Computer Law Outline

Computer Law

Communications Decency Act of 1996 (CDA) 47 U.S.C. §230

§230: Zeran v. AOL
ISPs ¹ Publishers under the Communications Decency Act
¨ The genesis of §230 was the Prodigy case where they promoted themselves as the family friendly service provider, also stated they edited and screened content, thus Prodigy held itself out more like an original publisher
¨ Immunizes ISPs to avoid liability for information on their systems
¨ Encourages ISPs to self-regulate their content without the possibility of liability; promotes dev of filtering/blocking tech
¨ ISPs CAN edit & self-reg content w/o liab as publ
¨ ISP cannot be cast in same light as person making the comment
¨ No liability upon notice to ISP of the defamatory material
¨ § 230 does not apply to copyrighted material
Blumenthal v. Drudge – drudge writes art of politician’s cheating on wife
³ ISPs still immune when it has editorial control over its contributing writers
³ Not Just Immune to Defamation as a COA – Also immune to
o Negl for allowing a user to sell porn
o Online Auction immune from unfair competition/negl claims for inauthentic sports memorabilia
o Nuisance claim against offensive speech banned
o Kinko’s not liab for negligence when it provides terminals for web access
o Public libraries not liable for not shielding indecent material from minors
³ CDA does not apply to IP claims
³ Reno v. ACLU, p. 809: Constitutional challenges to CDA
o While CDA references, “indecent communications” and “patently offensive communications”
§ Almost no debate regarding these provisions in the law
o Ginsberg case = NY law not unconstitutional to require age minimums before selling certain materials
o Pacifica case = may regulate specific broadcast because it is not the traditional content allowed; not punitive like CDA; broadcasts get lowest 1st amendment protection; risk of encountering offensive content is ¹ as high as broadcast
o Renton case = allowed to regulate location of adult theaters because of secondary effect – distinguished here because not involved with content of the films shown
o Miller case = test for obscenity
§ Apply contemporary standards to determine if content appeals to community
§ Content describes content already defined by state law as offensive
§ Whether the work lacks serious literary, artistic and political value
o Sexual expression by adults which is indecent but not obscene is protected by First Amendment
o CDA is too vague
§ Content based and subjective, not the typical “time, place, and manner” tests of constitutionality
§ CDA is a Criminal statute which as a deterrent may chill speech too much
o Sustained provisions:
§ Indecency transmission/specific person provisions: Sustained in cases where the disseminator of the info knows all the recipients are minors
o CDA regulates based on content
o Since there are not many ways to confirm a person’s age (18 in the CDA) it creates a chilling effect
o User-based filtering software is available and

Child Online Protection Act (COPA)

³ Based on the MILLER test: no protection of obscene material, regardless of the medium – COPA takes it a step further by applying it specifically to minors
o Knowingly and with knowledge of the material, in interstate commerce, by way of WWW, makes commercial communication available to a minor and which is harmful to minors = fined up to $50K, imprisoned up to 6 mos or both
o Defines “harmful to minors”
§ Includes community stds of what is obscene to minors of content pandering to prurient interests
§ Patently offensive to minors – sexual acts whether actual or simulated, lewd exhibition of genitals/post-pubescent breasts
o COPA is, like CDA, a criminal statute
o Different because it distinguishes using the WWW to distribute
³ Ashcroft v. ACLU – whether the community standard portion of COPA is facially unconstitutional
o Ct held here that the community standard prong of the test was not overbroad on its face but limited its decision to that prong only – multiple concurrences/dissents in this case; ct leaves it to the ct app to view the is