ACLU v. Reno, 1996 U.S. Dist. LEXIS 7919 (E.Pa., 1996) [No. 96-963]
A three-judge panel grants a preliminary injunction barring the enforcement of the Communication Decency Act.
Judges' views in support of these conclusions
Sloviter, Chief Judge
Buckwalter, Judge
Dalzell, Judge
Before: Sloviter, Chief Judge, United States Court of Appeals
for the Third Circuit; Buckwalter and Dalzell, Judges,
United States District Court for the Eastern District
of Pennsylvania
June 11, 1996
ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION
I.
Procedural Background
Before us are motions for a preliminary injunction
filed by plaintiffs who challenge on constitutional grounds
provisions of the Communications Decency Act of 1996 (CDA or "the
Act"), which constitutes Title V of the Telecommunications Act of
1996, signed into law by the President on February 8, 1996.[1]Telecommunications Act of 1996, Pub. L. No. 104-104, 502, 110
Stat. 56, 133-35. Plaintiffs include various organizations and
individuals who, inter alia, are associated with the computer
and/or communications industries, or who publish or post
materials on the Internet, or belong to various citizen groups.
See ACLU Complaint ( 7-26), ALA First Amended Complaint ( 3,
12-33).
The defendants in these actions are Janet Reno, the
Attorney General of the United States, and the United States
Department of Justice. For convenience, we will refer to these
defendants as the Government. Plaintiffs contend that the two
challenged provisions of the CDA that are directed to
communications over the Internet which might be deemed "indecent"
or "patently offensive" for minors, defined as persons under the
age of eighteen, infringe upon rights protected by the First
Amendment and the Due Process Clause of the Fifth Amendment.
Plaintiffs in Civil Action Number 96-963, in which the
lead plaintiff is the American Civil Liberties Union (the
ACLU),[2] filed their action in the United States District Court
for the Eastern District of Pennsylvania on the day the Act was
signed, and moved for a temporary restraining order to enjoin
enforcement of these two provisions of the CDA. On February 15,
1996, following an evidentiary hearing, Judge Ronald L.
Buckwalter, to whom the case had been assigned, granted a limited
temporary restraining order, finding in a Memorandum that 47
U.S.C. 223(a)(1)(B) ("the indecency provision" of the CDA) was
unconstitutionally vague. On the same day, Chief Judge Dolores
K. Sloviter, Chief Judge of the United States Court of Appeals
for the Third Circuit, having been requested by the parties and
the district court to convene a three-judge court, pursuant to
561(a) of the CDA, appointed such a court consisting of, in
addition to Judge Buckwalter, Judge Stewart Dalzell of the same
district, and herself, as the circuit judge required by 28 U.S.C.
2284.
After a conference with the court, the parties entered
into a stipulation, which the court approved on February 26,
1996, wherein the Attorney General agreed that:
she will not initiate any investigations or
prosecutions for violations of 47 U.S.C.
223(d) for conduct occurring after enactment
of this provision until the three-judge court
hears Plaintiffs' Motion for Preliminary
Injunction . . . and has decided the motion.
The Attorney General's commitment was qualified to the extent
that:
her full authority to investigate or
prosecute any violation of 223(a)(1)(B), as
amended, and 223(d) as to conduct which
occurs or occurred during any period of time
after enactment of these provisions
(including for the period of time to which
this stipulation applies) should the Court
deny plaintiffs' motion or, if the motion is
granted, should these provisions ultimately
be upheld.
Stipulation, 4, in C.A. No. 96-963.
Shortly thereafter, the American Library Association,
Inc. (the ALA) and others[3] filed a similar action at C.A. No.
96-1458. On February 27, 1996, Chief Judge Sloviter, again
pursuant to 561(a) of the CDA and upon request, convened the
same three-judge court pursuant to 28 U.S.C. 2284. The actions
were consolidated pursuant to Fed. R. Civ. P. 42(a), "for all
matters relating to the disposition of motions for preliminary
injunction in these cases, including the hearing on such
motions."
The parties were afforded expedited discovery in
connection with the motions for preliminary injunction, and they
cooperated with Judge Dalzell, who had been assigned the case
management aspects of the litigation. While the discovery was
proceeding, and with the agreement of the parties, the court
began receiving evidence at the consolidated hearings which were
conducted on March 21 and 22, and April 1, 12 and 15, 1996. In
order to expedite the proceedings, the parties worked closely
with Judge Dalzell and arranged to stipulate to many of the
underlying facts and to place much of their cases in chief before
the court by sworn declarations, so that the hearings were
largely devoted to cross-examination of certain of the witnesses
whose declarations had been filed. The parties submitted
proposed findings of fact and post-hearing memoranda on April 29,
and the court heard extensive oral argument on May 10, 1996.[4]
Statutory Provisions at Issue
Plaintiffs focus their challenge on two provisions of
section 502 of the CDA which amend 47 U.S.C. 223(a) and
223(d).
Section 223(a)(1)(B) provides in part that any person
in interstate or foreign communications who, "by means of a
telecommunications device,"[5] "knowingly . . . makes, creates, or
solicits" and "initiates the transmission" of "any comment,
request, suggestion, proposal, image or other communication which
is obscene or indecent, knowing that the recipient of the
communication is under 18 years of age," "shall be criminally
fined or imprisoned." (emphasis added).
Section 223(d)(1) ("the patently offensive provision"),
makes it a crime to use an "interactive computer service"[6] to
"send" or "display in a manner available" to a person under age
18, "any comment, request, suggestion, proposal, image, or other
communication that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs, regardless
of whether the user of such service placed the call or initiated
the communication."
Plaintiffs also challenge on the same grounds the
provisions in 223(a)(2) and 223(d)(2), which make it a crime
for anyone to "knowingly permit[] any telecommunications facility
under [his or her] control to be used for any activity
prohibited" in 223(a)(1)(B) and 223(d)(1). The challenged
provisions impose a punishment of a fine, up to two years
imprisonment, or both for each offense.
Plaintiffs make clear that they do not quarrel with the
statute to the extent that it covers obscenity or child
pornography, which were already proscribed before the CDA's
adoption. See 18 U.S.C. 1464-65 (criminalizing obscene
material); id. 2251-52 (criminalizing child pornography); see
also New York v. Ferber, 458 U.S. 747 (1982); Miller v.
California, 413 U.S. 15 (1973).
Plaintiffs in the ACLU action also challenge the
provision of the CDA that criminalizes speech over the Internet
that transmits information about abortions or abortifacient drugs
and devices, through its amendment of 18 U.S.C. 1462(c). That
section now prohibits the sending and receiving of information
over the Internet by any means regarding "where, how, or of whom,
or by what means any [drug, medicine, article, or thing designed,
adapted, or intended for producing abortion] may be obtained or
made". The Government has stated that it does not contest
plaintiffs' challenge to the enforceability of the provision of
the CDA as it relates to 18 U.S.C. 1462(c).[7] As part of its argument that the CDA passes
constitutional muster, the Government cites the CDA's "safe
harbor" defenses in new 223(e) of 47 U.S.C., which provides:
(e) Defenses
In addition to any other defenses available
by law:
(1) No person shall be held to have violated
subsection (a) or (d) of this section solely for
providing access or connection to or from a
facility, system, or network not under that
person's control, including transmission,
downloading, intermediate storage, access
software, or other related capabilities that are
incidental to providing such access or connection
that does not include the creation of the content
of the communication.
(2) The defenses provided by paragraph (1)
of this subsection shall not be applicable to a
person who is a conspirator with an entity
actively involved in the creation or knowing
distribution of communications that violate this
section, or who knowingly advertises the
availability of such communications.
(3) The defenses provided in paragraph (1)
of this subsection shall not be applicable to a
person who provides access or connection to a
facility, system, or network engaged in the
violation of this section that is owned or
controlled by such person.
(4) No employer shall be held liable under
this section for the actions of an employee or
agent unless the employee's or agent's conduct is
within the scope of his or her employment or
agency and the employer (A) having knowledge of
such conduct, authorizes or ratifies such conduct,
or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under
subsection (a)(1)(B) or (d) of this section, or
under subsection (a)(2) of this section with
respect to the use of a facility for an activity
under subsection (a)(1)(B) that a person --
(A) has taken, in good faith, reasonable,
effective, and appropriate actions under the
circumstances to restrict or prevent access by
minors to a communication specified in such
subsections, which may involve any appropriate
measures to restrict minors from such
communications, including any method which is
feasible under available technology; or
(B) has restricted access to such
communication by requiring use of a verified
credit card, debit account, adult access code, or
adult personal identification number.
(6) The [Federal Communications] Commission
may describe measures which are reasonable,
effective, and appropriate to restrict access to
prohibited communications under subsection (d) of
this section. Nothing in this section authorizes
the Commission to enforce, or is intended to
provide the Commission with the authority to
approve, sanction, or permit, the use of such
measures. The Commission shall have no
enforcement authority over the failure to utilize
such measures. . . .
II. FINDINGS OF FACT All parties agree that in order to apprehend the legal
questions at issue in these cases, it is necessary to have a
clear understanding of the exponentially growing, worldwide
medium that is the Internet, which presents unique issues
relating to the application of First Amendment jurisprudence and
due process requirements to this new and evolving method of
communication. For this reason all parties insisted on having
extensive evidentiary hearings before the three-judge court.
The court's Findings of fact are made pursuant to Fed. R. Civ. P.
52(a). The history and basic technology of this medium are not
in dispute, and the first forty-eight paragraphs of the following
Findings of fact are derived from the like-numbered paragraphs of
a stipulation[8] the parties filed with the court.[9]
The Nature of Cyberspace The Creation of the Internet and the Development of Cyberspace
1. The Internet is not a physical or tangible entity,
but rather a giant network which interconnects innumerable
smaller groups of linked computer networks. It is thus a network
of networks. This is best understood if one considers what a
linked group of computers -- referred to here as a "network" --
is, and what it does. Small networks are now ubiquitous (and are
often called "local area networks"). For example, in many United
States Courthouses, computers are linked to each other for the
purpose of exchanging files and messages (and to share equipment
such as printers). These are networks.
2. Some networks are "closed" networks, not linked to
other computers or networks. Many networks, however, are
connected to other networks, which are in turn connected to other
networks in a manner which permits each computer in any network
to communicate with computers on any other network in the system.
This global Web of linked networks and computers is referred to
as the Internet.
3. The nature of the Internet is such that it is very
difficult, if not impossible, to determine its size at a given
moment. It is indisputable, however, that the Internet has
experienced extraordinary growth in recent years. In 1981, fewer
than 300 computers were linked to the Internet, and by 1989, the
number stood at fewer than 90,000 computers. By 1993, over
1,000,000 computers were linked. Today, over 9,400,000 host
computers worldwide, of which approximately 60 percent located
within the United States, are estimated to be linked to the
Internet. This count does not include the personal computers
people use to access the Internet using modems. In all,
reasonable estimates are that as many as 40 million people around
the world can and do access the enormously flexible communication
Internet medium. That figure is expected to grow to 200 million
Internet users by the year 1999.
4. Some of the computers and computer networks that
make up the Internet are owned by governmental and public
institutions, some are owned by non-profit organizations, and
some are privately owned. The resulting whole is a
decentralized, global medium of communications -- or "cyberspace"
-- that links people, institutions, corporations, and governments
around the world. The Internet is an international system. This
communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange
information. These communications can occur almost
instantaneously, and can be directed either to specific
individuals, to a broader group of people interested in a
particular subject, or to the world as a whole.
5. The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project Agency
("ARPA"), and was called ARPANET. This network linked computers
and computer networks owned by the military, defense contractors,
and university laboratories conducting defense-related research.
The network later allowed researchers across the country to
access directly and to use extremely powerful supercomputers
located at a few key universities and laboratories. As it
evolved far beyond its research origins in the United States to
encompass universities, corporations, and people around the
world, the ARPANET came to be called the "DARPA Internet," and
finally just the "Internet."
6. From its inception, the network was designed to be
a decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human involvement or
control, and with the automatic ability to re-route
communications if one or more individual links were damaged or
otherwise unavailable. Among other goals, this redundant system
of linked computers was designed to allow vital research and
communications to continue even if portions of the network were
damaged, say, in a war.
7. To achieve this resilient nationwide (and
ultimately global) communications medium, the ARPANET encouraged
the creation of multiple links to and from each computer (or
computer network) on the network. Thus, a computer located in
Washington, D.C., might be linked (usually using dedicated
telephone lines) to other computers in neighboring states or on
the Eastern seaboard. Each of those computers could in turn be
linked to other computers, which themselves would be linked to
other computers.
8. A communication sent over this redundant series of
linked computers could travel any of a number of routes to its
destination. Thus, a message sent from a computer in Washington,
D.C., to a computer in Palo Alto, California, might first be sent
to a computer in Philadelphia, and then be forwarded to a
computer in Pittsburgh, and then to Chicago, Denver, and Salt
Lake City, before finally reaching Palo Alto. If the message
could not travel along that path (because of military attack,
simple technical malfunction, or other reason), the message would
automatically (without human intervention or even knowledge) be
re-routed, perhaps, from Washington, D.C. to Richmond, and then
to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto. This type of transmission, and re-routing,
would likely occur in a matter of seconds.
9. Messages between computers on the Internet do not
necessarily travel entirely along the same path. The Internet
uses "packet switching" communication protocols that allow
individual messages to be subdivided into smaller "packets" that
are then sent independently to the destination, and are then
automatically reassembled by the receiving computer. While all
packets of a given message often travel along the same path to
the destination, if computers along the route become overloaded,
then packets can be re-routed to less loaded computers.
10. At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar networks developed to link
universities, research facilities, businesses, and individuals
around the world. These other formal or loose networks included
BITNET, CSNET, FIDONET, and USENET. Eventually, each of these
networks (many of which overlapped) were themselves linked
together, allowing users of any computers linked to any one of
the networks to transmit communications to users of computers on
other networks. It is this series of linked networks (themselves
linking computers and computer networks) that is today commonly
known as the Internet.
11. No single entity -- academic, corporate,
governmental, or non-profit -- administers the Internet. It
exists and functions as a result of the fact that hundreds of
thousands of separate operators of computers and computer
networks independently decided to use common data transfer
protocols to exchange communications and information with other
computers (which in turn exchange communications and information
with still other computers). There is no centralized storage
location, control point, or communications channel for the
Internet, and it would not be technically feasible for a single
entity to control all of the information conveyed on the
Internet.
How Individuals Access the Internet 12. Individuals have a wide variety of avenues to
access cyberspace in general, and the Internet in particular. In
terms of physical access, there are two common methods to
establish an actual link to the Internet. First, one can use a
computer or computer terminal that is directly (and usually
permanently) connected to a computer network that is itself
directly or indirectly connected to the Internet. Second, one
can use a "personal computer" with a "modem" to connect over a
telephone line to a larger computer or computer network that is
itself directly or indirectly connected to the Internet. As
detailed below, both direct and modem connections are made
available to people by a wide variety of academic, governmental,
or commercial entities.
13. Students, faculty, researchers, and others
affiliated with the vast majority of colleges and universities in
the United States can access the Internet through their
educational institutions. Such access is often via direct
connection using computers located in campus libraries, offices,
or computer centers, or may be through telephone access using a
modem from a student's or professor's campus or off-campus
location. Some colleges and universities install "ports" or
outlets for direct network connections in each dormitory room or
provide access via computers located in common areas in
dormitories. Such access enables students and professors to use
information and content provided by the college or university
itself, and to use the vast amount of research resources and
other information available on the Internet worldwide.
14. Similarly, Internet resources and access are
sufficiently important to many corporations and other employers
that those employers link their office computer networks to the
Internet and provide employees with direct or modem access to the
office network (and thus to the Internet). Such access might be
used by, for example, a corporation involved in scientific or
medical research or manufacturing to enable corporate employees
to exchange information and ideas with academic researchers in
their fields.
15. Those who lack access to the Internet through
their schools or employers still have a variety of ways they can
access the Internet. Many communities across the country have
established "free-nets" or community networks to provide their
citizens with a local link to the Internet (and to provide local-
oriented content and discussion groups). The first such
community network, the Cleveland Free-Net Community Computer
System, was established in 1986, and free-nets now exist in
scores of communities as diverse as Richmond, Virginia,
Tallahassee, Florida, Seattle, Washington, and San Diego,
California. Individuals typically can access free-nets at little
or no cost via modem connection or by using computers available
in community buildings. Free-nets are often operated by a local
library, educational institution, or non-profit community group.
16. Individuals can also access the Internet through
many local libraries. Libraries often offer patrons use of
computers that are linked to the Internet. In addition, some
libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet.
Increasingly, patrons now use library services and resources
without ever physically entering the library itself. Libraries
typically provide such direct or modem access at no cost to the
individual user.
17. Individuals can also access the Internet by
patronizing an increasing number of storefront "computer coffee
shops," where customers -- while they drink their coffee -- can
use computers provided by the shop to access the Internet. Such
Internet access is typically provided by the shop for a small
hourly fee.
18. Individuals can also access the Internet through
commercial and non-commercial "Internet service providers" that
typically offer modem telephone access to a computer or computer
network linked to the Internet. Many such providers -- including
the members of plaintiff Commercial Internet Exchange Association
-- are commercial entities offering Internet access for a
monthly or hourly fee. Some Internet service providers, however,
are non-profit organizations that offer free or very low cost
access to the Internet. For example, the International Internet
Association offers free modem access to the Internet upon
request. Also, a number of trade or other non-profit
associations offer Internet access as a service to members.
19. Another common way for individuals to access the
Internet is through one of the major national commercial "online
services" such as America Online, CompuServe, the Microsoft
Network, or Prodigy. These online services offer nationwide
computer networks (so that subscribers can dial-in to a local
telephone number), and the services provide extensive and well
organized content within their own proprietary computer networks.
In addition to allowing access to the extensive content available
within each online service, the services also allow subscribers
to link to the much larger resources of the Internet. Full
access to the online service (including access to the Internet)
can be obtained for modest monthly or hourly fees. The major
commercial online services have almost twelve million individual
subscribers across the United States.
20. In addition to using the national commercial
online services, individuals can also access the Internet using
some (but not all) of the thousands of local dial-in computer
services, often called "bulletin board systems" or "BBSs." With
an investment of as little as $2,000.00 and the cost of a
telephone line, individuals, non-profit organizations, advocacy
groups, and businesses can offer their own dial-in computer
"bulletin board" service where friends, members, subscribers, or
customers can exchange ideas and information. BBSs range from
single computers with only one telephone line into the computer
(allowing only one user at a time), to single computers with many
telephone lines into the computer (allowing multiple simultaneous
users), to multiple linked computers each servicing multiple
dial-in telephone lines (allowing multiple simultaneous users).
Some (but not all) of these BBS systems offer direct or indirect
links to the Internet. Some BBS systems charge users a nominal
fee for access, while many others are free to the individual
users.
21. Although commercial access to the Internet is
growing rapidly, many users of the Internet -- such as college
students and staff -- do not individually pay for access (except
to the extent, for example, that the cost of computer services is
a component of college tuition). These and other Internet users
can access the Internet without paying for such access with a
credit card or other form of payment.
Methods to Communicate Over the Internet
22. Once one has access to the Internet, there are a
wide variety of different methods of communication and
information exchange over the network. These many methods of
communication and information retrieval are constantly evolving
and are therefore difficult to categorize concisely. The most
common methods of communications on the Internet (as well as
within the major online services) can be roughly grouped into six
categories:
(1) one-to-one messaging (such as "e-mail"),
(2) one-to-many messaging (such as "listserv"),
(3) distributed message databases (such as
"USENET newsgroups"),
(4) real time communication (such as "Internet
Relay Chat"),
(5) real time remote computer utilization (such
as "telnet"), and
(6) remote information retrieval (such as "ftp,"
"gopher," and the "World Wide Web").
Most of these methods of communication can be used to transmit
text, data, computer programs, sound, visual images (i.e.,
pictures), and moving video images.
23. One-to-one messaging. One method of communication
on the Internet is via electronic mail, or "e-mail," comparable
in principle to sending a first class letter. One can address
and transmit a message to one or more other people. E-mail on
the Internet is not routed through a central control point, and
can take many and varying paths to the recipients. Unlike postal
mail, simple e-mail generally is not "sealed" or secure, and can
be accessed or viewed on intermediate computers between the
sender and recipient (unless the message is encrypted).
24. One-to-many messaging. The Internet also contains
automatic mailing list services (such as "listservs"), [also
referred to by witnesses as "mail exploders"] that allow
communications about particular subjects of interest to a group
of people. For example, people can subscribe to a "listserv"
mailing list on a particular topic of interest to them. The
subscriber can submit messages on the topic to the listserv that
are forwarded (via e-mail), either automatically or through a
human moderator overseeing the listserv, to anyone who has
subscribed to the mailing list. A recipient of such a message
can reply to the message and have the reply also distributed to
everyone on the mailing list. This service provides the
capability to keep abreast of developments or events in a
particular subject area. Most listserv-type mailing lists
automatically forward all incoming messages to all mailing list
subscribers. There are thousands of such mailing list services
on the Internet, collectively with hundreds of thousands of
subscribers. Users of "open" listservs typically can add or
remove their names from the mailing list automatically, with no
direct human involvement. Listservs may also be "closed," i.e.,
only allowing for one's acceptance into the listserv by a human
moderator.
25. Distributed message databases. Similar in
function to listservs -- but quite different in how
communications are transmitted -- are distributed message
databases such as "USENET newsgroups." User-sponsored newsgroups
are among the most popular and widespread applications of
Internet services, and cover all imaginable topics of interest to
users. Like listservs, newsgroups are open discussions and
exchanges on particular topics. Users, however, need not
subscribe to the discussion mailing list in advance, but can
instead access the database at any time. Some USENET newsgroups
are "moderated" but most are open access. For the moderated
newsgroups,[10] all messages to the newsgroup are forwarded to one
person who can screen them for relevance to the topics under
discussion. USENET newsgroups are disseminated using ad hoc,
peer to peer connections between approximately 200,000 computers
(called USENET "servers") around the world. For unmoderated
newsgroups, when an individual user with access to a USENET
server posts a message to a newsgroup, the message is
automatically forwarded to all adjacent USENET servers that
furnish access to the newsgroup, and it is then propagated to the
servers adjacent to those servers, etc. The messages are
temporarily stored on each receiving server, where they are
available for review and response by individual users. The
messages are automatically and periodically purged from each
system after a time to make room for new messages. Responses to
messages, like the original messages, are automatically
distributed to all other computers receiving the newsgroup or
forwarded to a moderator in the case of a moderated newsgroup.
The dissemination of messages to USENET servers around the world
is an automated process that does not require direct human
intervention or review.
26. There are newsgroups on more than fifteen thousand
different subjects. In 1994, approximately 70,000 messages were
posted to newsgroups each day, and those messages were
distributed to the approximately 190,000 computers or computer
networks that participate in the USENET newsgroup system. Once
the messages reach the approximately 190,000 receiving computers
or computer networks, they are available to individual users of
those computers or computer networks. Collectively, almost
100,000 new messages (or "articles") are posted to newsgroups
each day.
27. Real time communication. In addition to
transmitting messages that can be later read or accessed,
individuals on the Internet can engage in an immediate dialog, in
"real time", with other people on the Internet. In its simplest
forms, "talk" allows one-to-one communications and "Internet
Relay Chat" (or IRC) allows two or more to type messages to each
other that almost immediately appear on the others' computer
screens. IRC is analogous to a telephone party line, using a
computer and keyboard rather than a telephone. With IRC,
however, at any one time there are thousands of different party
lines available, in which collectively tens of thousands of users
are engaging in conversations on a huge range of subjects.
Moreover, one can create a new party line to discuss a different
topic at any time. Some IRC conversations are "moderated" or
include "channel operators."
28. In addition, commercial online services such as
America Online, CompuServe, the Microsoft Network, and Prodigy
have their own "chat" systems allowing their members to converse.
29. Real time remote computer utilization. Another
method to use information on the Internet is to access and
control remote computers in "real time" using "telnet." For
example, using telnet, a researcher at a university would be able
to use the computing power of a supercomputer located at a
different university. A student can use telnet to connect to a
remote library to access the library's online card catalog
program.
30. Remote information retrieval. The final major
category of communication may be the most well known use of the
Internet -- the search for and retrieval of information located
on remote computers. There are three primary methods to locate
and retrieve information on the Internet.
31. A simple method uses "ftp" (or file transfer
protocol) to list the names of computer files available on a
remote computer, and to transfer one or more of those files to an
individual's local computer.
32. Another approach uses a program and format named
"gopher" to guide an individual's search through the resources
available on a remote computer.
The World Wide Web
33. A third approach, and fast becoming the most well-
known on the Internet, is the "World Wide Web." The Web utilizes
a "hypertext" formatting language called hypertext markup
language (HTML), and programs that "browse" the Web can display
HTML documents containing text, images, sound, animation and
moving video. Any HTML document can include links to other types
of information or resources, so that while viewing an HTML
document that, for example, describes resources available on the
Internet, one can "click" using a computer mouse on the
description of the resource and be immediately connected to the
resource itself. Such "hyperlinks" allow information to be
accessed and organized in very flexible ways, and allow people to
locate and efficiently view related information even if the
information is stored on numerous computers all around the world.
34. Purpose. The World Wide Web (W3C) was created to
serve as the platform for a global, online store of knowledge,
containing information from a diversity of sources and accessible
to Internet users around the world. Though information on the
Web is contained in individual computers, the fact that each of
these computers is connected to the Internet through W3C
protocols allows all of the information to become part of a
single body of knowledge. It is currently the most advanced
information system developed on the Internet, and embraces within
its data model most information in previous networked information
systems such as ftp, gopher, wais, and Usenet.
35. History. W3C was originally developed at CERN,
the European Particle Physics Laboratory, and was initially used
to allow information sharing within internationally dispersed
teams of researchers and engineers. Originally aimed at the High
Energy Physics community, it has spread to other areas and
attracted much interest in user support, resource recovery, and
many other areas which depend on collaborative and information
sharing. The Web has extended beyond the scientific and academic
community to include communications by individuals, non-profit
organizations, and businesses.
36. Basic Operation. The World Wide Web is a series
of documents stored in different computers all over the Internet.
Documents contain information stored in a variety of formats,
including text, still images, sounds, and video. An essential
element of the Web is that any document has an address (rather
like a telephone number). Most Web documents contain "links."
These are short sections of text or image which refer to another
document. Typically the linked text is blue or underlined when
displayed, and when selected by the user, the referenced document
is automatically displayed, wherever in the world it actually is
stored. Links for example are used to lead from overview
documents to more detailed documents, from tables of contents to
particular pages, but also as cross-references, footnotes, and
new forms of information structure.
37. Many organizations now have "home pages" on the
Web. These are documents which provide a set of links designed
to represent the organization, and through links from the home
page, guide the user directly or indirectly to information about
or relevant to that organization.
38. As an example of the use of links, if these
Findings were to be put on a World Wide Web site, its home page
might contain links such as those:
*THE NATURE OF CYBERSPACE
*CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE
*HOW PEOPLE ACCESS THE INTERNET
*METHODS TO COMMUNICATE OVER THE INTERNET
39. Each of these links takes the user of the site
from the beginning of the Findings to the appropriate section
within this Adjudication. Links may also take the user from the
original Web site to another Web site on another computer
connected to the Internet. These links from one computer to
another, from one document to another across the Internet, are
what unify the Web into a single body of knowledge, and what
makes the Web unique. The Web was designed with a maximum target
time to follow a link of one tenth of a second.
40. Publishing. The World Wide Web exists
fundamentally as a platform through which people and
organizations can communicate through shared information. When
information is made available, it is said to be "published" on
the Web. Publishing on the Web simply requires that the
"publisher" has a computer connected to the Internet and that the
computer is running W3C server software. The computer can be as
simple as a small personal computer costing less than $1500
dollars or as complex as a multi-million dollar mainframe
computer. Many Web publishers choose instead to lease disk
storage space from someone else who has the necessary computer
facilities, eliminating the need for actually owning any
equipment oneself.
41. The Web, as a universe of network accessible
information, contains a variety of documents prepared with quite
varying degrees of care, from the hastily typed idea, to the
professionally executed corporate profile. The power of the Web
stems from the ability of a link to point to any document,
regardless of its status or physical location.
42. Information to be published on the Web must also
be formatted according to the rules of the Web standards. These
standardized formats assure that all Web users who want to read
the material will be able to view it. Web standards are
sophisticated and flexible enough that they have grown to meet
the publishing needs of many large corporations, banks, brokerage
houses, newspapers and magazines which now publish "online"
editions of their material, as well as government agencies, and
even courts, which use the Web to disseminate information to the
public. At the same time, Web publishing is simple enough that
thousands of individual users and small community organizations
are using the Web to publish their own personal "home pages," the
equivalent of individualized newsletters about that person or
organization, which are available to everyone on the Web.
43. Web publishers have a choice to make their Web
sites open to the general pool of all Internet users, or close
them, thus making the information accessible only to those with
advance authorization. Many publishers choose to keep their
sites open to all in order to give their information the widest
potential audience. In the event that the publishers choose to
maintain restrictions on access, this may be accomplished by
assigning specific user names and passwords as a prerequisite to
access to the site. Or, in the case of Web sites maintained for
internal use of one organization, access will only be allowed
from other computers within that organization's local network.[11] 44. Searching the Web. A variety of systems have
developed that allow users of the Web to search particular
information among all of the public sites that are part of the
Web. Services such as Yahoo, Magellan, Altavista, Webcrawler,
and Lycos are all services known as "search engines" which allow
users to search for Web sites that contain certain categories of
information, or to search for key words. For example, a Web user
looking for the text of Supreme Court opinions would type the
words "Supreme Court" into a search engine, and then be presented
with a list of World Wide Web sites that contain Supreme Court
information. This list would actually be a series of links to
those sites. Having searched out a number of sites that might
contain the desired information, the user would then follow
individual links, browsing through the information on each site,
until the desired material is found. For many content providers
on the Web, the ability to be found by these search engines is
very important.
45. Common standards. The Web links together
disparate information on an ever-growing number of Internet-
linked computers by setting common information storage formats
(HTML) and a common language for the exchange of Web documents
(HTTP). Although the information itself may be in many different
formats, and stored on computers which are not otherwise
compatible, the basic Web standards provide a basic set of
standards which allow communication and exchange of information.
Despite the fact that many types of computers are used on the
Web, and the fact that many of these machines are otherwise
incompatible, those who "publish" information on the Web are able
to communicate with those who seek to access information with
little difficulty because of these basic technical standards.
46. A distributed system with no centralized control.
Running on tens of thousands of individual computers on the
Internet, the Web is what is known as a distributed system. The
Web was designed so that organizations with computers containing
information can become part of the Web simply by attaching their
computers to the Internet and running appropriate World Wide Web
software. No single organization controls any membership in the
Web, nor is there any single centralized point from which
individual Web sites or services can be blocked from the Web.
From a user's perspective, it may appear to be a single,
integrated system, but in reality it has no centralized control
point.
47. Contrast to closed databases. The Web's open,
distributed, decentralized nature stands in sharp contrast to
most information systems that have come before it. Private
information services such as Westlaw, Lexis/Nexis, and Dialog,
have contained large storehouses of knowledge, and can be
accessed from the Internet with the appropriate passwords and
access software. However, these databases are not linked
together into a single whole, as is the World Wide Web.
48. Success of the Web in research, education, and
political activities. The World Wide Web has become so popular
because of its open, distributed, and easy-to-use nature. Rather
than requiring those who seek information to purchase new
software or hardware, and to learn a new kind of system for each
new database of information they seek to access, the Web
environment makes it easy for users to jump from one set of
information to another. By the same token, the open nature of
the Web makes it easy for publishers to reach their intended
audiences without having to know in advance what kind of computer
each potential reader has, and what kind of software they will be
using.
Restricting Access to Unwanted On-Line Material[12]
PICS
49. With the rapid growth of the Internet, the
increasing popularity of the Web, and the existence of material
online that some parents may consider inappropriate for their
children, various entities have begun to build systems intended
to enable parents to control the material which comes into their
homes and may be accessible to their children. The World Wide
Web Consortium launched the PICS ("Platform for Internet Content
Selection") program in order to develop technical standards that
would support parents' ability to filter and screen material that
their children see on the Web.
50. The Consortium intends that PICS will provide the
ability for third parties, as well as individual content
providers, to rate content on the Internet in a variety of ways.
When fully implemented, PICS-compatible World Wide Web browsers,
Usenet News Group readers, and other Internet applications, will
provide parents the ability to choose from a variety of rating
services, or a combination of services.
51. PICS working group [PICS-WG] participants include
many of the major online services providers, commercial internet
access providers, hardware and software companies, major internet
content providers, and consumer organizations. Among active
participants in the PICS effort are:
Adobe Systems, Inc.
Apple Computer
America Online
AT&T
Center for Democracy and Technology
CompuServe
Delphi Internet Services
Digital Equipment Corporation
IBM
First floor
First Virtual Holdings Incorporated
France Telecom
FTP Software
Industrial Technology Research Institute of Taiwan
Information Technology Association of America
Institut National de Recherche en Informatique et
en Automatique (INRIA)
Interactive Services Association
MCI
Microsoft
MIT/LCS/World Wide Web Consortium
NCD
NEC
Netscape Communications Corporation
NewView
O'Reilly and Associates
Open Market
Prodigy Services Company
Progressive Networks
Providence Systems/Parental Guidance
Recreational Software Advisory Council
SafeSurf
SoftQuad, Inc.
Songline Studios
Spyglass
SurfWatch Software
Telequip Corp.
Time Warner Pathfinder
Viacom Nickelodeon[13]
52. Membership in the PICS-WG includes a broad cross-
section of companies from the computer, communications, and
content industries, as well as trade associations and public
interest groups. PICS technical specifications have been agreed
to, allowing the Internet community to begin to deploy products
and services based on the PICS-standards.
53. Until a majority of sites on the Internet have
been rated by a PICS rating service, PICS will initially function
as a "positive" ratings system in which only those sites that
have been rated will be displayed using PICS compatible software.
In other words, PICS will initially function as a site inclusion
list rather than a site exclusion list. The default
configuration for a PICS compatible Internet application will be
to block access to all sites which have not been rated by a PICS
rating service, while allowing access to sites which have a PICS
rating for appropriate content.[14]
Software
54. For over a year, various companies have marketed
stand alone software that is intended to enable parents and other
adults to limit the Internet access of children. Examples of
such software include: Cyber Patrol, CYBERsitter, The Internet
Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy
Server, and WebTrack. The market for this type of software is
growing, and there is increasing competition among software
providers to provide products.
Cyber Patrol
55. As more people, particularly children, began to
use the Internet, Microsystems Software, Inc. decided to develop
and market Internet software intended to empower parents to
exercise individual choice over what material their children
could access. Microsystems' stated intent is to develop a
product which would give parents comfort that their children can
reap the benefits of the Internet while shielding them from
objectionable or otherwise inappropriate materials based on the
parents' own particular tastes and values. Microsystems'
product, Cyber Patrol, was developed to address this need.
56. Cyber Patrol was first introduced in August 1995,
and is currently available in Windows and Macintosh versions.
Cyber Patrol works with both direct Internet Access providers
(ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service
Providers (e.g., America Online, Compuserv, Prodigy, Microsoft).
Cyber Patrol is also compatible with all major World Wide Web
browsers on the market (e.g., Netscape, Navigator, Mosaic,
Prodigy's Legacy and Skimmer browsers, America Online, Netcom's
NetCruiser, etc.). Cyber Patrol was the first parental
empowerment application to be compatible with the PICS standard.
In February of 1996, Microsystems put the first PICS ratings
server on the Internet.
57. The CyberNOT list contains approximately 7000
sites in twelve categories. The software is designed to enable
parents to selectively block access to any or all of the twelve
CyberNOT categories simply by checking boxes in the Cyber Patrol
Headquarters (the Cyber Patrol program manager). These
categories are:
Violence/Profanity: Extreme cruelty, physical or
emotional acts against any animal or person which are
primarily intended to hurt or inflict pain. Obscene
words, phrases, and profanity defined as text that uses
George Carlin's seven censored words more often than
once every fifty messages or pages.
Partial Nudity: Full or partial exposure of the human
anatomy except when exposing genitalia.
Nudity: Any exposure of the human genitalia.
Sexual Acts (graphic or text): Pictures or text
exposing anyone or anything involved in explicit sexual
acts and lewd and lascivious behavior, including
masturbation, copulation, pedophilia, intimacy and
involving nude or partially nude people in
heterosexual, bisexual, lesbian or homosexual
encounters. Also includes phone sex ads, dating
services, adult personals, CD-ROM and videos.
Gross Depictions (graphic or text): Pictures or
descriptive text of anyone or anything which are
crudely vulgar, deficient in civility or behavior, or
showing scatological impropriety. Includes such
depictions as maiming, bloody figures, indecent
depiction of bodily functions.
Racism/Ethnic Impropriety: Prejudice or discrimination
against any race or ethnic culture. Ethnic or racist
jokes and slurs. Any text that elevates one race over
another.
Satanic/Cult: Worship of the devil; affinity for evil,
wickedness. Sects or groups that potentially coerce
individuals to grow, and keep, membership.
Drugs/Drug Culture: Topics dealing with the use of
illegal drugs for entertainment. This would exclude
current illegal drugs used for medicinal purposes
(e.g., drugs used to treat victims of AIDS). Includes
substances used for other than their primary purpose to
alter the individual's state of mind such as glue
sniffing.
Militant/Extremist: Extremely aggressive and combative
behaviors, radicalism, advocacy of extreme political
measures. Topics include extreme political groups that
advocate violence as a means to achieve their goal.
Gambling: Of or relating to lotteries, casinos,
betting, numbers games, on-line sports or financial
betting including non-monetary dares.
Questionable/Illegal: Material or activities of a
dubious nature which may be illegal in any or all
jurisdictions, such as illegal business schemes, chain
letters, software piracy, and copyright infringement.
Alcohol, Beer & Wine: Material pertaining to the sale
or consumption of alcoholic beverages. Also includes
sites and information relating to tobacco products.
58. Microsystems employs people to search the Internet
for sites containing material in these categories. Since new
sites are constantly coming online, Microsystems updates the
CyberNOT list on a weekly basis. Once installed on the home PC,
the copy of Cyber Patrol receives automatic updates to the
CyberNOT list over the Internet every seven days.
59. In February of 1996, Microsystems signed a
licensing arrangement with CompuServe, one of the leading
commercial online services with over 4.3 million subscribers.
CompuServe provides Cyber Patrol free of charge to its
subscribers. Microsystems the same month signed a licensing
arrangement with Prodigy, another leading commercial online
service with over 1.4 million subscribers. Prodigy will provide
Cyber Patrol free of charge of its subscribers.
60. Cyber Patrol is also available directly from
Microsystems for $49.95, which includes a six month subscription
to the CyberNOT blocked sites list (updated automatically once
every seven days). After six months, parents can receive six
months of additional updates for $19.95, or twelve months for
$29.95. Cyber Patrol Home Edition, a limited version of Cyber
Patrol, is available free of charge on the Internet. To obtain
either version, parents download a seven day demonstration
version of the full Cyber Patrol product from the Microsystems
Internet World Wide Web Server. At the end of the seven day
trial period, users are offered the opportunity to purchase the
complete version of Cyber Patrol or provide Microsystems some
basic demographic information in exchange for unlimited use of
the Home Edition. The demographic information is used for
marketing and research purposes. Since January of 1996, over
10,000 demonstration copies of Cyber Patrol have been downloaded
from Microsystems' Web site.
61. Cyber Patrol is also available from Retail outlets
as NetBlocker Plus. NetBlocker Plus sells for $19.95, which
includes five weeks of updates to the CyberNOT list.
62. Microsystems also sells Cyber Patrol into a
growing market in schools. As more classrooms become connected
to the Internet, many teachers want to ensure that their students
can receive the benefit of the Internet without encountering
material they deem educationally inappropriate.
63. Microsystems is working with the Recreational
Software Advisory Council (RSAC), a non-profit corporation which
developed rating systems for video games, to implement the RSAC
rating system for the Internet.
64. The next release of Cyber Patrol, expected in
second quarter of this year, will give parents the ability to use
any PICS rating service, including the RSAC rating service, in
addition to the Microsystems CyberNOT list.
65. In order to speed the implementation of PICS and
encourage the development of PICS-compatible Internet
applications, Microsystems maintains a server on the Internet
which contains its CyberNOT list. The server provides software
developers with access to a PICS rating service, and allows
software developers to test their products' ability to interpret
standard PICS labels. Microsystems is also offering its PICS
client test program for Windows free of charge. The client
program can be used by developers of PICS rating services to test
their services and products.
SurfWatch
66. Another software product, SurfWatch, is also
designed to allow parents and other concerned users to filter
unwanted material on the Internet. SurfWatch is available for
both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95
Operating Systems, and works with direct Internet Access
Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000
other Internet Service Providers).
67. The suggested retail price of SurfWatch Software
is $49.95, with a street price of between $20.00 and $25.00. The
product is also available as part of CompuServe/Spry Inc.'s
Internet in a Box for Kids, which includes access to Spry's Kids
only Internet service and a copy of SurfWatch. Internet in a Box
for Kids retails for approximately $30.00. The subscription
service, which updates the SurfWatch blocked site list
automatically with new sites each month, is available for $5.95
per month or $60.00 per year. The subscription is included as
part of the Internet in a Box for Kids program, and is also
provided as a low-cost option from Internet Service Providers.
68. SurfWatch is available at over 12,000 retail
locations, including National stores such as Comp USA, Egghead
Software, Computer City, and several national mail order outlets.
SurfWatch can also be ordered directly from its own site on the
World Wide Web, and through the Internet Shopping Network.
69. Plaintiffs America Online (AOL), Microsoft
Network, and Prodigy all offer parental control options free of
charge to their members. AOL has established an online area
designed specifically for children. The "Kids Only" parental
control feature allows parents to establish an AOL account for
their children that accesses only the Kids Only channel on
America Online.[15]
70. AOL plans to incorporate PICS-compatible
capability into its standard Web browser software, and to make
available to subscribers other PICS-compatible Web browsers, such
as the Netscape software.
71. Plaintiffs CompuServe and Prodigy give their
subscribers the option of blocking all access to the Internet, or
to particular media within their proprietary online content, such
as bulletin boards and chat rooms.
72. Although parental control software currently can
screen for certain suggestive words or for known sexually
explicit sites, it cannot now screen for sexually explicit images
unaccompanied by suggestive text unless those who configure the
software are aware of the particular site.
73. Despite its limitations, currently available user-
based software suggests that a reasonably effective method by
which parents can prevent their children from accessing sexually
explicit and other material which parents may believe is
inappropriate for their children will soon be widely available.
74. The types of content now on the Internet defy easy
classification. The entire card catalogue of the Carnegie
Library is on-line, together with journals, journal abstracts,
popular magazines, and titles of compact discs. The director of
the Carnegie Library, Robert Croneberger, testified that on-line
services are the emerging trend in libraries generally.
Plaintiff Hotwired Ventures LLC organizes its Web site into
information regarding travel, news and commentary, arts and
entertainment, politics, and types of drinks. Plaintiff America
Online, Inc., not only creates chat rooms for a broad variety of
topics, but also allows members to create their own chat rooms to
suit their own tastes. The ACLU uses an America Online chat room
as an unmoderated forum for people to debate civil liberties
issues. Plaintiffs' expert, Scott Bradner,[16] estimated that
15,000 newsgroups exist today, and he described his own interest
in a newsgroup devoted solely to Formula 1 racing cars. America
Online makes 15,000 bulletin boards available to its subscribers,
who post between 200,000 and 250,000 messages each day. Another
plaintiffs' expert, Harold Rheingold, participates in "virtual
communities" that simulate social interaction. It is no
exaggeration to conclude that the content on the Internet is as
diverse as human thought.
75. The Internet is not exclusively, or even
primarily, a means of commercial communication. Many commercial
entities maintain Web sites to inform potential consumers about
their goods and services, or to solicit purchases, but many other
Web sites exist solely for the dissemination of non-commercial
information. The other forms of Internet communication -- e-
mail, bulletin boards, newsgroups, and chat rooms -- frequently
have non-commercial goals. For the economic and technical
reasons set forth in the following paragraphs, the Internet is an
especially attractive means for not-for-profit entities or public
interest groups to reach their desired audiences. There are
examples in the parties' stipulation of some of the non-
commercial uses that the Internet serves. Plaintiff Human Rights
Watch, Inc., offers information on its Internet site regarding
reported human rights abuses around the world. Plaintiff
National Writers Union provides a forum for writers on issues of
concern to them. Plaintiff Stop Prisoner Rape, Inc., posts text,
graphics, and statistics regarding the incidence and prevention
of rape in prisons. Plaintiff Critical Path AIDS Project, Inc.,
offers information on safer sex, the transmission of HIV, and the
treatment of AIDS.
76. Such diversity of content on the Internet is
possible because the Internet provides an easy and inexpensive
way for a speaker to reach a large audience, potentially of
millions. The start-up and operating costs entailed by
communication on the Internet are significantly lower than those
associated with use of other forms of mass communication, such as
television, radio, newspapers, and magazines. This enables
operation of their own Web sites not only by large companies,
such as Microsoft and Time Warner, but also by small, not-for-
profit groups, such as Stop Prisoner Rape and Critical Path AIDS
Project. The Government's expert, Dr. Dan R. Olsen,[17] agreed
that creation of a Web site would cost between $1,000 and
$15,000, with monthly operating costs depending on one's goals
and the Web site's traffic. Commercial online services such as
America Online allow subscribers to create Web pages free of
charge. Any Internet user can communicate by posting a message
to one of the thousands of newsgroups and bulletin boards or by
engaging in an on-line "chat", and thereby reach an audience
worldwide that shares an interest in a particular topic.
77. The ease of communication through the Internet is
facilitated by the use of hypertext markup language (HTML), which
allows for the creation of "hyperlinks" or "links". HTML enables
a user to jump from one source to other related sources by
clicking on the link. A link might take the user from Web site
to Web site, or to other files within a particular Web site.
Similarly, by typing a request into a search engine, a user can
retrieve many different sources of content related to the search
that the creators of the engine have collected.
78. Because of the technology underlying the Internet,
the statutory term "content provider,"[18] which is equivalent to
the traditional "speaker," may actually be a hybrid of speakers.
Through the use of HTML, for example, Critical Path and Stop
Prisoner Rape link their Web sites to several related databases,
and a user can immediately jump from the home pages of these
organizations to the related databases simply by clicking on a
link. America Online creates chat rooms for particular
discussions but also allows subscribers to create their own chat
rooms. Similarly, a newsgroup gathers postings on a particular
topic and distributes them to the newsgroup's subscribers. Users
of the Carnegie Library can read on-line versions of Vanity Fair
and Playboy, and America Online's subscribers can peruse the New
York Times, Boating, and other periodicals. Critical Path, Stop
Prisoner Rape, America Online and the Carnegie Library all make
available content of other speakers over whom they have little or
no editorial control.
79. Because of the different forms of Internet
communication, a user of the Internet may speak or listen
interchangeably, blurring the distinction between "speakers" and
"listeners" on the Internet. Chat rooms, e-mail, and newsgroups
are interactive forms of communication, providing the user with
the opportunity both to speak and to listen.
80. It follows that unlike traditional media, the
barriers to entry as a speaker on the Internet do not differ
significantly from the barriers to entry as a listener. Once one
has entered cyberspace, one may engage in the dialogue that
occurs there. In the argot of the medium, the receiver can and
does become the content provider, and vice-versa.
81. The Internet is therefore a unique and wholly new
medium of worldwide human communication.
Sexually Explicit Material On the Internet 82. The parties agree that sexually explicit material
exists on the Internet. Such material includes text, pictures,
and chat, and includes bulletin boards, newsgroups, and the other
forms of Internet communication, and extends from the modestly
titillating to the hardest-core.
83. There is no evidence that sexually-oriented
material is the primary type of content on this new medium.
Purveyors of such material take advantage of the same ease of
access available to all users of the Internet, including
establishment of a Web site.
84. Sexually explicit material is created, named, and
posted in the same manner as material that is not sexually
explicit. It is possible that a search engine can accidentally
retrieve material of a sexual nature through an imprecise search,
as demonstrated at the hearing. Imprecise searches may also
retrieve irrelevant material that is not of a sexual nature. The
accidental retrieval of sexually explicit material is one
manifestation of the larger phenomenon of irrelevant search
results.
85. Once a provider posts content on the Internet, it
is available to all other Internet users worldwide. Similarly,
once a user posts a message to a newsgroup or bulletin board,
that message becomes available to all subscribers to that
newsgroup or bulletin board. For example, when the
UCR/California Museum of Photography posts to its Web site nudes
by Edward Weston and Robert Mapplethorpe to announce that its new
exhibit will travel to Baltimore and New York City, those images
are available not only in Los Angeles, Baltimore, and New York
City, but also in Cincinnati, Mobile, or Beijing -- wherever
Internet users live. Similarly, the safer sex instructions that
Critical Path posts to its Web site, written in street language
so that the teenage receiver can understand them, are available
not just in Philadelphia, but also in Provo and Prague. A chat
room organized by the ACLU to discuss the United States Supreme
Court's decision in FCC v. Pacifica Foundation would transmit
George Carlin's seven dirty words to anyone who enters. Messages
posted to a newsgroup dedicated to the Oklahoma City bombing
travel to all subscribers to that newsgroup.
86. Once a provider posts its content on the Internet,
it cannot prevent that content from entering any community.
Unlike the newspaper, broadcast station, or cable system,
Internet technology necessarily gives a speaker a potential
worldwide audience. Because the Internet is a network of
networks (as described above in Findings 1 through 4), any
network connected to the Internet has the capacity to send and
receive information to any other network. Hotwired Ventures, for
example, cannot prevent its materials on mixology from entering
communities that have no interest in that topic.
87. Demonstrations at the preliminary injunction
hearings showed that it takes several steps to enter cyberspace.
At the most fundamental level, a user must have access to a
computer with the ability to reach the Internet (typically by way
of a modem). A user must then direct the computer to connect
with the access provider, enter a password, and enter the
appropriate commands to find particular data. On the World Wide
Web, a user must normally use a search engine or enter an
appropriate address. Similarly, accessing newsgroups, bulletin
boards, and chat rooms requires several steps.
88. Communications over the Internet do not "invade"
an individual's home or appear on one's computer screen unbidden.
Users seldom encounter content "by accident." A document's
title or a description of the document will usually appear before
the document itself takes the step needed to view it, and in many
cases the user will receive detailed information about a site's
content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by
warnings as to the content. Even the Government's witness, Agent
Howard Schmidt, Director of the Air Force Office of Special
Investigation, testified that the "odds are slim" that a user
would come across a sexually explicit site by accident.
89. Evidence adduced at the hearing showed significant
differences between Internet communications and communications
received by radio or television. Although content on the
Internet is just a few clicks of a mouse away from the user, the
receipt of information on the Internet requires a series of
affirmative steps more deliberate and directed than merely
turning a dial. A child requires some sophistication and some
ability to read to retrieve material and thereby to use the
Internet unattended.
Obstacles to Age Verification on the Internet
90. There is no effective way to determine the
identity or the age of a user who is accessing material through
e-mail, mail exploders, newsgroups or chat rooms. An e-mail
address provides no authoritative information about the
addressee, who may use an e-mail "alias" or an anonymous
remailer. There is also no universal or reliable listing of e-
mail addresses and corresponding names or telephone numbers, and
any such listing would be or rapidly become incomplete. For
these reasons, there is no reliable way in many instances for a
sender to know if the e-mail recipient is an adult or a minor.
The difficulty of e-mail age verification is compounded for mail
exploders such as listservs, which automatically send information
to all e-mail addresses on a sender's list. Government expert
Dr. Olsen agreed that no current technology could give a speaker
assurance that only adults were listed in a particular mail
exploder's mailing list.
91. Because of similar technological difficulties,
individuals posting a message to a newsgroup or engaging in chat
room discussions cannot ensure that all readers are adults, and
Dr. Olsen agreed. Although some newsgroups are moderated, the
moderator's control is limited to what is posted and the
moderator cannot control who receives the messages.
92. The Government offered no evidence that there is a
reliable way to ensure that recipients and participants in such
fora can be screened for age. The Government presented no
evidence demonstrating the feasibility of its suggestion that
chat rooms, newsgroups and other fora that contain material
deemed indecent could be effectively segregated to "adult" or
"moderated" areas of cyberspace.
93. Even if it were technologically feasible to block
minors' access to newsgroups and similar fora, there is no method
by which the creators of newsgroups which contain discussions of
art, politics or any other subject that could potentially elicit
"indecent" contributions could limit the blocking of access by
minors to such "indecent" material and still allow them access to
the remaining content, even if the overwhelming majority of that
content was not indecent.
94. Likewise, participants in MUDs (Multi-User
Dungeons) and MUSEs (Multi-User Simulation Environments) do not
know whether the other participants are adults or minors.
Although MUDs and MUSEs require a password for permanent
participants, they need not give their real name nor verify their
age, and there is no current technology to enable the
administrator of these fantasy worlds to know if the participant
is an adult or a minor.
95. Unlike other forms of communication on the
Internet, there is technology by which an operator of a World
Wide Web server may interrogate a user of a Web site. An HTML
document can include a fill-in-the-blank "form" to request
information from a visitor to a Web site, and this information
can be transmitted back to the Web server and be processed by a
computer program, usually a Common Gateway Interface (cgi)
script. The Web server could then grant or deny access to the
information sought. The cgi script is the means by which a Web
site can process a fill-in form and thereby screen visitors by
requesting a credit card number or adult password.
96. Content providers who publish on the World Wide
Web via one of the large commercial online services, such as
America Online or CompuServe, could not use an online age
verification system that requires cgi script because the server
software of these online services available to subscribers cannot
process cgi scripts. There is no method currently available for
Web page publishers who lack access to cgi scripts to screen
recipients online for age.
The Practicalities of the Proffered Defenses Note: The Government contends the CDA makes available
three potential defenses to all content providers on the
Internet: credit card verification, adult verification by
password or adult identification number, and "tagging".
Credit Card Verification 97. Verification[19] of a credit card number over the
Internet is not now technically possible. Witnesses testified
that neither Visa nor Mastercard considers the Internet to be
sufficiently secure under the current technology to process
transactions in that manner. Although users can and do purchase
products over the Internet by transmitting their credit card
number, the seller must then process the transaction with Visa or
Mastercard off-line using phone lines in the traditional way.
There was testimony by several witnesses that Visa and Mastercard
are in the process of developing means of credit card
verification over the Internet.
98. Verification by credit card, if and when
operational, will remain economically and practically unavailable
for many of the non-commercial plaintiffs in these actions. The
Government's expert "suspect[ed]" that verification agencies
would decline to process a card unless it accompanied a
commercial transaction. There was no evidence to the contrary.
99. There was evidence that the fee charged by
verification agencies to process a card, whether for a purchase
or not, will preclude use of the credit-card verification defense
by many non-profit, non-commercial Web sites, and there was no
evidence to the contrary. Plaintiffs' witness Patricia Nell
Warren, an author whose free Web site allows users to purchase
gay and lesbian literature, testified that she must pay $1 per
verification to a verification agency. Her Web site can absorb
this cost because it arises in connection with the sale of books
available there.
100. Using credit card possession as a surrogate for
age, and requiring use of a credit card to enter a site, would
impose a significant economic cost on non-commercial entities.
Critical Path, for example, received 3,300 hits daily from
February 4 through March 4, 1996. If Critical Path must pay a
fee every time a user initially enters its site, then, to provide
free access to its non-commercial site, it would incur a monthly
cost far beyond its modest resources. The ACLU's Barry
Steinhardt testified that maintenance of a credit card
verification system for all visitors to the ACLU's Web site would
require it to shut down its Web site because the projected cost
would exceed its budget.
101. Credit card verification would significantly delay
the retrieval of information on the Internet. Dr. Olsen, the
expert testifying for the Government, agreed that even "a minute
is [an] absolutely unreasonable [delay] . . . [P]eople will not
put up with a minute." Plaintiffs' expert Donna Hoffman
similarly testified that excessive delay disrupts the "flow" on
the Internet and stifles both "hedonistic" and "goal-directed"
browsing.
102. Imposition of a credit card requirement would
completely bar adults who do not have a credit card and lack the
resources to obtain one from accessing any blocked material. At
this time, credit card verification is effectively unavailable to
a substantial number of Internet content providers as a potential
defense to the CDA.
Adult Verification by Password 103. The Government offered very limited evidence
regarding the operation of existing age verification systems, and
the evidence offered was not based on personal knowledge.
AdultCheck and Verify, existing systems which appear to be used
for accessing commercial pornographic sites, charge users for
their services. Dr. Olsen admitted that his knowledge of these
services was derived primarily from reading the advertisements on
their Web pages. He had not interviewed any employees of these
entities, had not personally used these systems, had no idea how
many people are registered with them, and could not testify to
the reliability of their attempt at age verification.
104. At least some, if not almost all, non-commercial
organizations, such as the ACLU, Stop Prisoner Rape or Critical
Path AIDS Project, regard charging listeners to access their
speech as contrary to their goals of making their materials
available to a wide audience free of charge.
105. It would not be feasible for many non-commercial
organizations to design their own adult access code screening
systems because the administrative burden of creating and
maintaining a screening system and the ongoing costs involved is
beyond their reach. There was testimony that the costs would be
prohibitive even for a commercial entity such as HotWired, the
online version of Wired magazine.
106. There is evidence suggesting that adult users,
particularly casual Web browsers, would be discouraged from
retrieving information that required use of a credit card or
password. Andrew Anker testified that HotWired has received many
complaints from its members about HotWired's registration system,
which requires only that a member supply a name, e-mail address
and self-created password. There is concern by commercial
content providers that age verification requirements would
decrease advertising and revenue because advertisers depend on a
demonstration that the sites are widely available and frequently
visited.
107. Even if credit card verification or adult
password verification were implemented, the Government presented
no testimony as to how such systems could ensure that the user of
the password or credit card is in fact over 18. The burdens
imposed by credit card verification and adult password
verification systems make them effectively unavailable to a
substantial number of Internet content providers.
The Government's "Tagging" Proposal 108. The feasibility and effectiveness of "tagging" to
restrict children from accessing "indecent" speech, as proposed
by the Government has not been established. "Tagging" would
require content providers to label all of their "indecent" or
"patently offensive" material by imbedding a string of
characters, such as "XXX," in either the URL or HTML. If a user
could install software on his or her computer to recognize the
"XXX" tag, the user could screen out any content with that tag.
Dr. Olsen proposed a "-L18" tag, an idea he developed for this
hearing in response to Mr. Bradner's earlier testimony that
certain tagging would not be feasible.
109. The parties appear to agree that it is
technologically feasible -- "trivial", in the words of
plaintiffs' expert -- to imbed tags in URLs and HTML, and the
technology of tagging underlies both plaintiffs' PICS proposal
and the Government's "-L18" proposal.
110. The Government's tagging proposal would require
all content providers that post arguably "indecent" material to
review all of their online content, a task that would be
extremely burdensome for organizations that provide large amounts
of material online which cannot afford to pay a large staff to
review all of that material. The Carnegie Library would be
required to hire numerous additional employees to review its on-
line files at an extremely high cost to its limited budget. The
cost and effort would be substantial for the Library and
frequently prohibitive for others. Witness Kiroshi Kuromiya
testified that it would be impossible for his organization,
Critical Path, to review all of its material because it has only
one full and one part-time employee.
111. The task of screening and tagging cannot be done
simply by using software which screens for certain words, as Dr.
Olsen acknowledged, and we find that determinations as to what is
indecent require human judgment.
112. In lieu of reviewing each file individually, a
content provider could tag its entire site but this would prevent
minors from accessing much material that is not "indecent" under
the CDA.
113. To be effective, a scheme such as the -L18
proposal would require a worldwide consensus among speakers to
use the same tag to label "indecent" material. There is
currently no such consensus, and no Internet speaker currently
labels its speech with the -L18 code or with any other widely-
recognized label.
114. Tagging also assumes the existence of software
that recognizes the tags and takes appropriate action when it
notes tagged speech. Neither commercial Web browsers nor user-
based screening software is currently configured to block a -L18
code. Until such software exists, all speech on the Internet
will continue to travel to whomever requests it, without
hindrance. Labelling speech has no effect in itself on the
transmission (or not) of that speech. Neither plaintiffs nor the
Government suggest that tagging alone would shield minors from
speech or insulate a speaker from criminal liability under the
CDA. It follows that all speech on any topic that is available to
adults will also be available to children using the Internet
(unless it is blocked by screening software running on the
computer the child is using).
115. There is no way that a speaker can use current
technology to know if a listener is using screening software.
116. Tags can not currently activate or deactivate
themselves depending on the age or location of the receiver.
Critical Path, which posts on-line safer sex instructions, would
be unable to imbed tags that block its speech only in communities
where it may be regarded as indecent. Critical Path, for
example, must choose either to tag its site (blocking its speech
in all communities) or not to tag, blocking its speech in none.
The Problems of Offshore Content and Caching
117. A large percentage, perhaps 40% or more, of
content on the Internet originates outside the United States. At
the hearing, a witness demonstrated how an Internet user could
access a Web site of London (which presumably is on a server in
England), and then link to other sites of interest in England. A
user can sometimes discern from a URL that content is coming from
overseas, since InterNIC allows a content provider to imbed a
country code in a domain name.[20] Foreign content is otherwise
indistinguishable from domestic content (as long as it is in
English), since foreign speech is created, named, and posted in
the same manner as domestic speech. There is no requirement that
foreign speech contain a country code in its URL. It is
undisputed that some foreign speech that travels over the
Internet is sexually explicit.
118. The use of "caching" makes it difficult to
determine whether the material originated from foreign or
domestic sources. Because of the high cost of using the trans-
Atlantic and trans-Pacific cables, and because the high demand on
those cables leads to bottleneck delays, content is often
"cached", or temporarily stored, on servers in the United States.
Material from a foreign source in Europe can travel over the
trans-Atlantic cable to the receiver in the United States, and
pass through a domestic caching server which then stores a copy
for subsequent retrieval. This domestic caching server, rather
than the original foreign server, will send the material from the
cache to the subsequent receivers, without placing a demand on
the trans-oceanic cables. This shortcut effectively eliminates
most of the distance for both the request and the information
and, hence, most of the delay. The caching server discards the
stored information according to its configuration (e.g., after a
certain time or as the demand for the information diminishes).
Caching therefore advances core Internet values: the cheap and
speedy retrieval of information.
119. Caching is not merely an international phenomenon.
Domestic content providers store popular domestic material on
their caching servers to avoid the delay of successive searches
for the same material and to decrease the demand on their
Internet connection. America Online can cache the home page of
the New York Times on its servers when a subscriber first
requests it, so that subsequent subscribers who make the same
request will receive the same home page, but from America
Online's caching service rather than from the New York Times's
server.[21] 120. Put simply, to follow the example in the prior
paragraph, America Online has no control over the content that
the New York Times posts to its Web site, and the New York Times
has no control over America Online's distribution of that content
from a caching server.
Anonymity
121. Anonymity is important to Internet users who seek
to access sensitive information, such as users of the Critical
Path AIDS Project's Web site, the users, particularly gay youth,
of Queer Resources Directory, and users of Stop Prisoner Rape
(SPR). Many members of SPR's mailing list have asked to remain
anonymous due to the stigma of prisoner rape.
Plaintiffs' Choices Under the CDA 122. Many speakers who display arguably indecent
content on the Internet must choose between silence and the risk
of prosecution. The CDA's defenses -- credit card verification,
adult access codes, and adult personal identification numbers --
are effectively unavailable for non-commercial, not-for-profit
entities.
123. The plaintiffs in this action are businesses,
libraries, non-commercial and not-for-profit organizations, and
educational societies and consortia. Although some of the
material that plaintiffs post online -- such as information
regarding protection from AIDS, birth control or prison rape --
is sexually explicit and may be considered "indecent" or
"patently offensive" in some communities, none of the plaintiffs
is a commercial purveyor of what is commonly termed
"pornography."
III. CONCLUSIONS OF LAW Plaintiffs have established a reasonable probability of
eventual success in the litigation by demonstrating that
223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on
their face to the extent that they reach indecency. Sections
223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their
face. Accordingly, plaintiffs have shown irreparable injury, no
party has any interest in the enforcement of an unconstitutional
law, and therefore the public interest will be served by granting
the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74
(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied,
493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,
653 (3d Cir. 1994). The motions for preliminary injunction will
therefore be granted.
The Order:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION
et al. :
:
v. :
:
JANET RENO, Attorney General of :
the United States : NO. 96-963
________________________________________________________________
AMERICAN LIBRARY ASSOC., : CIVIL ACTION
INC., et al. :
:
v. :
:
UNITED STATES DEP'T OF :
JUSTICE, et al. : NO. 96-1458
ORDER
AND NOW, this 11th day of June, 1996, upon
consideration of plaintiffs' motions for preliminary injunction,
and the memoranda of the parties and amici curiae in support and
opposition thereto, and after hearing, and upon the findings of
fact and conclusions of law set forth in the accompanying
Adjudication, it is hereby ORDERED that:
1. The motions are GRANTED;
2. Defendant Attorney General Janet Reno, and all
acting under her direction and control, are PRELIMINARILY
ENJOINED from enforcing, prosecuting, investigating or reviewing
any matter premised upon:
(a) Sections 223(a)(1)(B) and 223(a)(2) of the
Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104-
104, 502, 110 Stat. 133, 133-36, to the extent such
enforcement, prosecution, investigation, or review are based upon
allegations other than obscenity or child pornography; and
(b) Sections 223(d)(1) and 223(d)(2) of the CDA;
3. Pursuant to Fed. R. Civ. P. 65(c), plaintiffs need
not post a bond for this injunction, see Temple Univ. v. White,
941 F.2d 201, 220 (3d Cir. 1991), cert. denied sub nom. Snider v.
Temple Univ., 502 U.S. 1032 (1992); and
4. The parties shall advise the Court, in writing, as
to their views regarding the need for further proceedings on the
later of (a) thirty days from the date of this Order, or (b) ten
days after final appellate review of this Order.
BY THE COURT:
______________________________
Dolores K. Sloviter, C.J.
U.S. Court of Appeals
For the Third Circuit
______________________________
Ronald L. Buckwalter, J.
______________________________
Stewart Dalzell, J.
