Filtering the Internet like a Smokestack: How the Children's Internet Protection Act Suggests a New Internet Regulation Analogy
Chrislip, Jared, The Journal of High Technology Law
The development of new technologies often presents society with novel legal issues. Rarely, however, do technological innovations present problems that are wholly unique. For example, a new medium of communication used to disparage a person's reputation would likely fall under the doctrine of libel. To apply traditional, print media libel precedent to a case when the slanderous speech is electronic, the law analogizes the electronic medium to the printed page. The law's relevance in the face of new technology, therefore, relies on its use of analogies that frame unforeseen legal issues in terms of established principles.
The application of established law to the multi-faceted Internet, however, resists a single, overarching analogy. Instead, courts, lawmakers and commentators have had to employ an evolving set of metaphors in their attempts to analyze the medium. Regulation of the Internet has been promoted with the "information superhighway" metaphor, analyzed with the "cyberspace" conception and explored with the "Internet as real space" comparison. (2) The government's interest in protecting minors from harmful Internet content has even been likened to the zoning of real property, like distancing schools from adult-oriented commercial spaces. (3)
Although Internet filtering technology continues to develop and improve, filters are currently unable to analyze the content of images on the Internet. (4) The Children's Internet Protection Act (CIPA), (5) however, is based on a policy that requires the use of Internet filters that can discern between appropriate and inappropriate Internet images. (6) The statute's apparent technological infeasibility raises unresolved questions regarding the interpretation and application of CIPA's Internet filtering provisions.
Although no single metaphor is sufficient for analogizing the myriad legal issues presented by the Internet, CIPA necessitates an appropriate analogy to address the statute's unresolved regulatory concerns. (7) Fortunately, environmental law has encountered and resolved analogous technological infeasibility issues. (8) In bridging the gap between current regulatory aspirations and potentially available technological tools, environmental law has established a vocabulary of statutory construction and interpretation that forces technology to develop in order to accomplish forward-looking regulatory goals. (9) Reading CIPA as a technology-forcing goal statute like the Clean Air Act (CAA) (10) explains how the apparently infeasible Internet filter statute may be interpreted and applied in the face of technological limitations.
After reviewing free speech concerns and Congress' interest in protecting minors from harmful Internet content, this note will summarize the history of Congress' efforts to regulate online pornography. The paper will then describe current Internet filtering technology and compare CIPA to the CAA. Borrowing from environmental principles such as the "best available technology" standard, this note will then suggest an approach to interpreting CIPA that resolves the law's technologically problematic positions.
II. INTERNET REGULATORY POLICY AND THE FIRST AMENDMENT
The First Amendment to the United States Constitution protects both the expression and the receipt of information. (11) In United States v. Am. Library Ass'n, (12) the Supreme Court of the United States considered whether CIPA, a congressional act that conditions the receipt of public library Internet subsidies on the library's use of filtering software, violates the First Amendment. (13) Upholding the Act, the Court held that, at least facially, it does not violate First Amendment rights. (14) The Act's mandate to employ a "technology protection measure" capable of blocking access to obscene images is, however, virtually impossible to comply with.
That the First Amendment does not cover all speech is well established. …