Internet censorship in the United States
- 1 Overview
- 2 Federal laws
- 3 Proposed federal legislation that has not become law
- 4 State laws
- 5 Censorship by institutions
- 6 See also
- 7 References
- 8 External links
The strong protections for freedom of speech and expression against federal, state, and local government censorship are rooted in the First Amendment of the United States Constitution. These protections extend to the Internet and as a result very little government mandated technical filtering occurs in the U.S. Nevertheless, the Internet in the United States is highly regulated, supported by a complex set of legally binding and privately mediated mechanisms.
After a decade and half of ongoing contentious debate over content regulation, the country is still very far from reaching political consensus on the acceptable limits of free speech and the best means of protecting minors and policing illegal activity on the Internet. Gambling, cyber security, and dangers to children who frequent social networking sites are important ongoing debates. Significant public resistance to proposed content restriction policies have prevented the more extreme measures used in some other countries from taking hold in the U.S.
Public dialogue, legislative debate, and judicial review have produced filtering strategies in the United States that are different from those found in most of the rest of the world. Many government-mandated attempts to regulate content have been barred on First Amendment grounds, often after lengthy legal battles. However, the government has been able to exert pressure indirectly where it cannot directly censor. With the exception of child pornography, content restrictions tend to rely more on the removal of content than blocking; most often these controls rely upon the involvement of private parties, backed by state encouragement or the threat of legal action. In contrast to much of the rest of the world, where ISPs are subject to state mandates, most content regulation in the United States occurs at the private or voluntary level.
The first wave of regulatory actions in the 1990s in the United States came about in response to the profusion of sexually explicit material on the Internet within easy reach of minors. Since that time, several legislative attempts at creating a mandatory system of content controls in the United States have failed to produce a comprehensive solution for those pushing for tighter controls. At the same time, the legislative attempts to control the distribution of socially objectionable material on the Internet in the United States have given rise to a robust system that limits liability over content for Internet intermediaries such as Internet service providers (ISPs) and content hosting companies.
Proponents of protecting intellectual property online in the United States have been much more successful, producing a system to remove infringing materials that many feel errs on the side of inhibiting legally protected speech. The US practices forceful seizures of domains and computers, at times without notification, causing the websites to be unable to continue operating. Some high-profile cases are Napster, Wikileaks, PirateBay, and MegaUpload.
With a few exceptions, the free speech provisions of the First Amendment bar federal, state, and local governments from directly censoring the Internet. The primary exception has to do with obscenity, including child pornography, which does not enjoy First Amendment protection.
Communications Decency Act (CDA)
In 1996, the United States enacted the Communications Decency Act (CDA), which attempted to regulate both indecency (when available to children) and obscenity in cyberspace. In 1997, in the case of Reno v. ACLU, the United States Supreme Court found the anti-indecency provisions of the Act unconstitutional. Writing for the Court, Justice John Paul Stevens held that "the CDA places an unacceptably heavy burden on protected speech".
Section 230 is a separate portion of the CDA that remains in effect. Section 230 says that operators of Internet services are not legally liable for the words of third parties who use their services and also protects ISPs from liability for good faith voluntary actions taken to restrict access to certain offensive materials or giving others the technical means to restrict access to that material.
Child Online Protection Act (COPA)
In 1998, the United States enacted the Child Online Protection Act (COPA) to restrict access by minors to any material defined as harmful to such minors on the Internet. The law was found to be unconstitutional because it would hinder protected speech among adults. It never took effect, as three separate rounds of litigation led to a permanent injunction against the law in 2009.
Digital Millennium Copyright Act (DMCA)
Signed into law in 1998, the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1201) criminalizes the discussion and dissemination of technology that could be used to circumvent copyright protection mechanisms and makes it easier to act against alleged copyright infringement on the Internet. The Online Copyright Infringement Liability Limitation Act (OCILLA) is included as Title II of the DMCA and limits the liability of the on-line service providers for copyright infringement by their users.
Children's Online Privacy Protection Act (COPPA)
Children's Internet Protection Act (CIPA)
- adopt and implement an Internet safety policy addressing: (a) access by minors to inappropriate matter on the Internet; (b) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications; (c) unauthorized access, including so-called “hacking,” and other unlawful activities by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) measures restricting minors’ access to materials harmful to them;
- install internet filters or blocking software that prevents access to pictures that are: (a) obscene, (b) child pornography, or (c) harmful to minors (for computers that are accessed by minors);
- to allow the filtering or blocking to be disabled upon the request of an adult; and
- adopt and enforce a policy to monitor the online activities of minors.
CIPA does not:
- require the tracking of Internet use by minors or adults; or
- affect E-rate funding for schools and libraries receiving discounts for telecommunications services, such as telephone service, but not for Internet access or internal connections.
Trading with the Enemy Act
In March 2008, the New York Times reported that a blacklist published by the Office of Foreign Assets Control (OFAC), an agency established under the Trading with the Enemy Act 1917 and other federal legislation, included a number of websites, so that U.S. companies are prohibited from doing business with those websites and must freeze their assets. The blacklist has the effect that domain name registrars based in the U.S. must block those websites. According to the New York Times, eNom, a private domain name registrar and Web hosting company operating in the U.S., disables domain names which appear on the blacklist. It describes eNom’s disabling of a European travel agent’s Web sites advertising travel to Cuba, which appeared on the list published by OFAC. According to the report, the U.S. government claimed that eNom was "legally required" to block the websites under U.S. law, even though the websites were not hosted in the U.S., were not targeted at U.S. persons and were legal under foreign law.
Proposed federal legislation that has not become law
Deleting Online Predators Act (DOPA)
The proposed legislation would have required schools, some businesses, and libraries to block minors' access to social networking websites. The bill was controversial because, according to its critics, it would limit access to a wide range of websites, including many with harmless and educational material.
Protecting Cyberspace as a National Asset Act
The proposed Act caused controversy for what critics perceived as its authorization for the U.S. President to apply a full block of the Internet in the U.S.
A new bill, the Executive Cyberspace Coordination Act of 2011, was under consideration by the U.S. Congress in 2011. The new bill addresses many of the same issues as, but takes quite a different approach from, the Protecting Cyberspace as a National Asset Act.
Combating Online Infringement and Counterfeits Act (COICA)
The Combating Online Infringement and Counterfeits Act was introduced in September 2010, but did not become law.
The proposed Act would have allowed the U.S. Attorney General to bring an in rem action against an infringing domain name in United States District Court, and seek an order requesting injunctive relief. If granted, such an order would compel the registrar of the domain name in question to suspend operation of, and may lock, the domain name.
The U.S. Justice Department would maintain two publicly available lists of domain names. The first list would contain domain names against which the Attorney General has obtained injunctions. The second list would contain domains alleged by the Justice Department to be infringing, but against which no action had been taken. Any service provider who willingly took steps to block access to sites on this second list would immune from prosecution under the bill.
Stop Online Piracy Act (SOPA)
The Stop Online Piracy Act (SOPA), also known as H.R. 3261, is a bill that was introduced in the United States House of Representatives on October 26, 2011, by Representative Lamar Smith (R-TX) and a bipartisan group of 12 initial co-sponsors. The originally proposed bill would allow the U.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who requests the court orders, the actions could include barring online advertising networks and payment facilitators such as PayPal from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. Many have argued that since ISP's would be required to block access to certain websites that this is censorship. On 18 January 2012, the English Wikipedia shut down for 24 hours beginning at 5:00 UTC (12:00 EST) to protest SOPA and PIPA. In the wake of this and many other online protests, Rep. Lamar Smith has stated, "The House Judiciary Committee will postpone consideration of the legislation until there is wider agreement on a solution".
Senator Ron Wyden, Democrat of Oregon and a key opponent of the bills, said lawmakers had collected more than 14 million names — more than 10 million of them voters — who contacted them to protest the once-obscure legislation.
Protect Intellectual Property Act (PIPA)
The Protect Intellectual Property Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the U.S. The bill was introduced on May 12, 2011, by Senator Patrick Leahy (D-VT) and 11 bipartisan co-sponsors. PIPA is a re-write of the Combating Online Infringement and Counterfeits Act (COICA), which failed to pass in 2010. In the wake of online protests held on January 18, 2012, Senate Majority Leader Harry Reid announced on Friday January 20 that a vote on the bill would be postponed until issues raised about the bill were resolved. Reid urged Sen. Patrick Leahy (D-Vermont), the chief sponsor of PIPA, to “continue engaging with all stakeholders to forge a balance between protecting Americans’ intellectual property, and maintaining openness and innovation on the internet.”
Cyber Intelligence Sharing and Protection Act (CISPA)
|Wikimedia Commons has media related to Cyber Intelligence Sharing and Protection Act.|
The Cyber Intelligence Sharing and Protection Act (CISPA) is a proposed law introduced in November 2011, with the stated goal of giving the U.S. government additional options and resources to ensure the security of networks against attacks. It was passed by the U.S. House of Representatives in April 2012, but was not passed by the U.S. Senate. In February 2013 the bill was reintroduced in the House.
CISPA is supported by several trade groups containing more than eight hundred private companies, including the Business Software Alliance, CTIA – The Wireless Association, Information Technology Industry Council, Internet Security Alliance, National Cable & Telecommunications Association, National Defense Industrial Association, TechAmerica and United States Chamber of Commerce, in addition to individual major telecommunications and information technology companies like AT&T, Facebook, IBM, Intel, Oracle Corporation, Symantec, and Verizon.
Reporters Without Borders expressed concern that in the name of the war on cyber crime, it would allow the government and private companies to deploy draconian measures to monitor, even censor, the Web. Other organizations that oppose the bill include the Constitution Project, American Civil Liberties Union, Electronic Frontier Foundation, Center for Democracy and Technology, Fight for the Future, Free Press, Sunlight Foundation, and TechFreedom. Google has not taken a public position on the bill, but lobbied for it.
The majority of these states simply require school boards or public libraries to adopt Internet use policies to prevent minors from gaining access to sexually explicit, obscene or harmful materials. However, some states also require publicly funded institutions to install filtering software on library terminals or school computers.
The twelve states that require Internet filtering in schools and/or libraries to protect minors are: Arizona, Arkansas, Colorado, Idaho, Michigan, Minnesota, Missouri, Ohio, Pennsylvania, South Dakota, Utah, and Virginia.
The thirteen states that require schools and/or libraries to adopt policies to protect minors include: California, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, New Hampshire, New York, South Carolina, and Tennessee. Florida law "encourages public libraries to adopt an Internet safety education program, including the implementation of a computer-based educational program."
And five states require Internet service providers to make a product or service available to subscribers to control use of the Internet. They are: Louisiana, Maryland, Nevada, Texas, and Utah.
In July 2011 Missouri lawmakers passed the Amy Hestir Student Protection Act which included a provision that barred K-12 teachers from using websites that allow "exclusive access" in communications with current students or former students who are 18 or younger, such as occurs with private messages on sites such as Facebook. A circuit court order issued before the law went into effect blocked the provision because "the breadth of the prohibition is staggering" and the law "would have a chilling effect" on free-speech rights guaranteed under the U.S. Constitution. In September the legislature replaced the controversial provision with a requirement that local school districts develop their own policies on the use of electronic communication between employees and students.
Censorship by institutions
The constitutional and other legal protections that prohibit or limit government censorship of the Internet do not generally apply to private corporations. Corporations may voluntarily choose to limit the content they make available or allow others to make available on the Internet. Or corporations may be encouraged by government pressure or required by law or court order to remove or limit Internet access to content that is judged to be obscene (including child pornography), harmful to children, defamatory, pose a threat to national security, promote illegal activities such as gambling, prostitution, theft of intellectual property, hate speech, and inciting violence.
Public and private institutions that provide Internet access for their employees, customers, students, or members will sometimes limit this access in an attempt to ensure it is used only for the purposes of the organization. This can include content-control software to limit access to entertainment content in business and educational settings and limiting high-bandwidth services in settings where bandwidth is at a premium. Some institutions also block outside e-mail services as a precaution, usually initiated out of concerns for local network security or concerns that e-mail might be used intentionally or unintentionally to allow trade secrets or other confidential information to escape.
Schools and libraries
K-12 schools and libraries that accept funds from the federal E-rate program or Library Services and Technology Act grants for Internet access or internal connections are required by Children's Internet Protection Act to have an "Internet safety policy and technology protection measures in place".
Many K-12 school districts in the United States use Internet filters to block material deemed inappropriate for the school setting. The federal government leaves decisions about what to filter or block to local authorities. However, many question this approach, feeling that such decisions should be made by a student's parents or guardian. Some of the fears associated with Internet filtering in schools include: the risk of supporting a predominant ideology, that views held by filter manufacturers are being imposed on students, over blocking of useful information, and under blocking of harmful information. A 2003 study "found that blocking software overblocked state-mandated curriculum topics extensively–for every web page correctly blocked as advertised, one or more was blocked incorrectly."
Some libraries may also block access to certain web pages, including pornography, advertising, chat, gaming, social networking, and online forum sites, but there is a long and important tradition among librarians against censorship and the use of filtering and blocking software in libraries remains very controversial.
Telecommunications and Internet service companies
In 2007, Verizon attempted to block the abortion rights group NARAL Pro-Choice America from using their text messaging services to speak to their supporters. Verizon claims it was in order to enforce a policy that doesn’t allow their customers to use their service to communicate “controversial” or “unsavory” messages. Comcast, AT&T and many other ISP's have also been accused of regulating internet traffic and bandwidth.
Social media sites
The National Religious Broadcasters, an organization that represents American Christian television and radio broadcasters, and the American Center for Law and Justice, a conservative Christian, pro-life group, conducted a study that concluded that social media sites, with the notable exception of Twitter, are "actively censoring" religious content, particularly those that express Christian perspectives. In the report, they state that because social media sites have forbidden any content related to "hate speech", companies including Apple, Google, Facebook, MySpace, and others are blocking content expressing anti-homosexual viewpoints.
The Department of Defense prohibits its personnel from accessing certain IP addresses from DoD computers. The US military's filtering policy is laid out in a report to Congress entitled "Department of Defense Personnel Access to the Internet".
In February 2008, the Bank Julius Baer vs. WikiLeaks lawsuit prompted the United States District Court for the Northern District of California to issue a permanent injunction against the website WikiLeaks' domain name registrar. The result was that WikiLeaks could not be accessed through its web address. This elicited accusations of censorship and resulted in the Electronic Frontier Foundation stepping up to defend WikiLeaks. After a later hearing, the injunction was lifted.
In December 2010, the White House Office of Management and Budget, the U.S. Library of Congress, the U.S. Air Force, and other government agencies began advising their personnel not to read classified documents available from WikiLeaks and some blocked access to WikiLeaks and other news organizations' websites. This action was intended to reduce the exposure of personnel to classified information released by WikiLeaks and published by those news organizations.
On December 1, 2010 Amazon.com cut off WikiLeaks 24 hours after being contacted by the staff of Joe Lieberman, Chairman of the U.S. Senate Committee on Homeland Security. In a statement Lieberman said:
[Amazon's] decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. I call on any other company or organization that is hosting WikiLeaks to immediately terminate its relationship with them.
Constitutional lawyers say that this is not a first amendment issue because Amazon, as a private company, is free to make its own decisions. Kevin Bankston, a lawyer with the Electronic Frontier Foundation, agreed that this is not a violation of the first amendment, but said it was nevertheless disappointing. "This certainly implicates first amendment rights to the extent that web hosts may, based on direct or informal pressure, limit the materials the American public has a first amendment right to access".
WikiLeaks faces a global financial blockade by major finance companies including Moneybookers, Mastercard, Visa, and PayPal. In October 2011 Julian Assange said the blockade had destroyed 95% of WikiLeaks' revenues and announced that it was suspending publishing operations in order to focus on fighting the blockade and raising new funds.
Some websites that allow user-contributed content practice self-censorship by adopting policies on how the web site may be used and by banning or requiring pre-approval of editorial contributions from users that do not follow the policies for the site.
By corporations abroad
- See also: Cisco censorship in China, Google censorship, Microsoft censorship in China, MySpace in China, Skype in China, and Yahoo! censorship in China
Several U.S. corporations including Google, Yahoo!, Microsoft, and MySpace practice greater levels of self-censorship in some international versions of their online services. This is most notably the case in these corporations' dealings in China.
Trade secrets and copyright
A January 4, 2007 restraining order issued by U.S. District Court Judge Jack B. Weinstein forbade a large number of activists in the psychiatric survivors movement from posting links on their websites to ostensibly leaked documents which purportedly show that Eli Lilly and Company intentionally withheld information as to the lethal side-effects of Zyprexa. The Electronic Frontier Foundation appealed this as prior restraint on the right to link to and post documents, saying that citizen-journalists should have the same First Amendment rights as major media outlets. It was later held that the judgment was unenforcable, though First Amendment claims were rejected.
Bay Area Rapid Transit (BART) cell phone service suspension
On July 3, 2011, two officers of the Bay Area Rapid Transit (BART) Police shot and killed Charles Hill at Civic Center Station in San Francisco. On August 12, 2011, BART shut down cell phone services, including mobile Internet access, for three hours in an effort to limit possible protests against the shooting and to keep communications away from protesters at the Civic Center station in San Francisco. The shutdown caught the attention of international media, as well as drawing comparisons to the former Egyptian president Hosni Mubarak in several articles and comments.
On August 29, 2011, a coalition of nine public interest groups lead by Public Knowledge filed an Emergency Petition asking the U.S. Federal Communications Commission (FCC) to declare "that the actions taken by the Bay Area Rapid Transit District (“BART”) on August 11, 2011 violated the Communications Act of 1934, as amended, when it deliberately interfered with access to Commercial Mobile Radio Service (“CMRS”) by the public" and "that local law enforcement has no authority to suspend or deny CMRS, or to order CMRS providers to suspend or deny service, absent a properly obtained order from the Commission, a state commission of appropriate jurisdiction, or a court of law with appropriate jurisdiction".
In December 2011 BART adopted a new "Cell Service Interruption Policy" that only allows shutdowns of cell phone services within BART facilities "in the most extraordinary circumstances that threaten the safety of District passengers, employees and other members of public, the destruction of District property, or the substantial disruption of public transit service." According to a spokesperson for BART, under the new policy the wireless phone system would not be turned off under circumstances similar to those in August 2011. Instead police officers would arrest individuals who break the law.
In March 2012 the FCC requested public comment on the question of whether or when the police and other government officials can intentionally interrupt cellphone and Internet service to protect public safety. In response, through the end of May 2012, the FCC received 137 comments and 9 reply comments. As of July 2013 the proceeding remained open, but the FCC had taken no further action.
- Communications Assistance for Law Enforcement Act (CALEA)
- Mass surveillance
- Mass surveillance in the United States
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- Global Integrity: Internet Censorship, A Comparative Study; puts U.S. online censorship in cross-country context.