UCLA UCLA Entertainment Law Review Title Tagging or Not?--The Constitutionality of Federal Labeling Requirements for Internet Web Pages Permalink https://escholarship.org/uc/item/38q1k28v Journal UCLA Entertainment Law Review, 5(2) ISSN 1073-2896 Author Penabad, Coralee Publication Date 1998 DOI 10.5070/LR852026361 Peer reviewed eScholarship.org Powered by the California Digital Library University of California Tagging or Not?-The Constitutionality of Federal Labeling Requirements for Internet Web Pages Coralee Penabad* I. INTRODUCTION As the Internet' gains popularity with adults, so it gains popularity with children.2 Parents and social advocates are becoming increas- " I would like to thank Professor Michael Froomkin from the University of Mi- ami School of Law for his guidance and advice throughout the writing of this paper, as well as Louis Archambault for his assistance. This paper reflects technical and legal research as of June 1997. The Internet is the most well-known and largest network. See Richard Dennis, Guide to Selecting an Internet Provider, 2 ENVTL. L. 571, 572-73 (1996) (defining the Internet as a network that connects networks throughout the world, often de- scribed as "a network of networks"); A. Michael Froomkin, Towards An Internet Jurisprudence(1997) (stating that the Internet does not exist as a place but as an in- terconnection of millions of computers) (unpublished article on file with author). A network is a system consisting of any combination of computers, printers, audio, visual, display devices, or telephones interconnected by telecommunications equipment. See Ari Stainman, Shielding Internet Users from Undesirable Content: The Advantages of PICS Based Rating System, 20 FORDHAM INT'L L.J. 866, 918 n.2 (1997) (citing Anthony Cataldo, IBM Eyes Embedded Market: Hedging Against Possible Loss of Apple to Intel, ELECTRONIC BUYERS' NEWS, Mar 3, 1997, at 16). "A dedicated broadband telecommunications connection, known as the backbone, linking together host computers comprises the Internet." Id. "A dedicated connec- tion is one that is always active [and a] broadband connection is one that can trans- mit large amounts of data simultaneously." Id. Host computers are computers that maintain a connection to the backbone. These host computers are part of a network and maintain connections to other computers that in turn, maintain connections to other computers. A computer joins the network via dedicated telephone lines, or as UCLA ENTERTAINMENT LAW REVIEW [Vol 5:2 ingly concerned about children's ability to access indecent images and text on the Internet. Consequently, organizations such as Enough is Enough and The Salvation Army have supported Congress' recent at- tempt to regulate speech on the Internet3 via the Communications De- cency Act ("CDA").4 These groups seek to prevent minors from ac- is typical with user from home, through home telephones. The common feature among all participants on the Internet is their willingness to use the same transmis- sion language: Transmission Control Protocol/Internet Protocol (TCP/ICP). The re- sult is an international collection of connected computers with communication among the users. See id, at 871-75. 2 The rate of growth on the Internet has been exponential, leading Newsweek magazine to declare 1995 as the year of the Internet. See Steven Levy, The Year of the Internet, NEWSWEEK, Dec. 25, 1995, at 21. In 1981, only 213 host computers were linked on the Internet. Ten years later there were 400,000 computers and five years after that, the Internet linked over 9.4 million computers. This number contin- ues to increase rapidly. It is estimated that there are over 24 million users in North American and 50 million Internet users worldwide. See Kara Swisher, Internet's Reach in Society Grows, Survey Finds; Internet's Popularity Grows Public Survey Finds, THE WASHINGTON POST, Oct. 3, 1995, at Al. ' On December 6, 1996, the U.S. Supreme Court granted the appeal of Reno v. ACLU, 117 S. Ct. 554 (1996). On January 21, 1997, Enough is Enough, filed an amicus curiae brief in support of the appellants in this case. (visited Mar. 1. 1996) <http://www.cdt.org/ciec/SCappeal!970121_EIE brief html.> Other signatories of the brief were: Childhelp USA, Citizens for Family Friendly Libraries, Computer POWER Corporation, D/REX Investigative Consulting, Family Friendly Libraries, Focus on Family, Help us Regain the Children, JuriNet Inc., Kidz Online, Laura Lederer, J.D., Log-on Data Corporation, Legal Pad Enterprises, Inc., Mothers Against Sexual Abuse, National Association of Evangelicals, National Coalition for the Protection of Children and Families, National Council of Catholic Women, Na- tional Political Congress of Black Women, Inc., Omaha for Decency, One Voice/The American Coalition for Abuse Awareness, Oklahomans for Children and Families, Religious Alliance Against Pornography, The Salvation Army, Victims Assistance Legal Organization, Inc., Wietzman, Lenore, Ph.D., and WheelGroup Corporation. This large group of supporters is an indication of the enormous con- cern over children's access to indecent and obscene images and text on the Internet. 4 Title V of the Telecommunications Act includes the Communications Decency Act of 1996. See 47 U.S.C. § 223(a)(1)(b), (d). The 104th Congress amended the Communications Act of 1934. See 47 U.S.C. § 223 (1988 & Supp. V 1993) (Codi- fied as amended at 47 U.S.C. § 223(a)-(h) (1996)). In its effort to protect children, the CDA forbids using telecommunication devices, including computer networks, to make material deemed to be obscene and indecent available to persons known to be 1998] WEB PAGE LABELING cessing sexually explicit, degrading and offensive information on the Internet.5 In contrast, groups desiring absolute free speech protection of the Internet, such as the American Civil Liberties Union ("ACLU"), argue that the legislature's desire to regulate information dissemina- tion on the Internet to minors comes at a cost to adults, 6 and thus vio- lates the First Amendment.7 Two methods for "filtering" the Internet are "fencing in" and "fencing out." Fencing in requires setting up a "place" on the Internet that children can access which only contains material deemed appro- priate for children. Fencing out requires labeling the web pages on the Internet and using a blocking system to filter according to those rat- ings. This paper will deal solely with the "fencing-out"option of Internet labeling. Blocking or filtering access to the Internet requires two steps.8 One must first determine that an Internet address contains undesirable under the age of 18. See 141 Cong. Rec. § 9770 (July 12, 1995) (Memorandum of Opinion in Support of the Communications Decency Amendment as Adopted by the U.S. Senate on June 14, 1995 by the National Law Center for Children and Fami- lies). The CDA imposes criminal liability on anyone who uses a computer network to transmit "indecent" or "patently offensive" material, even if constitutionally pro- tected, without regard to who initiated the communication. See 47 U.S.C. § 223(a)(1)(B), (d)(1). Penalties include jail sentences of up to five years and penal- ties of up to $250,000. ' These groups and coalitions signed the amicus curiae brief filed for Reno v. ACLU. See supra note 3. 6 In response to the passage of CDA, the ACLU and John Shea, publisher of an electronic newspaper, successfully challenged the constitutionality of two provisions within § 502 that amended 47 U.S.C. §§ 223(a) and 223(d). The United States Dis- trict Court deemed CDA § 223(a)(l)(B), (a)(2) facially unconstitutional to the extent they restrict indecent communication. The court also found §223(d)(l)-(2) facially unconstitutional. See American Civil Liberties Union v. Janet Reno, 939 F. Supp. 824, 827 (E.D. Pa. 1996). Further, both Shea and the ACLU obtained preliminary injunctions against the temporary enforcement of the CDA provisions until the U.S. Supreme Court has reviewed the case. ' See American Civil Liberties Union's Supreme Court brief for Reno v. ACLU. (visited Mar. 1, 1996) <http://www.cdt.org/ciec/SCappeal/970220_brief.html.> 8 See Arman Danesh, Net Nannies Raise Protective Screens, S. CHINA MORNING POST, Oct. 29, 1996, at 2 (stating that the rating system labels content based on crite- ria such as nudity and violence); Internet Access Controls Without Censorship,PICS 358 UCLA ENTERTAINMENT LAW REVIEW [Vol 5:2 content. 9 Then one must prevent access to the content.'0 This paper proposes a statute that achieves both steps. The statute proposes that Congress grant the Federal Communications Commission ("FCC") the power to develop the technological means for labeling web pages on the Internet (step one) and the power to provide a means to block or filter the information (step two). Congress should not dictate the FCC's actions, but simply list the goals the FCC should achieve. The federal statute could read as follows: The Federal Communications Commission shall create a special com- mission to study, research, develop and mandate minimum technical standards for screening software and labeling/rating software on the Internet. The goals of the Special Internet Communications Commission shall be: 1. To provide parents a means to control what information their children receive on the Internet; 2. To balance the freedom of communication on the Internet with: a) The government's compelling interest of protecting children from in- decent or obscene material; and b) The interest of allowing parents to control what information their child has access to; 3. To develop the minimum technical standards for screening software to be implemented by parents who wish to filter the information that is received in their home; 4. To develop a means where the screening software successfully filters the information that a parent wishes to receive in the home. Thus, a rating/labeling system is necessary to successfully implement a screen- ing/filtering program.