Washington, DC -- The U.S. Supreme Court's consideration of Reno v. ACLU sets the stage for a decision of historic significance, one that will establish a constitutional framework for reviewing government regulation of the Internet. The issues extend beyond the Communications Decency Act and go to the very essence of the information infrastructure.
The Electronic Privacy Information Center (EPIC) has consistently stressed both the free speech and the privacy implications of the case since joining with the American Civil Liberties Union in challenging this ill-advised and unconstitutional attempt to impose governmental content regulation on emerging global electronic media. EPIC is participating in the litigation as both plaintiff and co-counsel.
As the three-judge panel in Philadelphia recognized, the legislation's vague "indecency" standard will have an obvious impact upon the free speech rights of millions of Americans who use computer networks to receive and distribute information. Less apparent is the assault on privacy rights that the legislation, if upheld, will engender.
To avoid potential criminal liability under the CDA's "indecency" provision, information providers would, in effect, be required to verify the identities and ages of all recipients of material that might be deemed inappropriate for children. If upheld, the statutory regime would thus result in the creation of "registration records" for tens of thousands of Internet sites, containing detailed descriptions of information accessed by particular recipients. These records would be accessible to law enforcement agencies and prosecutors investigating alleged violations of the statute. Such a regime would constitute a gross violation of Americans' rights to access information privately and anonymously.
Two years ago, the Supreme Court upheld the right to anonymous speech in McIntyre v. Ohio Elections Commission. EPIC believes that the Court's rationale in that case applies with even greater force to the Internet "indecency" provisions now under review. The Court noted in McIntyre that
The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. ...
Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.
According to David L. Sobel, legal counsel for EPIC and a co-counsel for the Reno v. ACLU plaintiffs, "Whether the millions of individuals visiting sites on the Internet are seeking information on teenage pregnancy, AIDS and other sexually transmitted diseases, classic works of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonymously. The Communications Decency Act seeks to destroy that right. If upheld, the CDA would render the Internet not only the most censored communications medium, but also the most heavily monitored."
EPIC is confident that upon review of the legislation and its impact upon free speech and privacy rights in emerging electronic media, the Supreme Court will affirm the lower court decision invalidating the CDA as fundamentally at odds with the Constitution.
The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy and civil liberties issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC is sponsored by the Fund for Constitutional Government, a non-profit organization established in 1974 to protect civil liberties and constitutional rights. EPIC publishes the EPIC Alert, pursues Freedom of Information Act and other public interest litigation, and conducts policy research.