The Internet is at a crossroads. Down one path lies a future where digital technology enhances constitutional freedoms; spurs innovations in expression and entrepreneurship; and fulfills its ultimate promise of connecting and empowering the world. Down the other? A future where the Internet is turned against users; where government spying runs unchecked, and where innovation is stifled by a closed and locked system, controlled by a handful of entrenched players. The next president will play a key role in determining which path we take. This is the second in a series of entries over the next couple weeks about the critical technology and civil liberties choices facing the next president of the United States. Our complete transition guide for next president is available online.
Sometimes I just want to grab our government leaders by their collective collar and yell: "What part of 'free' in 'free speech' don't you understand?!" when it comes to the issue of digital communication being afforded the same First Amendment protection as traditional print media.
Free expression in the digital world stands on twin legal pillars that ironically both flow from a 1996 law that sought to place restrictions on web-based speech, The first legal pillar was established in a 1997 Supreme Court decision, Reno v. ACLU, which struck down the Communications Decency Act (CDA) as unconstitutional and provided the legal baseline of free expression heading into the new millennium. In the Reno case the Court recognized that web-based speech is deserving of the highest level of First Amendment protections. The CDA has been rightly maligned as a law that -- if allowed to stand -- would have brought the Internet to its knees. But a section of that law which was not challenged in Court actually provides the second critical legal pillar for digital free expression. That section relieved Internet Service Providers from liability for the content posted by their subscribers, freeing them from assuming a "gatekeeper" role that would have chilled both speech and innovation.
Despite these bedrock tenets of free speech, web-based content remains under almost constant assault from those trying to reign in protected speech in the name of protecting children. Child protection is a legitimate and important policy priority. But a key to keeping the Internet innovative and free is the deliberate and thoughtful approach to policy and design choices; sadly, ill-conceived laws and dangerous regulations today increasingly threaten that thoughtful policy. After the Court struck down the CDA more than twelve years ago, Congress enacted more law that can best be described as "CDA Lite," leading to more than ten years of still unresolved legal challenges. And just last week, as the public eye was focused on the financial bail out, Congress passed a host of new child protection laws that threaten free expression; some of those laws have never even been reviewed by a congressional committee.
The next President should not shy away from this issue or follow the easy path toward demagogy. He should set out a public vision that embraces and celebrates the Reno decision as the Internet's very own Bill of Rights and promote strategies that empower Internet users to make their own choices for their families about content controls.
The next president should:
• Affirm that the Internet is subject to the highest level of constitutional protection for free speech, and send a clear message that he will veto any legislation that aims to undermine that standard.
• Promote the empowerment of families to control what kids do online through support for Internet literacy programs and for continued innovation in the development of technological tools for voluntary use by parents (filters, monitoring software, etc.).
• Defend technological innovation by ensuring that online service and application providers retain their immunity from responsibility for content posted by others.
• Protect political speech by ensuring that bloggers and other individual speakers aren't burdened by campaign finance regulations intended for much larger entities.
• Strongly enforce our laws against child pornography.
Charting a thoughtful path forward on the emotional issue of online child safety is not a simple task. As we have seen, it is politically easy to embrace every ill-conceived measure to childproof the Internet. If the politically easy path is embraced we will have an Internet replete with government-approved warning labels and reluctant corporate gatekeepers, broadly censoring content in order to avoid liability. The next president will have to exhibit the political will to keep the Internet open, innovative and free; the policies laid here in the U.S. are, for good or for ill, closely tracked across the globe. U.S. leadership in support of online free expression here will reverberate around the world.