Concluding Thoughts On The Semester

This class proved to be as thought provoking as I imagined it would be.  Two things surprised me:

First - as adult citizens, we have an incredible amount of freedom when it comes to the First Amendment.  We are free to speak our mind with very few limits.  We can defame others, or incite violence, but, relatively speaking, anything else goes.

Second - For as much freedom as we have on the Internet, it could be gone in a heartbeat.  What concerns me the most about the First Amendment in the Digital Age for the future is the vast amount of discretion the private ISP's have.  If these companies wanted, they could severely curtail our freedom of speech.

This is certainly an interesting dichotomy.  It is my hope that we take action to ensure the Internet remains a protected forum for the free expression of speech.

".xxx" Domain Name Approved

On March 18th, the ICANN (the organization that manages domain names) approved the new .xxx domain name.  Starting this summer, the ICM will begin selling the domain name to adult entertainment companies. In other words, playboy.com will be able to create a new website called playboy.xxx.

At this point, the domain name is completely voluntary.  Some, however, fear that the domain name might become mandatory.  Surprisingly, both religious conservative groups and pornography distributors are in agreement against the new domain name.  Religious groups worry the new domain name will legitimize adult entertainment.  Pornographers worry their content will be easily blocked and filtered by other governments, and private organizations.

This new domain name was the focus on my paper.  I essentially argue the new domain name is a bad idea, and any attempt to make the domain mandatory would violate the First Amendment.  The domain name would only apply to pornographers, and therefore would not be content-neutral.  As such, because the regulation would be content-based, it would not survive strict scrutiny.

House Republicans Pass Bill To Repeal Rules On Net Neutrality

On April 11th, House Republicans passed a bill to repeal the rules set forth by the FCC regulating Net Neutrality.  The Republicans argued the FCC lacked authority to promulgate the rules regarding Net Neutrality.  According this article, the vote passed in the House largely among party lines.  The Senate is not expected to pass the bill.

Also challenging the FCC regulation has been Verizon.  In fact, most of the large ISP's would prefer not to be regulated.  As we've discussed in class, this seems to be an instance where a little regulation would ensure a lot of freedom for users.  I've come to the conclusion that, although currently provided by private companies, the Internet is a public resource, which should be regulated in a manner which benefits the public as much as possible.

By ensuring users can access all content without discrimination, the FCC can ensure all users are able to enjoy the Internet for whatever purpose they see fit.

Leahy: 1st Amendment Protects Speech, Not Theft

Senator Leahy has announced he will be introducing a new bill to combat online piracy.  According to this article, he stated, "There's no First Amendment right that protects thieves. It protects speech." 


Now, at the start of the article, I pretty much agreed with Leahy's sentiment.  Despite growing up at a time when free music and videos was pretty much the norm, I can't articulate any reasonable argument that would support the piracy of copyrighted content.

Then, I read that one of the supporters of the bill was Major League Baseball (MLB).  For those who are familiar with YouTube, you may be aware that the MLB, and especially the NFL, attempt to keep their content off the site.  On the other hand, the NBA has it's own NBA channel, and actually encourages its content being posted.

In contrast to music, TV shows, or movies, there is a very small market for replays of sporting events that occurred a decade ago.  In other words, people buy CD's and DVD's that were released ten years ago; they don't pay for old sports footage.

Yet, the MLB and NFL don't want their content posted.  While this is less of a 1st Amendment argument than a good business argument, it makes little sense to suppress the dissemination of content, even if protected by copyright, if it promotes your own sport.

The Need for Privacy Reform Online

It has become clear to me, as a result of the past two readings, that there does not exist any sufficient protection for the privacy of internet users.  The privacy torts, e.g. invasion of privacy, public disclosure of private facts, false light, and defamation, are of no use to most users who fear their browsing history or other personal information may be sold or given to other public companies.  This is because the user herself publishes the information to the ISP or private website. 

Moreover, the Electronic Communications Privacy Act, the ECPA, also fails to protect users, because of its exceptions based on consent.  Additionally, the ECPA only protects content.  

Private companies, websites, and ISP's will not self-regulate themselves in a manner that will adequately protect users.  There is an enormous market for private user information.  This is one particular instance where government regulation protecting user privacy would actually protect free speech and privacy interests. 

Value of Online Anonymity

My first post of the semester questioned the social value of the ability to remain anonymous online.  Pointing to the dangers of hate speech, defamation, and copyright violation, some argue that we should have as must anonymity on the world web as we have in the "real world."  In other words, by making a statement in class or on the street, I am also making my identity known.  It follows that the same result should occur online.  Previous to this week's reading, I actually found myself somewhat persuaded by this line of thinking.

However, I have since been converted to the other side.  American history in particular has shown that anonymous speech can be extremely important to the democratic process.  If we don't provide an avenue for the expression of ideas that may be unpopular, this may result in the "chilling" of speech that the Supreme Court has so disfavored.  In other words, it is important to be able to express feelings and viewpoints without fear of social alienation, or other similar repercussions. Recognizing the danger that this lack of accountability poses, we can balance the need for insulated speech against hate speech and defamation by permitting courts to compel identification of parties in limited circumstances.

End The Analogies: The Internet Is What We Make It

When a court is faced with a new set of facts, or a situation it has not encountered before, there is a logical tendency for the court to analogize the new scenario with previous ones.  Thus, after a court announces a rule concerning search and seizure of a person’s home, it may in its next case make an analogy that an automobile should have at least some sort of protection as well.

While analogizing and distinguishing from previous principles has been a method relied on since the emergence of the common law, this method of jurisprudence fails when it comes to addressing the Internet in almost every facet. 

Let’s face it:  the Internet is not a telegraph.  It’s not a telephone.  It’s not a newspaper.  The Internet as a medium is something completely unique, which humanity has never encountered before.  The Internet can be used in almost an infinite number of ways.  Yes, it can be used as a news source, but it can also be entertainment, or a means of transferring neutral content.

As such, I believe going forward, when addressed with the plethora of legal issues that arise with both the 1st Amendment and net neutrality, we simply have go forth with the notion that the Internet is what we make it.  If we want the Internet to continue to be an implicitly democratic medium, in which all participants are able to participate and interact, then we need to be prepared to oppose regulations and attempts by private actors that would chip away at this principle. 

Let’s stop pretending that ISP’s are “like” phone companies, or that a blogger is “like” a newspaper reporter. Let’s face the reality that it is up to us, as citizens, and as members of a community, to make the Internet an embodiment of liberal and democratic ideals, and to move forth with the notion that we can become better off because of it.