It Was Twenty(-odd) Years Ago Today When The Internet Looked Much Different Than It Does Now

from the time-machine dept

Last week, Mike and I were at a conference celebrating the 20th anniversary of the Supreme Court decision in Reno v. ACLU, a seminal case that declared that the First Amendment applied online. What makes the case so worth a conference celebrating it is not just what it meant as a legal matter – it's a significant step forward in First Amendment jurisprudence – but also what it meant as a practical matter. This decision was hugely important in allowing the internet to develop into what it is today, and that evolution may not be something we adequately appreciate. It's easy to forget and pretend the internet we know today was always a ubiquitous presence, but that wasn't always so, and it wasn't so back then. Indeed, it's quite striking just how much has changed in just two decades.

So this seemed like a good occasion to look back at how things were then. The attached paper is a re-publication of the honors thesis I wrote in 1996 as a senior at the University of California at Berkeley. As the title indicates, it was designed to study internet adoption among my fellow students, who had not yet all started using it. Even those who had were largely dependent on the University to provide them their access, and that access had only recently started to be offered on any significant a campus-wide basis. And not all of the people who had started using the internet found it to be something their lives necessarily needed. (For instance, when asked if they would continue to use the internet after the University no longer provided their access, a notable number of people said no.) This study tried to look at what influences or reasons the decision to use, or not use, the internet pivoted upon.

I do of course have some pause, now a few decades further into my career, calling attention to work I did as a stressed-out undergraduate. However, I still decided to dig it up and publish it, because there aren't many snapshots documenting internet usage from that time. And that's a problem, because it's important to understand how the internet transitioned from being an esoteric technology used only by some into a much more pervasive one seemingly used by nearly everyone, and why that change happened, especially if we want to understand how it will continue to change, and how we might want to shape that change. All too often it seems tech policy is made with too little serious consideration of the sociology behind how people use the internet – the human decisions internet usage represents – and it really needs to be part of the conversation more. Hopefully studies like this one can help with that.

Filed Under: cda 230, first amendment, free speech, history, intermediary liability, reno v. aclu

Looking Forward To Next 20 Years Of A Post-Reno Internet

from the your-free-internet dept

Earlier this week, we wrote a little bit about the 20th anniversary of a key case in internet history, Reno v. ACLU, and its important place in internet history. Without that ruling, the internet today would be extraordinarily different -- perhaps even unrecognizable. Mike Godwin, while perhaps best known for making sure his own obituary will mention Hitler, also played an important role in that case, and wrote up the following about his experience with the case, and what it means for the internet.

The internet we have today could have been very different, more like the over-the-air broadcast networks that still labor under broad federal regulatory authority while facing declining relevance.

But 20 years ago this week, the United States made a different choice when the U.S. Supreme Court handed down its 9-0 opinion in Reno v. American Civil Liberties Union, the case that established how fundamental free-speech principles like the First Amendment apply to the internet.

I think of Reno as "my case" because I'd been working toward First Amendment protections for the internet since my first days as a lawyer—the first staff lawyer for the Electronic Frontier Foundation (EFF), which was founded in 1990 by software entrepreneur Mitch Kapor and Grateful Dead lyricist John Perry Barlow. There are other lawyers and activists who feel the same possessiveness about the Reno case, most with justification. What we all have in common is the sense that, with the Supreme Court's endorsement of our approach to the internet as a free-expression medium, we succeeded in getting the legal framework more or less right.

We had argued that the internet—a new, disruptive and, to some large extent, unpredictable medium—deserved not only the free-speech guarantees of the traditional press, but also the same freedom of speech that each of us has as an individual. The Reno decision established that our government has no presumptive right to regulate internet speech. The federal government and state governments can limit free speech on the internet only in narrow types of cases, consistent with our constitutional framework. As Chris Hanson, the brilliant ACLU lawyer and advocate who led our team, recently put it: "We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television."

The decision also focused on the positive benefits this new medium had already brought to Americans and to the world. As one of the strategists for the case, I'd worked to frame this part of the argument with some care. I'd been a member of the Whole Earth 'Lectronic Link (the WELL) for more than five years and of many hobbyist computer forums (we called them bulletin-board systems or "BBSes") for a dozen years. In these early online systems—the precursors of today's social media like Facebook and Twitter—I believed I saw something new, a new form of community that encompassed both shared values and diversity of opinion. A few years before Reno v. ACLU—when I was a relatively young, newly minted lawyer—I'd felt compelled to try to figure out how these new communities work and how they might interact with traditional legal understandings in American law, including the "community standards" relevant to obscenity law and broadcasting law.

When EFF, ACLU and other organizations, companies, and individuals came together to file a constitutional challenge to the Communications Decency Act that President Bill Clinton signed as part of the Telecommunications Act of 1996, not everyone on our team saw this issue the way I did, at the outset. Hanson freely admits that "[w]hen we decided to bring the case, none of [ACLU's lead lawyers] had been online, and the ACLU did not have a website." Hanson had been skeptical of the value of including testimony about what we now call "social media" but more frequently back then referred to as "virtual communities." As he puts it:

"I proposed we drop testimony about the WELL — the social media site — on the grounds that the internet was about the static websites, not social media platforms where people communicate with each other. I was persuaded not to do that, and since I was monumentally wrong, I'm glad I was persuaded."

Online communities turned out to be vastly more important than many of the lawyers first realized. The internet's potential to bring us together meant just as much as the internet's capacity to publish dissenting, clashing and troubling voices. Justice John Paul Stevens, who wrote the Reno opinion, came to understand that community values were at stake, as well. In early sections of his opinion, Justice Stevens dutifully reasons through traditional "community standards" law, as would be relevant to obscenity and broadcasting cases. He eventually arrives at a conclusion that acknowledges that a larger community is threatened by broad internet-censorship provisions:

"We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of 'narrow tailoring; that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there amounted to ' 'burn[ing] the house to roast the pig.' ' The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."

The opinion's recognition of "the Internet community" paved the way for the rich and expressive, but also divergent and sometime troubling internet speech and expression we have today.

Which leaves us with the question: now that we've had two decades of experience under a freedom-of-expression framework for the internet—one that has informed not just how we use the internet in the United States but also how other voices around the world use it—what do we now need to do to promote "the Internet community"?

In 2017, not everyone views the internet as an unalloyed blessing. Most recently, we've seen concern about whether Google facilitates copyright infringement, whether Twitter's political exchanges are little more than "outrage porn" and whether Facebook enables "hate speech." U.K. Prime Minister Theresa May, who is almost exactly the same age I am, seems to view the internet primarily as an enabler of terrorism.

Even though we're now a few decades into the internet revolution, my view is that it's still too early to make the call that the internet needs more censorship and government intervention. Instead, we need more protection of the free expression and online communities that we've come to expect. Part of that protection may come from some version of the network neutrality principles currently being debated at the Federal Communications Commission, although it may not be the version in place under today's FCC rules.

In my view, there are two additional things the internet community needs now. The first is both legal and technological guarantees of privacy, including through strong encryption. The second is universal access—including for lower-income demographics and populations in underserved areas and developing countries—that would enable everyone to particulate fully, not just as consumers but as contributors to our shared internet. For me, the best way to honor the 40^th anniversary of Reno v. ACLU will be to make sure everybody is here on the internet to celebrate it.

Mike Godwin (mnemonic@gmail.com) is a senior fellow at R Street Institute. He formerly served as staff counsel for the Electronic Frontier Foundation and as general counsel for the Wikimedia Foundation, which operates Wikipedia.

Filed Under: cda, cda 230, first amendment, free speech, internet, reno v. aclu

How The ACLU's Fight To Protect 'Indecent' Speech Saved The Internet From Being Treated Like Broadcast TV

from the early-adopters-FTW dept

The ACLU is celebrating twenty years of making the internet better. On June 26th, 1997, the ACLU prevailed in Reno v. ACLU, with the Supreme Court striking down the anti-indecency portions of the 1996 Communications Decency Act (CDA).

As can be gathered by the law's name, it was written from a position of morality and panic -- the fear that the internet's connectivity would drown the nation's youth in easily-accessible porn. And yet, the law survives today as one of the most important factors in the internet's speedy growth, thanks to Section 230, which prevents service providers and social media platforms from being held civilly responsible for users' posts and actions.

But it might not have been that way. In 1996, the ACLU didn't even have a website of its own and most legislators had nothing more than bill sponsors' parades of horribles to go on. So, for the children, the CDA criminalized "obscene or indecent" material if it could be viewed by minors.

It was another case of legislators "knowing" what was indecent when they saw it. But even under that wholly subjective standard, the government spent most of its time shrugging.

During the various internet censorship cases the ACLU brought, we asked the government to identify speech in each category, and they were largely unable to do so. For example, they said that an online photo on Playboy’s website of a topless woman was not harmful to minors, but a virtually identical photo on Penthouse’s website was.

The ACLU's website was born from this legal battle. In order to show standing, the ACLU had to publish something the government might consider "indecent." It chose a Supreme Court decision declaring George Carlin's famous "Seven Words You Can't Say on TV" monologue "indecent." The entire monologue was included in the decision's appendix. The ACLU posted the decision and asked readers to guess which words the Supreme Court had found indecent. Obviously, it ended up with far more than seven words, which was enough to give it standing to challenge the CDA provision.

The plan worked. The ACLU took its challenge all the way to the Supreme Court and won. If it hadn't, the internet would be as boring and lifeless as the blandest of network TV offerings. That's the standard legislators were hoping to apply to the world's greatest communication platform: the same rules the FCC applies to broadcast TV. The Supreme Court struck down this damaging provision, recognizing the enormous potential of the web and the threat posed to it by "think of the children" legislation.

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

The ACLU's site has a long interview with Chris Hansen, who led the ACLU's litigation. It's well worth reading, especially considering what the web might have become if no one had stepped up to defend "indecent" speech.

Filed Under: cda, first amendment, free speech, indecency, internet, obscenity, reno v. aclu
Companies: aclu