A Comparative Study of Internet Content Regulations in the United States and Singapore: The Invincibility of Cyberporn Joseph C. Rodriguez ý Asian-Pacific Law & Policy Journal - - - - - http://www.hawaii.edu/aplpj Copyright © 2000 APLPJ Asian-Pacific Law & Policy Journal 1 APLPJ 9: 1 A Comparative Study of Internet Content Regulations in the United States and Singapore: The Invincibility of Cyberporn I. INTRODUCTION II. BACKGROUND A. History and Basic Structure of the Internet B. Current State of Internet Usage and Content C. Immediate Future of the Internet III. SINGAPORE A. Historical and Ideological Influences B. Evolution and Characteristics of Political Structures C. Role of Law in Singapore Society D. Modern Singapore E. Singapore Internet Policy and Regulatory Framework F. Implementation and Enforcement IV. UNITED STATES A. Philosophical Underpinnings B. Constitutional Basis and Political Structure C. Role of Law in U.S. Society D. Digital Economy E. U.S. Internet Policy and Regulatory Efforts F. Implementation and Enforcement V. ANALYSIS A. Differences in the Internet Content Regulations in the U.S. and Singapore Illustrate a Fundamental Difference in the Role of the Individual in the Two Nations B. Differences in the Internet Content Regulations Illustrate a Fundamental Difference in the Role of Law in the U.S. and Singapore VI. CONCLUSION I. INTRODUCTION In one dimly lit alley of the Internet, in an area known as newsgroups, we find among the over twenty-three thousand different newsgroups categorized by area of interest newsgroups with titles such as “alt.binaries.erotica.bestiality,” “alt.binaries.pictures.child.erotica.male,” or “alt.erotica.female.plumpers.”1 We also find that capitalism lives on as a peek inside the first category reveals a promotion for a bestiality Website2 superimposed on an image of a human 1 Internet newsgroups available via the news server <news.aloha.net> (accessed on Feb. 2, 1999). Aloha Net is a U.S. Internet Service Provider (ISP) based in Honolulu, Hawai`i. 2 A “Website” refers to a site on the World Wide Web. Asian-Pacific Law & Policy Journal 1 APLPJ 9: 2 fornicating with an unidentifiable animal. 3 A few more clicks transport us away and into one of the more heavily traveled areas of the Internet, the World Wide Web (Web). After searching for and retrieving links for cyberporn, 4 we discover that by simply clicking through various legal disclaimers in the form of hypertext links Web pages emerge with pornographic images interspersed with banners advertising various porn stars, nude teens, live sex shows, and hundreds of channels of streaming adult video.5 As one might expect, the proliferation of cyberporn has motivated some nations to regulate Internet content. Cyberporn is not the only type of content, however, that nations have chosen to regulate. Rather, in policing the Internet, some nations have prohibited content based on broad terminology, such as being against public interest or public morality, which extends government censorship well beyond cyberporn. 6 Analytically, the degree of government censorship used by each nation’s Internet regulatory approach demonstrates, for one, that the tension between an individual’s rights and the community’s interests.7 As a result of this tension, each nation’s Internet regulatory approach also reflects a nation’s perception of the role of law and the role of the individual in its society. 3 See Adult-Net: The Internet’s Most Notorious Adult Site (visited on Jan. 17, 2000) <http://www.adult- net.com> <alt.binaries.pictures.erotica.bestiality>. 4 Term commonly used to refer to pornography and to all of its various static and dynamic formats on the Internet. Simple query for ‘cyberporn’ performed by AltaVista Search Engine retrieved hypertext links to 154,360 World Wide Web (Web) pages (visited on Mar. 30, 1999) <http://www.altavista.com>. For an examination of cyberporn on the Internet, see infra notes 25-28 and accompanying text. 5 This journey began from an Internet Website containing numerous links to sexually oriented Websites, (visited on Jan. 17, 2000) <http://www.tommys-bookmarks.com>. 6 For a discussion of Internet regulations utilized by other nations, see, e.g., Steven M. Hanley, International Internet Regulation: A Multinational Approach, 16 J. MARSHALL J. COMPUTER & INFO. L. 997 (1998); Peter Knight, Recent Developments in Information Technology Law in the Asia-Pacific Region (Part II), 14 NO. 4 COMPUTER LAW . 20 (1997); Amy Knoll, Any Which Way But Loose: Nations Regulate the Internet, 4 TUL. J. INT’L & COMP. L. 275 (1996). 7 See, e.g., Jack Lee Tsen-Ta, Rediscovering the Constitution, 16 SINGAPORE L.R. 157 (1995). “The fundamental liberties in our Constitution involve a study of tensions: between an individual’s rights and the community’s interests, between the role of the judiciary on the one hand and the executive and legislature on the other.” Id. Asian-Pacific Law & Policy Journal 1 APLPJ 9: 3 Two nations with starkly contrasting degrees of government-imposed Internet content regulations are the U.S. and Singapore.8 All attempts at regulating Internet content in the U.S. have collided with staunch opposition. 9 Opponents of Internet content regulation in the U.S. argue that almost any type of regulation would restrict the free flow of information and forms of expression that are protected by the U.S. Constitution, 10 thus subverting the individualism and liberalism that has allowed the U.S. to prosper. In contrast, in 1996, Singapore enacted an elaborate administrative law framework for Internet content reflecting a more instrumentalist approach to the role of law and a lower regard for individual rights than the U.S. This paper explores the differences between the U.S. and Singaporean Internet content regulations and discusses how the differing Internet regulations are due to, and illustrate fundamental differences in, the role of law and of the individual in the respective countries. Part II provides a broad introduction to the Internet and to the various communication and information retrieval technologies available on the global network. Part III lays the foundation of the comparison by discussing the British and Chinese influences in Singapore, the evolution of 8 Though China may offer a greater polarity, Singapore is a more useful comparison for three reasons. First, Singapore’s successful transition from an agrarian to an industrial/manufacturing to a technology-based economy is a more useful model and applicable to more developed nations than China’s approach. Therefore, many countries will likely emulate Singapore’s approach to technological development and Internet regulation—especially in Asia. Second, China is erecting the cyberspace version of the Great Wall to block access to foreign Websites, (see John T. Delacourt, The International Impact of Internet Regulation, 38 HARV. INT’L L.J. 207, 215-218 (1997) (discussing China’s attempts at using Internet “firewall software” to restrict access to a limited number of government approved sites and that China envisions purely business related Internet use)), and envisions only business related Internet development. Consequently, any comparison would be short-lived. Third, Singapore’s more sophisticated technological infrastructure allows for a more insightful analysis in terms of the role that technology may serve in regulation as well as in the evolution of the Internet. 9 See Plaintiffs’ Memorandum of Law in Support of their Motion for a Temporary Restraining Order and Preliminary Injunction [hereinafter TRO Memo], ACLU v. Reno, 27 Media L. Rep. 1026 (E.D. Pa. 1998) (Civil Action No. 98-CV-5591) (“ACLU II”). Regarding ACLU I and ACLU II, see infra notes 198-205 and accompanying text. Opponents of Internet content regulation in the U.S. include a collection of individuals and entities that use the Web, including, long-established booksellers, large media companies, and online magazines. Opponents represent both general and special interests such as fine art, safer-sex materials, and gay and lesbian resources. See ACLU II TRO Memo, at 3-4. 10 See id. at 3 (arguing that “the effect of the law is to restrict adults from communicating and receiving expression that is clearly protected by the First Amendment”). See also Robert F. Goldman, Note, Put Another Log on the Fire, There’s a Chill on the Internet: The Effect of Applying Current Anti-Obscenity Laws to Online Communications, 29 GA. L. REV. 1075, 1112 (1995). Asian-Pacific Law & Policy Journal 1 APLPJ 9: 4 the political structures and role of law in Singapore, and Internet regulation in Singapore. Part IV discusses the U.S. and parallels Part III in structure. Part V explains the differences in the U.S. and Singapore Internet regimes. Finally, the conclusion comments on the future of international Internet regulation. II. BACKGROUND A. History and Basic Structure of the Internet11 Historians argue that the printing press was the greatest technological innovation of the last millennium because it enabled the spread of information and knowledge and spurred the growth of modern civilization. 12 Perceived in this respect, the Internet, a global medium of communications that connects people, institutions, and governments around the world,13 will undoubtedly transform our civilization beyond recognition. 11 For more comprehensive histories of the Internet visit the Internet Society Web page, available at <http://www.isoc.org/Internet/history> (visited on Jan. 17, 2000). 12 See Bob Davis, What was the Greatest of All Inventions? Maybe a Computer in the Next Millennium Will Answer the Question, THE WALL ST. J., Jan. 31, 1999. According to management guru, Peter Drucker, we are in the fourth information revolution, the electronic revolution, with the others being (1) writing in Mesopotamia 5,000 years ago, (2) the book in China around 1300 BC, and (3) the printing press around 1450. See The Millennium: This Millennium’s Most Influential Innovations, THE ASIAN WALL ST.