I and Special Type II carriers must report to MPT their terms of services and changes to these terms, and they are subject to rules concerning management of their facilities, must meet various technical requirements, and are subject to on­the­spot inspections. The rest of the industry, however, is classified as "General Type II" carriers, and they need only notify MPT before beginning business. [ 50 ] Most commercial online services (including the largest, Nifty), BBSs, and direct Internet access providers in Japan are General Type II carriers over which MPT exercises very little control. Thus, most of the Consortium membership falls in a regulatory-free zone not under the control of either MPT or MITI.

Moreover, even if the Consortium were subject, or were made subject to direct control by either MITI or MPT, the Consortium itself does not include many of the rapidly increasing number of direct Internet access providers operating in Japan. [ 51 ] There are currently about 300 such direct providers in Japan, and they are not organized into any group. Among these new participants, and even among the larger and more established Network Service Providers there is simply little or no tradition of a relationship with MITI, MPT or any other ministry. Finally, even if the Network Service Providers industry could be brought into an association over which MITI or MPT could assert authority, and even if all Japanese participants were made members of the association, the same technological forces subverting the CDA regime in the U.S. are at work in Japan. Networks make everyone in the world with a computer hooked to a phone line a potential content provider and provide all such people access to the content produced. The proliferation of computer networks has created conditions not susceptible to successful assertion of administrative guidance.

          (2) Lack of a "Bottleneck" at which to Influence Distribution

The multiple players in the computer network industry also mean that even if MITI or MPT had established and comprehensive regulatory authority, there is no clear point at which they could effectively exercise it. In the Dial Q² case, there existed a "bottleneck" in the distribution channel, i.e., all communications had to pass through NTT's facilities, which could thereby ensure that "voluntary" self-regulation was meaningful. In contrast, in the case of the Internet, where one can dispatch a message from any point regardless of location anywhere in the world, there is no channel through which all communications flow and can be monitored for compliance with voluntary standards. Therefore, ensuring widespread compliance with a voluntary regime appears exceptionally difficult. Indeed, using computer­mediated communications as a powerful tool, some users in Japan vigorously criticized the Ethical Codes and organized an anti­self­regulation campaign. [ 52 ]

Given the multiple options for accessing computer networks and the lack of conditions for a successful administratively guided system of voluntary compliance, users in Japan have been able to continue to send their messages without bothering about the Ethical Codes. Only one Network Service Provider, Asahi Net, has been active in monitoring content. It warned users who had posted Web pages that they should delete pornography. It then deleted the pages of some users who failed to adhere to its policies. Though other Network Service Providers could also adopt such methods against users who violate terms of services incorporating the Users Code, outside of Asahi Net, there has been no such aggressive action and there appears to be little incentive for Network Service Providers to take such action.

In summary, it does not appear that Japan's voluntary self­regulation scheme, which worked well for dial-a-porn, will effectively limit cyberporn. While the U.S. may have created a legal regime that frustrates networked communications with the threat of liability for violating unclear community standards, Japan's approach may frustrate development by leaving cyberspace saddled with a reputation as a vast territory of pornography and extreme opinions.

Part Three: Is There a Better Way to Protect Minors from Pornography in Cyberspace


Part Two has examined the initial U.S. and Japanese approaches to controlling cyberspace pornography. Part Three further explores the weaknesses of the respective approaches and looks for better ways to protect children from pornography, while at the same time respecting freedom of speech and not hindering the development of computer-mediated communications.


A. Nurturing an Infant Industry


Despite the media hype about the Internet, only a very small portion of the population of either the U.S. or Japan currently uses it. As of 1995, it was reported that only 7% of American households subscribed to commercial online services, [ 53 ] and only about 10% of the American population was using the Internet for anything other than electronic mail (E­mail). [ 54 ] A Nielsen and CommerceNet survey conducted in 1995 showed the following for Internet use in the U.S. and Canada: 17% (37 million people) had direct access to the Internet; this 17% figure represented access connections of approximately 7% residential, 6% in the workplace, and 3% in educational institutions; and office connections occupied a disproportionately large portion of total access time. [ 55 ] Even these low figures on actual Internet usage may be overstatements because more "computer literate" people often have multiple links to the Internet (e.g., at multiple office sites, at home and through an educational institution), so the sum of access accounts exaggerates the population using the Internet. Finally, having access opportunity does not necessarily translate into actually using a computer network.

In Japan, use of computer-mediated communications lags far behind the U.S., though the rate of networking PCS to one another and to the Internet has increased substantially in the last couple of years. [ 56 ] In June of 1995, the number of subscribers to networked personal computer communications in Japan was reported to be 3.7 million and the providers of such communications numbered about 2,600. [ 57 ] In February of 1996, the subscribers to the largest online services company in Japan, Nifty, which began Internet access service in 1994, exceeded 1.5 million, coming close to that of Prodigy, which is the third largest in the world (after America Online and CompuServe). [ 58 ]

The Internet is, then, still in its infancy in both the U.S. and Japan. Like an infant, it is vulnerable and requires nurturing; and neither the U.S. nor the Japanese approach to regulating cyberporn provides the support the Internet requires.

The U.S. approach, adopting specific legislation imposing criminal and civil liability on Network Service Providers and users of computer-mediated communications, could hamper the growth of this new medium. [ 59 ] While other media that have been heavily regulated are controlled by large commercial enterprises with the resources to influence legislation and defend and prosecute lawsuits, many aspects of computer-mediated communications are still non-commercial. For example, in the U.S. there are between 30,000 and 40,000 BBSs and less than 10 % of them are commercial. [ 60 ] Networks vary from those run by individuals with a few thousand dollars worth of equipment offering bulletin boards to small, familiar circles of online friends to commercial online service providers with millions of subscribers offering multitudes of services. [ 61 ] Moreover, even the operations of commercial Network Service Providers reflect the grass-roots or small communities-oriented nature of many computer networks. For instance, Nifty's most popular service, called Forum, is made up of newsgroups, of which there are about 400. The newsgroups are "chat-lines" on various subjects and they are managed by several hundred coordinators who are not Nifty employees but who, typically as a sideline to their regular job or as a hobby, receive commissions from Nifty in proportion to the usage of the group they manage. In either the U.S. or Japan, exposing such individuals and small enterprises to criminal and civil liability for their efforts cannot serve to promote development of computer networks.

Compared to the U.S. approach, the Japanese approach has the virtue of avoiding quick, but possibly ill­considered, legislation that may affect computer-mediated communications in unintended ways. The Japanese approach has remained to try to apply existing law. [ 62 ] Given the difficulty in either country of defining the line between pornography and protected speech and of determining whose definition to apply and given the importance of the concept of freedom of speech in both countries, regulation of computer­mediated speech should be considered with the greatest care.

The Japanese approach may suffer, however, from the weakness of the administrative guidance supporting it. It may leave the Internet's development vulnerable in Japan because of too little rather than too much regulation. If the Ethical Codes are perceived to be largely meaningless, cyberspace in Japan may early become dominated by discourse and images that make many shy away and thus hinder the development of computer networks' useful features.

It should also be noted with respect to the Japanese approach of "voluntary" compliance supported by administrative guidance, that where the strategy is truly coercive, it can be very problematic, especially in the context of regulation of speech. Because guidance can be coercive even where there is no clear legal basis for the bureaucracy's assertion of authority, and because guidance typically does not take the form of formal acts subject to judicial review, it may operate to "chill" speech that should be fully protected. And given its extralegal nature, the guidance cannot be challenged in court in the way that the legislative response of the U.S. can be. For example, while Japan's approach to dial-a-porn was successful in that it substantially limited its proliferation and exposure to minors, for Content Providers who believed their programming should not have been essentially blocked from wide market access, there was no legal recourse. [ 63 ]

B. An Alternative Approach -- Parental Responsibility


Rather than either the formal legislative approach of the U.S. or the informal, "voluntary" approach of Japan, we think the problems presented by the technology that allows for the Internet and related phenomena should themselves be handled by technology. Cyberporn should primarily be controlled by encouraging the development of technology which enables parents to control and limit children's access to objectionable content. The interactive nature of the computer communications makes this approach possible. In using a linked computer, one has to act in order to receive messages or access Web pages and all incoming and available information is, or can be, marked with a header to identify the sender and intended recipient and to classify it. [ 64 ] Accordingly, techniques already exist, and can be further developed to give computer users the ability to control the type of information to which they are exposed. Furthermore, to the extent people must provide their age to establish an online account, technology is beginning to become available to allow creators of web pages to block access by minors.

Concern in the industry has already driven the development of a labeling and selection platform that offers great promise, the Platform for Internet Content Selection ("PICS"). In the past, blocking software could not process the labels provided with competing programs. PICS, however, establishes standardized label formats, technical specifications, and rating systems so that PICS­compatible programs may read labels from any source. In February of 1996, the Recreational Software Advisory Council launched an objective, content­labeling advisory system for the Internet, RSACi, which is compatible with PICS. Since PICS­based software can be set to block access to unrated sites, [ 65 ] if senders of information want minors to view their Web sites, they will be motivated to obtain ratings.

Parental control features also are available to protect minors. In the U.S., the three dominant commercial online services, such as America Online ("AOL"), Prodigy, and CompuServe, have parental control features in their services which are available to all subscribers without additional charge. For example, AOL allows parents to block private E­mail, access to and from particular screen names, and access to interactive discussion forums (chat rooms) and conference rooms. [ 66 ] Further, AOL enables parents to partially or entirely block access to Usenet groups, that come from outside of AOL (via the Internet) and thus are not subject to its terms of service. [ 67 ] These parental control features can only be modified by the master account holder.

For families that have direct access to the Internet (i.e., through other than a commercial online service), screening software such as SurfWatch or Cyberpatrol is available. Some such programs are compatible with and can run in addition to the parental control features offered by the commercial services. CompuServe and AOL have adopted Cyberpatrol and Surfwatch, respectively, free of charge, and these programs are available to non­subscribers at moderate prices. Moreover, schools can use server based technologies such as Netscape Proxy Server to prevent their pupils from accessing inappropriate content. [ 68 ]

Rating systems and blocking features have the virtue of not subjecting everyone to the same (and perhaps the most strict) standards. What parents feel is appropriate for their children varies from family to family, and, within broad bounds (for instance, the broad though not complete discretion parents exercise with respect to disciplining their children), we believe these decisions should be left to each family to decide.

Just as parents should be given freedom to determine what content to allow their children to access, we think Network Service Providers should have freedom to choose their terms of service. Some companies will choose not to exercise control over the information that flows over their networks. On the other hand, some Network Service Providers can be expected to adopt a "pro family" approach in order to attract the family market. For example, Prodigy is well-known for encouraging civility among its members and it allows system administrators to screen out offensive language. [ 69 ] CompuServe promptly deletes any obscene or illegal messages, and, if members complain that particular messages are offensive, it will often remove them. Those that repeatedly violate its terms of service can lose their memberships. [ 70 ]

Recently, an adult harassed minors in an AOL "Kids Only" chat room by sending to several children an E-mail with an attachment containing obscene material. Once notified, AOL traced the file back to the sender, terminated the account, and began working with law enforcement officials to investigate the incident. [ 71 ] Other commercial online service companies are less restrictive, but still forbid users from using their networks to violate law. [ 72 ]

Some argue that measures like the CDA are needed precisely in order to provide a powerful incentive for rating, blocking and other technological solutions to be developed and implemented. We disagree. In addition to genuine concern for children's welfare and the sales potential of software and systems designed to protect children, we think the mere threat of regulation supplies sufficient encouragement to most Network Service Providers and content providers. [ 73 ] Moreover, to the extent achievable technologies are not being implemented, the regulating response should be to mandate use of the technologies rather than to criminalize a class of speech when there is no consensus about what speech falls within the class. [ 74 ]

Technological solutions are, of course, not perfect. "Hacker" children may find their way to forbidden content (perhaps motivated at least as much by the technological challenge as by the pornography itself) and some rogue suppliers of content may for temporary periods find means of overriding some checks built into systems. Such cases would exist, though, under even a very strict system of potential criminal and civil liability.

Conclusion


Protecting children from accessing pornography in cyberspace is a legitimate concern. To achieve this purpose, the U.S. enacted special legislation to control the content of cyberspace communications by imposing potential liability on Network Service Providers and users. However, this approach is very problematic given the lack of consensus about what speech to permit and what speech to punish. The U.S. approach is also likely to lead to protracted litigation that stymies rather than encourages reasonable resolution of the problem of how to protect children from cyberporn. On the other hand, the "voluntary" approach in Japan that places all responsibility for online contents on network users and absolves Network Service Providers may do little to constrain the most controversial features of networked computer communications. Moreover, relying upon extralegal administrative guidance creates a dangerous precedent in the field of speech, where truly coercive government action should be subject to judicial review in order to help preserve free speech.

Whether to access cyberspace and how to do so are individual decisions, subject to individuals' free choice. User control based on blocking software, content labeling systems, and voluntary monitoring by Network Service Providers offers a better solution because these technologies are less restrictive against constitutionally protected communications. New legislation is not necessary when existing law can be applied to the most extreme cases; new technological development is necessary and should be supported and encouraged.

In June 1996, as this article was being completed, the U.S. district court in Pennsylvania in ACLU v. Reno ruled that the CDA was unconstitutional on its face. 1996 U.S. Dist. LEXIS 7919 *203. The court based its ruling on the global and decentralized nature of the Internet, its unique nature as a forum for "worldwide human communication", not passive but rather active access to networks, and dissemination of blocking technology. Also, the U.S. district court in New York granted a preliminary injunction against the prosecution, under the CDA, of the display of sexually explicit material that is "patently offensive" by contemporary community standards. The reason was that the technology by which most content providers could avail themselves of the good faith defense and the access-restriction defense were not currently feasible. (SHEA v. RENO, 1996 WL 421439 (S.D.N.Y.)) (The government is trying to appeal both cases to the U.S. Supreme Court.) Further, in June 1996, the U.S. Supreme Court held that a content restriction on commercial cable TV programming was unconstitutional (violating the First Amendment). (Alliance for Community Media et al. v. FCC 1996 U.S. LEXIS 4261.) Section 10(b) of the Cable Television Consumer Protection and Competition Act of 1992 required commercial cable system operators to place "patently offensive" leased channel programming on a separate channel, to block that channel from viewer access, and unblock it upon subscribers' written request. The U.S. Supreme Court held that the provision has speech-restrictive effects on viewers but was not appropriately tailored, while less restrictive alternatives such as lockboxes and V-chips existed, to protect children from exposure to patently offensive sex-related material. These court decisions seem to support our argument that the development of blocking technology should be encouraged instead of the CDA-type legislation.]

Footnotes


  1. Anne W. Branscomb, Internet Babylon? Does the Carnegie Mellon Study of Pornography on the Information Superhighway Reveal a Threat to the Stability of Society?, 83 GEO.L.J. 1935,1954-55 (1995) (hereinafter "Branscomb, Internet Babylon"); Yoichi Higuchi et al., CHUSHAKU NIHONKOKU KENPOH Vol. 1 (1984) at 473; E.g., in Japan Keishu (No. 8) 785 (Sup. Ct., Sept. 19,1994) (affirming constitutionality of a local ordinance for youth protection that prohibits vending machine sales of certain pornography-pictures featuring nudity or parties involved in sexual intercourse--though the ordinance limits distribution not only to children but also to adults).
  2. On the experience in the U.S., see Michael K. Kellogg et al., FEDERAL TELECOMMUNICATIONS LAW, at 780 (1992) (hereinafter "Kellogg et al.").
  3. In Japan, the age of majority is twenty years of age but for the purposes of this paper the term "minors" will be used interchangeably to describe non-adults in the two countries.
  4. 47 C.F.R. § 64.201(1984).
  5. 749 F.2d 113,121 (2d Cir. 1984).
  6. 47 C.F.R. § 64.201(1985).
  7. Carlin Communications v. FCC, 787 F.2d 846, 847 (2d Cir. 1986).
  8. 47 C.F.R. § 64.201(c)(1987).
  9. Carlin Communications v. FCC, 837 F.2d 546, 556, and 561 (2d Cir. 1988).The established law is that, while the First Amendment to the U.S. Constitution does not protect "obscene" materials, "indecent" materials enjoy some First Amendment protection. This distinction means that obscene materials can be banned but indecent materials can be only regulated. Cavasis and Morin, CYBERSPACE AND THE LAW. 93, 97 (1994). The U.S. Supreme Court held in FCC v. Pacifica Found., 438 U.S. 726 (1978), that the FCC could regulate an "indecent" radio broadcast. However, the Carlin III court distinguished the case from Pacifica because a public radio broadcasting was far more intrusive and uncontrollable than individual telephone calls made at the initiative of the caller. 837 F.2d at 560.
  10. 749 F.2d 113,121 (2d Cir. 1984).
  11. 492 U.S. 125, 131 (1989).
  12. Id. at 127-8. The other reason for the distinction was that the Pacifica case did not involve a total ban on broadcasting indecent material but channeling it to some certain times when children would be less likely to be exposed.
  13. 43 U.S.C. § 223.
  14. For details of Dial Q2, see 1036 JURISTO 101(1993); 64 HORITSUJIHOO (No. 5) 8, (No. 6) 90, (No. 7) 74, and (No. 9) 59 (1992).
  15. See, Minpo (Civil Code) § 1(2), "The exercise of rights and performance of duties shall be carried out in accordance with principles of good faith and trust."
  16. No.H.3 (ha) 4746 (Osaka Kansai. Feb. 24,1993)1463 HANJI 116; No.H.3 (Wa) 1425, 3928 and 5723 (Osaka Dist. Ct., Mar. 22,1993)146 HANJI 116; No.H.3 (wa) 465 (Fukuoka Dist. Ct., Kokura Branch, Sept. 28,1993).
  17. NTT had expressed concern that its activities could constitute illegal censorship. Commentators Shimizu and Maruyama, however, take the position that there could be no censorship because NTT is a private company, not the government. Shimizu and Maruyama, vol.6 HORITSUJIHOO 90 (1992).
  18. Interview with Mr. T (name withheld to protect confidentiality) of NTT via E-mail in January and February of 1996.
  19. Michael K. Young, Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan, 84 COLUM. L. REV. 923, 926 (hereinafter "Young").
  20. Id. at 952.
  21. For an excellent discussion of Japanese administrative procedure law, and its application in a well-publicized guidance situation, see Frank Upham, Privatizing Regulation, The Implementation of the Large-Scale Retail Stores Law, Political Dynamics in Contemporary Japan, pp. 264-294, (Gary D. Ailison and Yasunori Sona, eds., Ithaca Cornell University Press, 1993).
  22. Asahi Shinbun, May 26 1991, at 30; Nikkei Ryutsu Shinbun, May 16,1991, at 1.
  23. Id.
  24. Pub. L. No. 104-104, 110 Stat. 56 (1996). In addition, as of July 1995, six states had already passed legislation to regulate pornography in cyberspace, while others were considering it. See, Jared Sandberg, Regulators Try to Tame the Untamable On-Line World, WALL ST. J., July 5, 1995, at B1.
  25. 47 U.S.C. § 223 (a)(1), (a)(2), (d)(1), and (d)(2) (1996) (as amended by the Telecommunications Act of 1996 § 502). The penalties under the CDA include imprisonment for up to two years and fines up to $250,000 for each violation.
  26. 47 U.S.C. §§ 223 (h), 230 (e)(2) (as amended by the Telecommunications Act of 1996 § 502).
  27. Derived from 47 U.S.C. § 223 (e) (as amended by the Telecommunications Act of 1996 § 502).
  28. The "Good Samaritan" defense further protects interactive computer service providers by providing that, "[N]o 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." Protecting providers from liability as a publisher is important because under current defamation law publishers are held to a higher civil liability standard than mere distributors. In Stratton Oakmont, Inc. v. Prodigy Serv. Co., 1995 N.Y. Misc. LEXIS 229 ( N.Y. Sup. Ct. 1995), New York Supreme Court, which is a state district court, held Prodigy liable, as a publisher, for damages caused by an unidentified individual's defamatory posting on Prodigy's online bulletin board. In Prodigy's case, precisely because it (i) made efforts to screen out offensive materials, (ii) published content guidelines for users, and (iii) warned that improper messages would be removed from its bulletin board, the court held it responsible for defamatory content that was posted but not deleted by Prodigy. The CDA's "Good Samaritan" defense appears intended to abolish the disincentive to undertake screening efforts created by the Prodigy holding.
  29. Telephone interview with Mr. Bruce Taylor, President and Chief Counsel of National Law Center of Children and Family (Aug. 28, 1996).
  30. Id.
  31. Miller v. California, 413 U.S. 15, 32-34 (1973).
  32. For details of this issue, see, Branscomb, Internet Babylon at 1992-94. The scenario is not simply hypothetical. In United States v. Thomas, No. 94-6648/6649 (6th Cir. 1996), a local jury in Tennessee, applying local standards, convicted Amateur Action Bulletin Board in California of distributing "obscene" materials in violation of federal obscenity laws 18 U.S.C. §§ 1462, 1465 and so on. The Sixth Circuit affirmed the conviction. For details of this case, see, Branscomb, Internet Babylon at 1947-48.
  33. Jared Sandberg, Regulators Try to Tame the Untamable On-Line World, WALL ST. J., July 5, 1995, at B1.
  34. Jared Sandberg, Regulators Try to Tame the Untamable On-Line World, WALL ST. J., July 5, 1995, at B1.
  35. The Telecommunications Act of 1996 Section[mark] 561(b)
  36. And note that if good faith is very easy to establish, the CDA will be almost meaningless with respect to network providers.
  37. Article 175 of the Criminal Code Law No. of 45 (1908) provides:
    A person who distributes or sells and obscene [waisetsuna] writings, pictures, or other objects or who publicly displays the same, shall be punished with imprisonment at forced labor for not more than two years or a fine of not more than disregard yen or a minor fine. The same applies to a person who possesses the same for the purpose of sale. The constitutionality of Article 175 of the Criminal Code and the relevant standard by which to judge obscene materials has been argued in light of Japan's Constitutional guarantee of freedom of speech under Article 21. In Lady Chatterley's Lover (1957) 11 Keishu (No. 3) 997 (Sup. Ct., G. B. Mar. 13, 1957), Japan's Supreme Court upheld the constitutionality of Article 175 and its application in the instant case based on "the public welfare" language found in Articles 12 and 13 of the Constitution. A Japanese novelist had translated D. H. Lawrence's "Lady Chatterley's Lover" from English into Japanese, and the translation sold well. Later, the novelist and the publisher of the translation were charged with violating Article 175 of the Criminal Code. In deciding the case, the Supreme Court stated that human rights guaranteed by the Constitution were not absolute but subject to the public's welfare, which included the maintenance of a minimum standard of morality concerning sexuality, and that freedom of speech, while essential to democratic government, received the same limitation. Lawrence W. Beer, FREEDOM OF EXPRESSION IN JAPAN 335, 347 (1984).
  38. Whether the representative of Alpha Net was indicted has not been reported. A prosecutor must indict a suspect within twenty-three days, at the latest, after an arrest.
  39. AERA June 17, 1996, at 10. The authors are not aware of whether the conviction has been appealed.

    It should be noted that in addition to Japan's Criminal Code, the Customs Standards Law and local youth protection ordinances function to regulate pornographic material. Under the Customs Standards Law, Japan prohibits or restricts (for example, requesting cuts or use of obscuring technology in foreign­produced films) the import of "written material and pictures harmful to public order and public morals," including materials defined as obscene by the Customs Bureau. To date, no case in Japan has been reported involving violation of the Customs Standards Law by use of the Internet.

  40. Nihon Keizai Shinbum, Sept. 7, 1993.
  41. See supra note 28. In attending since 1993 a consortium of parties interested in networked communications (see infra note 41), the author (Hirose) observed many fearful references to the Prodigy case.

    There has already been one Prodigy-like case in Japan. Nifty was sued for defamation based on content originating from users when it failed to remove allegedly defamatory statements located on one of its Forums. On April 21, 1994, a subscriber to Nifty filed a defamation lawsuit against Nifty, a system operator (Sysop) of the newsgroup (Forum) at issue, and a Nifty subscriber who has the ID number attached to the alleged defamatory statements in Tokyo District Court . According to the complaint, about 170 defamatory statements stating the plaintiff was an illegal alien and threatened others by using their privacy were posted on several Forums since late 1993. Some Sysops deleted the postings by judging them defamatory. However, the defendant Sysop kept them except some that the plaintiff requested him to delete through her lawyer. The plaintiff alleged that Nifty did not reveal the name and address of the subscriber posting the statements and caused more damages to the plaintiff. (Asahi Shinbun article database/G­Search 00001 (T940422M35­­02)). Nifty reportedly asserts that it leaves the daily operation of Forums under each Forum-operator's control and is responsible only for the general instructions it gives to Forum-operators, but not for each decision made by them.

    This case resembles a defamation suit in the U.S., Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991). In this case, CompuServe had contracted with an independent company, Cameron Communications, Inc. ("CCI"), to let CCI "manage, review, create, delete, edit and otherwise control the contents" of a journalism forum (consisting of BBS, interactive online conferences, and topical databases) in accordance with editorial and technical standards and conventions of style established by CompuServe. A newsletter called "Rumorville" was available in the journalism forum. The plaintiff sued CompuServe and the head of the publisher of Rumorville for defamation. Whether the alleged statement about the plaintiff in Rumorville was defamatory was not at issue in this particular case. The contract between CCI and DFA stated that DFA accepted responsibility for the contents of Rumorville. The court held CompuServe not liable because it, as a distributor, had little or no editorial control over the contents of Rumorville, nor had been aware of any complaints about the contents of the Rumorville publication. Id. at 135, 138, and 140-41.

    The above Nifty's thinking may explain the recent change of Nifty's terms of services. Up to the July 1, 1995 version, Nifty's terms of services stated that forum contents would be checked and deleted without users' consent if the content is against good social moral (for example, obscene materials), defamatory, copyright infringement, invasion of privacy, others, and inappropriate by Sysops' judgment. In April 1, 1996 version, it is simplified to "Nifty or Sysops can delete messages on forum when they consider them inappropriate."

    This lawsuit against Nifty has not been resolved. Though the outcome of Nifty's defamation suit may give some hint to the liability issue in general, Japanese companies in the computer communications business must play it by ear for a while. In April 1996, a user who posted obscene materials on the Internet in Japan was ruled guilty of violation of Article 175 of Criminal Code. (See supra note 36.) To date, no Network Service Provider has been reported to be arrested for this offense.

  42. The Consortium was established in October 1992 to promote the development of personal computer networks. As of February 1996, the Consortium consisted of 96 corporations, some experts in the field, and 52 local authorities interested in the use of public purpose networks. The Consortium's president is Tadahiro Sekimoto, Chairman of NEC, one of Japan's leading electronics manufacturers.
  43. The Consortium was said to mention its intention to curb MPT's move in a meeting with a user group which was campaigning against the Ethical Codes (see infra). URL: http://www.toyama-u.ac.jp/~ogura/another_world/censor/44trsc.html.
  44. In Japanese the "Denshi Network Unei-niokeru Rinri Koryo."
  45. In Japanese the "Pasocon Tsushin Service-o Riyoosuru Kata-heno Ruru ando Manah."
  46. These are provisions that are typically in conflict, and thus must be balanced, in freedom of speech cases.
  47. The Users' Code also provides practical advice for network users, such as concerning password management and protection against computer viruses.
  48. Uneikijun 1-2 and 2-1, Denshi Network Unei-niokeru Rinri Koryo of The Electronic Network Consortium, Feb. 16, 1996.
  49. New Media Kaihatsu Kyokai.
  50. Martin Fransman, JAPAN'S COMPUTER AND COMMUNICATIONS INDUSTRY 361 (1995).
  51. Though the Japan Internet Association exists as an association of direct Internet access providers, most access providers do not belong to it.
  52. http://www.toyama-u.ac.jp/~ogura/another_world/censor/netrin1.html. There are many mailing lists that serve discussions on the issue and campaign against the Ethical Codes. Even some key figures in the Internet industry, such as Toru Takahashi, Secretary General of the Japan Internet Association, publicly cast doubt on the content of the Ethical Codes in newspaper articles. Yomiuri Shinbun, Mar. 20, 1996, at 8.
  53. CompuServe to Revamp Services, Change Prices Before Rival Microsoft's Launch, WALL ST. J., Aug. 2, 1995 at B3. This is far smaller than the cable TV penetration of TV households (nearly all households): 60 %. While a monthly fee and access charges can be similar to cable TV charges, necessary requirements (e.g., a PC with a high­resolution display and a larger memory) is costly, at least $1,500­2,000. Another source shows the number of subscribers as follows:

    Technology Number of Users (million)
    Internet 30-40 (international)
    CompuServe 2.7
    America Online 2.3
    Prodigy 2.0

              Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1782. (Dec. 1994).
  54. The CommerceNet/Nielsen Internet Demographics Survey, Oct. 30, 1995. The sample included persons aged 16 and above.
  55. Id. Direct access in this survey means a connection through an Internet service provider or via an employer's direct access to the Internet; it excludes connection via a commercial on­line service. According to another survey, the percentages of the U.S. population that used the Internet (for other than E-mail) and the World Wide Web during the past three months' period when the above survey was conducted in 1993 were 11% and 8%, respectively. URL: http://www.commerce.net/work/pilot/nielsen_96/exec.html.
  56. While in the U.S. the Internet was originally a government system that was later opened to research institutions and then to the general public, in Japan the Internet has developed primarily through a grass-roots movement. A scholar with the passion of a classic hacker connected the information systems of three universities in 1984. The system then gradually expanded through the experiments of various enthusiasts. Jun Murai, INTERNET 136-159 (1995).
  57. Nifty Serve no Ayumi, at 3.
  58. Nikkei Shinbun, Feb. 9, 1996, at 12. Japan's total population is about half of that of the U.S.
  59. "Many computer users agree that it is too early to begin drafting laws regulating behavior on electronic networks, because we are not sure what this new form of electronic communication really is or what its potential might be." Anne W. Branscomb, WHO OWNS INFORMATION? (1994) (hereinafter "Branscomb, Information").
  60. Branscomb, Information at 105.
  61. Id. at 97-8.
  62. The U.S. also applied existing criminal law to behavior on computer networks. For example, 18 U.S.C. §1465 punishes transportation of obscene matters for sale or distribution in interstate commerce or foreign commerce. The U.S. Air Force Court of Criminal Appeals affirmed the conviction of a colonel who transmitted child pornography and indecent materials via America Online. U.S. v. Maxwell, 42 M.J. 568 (1995). Also, see, U.S. v. Thomas (6th Cir. 1996) in supra note 32. However, the U.S. further legislated the CDA as stated above
  63. See, Young at 958 and 960 for a discussion of this type of problem in another context.
  64. Jerry Berman and Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YALE L.J. 1619, 1632 (1995).
  65. Telephone interview with Mr. Bruce Taylor (Apr. 19, 1996).
  66. America Online's Parental Control Center 95-09-13 version. This can be found, using the key word "parental control" in AOL.
  67. America Online's Parental Control features regarding Newsgroups as of April 17, 1996.
  68. Part II, Interactive Working Group Report to Senator Leahy, Parental Empowerment, Child Protection, & Free Speech in Interactive Media, Jul. 24, 1995. The report is available from Center for Democracy and Technology, 1634 I St., NW #1100, Wasington, D.C. 20006, tel 202-637-9800..
  69. Benjamin Wittes, Law in Cyberspace; Witnessing the Birth of a Legal System on the Net, LEGAL TIMES, Jan. 23, 1995 via LEXIS.
  70. Branscomb, Information at 103.
  71. Letter to members from Steve Case, CEO of America Online dated Mar. 19, 1996. AOL now recommends that when a child receives E­mail with an attached file from an unknown person, the child should check them with a parent and forward the E­mail to AOL's staff to be reviewed. If it does not violate AOL's terms of service, the staff will return the E­mail to the child for the child's reading.
  72. Supra note 68.
  73. The lack of such a clear threat to date in Japan may in part explain why blocking and screening technologies are not as well developed in Japan, but this may simply reflect Japan's general lag behind the U.S. in development of networked communications.
  74. Extreme cases can be handled in both the U.S. and Japan under existing laws concerning child pornography, corruption of minors. etc.


About the Authors


     Rieko Mashima is an attorney with the firm of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C., specializing in intellectual property law. She received her LL.M. (Master of Laws) degree from Harvard Law School in 1992, and was a Visiting Researcher there from 1994 to 1995. The High Technology Law Journal published her article, "The Turning Point of Japanese Software Companies -- Can They Proceed to Prepackaged Software Business in an Era of Hardware Downsizing and Open Systems?" in April 1996. She holds an LL.B. degree from the University of Tokyo. Before coming to the United States she worked as an in-house counsel of a large software company and served on the drafting committee of the Japanese Agency of Patents as the representative of the Japanese software companies.

     Katsuya Hirose is Professor of Public Policy and Public Administration in the Political Science Department of Hosei University, Tokyo. He received both his M.A. and Ph. D. from the University of Tokyo, in Political Science. Currently he is a researcher at the Institute for Public Management at Hosei Universit and also a Research Scholar at the London School of Economics and Political Science. Two recent publications are Information Technology and Public Administration (1994) and How Internet Changes the World (1996).