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Abstract:
Professor Nunziato's book explains why the growth of the Internet as the most open forum for free expression in history is now threatened by the privatization of the Internet, the gatekeeper control over expression exercised by a handful of corporate owners, and their power to censor what we say and read online. She sets forth how we got to this place and what must be done about it to guarantee meaningful free speech rights in the Internet age.

Internet, cyberspace, censorship, free speech, freedom of speech, freedom of expression, free expression, First Amendment, filtering, Brand X, common carriage

Abstract:
Over the past decade, legislators and industry players have attempted to employ technology to restrict the availability to minors of sexually-themed Internet content. Legislative efforts have relied on adult verification and software filtering technology. The constitutionality of such schemes generally depends on the level of sophistication, efficacy, and deployment of adult verification technology, the burdens that the required use of such technology imposes on content providers and Internet end users, and availability of less restrictive but equally effective alternatives for achieving the government's interest. In the case of both the CDA and COPA, challengers pointed to the less restrictive alternative of software filters in convincing the Court to strike down these statutes as constitutionally infirm. Recently, an organization called CP80 has proposed legislation (Internet Community Ports Act) that would require that all Internet content be classified by content providers into one of two categories - Adult/Inappropriate for Minors or Appropriate for Minors. This proposed legislation relies on port-filtering technology to restrict minors' access to the former category of content. Under this proposed scheme, certain Internet ports would be designated as Adult Ports to transmit adult content while others would be designated as Community Ports to be used for all other content. Individual users would then direct their ISPs to provide content to them on all ports or only on Community Ports.

In this Article, I scrutinize these attempts to use technology to remedy the problem of minors' access to harmful Internet content, focusing on the relationship between the efficacy of the technology and the constitutionality of the legislation at issue. The more effective software filtering becomes in restricting minors' access to harmful content, the less likely the courts will uphold other legislative means. I then analyze the foundational First Amendment jurisprudence regarding the regulation of minors' access to sexually-themed content. Next, I examine the fate of Congress's recent efforts to regulate in this area, with particular emphasis on the current status of COPA. Finally, I analyze the constitutionality of the proposed Internet Community Ports Act in light of the scrutiny courts have imposed upon prior legislative efforts and the burdens the Act would impose on content providers and Internet users.

Internet pornography, Internet ports, port filtering, Internet Community Ports Act, Communications Decency Act (CDA), Child Online Protection Act (COPA) freedom of expression, first amendment, sexually-themed content

Abstract:
Authors' copyright rights have traditionally been limited, because such limitations were believed to be necessary to advance copyright law's constitutionally-mandated utilitarian purpose - "to promote the progress of science and the useful arts." But authors today - especially authors of digital works - are increasingly turning to extra-copyright measures, including encryption and "clickwrap" licenses, to customize their rights in their works of authorship. Because such privately-ordered rights are arguably outside of copyright law's framework, they are not necessarily subject to its utilitarian mandate, and need not be made subject to limitations imposed by copyright law on authors' rights. Even though such private ordering regimes may not be subject to copyright law's utilitarian mandate justifying limitations on authors' rights, other powerful justifications implicit in the copyright regime support the imposition of limitations on authors' rights. This article advances one such theoretical justification. Building upon the foundational work of John Rawls, who has articulated a theory of justice as fairness, the article develops a theory of justice between generations of authors. This theory requires that the rights of each "generation" of authors - including the rights that they might attempt to assert through private ordering measures - be limited for the benefit of subsequent generations of authors.

While not limited to authors' rights in digital works, the theory of intergenerational justice between authors the article advances is particularly relevant to the burgeoning private ordering regime, in which authors of digital works are increasingly using private ordering measures to create for themselves virtually unlimited rights - in disregard of the interests of future generations of authors - even while they are benefiting from the limitations copyright law has imposed on the rights of their predecessor generation of authors. Authors of electronic books, for example, are increasingly using "clickwrap" licenses and encryption controls to prohibit their readers from copying any portion of their books, even while these authors have benefited from incorporating elements of earlier works into their own works. Motion picture companies are increasingly using technological measures like encryption devices to control access to and copying of their films released on DVD, even while the filmmakers have benefited from copying elements of earlier works in developing their films. By the use of such private ordering measures, present-day authors are able to reap the benefits of the limitations on authors' rights previously imposed by copyright law, while casting aside any limitations on their rights for the benefit of future authors. The article contends that the use of such private ordering measures to establish unlimited rights in creative works is inconsistent with intergenerational justice obligations imposed upon authors to preserve the raw materials of the creative process for the benefit of future generations of authors.

Abstract:
Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, most importantly, protection for freedom of expression. In this Article, I challenge the prevailing idea that ICANN's governance of the Internet's infrastructure does not threaten free speech and that ICANN's governance of the Internet therefore need not embody special protections for free speech. I argue that ICANN's authority over the Internet's infrastructure empowers it to enact regulations affecting speech within the most powerful forum for expression ever developed. ICANN cannot remain true to the democratic norms it was designed to embody unless it adopts policies to protect freedom of expression. While ICANN's recent self-evaluation and proposed reforms are intended to ensure compliance with its obligations under its governance agreement, these proposed reforms will render it less able to embody the norms of liberal democracy and less capable of protecting individuals' fundamental rights. Unless ICANN reforms its governance structure to render it consistent with the procedural and substantive norms of democracy articulated herein, ICANN should be stripped of its decision-making authority over the Internet's infrastructure.

ICANN has two significant roles in regulating speech on the Internet. First, ICANN has established a policy that essentially prohibits websites from being maintained anonymously, which erects substantial barriers to individuals' ability to freely engage in anonymous Internet speech. Second, ICANN's policy for adjudicating disputes between intellectual property owners and domain name holders restricts Internet users' ability to engage in critical speech. These policies significantly affect Internet users' right to free speech, and thus ICANN serves a significant public ordering function with respect to speech on the Internet. As the functional equivalent of a public actor, ICANN should be held to the normative procedural and substantive ideals of democracy that we generally require of governments.

In this Article, I set forth my conception of the normative procedural and substantive ideals of liberal democracy, with an eye toward how these ideals should be implemented in the context of Internet governance. I then examine whether ICANN's governance structure embodies the normative ideals of liberal democracy. While ICANN's framers committed it to procedural democratic norms, they failed to commit ICANN to substantive normative ideals integral to liberal democracy such as the protection of freedom of expression.

Next, I provide concrete recommendations for ICANN to implement meaningful protections for freedom of expression by looking to the general themes and principles embodied within the United States' First Amendment jurisprudence. These First Amendment themes and principles should guide ICANN as it revises its policies to incorporate the liberal democratic norm of freedom of expression. I propose several ways in which ICANN should revise its policies to accord meaningful protection for freedom of expression. First, ICANN should allow Internet users' to maintain websites without requiring them to disclose personal identifying information. Second, ICANN should incorporate meaningful protections for the right to engage in critical speech into its policy applying to the resolution of disputes between trademark owners and domain name holders. Finally, ICANN should constitute an Independent Review Panel responsible for evaluating ICANN policy making for adherence to the procedural and substantive commitments articulated in its foundational documents. ICANN should be held to its commitment to normative procedural ideals of liberal democracy, and its governance structure should be revised to accord meaningful protections for the substantive norms of liberal democracy, including protections for freedom of expression. In particular, ICANN should revise its speech-related policies to accord meaningful protection for Internet users' right to engage in anonymous speech and their right to engage in critical speech.

Internet Corporation for Assigned Names and Numbers (ICANN), freedom of expression, intellectual property

Abstract:
The Internet has been conceptualized as a forum for free expression with near limitless potential for individuals to express themselves and to access the expression of others. But that potential is in danger of being seriously hampered as a result of the privatization of Internet forums for expression. During the Clinton Administration, the government undertook measures to turn over many aspects of the Internet to private entities. The end result of this increased private control is that, in contrast to real space, speech in cyberspace occurs almost exclusively within privately-owned places. The public/private balance that characterizes real space and renders the First Amendment meaningful within real space is all but absent in cyberspace. As a result, private regulation of speech on the Internet has grown pervasive, and is substantially unchecked by the Constitution's free speech protections. Under earlier First Amendment jurisprudence, such private speech regulation might have been subject to meaningful First Amendment checks under the state action doctrine, but the Supreme Court has substantially limited the application of the state action doctrine in recent years, and courts have been unwilling to extend this doctrine to treat private regulators of Internet speech as state actors for First Amendment purposes. This shift in First Amendment jurisprudence is consistent with the negative conception of the First Amendment, under which free speech values are understood as best advanced by facilitating a proliferation of private speech decisions without intervention or control by the government. This negative conception of the First Amendment conceptualizes the sole function of the free speech guarantee as checking government restriction of speech. This conception fails to incorporate the important affirmative role the government plays in facilitating freedom of speech and correcting imperfections in the market for free expression, particularly through providing public forums for expression and protecting speech from censorship within such forums.

Under the public forum doctrine, the government is affirmatively obliged to dedicate property to the public's use for free speech purposes, and within such public forums free speech rights are accorded their greatest protection. In real space, the existence of such public forums ameliorates the inequalities that disparities in private property ownership would otherwise impose on individuals' free speech rights. Public forums subsidize the speech of those who otherwise would not be able to express themselves effectively. However, there are essentially no such "public forums" on the Internet because the places within which expression occurs are overwhelmingly privately owned. As a result, there are essentially no places on the Internet where speech is constitutionally protected against censorship. The lack of public forums in cyberspace augurs the absence of meaningful protection for free speech.

In this Article, I describe the scope and extent of private ownership of the Internet and private regulation of Internet forums for speech. I then analyze the important role served by public forums within our system of democratic self-government. Next, I analyze the recent Supreme Court public forum decision in United States v. American Library Association, in which the Court declined to apply meaningful First Amendment scrutiny to the government speech restrictions within Internet forums. Finally, I set forth several ways in which courts and legislatures should act to reintroduce the values of the public forum into cyberspace. I argue that the absence of true public forums in cyberspace brings with it the erosion of important First Amendment values. Courts and legislatures should act to remedy this problem and faithfully translate First Amendment values to render these values meaningful in the new technological age.

freedom of expression, First Amendment, censorship, State Action doctrine, public forum, United States v. American Library Association

Abstract:
In this article, I scrutinize Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect either adults' or minors' right to access protected expression. Although CIPA recently withstood a facial attack on its constitutionality, it is likely that this statute will confront as-applied challenges. I analyze the technology and the First Amendment doctrines at issue in CIPA's implementation, and set forth recommendations as to how libraries can implement CIPA in a manner that protects both adults' and minors' free speech rights.

Child Online Protection Act (CIPA), internet, minors, sexually-themed speech, First Amendment

Abstract:
Professor Lawrence Lessig makes the (rather dire) prediction in Code and Other Laws of Cyberspace that the Internet will be transformed from an unregulated medium into a highly regulated one. Lessig posits that the Net will largely be regulated not by the government but by commercial entities - in particular, by the software (or code) written by entities such as AOL and IBM. While the government's regulatory power is limited by the Constitution, regulation by commercial entities is not. For example, Internet service providers can censor "indecent" speech on the Net largely free of constitutional constraints. The "Net libertarians" applaud such nongovernmental regulation and contend that market forces will suffice to impose any necessary limitations on such commercial Internet regulation. For example, if AOL does not sufficiently respect our free speech rights, we can "vote" with our mouse clicks and choose another Internet service provider that does. Lessig is skeptical of this Net libertarian model, and contends that although such a model might reflect and incorporate individual values, it will be incapable of adequately protecting our important "collective" values.

In this essay, I first describe Lessig's ideas about Net regulation and then explain the Net libertarian response to these claims, focusing on whether a libertarian market-based model would adequately protect freedom of expression. I then analyze the mechanisms of exit and voice, examining the role of exit in both Robert Nozick's libertarian utopian framework and in the Net libertarian model. I consider the potential dangers that an exit-based model poses to protecting unpopular speech, and observe that the sufficiency of such protection under the exit model is a function of the particular marketplace. I conclude that Lessig has not shown that marketplace regulation endangers our important collective values. I argue further that Lessig's favored mechanism of voice, wherein individual market members reshape a market's values from within, may not serve to incorporate our important collective values. Lessig contends that voice could afford such protection if somehow the meta-value of "deliberation" were incorporated into the expression of voice - i.e., by providing individuals with information on a subject before they were asked to make value-based decisions. However, I contend that Lessig has not shown that the introduction of deliberation into the expression of voice is warranted. I conclude that while government intervention may eventually be necessary if the market's potential to disregard collective values does materialize, we have not yet reached that point.

Next, I consider a market-based model of cyberspace and examine Lessig's claim that the government will be powerless to intervene if the cybermarket were no longer conducive to reflecting our important values. I argue that, contrary to Lessig's claims, the First Amendment's state action doctrine does not prohibit court intervention where private regulation threatens important collective values such as freedom of expression. In interpreting the state action doctrine in situations where private parties have threatened free speech rights, courts have balanced the competing rights and interests at stake, examined the markets involved, and considered whether meaningful alternative avenues of expression were available. Furthermore, the government has used other mechanisms to intervene where markets have failed to protect speech adequately. I conclude that Lessig has not shown that a cyberspace governed by market forces will fail to incorporate important collective values or that courts and policymakers will be powerless to protect such values if the marketplace indeed fails to do so.

internet, cyberspace, Lessig, Nozick, code, Net libertarians, free speech

Abstract:
Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent generations of authors. This theory of intergenerational justice relates particularly to digital authors' increasing use of private ordering measures to create virtually unlimited rights, disregarding the interests of future authors while they continue to benefit from the limitations copyright law imposed on the rights of their predecessor authors. I contend that the use of such measures to establish unlimited rights is inconsistent with intergenerational justice obligations imposed upon authors to preserve the raw materials of the creative process for the benefit of future authors.

I begin by setting forth the principal tenets of a general Rawlsian theory of intergenerational justice, which sets forth a just savings principle under which the distribution of benefits and burdens within a society is determined without reference to an individual's generation. Under this "just savings" principle, individuals are obliged to forgo immediate gains where necessary to protect the interests of future generations. I then apply this intergenerational justice principle to intellectual property rights in creative works, contending that authors without knowledge of where they fall on a generational timeline would find it in their interests to limit authors' rights in creative works across the board. I next examine the limitations historically imposed by copyright law on authors' rights from the perspective of justice between authors, concluding that principles of intergenerational justice justifying limited creative rights are inherent in the jurisprudence of copyright limitations. The limitations of copyright protection effectively mandate the savings of certain elements and uses of the creative process to benefit future authors at the expense of present authors in order to preserve the raw materials of the creative process for subsequent authors.

In the Digital Millennium Copyright Act, Congress empowered authors to use technological measures to create for themselves virtually unlimited rights in their works. Authors are also increasingly resorting to contractual measures to create for themselves broad, perpetual rights in their works. Finally, Courts generally have been unwilling to read any limitations into such privately ordered rights. In order to carry forth into the digital realm the copyright regime's implicit commitment to justice between authors, Congress and the courts should impose substantial limitations on authors' rights irrespective of whether the work is protected by public or private ordering measures. Although the migration of creative works to the digital realm may require some recalibration of the limitations historically imposed on creators' rights, durational justice concerns require that the interests of future authors be protected. I propose several ways in which limitations should be imposed on authors' privately ordered rights so as to embody a form of justice between authors in the digital age.

copyright, Rawls, intergenerational justice, just savings, Digital Millennium Copyright Act