Regulatory Restrictions

1
Regulatory Restrictions

• Basic conflict
• Operate as a open information web and network
• Public commons concept
• Operate as a network of privately owned sites
• Rely on property and self-interest to drive
  innovation and value
• Clouded by analogies real estate or public
  assets
• Stakes rise as becomes more central to life

2
Openness and Regulation

• Access Now case Southwest Airlines online
• Title III, Am. with Disabilities Act
• No individual shall be discriminated against on
  the basis of disability in the full and equal
  enjoyment of the goods, services, facilities,
  privileges, advantages, or accommodations of any
  place of public accommodation by any person who
  owns, leases (or leases to), or operates a place
  of public accommodation
• Not arranged to enable visually impaired use of
  screen reader
• Result?

3
Why not cover more?

• Rendon case speed dialing test to qualify for
  game show was violation of Act.
• Should the coverage be extended? E.g., cover
  chatroom open to public?

4
Howard v AOL

• AOL subscribers Allege violation of
  Communications Act by making unreasonable
  charges, practices, classifications or
  regulations
• Unreasonably prejudicing some subscribers by
  favoring others
• Obligations applicable to common carrier
• Common carrier is one that "makes a public
  offering to provide communications facilities
  whereby all members of the public who choose to
  employ such facilities may communicate or
  transmit intelligence of their own design and
  choosing
• A common carrier does not 'make individualized
  decisions, in particular cases, whether and on
  what terms to deal.
• Result?

5
Enhanced vs Basic Services

• The FCC has concluded that common carriers offer
  "basic" information transport rather than
  "enhanced" services, which implicate the transfer
  and storage of information that subscribers can
  access
• "Enhanced service shall refer to services ...
  which employ computer processing applications
  that act on the format, content, code, protocol
  or similar aspects of the subscriber's
  transmitted information provide the subscriber
  additional, different, or restructured
  information or involve subscriber interaction
  with stored information. Enhanced services are
  not regulated under Title II of the Act."

6
Continued

• E-mail system
• E-mail fits the definition of an enhanced
  service-the message is stored by AOL and is
  accessed by subscribers AOL does not act as a
  mere conduit for information
• Chatroom
• Even chat rooms, where subscribers can exchange
  messages in "real-time," are under AOL's control
  and may be reformatted or edited.
• Effect right to exclude, avoidance of regulation

7
Discussion Point

• Should these be able to exclude persons because
  of what they say or terminate for minor failure
  to pay service charges
• a. A service that provides email and Internet
  access to consumers
• b. An online designed for discussion of sports
  or, alternatively, that is designed for political
  discussion.
• c. An online service to make automated payments
  of bills

8
Child Pornography Libraries

• CIPA libraries not receive funding unless "a
  policy of Internet safety for minors that
  includes the operation of a technology protection
  measure ... that protects against access" by all
  persons to "visual depictions" that constitute
  "obscenity" or "child pornography," and that
  protects against access by minors to "visual
  depictions" that are "harmful to minors."
• DC exceeds spending power because complying
  library will violate First Am.
• SCT Reverse valid exercise of spending power
• Just as forum analysis and heightened judicial
  scrutiny are incompatible with the role of public
  television stations and the role of the NEA, they
  are also incompatible with the discretion that
  public libraries must have to fulfill their
  traditional missions. Public library staffs
  necessarily consider content in making collection
  decisions and enjoy broad discretion in making
  them.

9
Not a public forum

• Internet access in public libraries is neither a
  "traditional" nor a "designated" public forum.
  First, this resource has not "immemorially been
  held in trust for the use of the public and, time
  out of mind, ... been used for purposes of
  assembly, communication of thoughts between
  citizens, and discussing public questions."
• Nor does Internet access in a public library
  satisfy our definition of a "designated public
  forum." To create such a forum, the government
  must make an affirmative choice to open up its
  property for use as a public forum.
• Library provides Internet access, not to
  "encourage a diversity of views from private
  speakers," but for the same reasons it offers
  other library resources to facilitate research,
  learning, and recreational pursuits by furnishing
  materials of requisite and appropriate quality.
• Over-blocking as an issue?

10
Ashcroft vACLU

• COPA criminal penalties for the knowing posting,
  for "commercial purposes," of World Wide Web
  content that is "harmful to minors." 231(a)(1).
  
• Material "harmful to minors" is
• "any communication, picture that is obscene or
  that--
• "(A) the average person, applying contemporary
  community standards, would find, taking the
  material as a whole and with respect to minors,
  is designed to appeal to, or is designed to
  pander to, the prurient interest
• "(B) depicts, describes, or represents, in a
  manner patently offensive with respect to minors,
  an actual or simulated sexual act or sexual
  contact, an actual or simulated normal or
  perverted sexual act, or a lewd exhibition of the
  genitals or post-pubescent female breast and
• "(C) taken as a whole, lacks serious literary,
  artistic, political, or scientific value for
  minors."

11
Held invalid

• Content regulation that extends beyond pure
  obscenity
• Invalid if less restrictive
• Blocking and filtering software is an alternative
  that is less restrictive than COPA, and, in
  addition, likely more effective as a means of
  restricting children's access to materials
  harmful to them.
• First, a filter can prevent minors from seeing
  all pornography, not just pornography posted to
  the Web from America.
• In addition, verification systems may be subject
  to evasion and circumvention, for example by
  minors who have their own credit cards.
• Finally, filters may be more effective because
  they can be applied to all forms of Internet
  communication, including e-mail, not just
  communications via the World Wide Web.

12
How achieve?

• Require use?
• No.
• Solution? Encourage
• Solution? Require available?
• Texas statute requiring providing of filtering or
  access information for it
• Breyer
• Balance
• filers are not an alternative