Internet Privacy and Self-Regulation: Lessons from the Porn Wars

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civil liberties argued successfully that self-help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech--speech by commercial entities about Internet users--to political regulation. With regard to privacy no less than pornography, however, self-help offers Internet users a less-restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of privacy-protecting technologies shows them to work even more effectively than the filtering and blocking software used to combat online smut. Digital self-help in defense of Internet privacy makes regulation by state authorities not only constitutionally suspect but, from the more general point of view of policy, functionally inferior

When is Enough Too Much? The Broadcast Decency Enforcement Act of 2005 and the Eighth Amendment’s Prohibition on Excessive Fines

The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ( BDEA ), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal Communications Commission ( FCC ), and even Capitol Hill. In 2004 alone, the FCC assessed more than $7.9 million in indecency fines, up from a mere$440,000 in fines in 2003. The cost of airing future indecent material increased exponentially when President George W. Bush signed the BDEA into law on June 15, 2006. Although the number of fines being issued had already increased, the FCC and a majority of Congress did not believe that the relatively low maximum fine per incident was enough to prevent multi-billion dollar broadcasters from choosing to air indecent content and pay what to them was a nominal fine. The Broadcast Decency Enforcement Act of 2005, which had been floating around Capitol Hill in various iterations since November 2004, thus raised the maximum fine per violation ten-fold, from $32,500 to$325,000. Consequently, broadcasters now face liability of up to $3 million in indecency fines for one syndicated broadcast aired on multiple stations in multiple markets

When is Enough Too Much? The Broadcast Decency Enforcement Act of 2005 and the Eighth Amendment’s Prohibition on Excessive Fines

The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ( BDEA ), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal Communications Commission ( FCC ), and even Capitol Hill. In 2004 alone, the FCC assessed more than $7.9 million in indecency fines, up from a mere$440,000 in fines in 2003. The cost of airing future indecent material increased exponentially when President George W. Bush signed the BDEA into law on June 15, 2006. Although the number of fines being issued had already increased, the FCC and a majority of Congress did not believe that the relatively low maximum fine per incident was enough to prevent multi-billion dollar broadcasters from choosing to air indecent content and pay what to them was a nominal fine. The Broadcast Decency Enforcement Act of 2005, which had been floating around Capitol Hill in various iterations since November 2004, thus raised the maximum fine per violation ten-fold, from $32,500 to$325,000. Consequently, broadcasters now face liability of up to $3 million in indecency fines for one syndicated broadcast aired on multiple stations in multiple markets

Criminalising the possession of extreme pornography: Sword or shield?

Copyright © 2011 Vathek Publishing, Ltd. Shared with permission of the publisher.This article examines the reasons for the introduction of the extreme pornography provisions in s. 63 of the Criminal Justice and Immigration Act 2008, whether the provisions can be justified, whether they meet their goals and the problems they raise. It is argued that the provisions should be seen as an expression of benign perfectionism, grounded in respect for individuals, rather than repressive paternalism. The impact of the law is assessed with reference to recent cases and the author considers whether the fears expressed at the time the legislation was passed have been borne out in practice

The Specter of Pervasiveness: Pacifica, New Media, and Freedom of Speech

Under the legal doctrine of pervasiveness, media such as television and radio get much less protection from censorship than do print media. The Supreme Court should reject the pervasiveness doctrine as a dangerously broad and vague excuse for speech regulation. If the doctrine applies to any medium, it could arguably apply to all media. The pervasiveness doctrine thus threatens to curtail the First Amendment's protection of freedom of speech. The pervasiveness doctrine relies on a crabbed view of individual responsibility and property rights. We invite the broadcast media into our homes and alone bear the responsibility for controlling our children's access. The pervasiveness doctrine wrongly puts such choices in the hands of politicians and bureaucrats. Technological advances threaten to lead to wider applications of the pervasiveness doctrine. As the Internet expands into one-to-many voice or video communications, courts might decide to treat it as the legal equivalent of pervasive radio or TV broadcasts

Summary of State Breastfeeding Laws and Related Issues

CRS_January_2005_Summary_of_State_Breastfeeding_Laws.pdf: 994 downloads, before Oct. 1, 2020

Sentencing dangerous offenders: policy and practice in the Crown Court

Analysis of Crown Courts' use of protective sentencing powers under s.80(2)(b), s.85, and s.109 of 2000 Act and whether preference for s.85 reflects fundamental flaw in leaving determination of "dangerousness" to judiciary

FCC Regulation: Indecency by Interest Groups

FCC regulations are among the most controversial administrative law regulations because of their impact on broadcast television. This iBrief analyzes the history of FCC regulation and highlights the problems associated with the current model. Applying theories of economics, this iBrief proposes solutions to the current problems of selective enforcement and vagueness in enforcement. While the Supreme Court recognized that FCC regulation is necessary, it is also necessary for there to be a clearer model for how the agency should be run

Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state\u27s supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state\u27s own power in cyberspace. In fact, I argue that the conceptual structure and jurisprudential assumptions of digital libertarianism lead its practitioners to ignore the ways in which the state can often use privatized enforcement and state-backed technologies to evade some of the supposed practical (and constitutional) restraints on the exercise of legal power over the Net. Finally, I argue that technological solutions which provide the keys to the first two phenomena are neither as neutral nor as benign as they are currently perceived to be. Some of my illustrations will come from the current Administration proposals for Internet copyright regulation, others from the Communications Decency Act and the cryptography debate. In the process, I make opportunistic and unsystematic use of the late Michel Foucault\u27s work to criticise some the jurisprudential orthodoxy of the Net