Sex and the Internet

I know that this article is long overdue.

Among the eight who e-mailed me to write about it was a Canadian mother, Laura N. Richardson of Winnipeg. With three young children aged 6 to 12, she was happy to discover online my article on Internet law relevant to privacy, copyright and patents, and wanted me to write on cybersex and its control, specifically on indecent sex content on the Internet. That was about two months ago; nevertheless, I am endeavoring to assess the US situation as it exists right now so that she can compare it with the Canadian environment, as the Philippines still is evolving in this area.

While the purpose of this article is not to teach anyone how to create an online sex business, no discussion of the fundamental right of expression, free speech and the Internet would be complete, however, without an assessment of at least two pieces of US legislation: the CDA (Communications Decency Act) and the COPA (Child Online Protection Act). In the Philippines, our traditional laws relative to indecent, sexually offensive and immoral material govern. We have not enacted the specific laws to deal with indecent/immoral material in cyberspace.

The CDA and the COPA were enacted in the US to limit sexually oriented material on the Internet. US courts have adjudicated that these laws are unconstitutional, being violative of the right of expression and free speech, which they call the First Amendment. Because of this, at least in reference to US law, web explorers, surfers, and publishers have an established and expansive scope of protection for many forms of communication on the Internet.

The CDA was enacted by the US congress in 1996 as part of their 103-page Telecommunications Act. This was, in fact, a year after our very own Philippine Congress passed the Philippine Telecommunications Act of 1995, which certainly now demands revisiting and amending. The primary purpose of both pieces of legislation (in the Philippines and the US) was to reduce regulations and encourage new technologies as well as promote competition in the development of telecommunications. The Internet was, of course, hardly mentioned.

In the US, one of the act’s seven titles, the CDA, addresses a number of issues relating to the Internet, which in 1996 was bursting onto the environment as an amazing, incredible new communications and technological phenomenon. The thing about the CDA is that it contained some provisions that helped encourage the Internet’s growth, such as the protection provided by the ISPs (Internet Service Providers) under its section 230.

But not all provisions in the CDA were equally friendly to the US citizen’s First Amendment and free speech in cyberspace. I was informed that two provisions were added to the CDA very late in the legislative process and without the advantage of congressional hearings, such as those attendant to the other portions of the US Telecom Act. These two provisions – called "indecent transmission" and "patently offensive display" – sparked an explosive battle over civil rights on the Internet that was ultimately settled by the US Supreme Court.

The "indecent transmission" provision of the CDA stated: "Whoever in interstate or foreign communications… by means of a telecommunications device… makes, creates, or solicits, and… initiates the transmission of any comment, request, suggestion, proposal, image or other communications which is obscene or indecent, knowing that the recipient is under 18 years of age… shall be fined (amount under federal criminal laws) or imprisoned not more than two years or both."

The "patently offensive display" provision of the CDA stated: "Whoever… in interstate or foreign communications knowingly… uses an interactive computer service to a specific person or persons under 18 years of age, or… uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communications 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 communications..." The same penalties provided for "indecent transmission" were given for "patently offensive display."

In short, and generally speaking, these two provisions from the CDA made it illegal to transmit indecent material or display patently offensive material on the Internet.

After former US President Bill Clinton signed into law the US Telecommunications Act of 1996 containing what became the controversially limiting provisions of the CDA, 20 plaintiffs filed a lawsuit against the US Attorney General and the Department of Justice on February 8, 1996. Their lawsuit charged that these portions of the CDA were unconstitutional because they violated the First Amendment’s free-speech provisions: "Congress shall make no law… abridging the freedom of speech…" Thereafter, an additional 27 plaintiffs came into the picture, such as leading technology companies Apple, Microsoft, AOL, etc., and some of the country’s most respected organizations like the National Writers’ Union, the American Society of Newspaper Editors, etc.

All these plaintiffs were concerned that the CDA would trample on their right to freedom of speech, even though they were not engaged in any sex-related businesses on the Internet. On appeal to the US Supreme Court under a special review provision, the court’s first case on this "new thing called the Internet" was rendered.

On June 26, 1997, an important date for Internet lawyers all over the world, including the Philippines – American jurisprudence having been utilized in Philippine court adjudications and important likewise for all free-speech advocates worldwide – the US Supreme Court, in a 9-0 opinion, ruled that the CDA’s restrictions on Internet communications were contrary to First Amendment free-speech provisions, striking down the enforceability of this new law. The US Supreme Court said that the breadth of the law’s coverage was unprecedented and had to be stricken down because free speech would suffer and this could not happen.

The Supreme Court acknowledged that the legislative intent behind the CDA provisions may have been good and said that the court has "repeatedly recognized the governmental interest to protect children from harmful materials," but said interest does not justify an unnecessarily broad suppression of speech addressed to adults.

The US Supreme Court’s respect for human rights is ennobling when it concluded by saying, "The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

Following this decision striking down the "indecent transmission" and "patently offensive display" provisions, advocates of free speech online celebrated, while those concerned about finding a way to protect children against offensive content went back to their drawing boards.

I had an interesting exchange of e-mails recently with a former classmate from the Yale Law School who agreed with me that, interestingly, the CDA provisions were not even needed to prohibit much of the activity its supporters wanted to target because, as in the Philippines, obscenity and child pornography have been illegal in the US since long before the World Wide Web even existed.

There is every reason for Mrs. Richardson not to be too concerned about all this, even though her children are all under 18 years of age. In the meantime, the traditional laws of a country govern, and are, by and large, protective, but it is important for all jurisdictions of the world to address the specific concerns cyberspace has spawned, which could become very serious.

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Thanks for your e-mails sent to jtl@pldtdsl.net.