Law and the Techno-Evolution
David G. Post
Plugging In -- September 1996
Judges, like the rest of us, are often less than prescient when it comes to understanding the fate of new technologies or their place within the scheme of legal things. "We immediately feel that the argument is wrong or strained," the Supreme Court wrote in 1915, "which extends the guaranties of free opinion and speech to the multitudinous shows which are advertised on the bill-boards of our cities and towns and which . . . seeks to bring motion pictures and other spectacles into practical and legal similitude to a free press and liberty of opinion." Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915) (holding that Ohio was free to establish a motion picture censorship board, charged with ensuring that only films of a "moral, educational or amusing and harmless character" would be shown in Ohio). "The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment." Olmstead v. United States, 277 U.S. 438, 466 (1927) (holding that the Fourth Amendment does not protect telephonic communication). "That perforated sheets and other mechanical means of automatically producing music audibly are not infringements of copyrights upon the musical compositions which are thus audibly reproduced." White-Smith Music Pub'g Co. v. Apollo Co., 209 U.S. 1 (1908) (holding that piano rolls and, by extension, phonograph records cannot constitute copyrightable expression). In retrospect, these decisions have an embarrassing, egg-on-the-Court's-face kind of quality, and the legal system did, in the long run, come to its senses and reverse course in all three cases; Mutual Film was overruled in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), Olmstead in Katz v. United States, 389 U.S. 347 (1967), and White-Smith by Section 102 of the 1976 Copyright Act. But in the long run, as John Maynard Keynes said, we are all dead, and the fact that it sometimes takes decades for the law to catch up with technological develops is not just an insignificant inconvenience. So how would the legal system respond to the latest and perhaps most startling new technological development of all -- the Internet? That was one of the questions posed by the recently-concluded litigation over the constitutionality of the Communications Decency Act. As everyone is surely by now aware, the CDA, passed as part of the 1996 overhaul of the Telecommunications Act, prohibited the transmission, by means of any "telecommunications device" (including a networked computer), of "indecent" material, or the display of material "patently offensive as measured by contemporary community standards," to persons under the age of 18. This was the Scopes trial for the electronic age, with the Internet taking the place of the theory of evolution (or the scientific method itself); the net itself was, in a sense, on trial. At least, many of us hoped it would be on trial, for it was almost inconceivable that, if the judges understood the unique features of the medium, they would fail to see the uniquely speech-destructive features of this law. So during a series of evidentiary hearings, the Net was the star witness. The judges were given a valuable crash course in the new communications technology, a Cook's tour of cyberspace that explained the nature and functioning of Usenet newsgroups, listservers, "mail exploders," the World Wide Web, and the like -- "Internet 101," in the words of Jerry Berman of the Center for Democracy and Technology, which helped coordinate the attack on the law and took the lead in educating the court about the Net. And the court clearly paid close attention; the court's opinion (ACLU v. Reno, available online at http://www.aclu.org/court/cdadec.html) opened with over 40 pages of detailed factual findings that, as the New York Times' editorialized, "could well serve as a primer for computer-phobic Americans seeking to understand the unique nature of the Internet, and how it differs from earlier forms of communication including radio, television, books and newspapers." The court did, however, do more than just show that it knew the difference between gopher and World Wide Web protocols on the net. It recognized that the unconstitutionality of the CDA follows from the very architecture of the Internet, which is truly unlike any communications medium we have ever seen before, and which, as a result, presents unique challenges to anyone trying to regulate it (or at least to anyone trying to regulate in a manner consistent with the First Amendment). In a medium where there is, as the judges noted, no "effective way to determine the identity or the age of a user who is accessing material" over the Internet, no way to prevent information made available on the Internet from becoming "available to all other Internet users worldwide," no way to discern the "community standards" applicable to the determination of what is, or is not, "patently offensive" material in the "vast world of cyberspace" where "perhaps 40% or more of content on the Internet originates outside the United States," the only means of complying with the statute would be to refrain entirely from posting material that might be deemed "indecent" or "patently offensive." This would necessarily deny adults access to material they have a constitutional right to receive. Enforcement of content-based regulation in this medium, in other words, would "burn the global village to roast the pig" (paraphrasing Butler v. Michigan, 352 US 380, 383 (1957)). But what has been obscured by the excitement surrounding the decision's First Amendment implications is that the court also recognized that the technology itself offers alternative means to address the very problem the CDA was meant to attack. The court spent a great deal of its time describing various software solutions to the problem of content control on the Net -- the PICS (Platform for Internet Content Selection) system, providing a language' for rating the content of various Internet sites, the CyberPatrol and SurfWatch software programs, and the parental control systems built into some of the larger online services. Given that these and other "reasonably effective method[s] by which parents can prevent their children from accessing sexually explicit and other material . . . will soon be widely available," Congress should have "chosen to assist and support the development of technology that would enable parents, schools, and libraries to screen such material from their end" instead of "plac[ing] on the speakers the obligation of screening the material that would possibly offend some communities." I view this as the first glimmerings of judicial recognition of what I hereby not so humbly christen Post's Law: that "software" is itself an alternative source of "law" -- it is no accident that both go by the name of "code" -- whose superior enforcement capabilities may give it a competitive advantage on the Net over more traditional forms of law like the CDA. But what the technology giveth, the technology can taketh away. To the extent the decision was driven by the current capabilities of the medium, new answers to legal questions may be forthcoming as the technology itself evolves over time. For one of the three judges on the panel (Judge Buckwalter), it is "too early in the development of this new medium to conclude that other attempts to regulate protected speech within the medium will fail a challenge," as long as they remain "sensitive to the unique qualities of the medium at which the restriction was aimed." In other words, what happens if someone develops "effective ways to determine the identity or the age of a user who is accessing material" over the Internet, or some "technologically feasible way for an Internet speaker to limit the geographical scope of his speech," or to implement "a system for screening the locale of incoming requests," the legal conclusion regarding constitutionality of this or other regulatory actions may change. The Supreme Court, to be sure, is going to have the last word here; the government has already announced that it will exercise its right under the statute to seek an appeal "as of right" to the High Court. But when Sen. James Exon (D-Neb.), the author of the CDA legislation, declared that the three-judge panel was "bamboozled by the wizardry of the Internet," he unconsciously was hearkening back to the technological primitivism of previous court decisions. Wizardry, yes; bamboozled, I think not. Rather, this is one of those time when it didn't take 50 years for the court to "get it." For now, at least, the judiciary's face is hearteningly egg-free.