United States

UNITED STATES On June 26 the Supreme Court of the United States declared the Communications Decency Act unconstitutional. This law passed by Congress and signed by President Clinton made it a crime to display or distribute "indecent" or "patently offensive" material to minors over computer networks, the Internet in particular. Violators could be punished with up to two years in jail and a $250,000 fine. In writing the court's unanimous opinion, Justice John Paul Stevens said the protection of minors was in the nation's interest. However, he said that interest did not outweigh individual right to free expression. Justice Stevens rejected the government's argument that failure to restrict online obscenity could reduce Internet use because of parents' fears. The government reasoned such fear would lead to parental restrictions. "We find this argument singularly unpersuasive," said Stevens. "The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention," Stevens added. A salient element of the opinion is the distinction made between broadcast regulation and the Internet. The Supreme court has given the government broad authority to regulate broadcast media. Some feared the court would give similar authOrity to the government to regulate the Internet. However, the court ruled that the Internet should be given the highest level of First Amendment protection. Stevens said that online communication was not as "invasive" as television or radio and that Internet users rarely found content by accident. The court also reasoned that the law's definition of what constituted "indecent" or "patently offensive" material was too vague. Lower courts previously had ruled the statute was too vague to be enforced. The opinion also said that vagueness combined with the threat of criminal punishment would produce a chilling effect. Individuals might not distribute information about birth control, homosexuality or rape over the Internet for fear of prosecution. "As a matter of constitutional tradition," Stevens wrote, "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 benefit of censorship .... " Justice Sandra Day O'Connor wrote a separate concurring opinion that was joined by Chief Justice William H. Rehnquist. O'Connor dissented from parts of the court's decision. She argued that Congress' reason for enacting the CDA was much like creating a zoning ordinance. She said the law was like requiring bookstores to restrict pornographic materials in an adults-only area. She said that technology in development could restrict minors access to pornography. Because that technology is not available today, the CDA could not be enforced in a manner that adequately protected adult rights to free speech, she said. A bill was introduced in the U.S. House of Representatives that would outlaw any encryption product that doesn't give law enforcement authorities immediate back-door access to protected data. The proposal targets everything from web browsers to digital cellular phones. It would be the latest, most restrictive amendment to the Security and Freedom through Encryption Act (SAFE), a bill that originally called for easing export limits on encryption products. Mter being passed intact by the House Judiciary and International Relations committees earlier this year, SAFE was essentially rewritten by the National Security and Intelligence committees after federal law enforcement officials began lobbying in earnest for new restrictions on the domestic use of encryption. The version of SAFE passed by the National Security Committee would marginally tighten current export restrictions. The Intelligence Committee, meanwhile, passed something similar to the amendment that will be offered in the Commerce Committee today by U.S. Reps. Mike Oxley, an Ohio Republican, and Thomas Manton, a New York Democrat. Both proposals deliver what FBI Director Louis Freeh has told Congress he wants: A bill that makes sure cracking encrypted messages is no more difficult than wiretapping a phone. "This amendment does not constitute a change of policy," Oxley said in a prepared statement. "It simply ensures that law enforcement's traditional, constitutional access to communications after a court order or warrant is not nullified by encryption technology." But civil libertarians say the Oxley-Manton amendment would violate the Fourth Amendment because users of encryption would not be notified when their communications were being read by law enforcement officials. "This means police would have a secret, back door skeleton key to everything on hand at all times to use whenever they want," said Stanton McCandlish, program director for the Electronic Frontier Foundation, a San Francisco-based cyber rights group. "That's really beyond the pale of anything that is appropriate for a democratic government." As the search for blame continues after the late-August death of Princess Diana, lawmakers around the country are riding the wave of anti-paparazzi sentiment. Several pieces of legislation proposed by local, state and national politicians are aimed at squelching intrusive efforts of the paparazzi. In early September, U.S. Rep. Sonny Bono (R-Calif.) joined the attack on paparazzi. Bono introduced the "Protection from Personal Intrusion Act," which would impose fines and/or jail sentences on those who harass American citizens worldwide or other citizens inside the United States by trying too hard to photograph or interview them. Bono defined harassment as "persistently physically following or chasing a victim, in circumstances where the victim has a reasonable expectation of privacy and has taken reasonable steps to insure that privacy" (H.R. 2448). A proposal introduced by California Senate Majority Leader Charles Calderon (D-Whittier), would impose a 15-foot buffer zone between photographers and their subjects upon request of the subject. The "bubble" bill, said a Caideron aide, would be "modeled after restrictions on anti-abortion picketers at clinics." The U.S. Supreme Court held in February 1997, however, that such "floating bubbles" of protection violated the picketers' First Amendment rights. Calderon said in a written statement that the introduction of the bill would be "a starting pointa message to paparazzi and the tabloids who buy their photos that we will not tolerate harassment, spectacle or endangerment of people's lives" (S.B. 14). Another California Senator, Tom Hayden (D-Los Angeles), has also called for stricter regulations against the paparazzi. Hayden has not yet introduced a specific proposal, but an early-September draft of the "Paparazzi Harassment Act of 1998" expressed "concern at the growth of the paparazzi phenomenon, with its emphasis on massive commerciaL rewards or bounties for behavior that raises questions about privacy and the public interest." A Hayden spokesman told The Hollywood Reporter, a daily entertainment industry newspaper, that the bill would "crack down on the excesses of the paparazzi and bounty-hunting journalists." The proposal would also create a "Commission of Inquiry into Paparazzi Behavior" that would make recommendations to the state legislature regarding issues such as the impact of new technology, libel laws and privacy, the growth of tabloid journalism and possible reforms.