Internet and Civil Liberties
Since the emergence of the World Wide Web in the early 1990s, the Internet has played an increasingly important role in commerce, politics, and social life. Within the United States and around the globe, millions of people turn to the Internet each day to transact business, obtain news, conduct research, disseminate information, and otherwise connect with each other. Internet technology continues to develop rapidly, with new applications proliferating in virtually all segments of society. In light of the celerity of technological innovation and the vastly expanding uses for that technology, capturing the various ways in which the Internet implicates civil rights presents a special challenge. Although technological changes will create unforeseen contexts in which new rights claims emerge, some of the most important civil rights claims involving the Internet fall roughly into three categories: speech, privacy, and access. Speech The explosive growth in Internet communication over the past decade has sparked a heated debate about regulating the content of cyberspace communication. Many free speech advocates insist that the government must not regulate in any way the substance of Internet communication. In contrast, many legislators argue that the Internet poses special problems involving the proliferation of pornography, hate speech, and commercial advertising, among other concerns, that require governmental intervention. Although the courts have provided limited guidance in a few notable cases, the debate about the level of free speech afforded Internet communication is nowhere close to settled. Pornography Some of the earliest and most important speech cases arose out of governmental attempts to regulate pornography on the Internet. In 1996, Congress passed the Communications Decency Act (CDA), which provided criminal penalties for transmission over the Internet of ‘‘indecent’’ or ‘‘patently offensive’’ materials accessible by children. In Reno v. ACLU, 521 U.S. 844 (1997), a group of civil rights organizations, newspapers, and technology companies argued that the ‘‘indecent’’ and ‘‘patently offensive’’ standards, which the statute defined only by reference to prevailing community values, improperly criminalized potentially nonpornographic speech in violation of the First Amendment. In a unanimous ruling, the Supreme Court struck down the CDA because the statute’s standards were impermissibly vague and potentially covered large amounts of materials possessing legitimate educational or social value (for example, an e-mail regarding Birth Control information sent by a parent to a child away at college). In response to the Supreme Court opinion in Reno, less than two years later Congress passed the Child Online Protection Act (COPA), which prohibited the dissemination over the Internet of any material ‘‘harmful to minors’’ as defined by a new set of community-based standards that closely tracked the Supreme Court’s previously articulated test for identifying obscenity. In Ashcroft v. ACLU, civil libertarians and Internet content providers challenged the statute as unduly burdening speech properly protected by the First Amendment. In 2004, following years of litigation, the Supreme Court narrowly upheld the injunction preventing enforcement of COPA because the statute unnecessarily restricted access to protected speech by adults and less restrictive regulatory options were available in any event. While certainly a victory for speech advocates and content providers, the slim five-to-four majority decision made some civil libertarians wary about the approach the Court might take in future Internet speech cases. Hate Speech Hate speech provides another important context for the debate about regulation of Internet content. While the Internet serves an enormous array of socially valuable purposes, the technology also facilitates the organization of hate groups and the dissemination of their messages. For many civil libertarians, tolerating hateful speech on the Internet remains necessary in order to ensure the free exchange of ideas generally. For other civil rights groups, such as the Anti-Defamation League (which targets anti-Semitic activity), tolerance of hate speech on the Internet undermines the fundamental goal of social equality.
Although most hate speech finds protection under the First Amendment, some important exceptions exist. For example, in Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2003), abortion providers in Oregon brought suit under the federal Freedom of Access to Clinic Entrances Act (FACE) against anti-abortion activists who disclosed the names and addresses of the providers on an Internet Web site called the ‘‘Nuremberg Files.’’
With bloody images in the background, the site called for holding the doctors who provided abortions responsible for crimes against humanity. The site also listed the names of doctors who had performed abortions, depicting those who had been murdered with a line though the middle of their names and doctors who had been wounded (but not killed) with their names in gray. Viewers were encouraged to ‘‘share your point of view with this ‘doctor.’’’ In 2002, the Ninth Circuit ruled that the content of the Nuremberg Files constituted a threat of force by calling for the killing of the abortion providers and therefore was not entitled to protection under the First Amendment. Although perhaps circumscribing the reach of the First Amendment in cyberspace, the decision was hailed at least by some civil rights groups as an important step in stemming the spread of hate on the Internet.
Perhaps the most litigated area of Internet communication involves commercial advertising and, in particular, the use of unsolicited bulk e-mails, or ‘‘spam,’’ to sell products and services of every imaginable sort. Recent studies suggest that spam accounts for more than half of all e-mail, with some single advertisers sending hundreds of thousands of spam messages each day. In addition to the increasing annoyance Internet users encounter in sifting through unwanted spam, purported problems include increased risk of consumer fraud, infection by computer viruses, diminished Internet server responsiveness, and the unwanted cost of purchasing spam-blocking computer programs.
In response to public calls to stem the proliferation of spam, more than thirty states have passed some sort of antispam legislation; in 2003, the U.S. Congress passed the Can Spam Act (CSA). The CSA imposes significant restrictions on sending unsolicited commercial e-mail, provides Internet service providers, like America Online, the right to sue for damages resulting from violations of the statute, and calls for the consideration of a ‘‘do not e-mail’’ registry by the Federal Trade Commission. Several lawsuits involving the enforceability and constitutionality of the CSA are working their way through the federal courts. Although the First Amendment provides less protection for Commercial Speech than for political expression, it remains unclear whether the Can Spam Act will ultimately pass constitutional muster.
There is no doubt that the government can regulate fraudulent or deceitful Commercial Speech. But some free-speech purists worry that antispam sentiments will provide an unwanted inroad for governmental regulation of truthful expression as well (for example, e-mail from universities to alumni or prospective students). This concern may become especially pronounced if the boundary between commercial and political speech becomes blurry. Thus, while regulation of spam may seem at the outset a wholly commercial concern, the constitutional analysis the courts provide the CSA and other attempts to limit bulk e-mail may affect the level of protection the First Amendment provides for Internet communication generally.
In the context of the Internet, the right to privacy focuses on the collection and dissemination of personal information by companies and governmental entities. Anyone who has used an Internet search engine knows that an enormous amount of personal information is available online. With every keystroke and mouse-click, Internet users add to that store of information by creating ‘‘clickstream data,’’ a trail of electronic tracks or markers generated by each visit to a Web page.
That data may include basic information, such as the type of computer an individual used to access the Internet, the browser utilized, and the identification of each site or page visited. In addition, if an individual were to disclose certain information during the visit, the clickstream data may also include more personalized details, such as passwords, e-mail addresses, social security numbers, credit card numbers, addresses, telephone numbers and other demographic or consumer information. Over time, that clickstream data can be used to build incredibly detailed consumer or personal profiles on anyone who surfs the Web. Companies can use that data to send targeted online advertisements specifically tailored to each Internet user’s consumer profile. That detailed information is also obviously valuable to any governmental or investigative body interested in monitoring an individual’s activity or interests.
Moving beyond simple aggregation of clickstream data, new spying technologies continually develop. Generally dubbed ‘‘spyware’’ or ‘‘adware,’’ these innovative monitoring tools typically rely on information- gathering software that is installed clandestinely on a user’s computer. In addition to those technologies, some more malicious covertly installed programs actually harness the host computers to send e-mail or store unwanted information from external sources. Although a significant market in privacy software has developed to stem unwanted data collection, Internet spying technology continues to evolve quickly, with the spying technology seemingly just ahead of attempts to block it.
Many state and federal laws attempt to limit the collection and use of personal data obtained online, but those legislative responses have met with limited success in halting privacy invasions. At the federal level, statutes such as the Electronic Communications Privacy Act (ECPA), the Computer Fraud and Abuse Act (CFAA), the Federal Wire Tap Act (wire tap act) and the Children’s Online Privacy Protection Act address in some manner the unwanted collection of personal data over the Internet. The incredible speed of innovation in Internet spying technology, however, makes it difficult if not impossible for legislators to keep up with those technological innovations.
For instance, in In re DoubleClick, Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001)— one of the most significant decisions regarding privacy and the Internet, a class of Internet users alleged that one of the world’s largest online advertisers, DoubleClick, Inc., violated the ECPA, CFAA, and wire tap act by depositing ‘‘cookies’’ (small text files used to collect clickstream data) on the computer hard drives of Internet users. Relying on the precise language of the statutes considered, a federal district court in New York dismissed each of the statutory causes of action as inapplicable to the particular data collection technology at issue. Quite simply, the precise statutory mandates in existing statutes often fail to target the latest methods of electronic monitoring. As a result, by continually developing new spying technologies, those interested in mining personal information over the Internet can often evade the restrictions embedded in the privacy statutes.
In light of challenges legislators face in keeping up with technological change, some scholars and lawyers have suggested turning to common law principles (for example, trespass, conversion, etc.) as a platform for holding companies liable for privacy invasions. Although the malleable nature of the common law makes it easier to apply that legal framework to continually changing spying technologies, the limited causes of action perhaps do not provide the full protection many Internet users desire. While statutes and common law principles might work in tandem to afford the most robust protection of privacy rights in cyberspace, the swiftly evolving architecture of the Internet makes securing those privacy rights especially difficult.
On a final note, many privacy rights activists argue that one particular legislative initiative, the USA PATRIOT Act of 2001, represents a significant threat to online privacy. Passed in response to the terrorist attacks of September 11, 2001, the act expands the government’s authority to collect information over the Internet, among other powers, as part of an overall effort to combat terrorism. In contrast to other federal statutes that attempt to protect online privacy interests, the PATRIOT Act favors increased collective security over personal privacy rights. The legislative debate surrounding an extension of the act’s provisions underscores the precarious position of privacy rights on the Internet. While many Internet users desire greater privacy safeguards, governmental security concerns and corporate interests may align against robust privacy protection. In the end, the debate about the proper scope of online privacy remains heated; the courts have yet to weigh in on some of the most pressing matters.
While it might seem odd to discuss access to the Internet in the context of civil rights, the increasing importance of Internet communication in economic, political, and social life makes access a true rights concern. Within the United States and in the international arena, scholars describe a ‘‘digital divide’’ that separates those who have access to the Internet and those who do not.
Undercurrents of race, class and gender inequality make the digital divide especially problematic. For instance, within the United States, a U.S. Department of Commerce study estimated that in 2000 the number of African Americans and Hispanics who had access to the Internet fell almost 18 percent below the national average (an even greater disparity than measured two years earlier). Regarding economic class, the same study reported the access rate for people in households with income ranging between $25,000 and $35,000 was less than half the rate for people in households with income over $75,000.
Similarly, access rates for people in rural areas fell far behind those in urban areas. With respect to gender, access concerns often take a different tack, focusing on the disproportionate prevalence of males in creating the structure and content of Internet communication. On the international front, the problems of access become incredibly magnified, with Internet communication available only to the most privileged individuals in some developing countries.
Thus, involving domestic and international components, the debate over access raises basic equality concerns. Couched in that way, the ‘‘digital divide’’ simply provides a new context for presenting some traditional equal rights claims involving race, class, and gender. Although the impact of the digital divide occupies significant scholarly debate, rights of access are only beginning to garner the attention of courts and legislatures in the United States and around the world. MICHAEL R. SIEBECKER References and Further Reading Celli, Andrew G., Jr., and Drifach, Kenneth M., Postcards From the Edge: Surveying the Digital Divide, Cardozo Arts and Entertainment Law Journal 20 (2002): 53–71.
Finkelman, Paul, Picture Perfect: The First Amendment Trumps Congress in Ashcroft v. Free Speech Coalition, Tulsa Law Review 38 (2002): 243–61.
Fishman, Clifford S., Technology and the Internet: The Impending Destruction of Privacy by Betrayers, Grudgers, Snoops, Spammers, Corporations, and the Media, George Washington Law Review 72 (2004): 1503–1556.
Isenberg, Doug. The GigaLaw Guide to Internet Law. New York: Random House, 2002.
Lessig, Lawrence. Code, and Other Laws of Cyberspace. Basic Books, 1999.
Li, Joyce H.-S. The Center for Democracy and Technology and Internet Privacy in the U.S.: Lessons of the Last Five Years. Oxford: The Scarecrow Press, Inc., 2003.
Siebecker, Michael R., Cookies and the Common Law: Are Internet Advertisers Trespassing on Our Computers? Southern California Law Review 76(4) (2003): 893–952.
Volokh, Eugene, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, Stanford Law Review 52 (2000): 1049–1124.
Wilhelm, Anthony G. Digital Nation: Toward an Inclusive Information Society. Cambridge, MA: MIT Press, 2004.
Cases and Statutes Cited
- Ashcroft v. ACLU, 542 U.S. 656 (2004)
- In re DoubleClick, Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001)
- Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2003) Reno v. ACLU, 521 U.S. 844 (1997)
- Can Spam Act, 15 U.S.C. }} 7701-13 (2003)
- Child Online Protection Act, 47 U.S.C. } 231 (1998)
- Children’s Online Privacy Protection Act, 15 U.S.C. }} 6501 et seq. (1998)
- Communications Decency Act, 47 U.S.C. }} 230, 560-61 (1996)
- Computer Fraud and Abuse Act, 18 U.S.C. } 1030 (2000)
- Electronic Communications Privacy Act, 18 U.S.C. }} 2701-11 (2000)
- Federal Wire Tap Act, 18 U.S.C. }} 2511-22 (2000)
- Freedom of Access to Clinic Entrances Act, 18 U.S.C. } 248 (2000) USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001)