Avoiding the Slippery Slope
To be sure, Internet users who want to block objectionable content can purchase a variety of filtering-software products that attempt to block sexual or violent content. But they are far from perfect. And though a hodgepodge of Web page rating schemes are in various stages of implementation, no universal rating system is in effect – and none is mandated – that would make filters chosen by consumers more effective.
But passing laws aimed at allowing tighter filtering – to say nothing of actually mandating filtering – is problematical. Laws aimed at blocking minors’ access to pornography, like the Communications Decency Act and Children’s Online Protection Act, have been struck down in the courts on First Amendment grounds, and the same fate has befallen some state laws, often for good reason: the filtering tools sometimes throw out the good with the bad. “For better or worse, the courts are more concerned about protecting the First Amendment rights of adults than protecting children from harmful material,” says Ian Ballon, an expert on cyberspace law and a partner at Manatt, Phelps, and Phillips in Palo Alto, CA. Pornography access, he says, “is something the courts have been more comfortable regulating in the physical world than on the Internet.” The same challenges pertain to images of extreme violence, he adds.
The Federal Communications Commission enforces “decency” on the nation’s airwaves as part of its decades-old mission of licensing and regulating television and radio stations. Internet content, by contrast, is essentially unregulated. And so, in 2004, as millions of people watched video of beheadings on their computers, the FCC fined CBS $550,000 for broadcasting the exposure of singer Janet Jackson’s breast during the Super Bowl halftime show on television.
“While not flatly impossible, [Internet content] regulation is hampered by the variety of places around the world at which it can be hosted,” says Jonathan Zittrain, codirector of the Berkman Center for Internet and Society at Harvard Law School – and that’s to say nothing of First Amendment concerns. As Zittrain sees it, “it’s a gift that the sites are up there, because it gives us an opportunity for counterintelligence.”
As a deterrent, criminal prosecution has also had limited success. Even when those suspected of providing Internet-based assistance to terror cells are in the United States, obtaining convictions can be difficult. Early last year, under provisions of the Patriot Act, the U.S. Department of Justice charged Sami Omar al-Hussayen, a student at the University of Idaho, with using the Internet to aid terrorists. The government alleged that al-Hussayen maintained websites that promoted jihadist-related activities, including funding terrorists. But his defense argued that he was simply using his skills to promote Islam and wasn’t responsible for the sites’ radical content. The judge reminded the jury that, in any case, the Constitution protects most speech. The jury cleared al-Hussayen on the terrorism charges but deadlocked on visa-related charges; al-Hussayen agreed to return home to his native Saudi Arabia rather than face a retrial on the visa counts.