Civil liberties online--the year that was

Civil liberties groups took on library officials who blocked access to a wide range of Net sites, and challenged a new federal law that was intended to limit access to pornography by minors but that activists say denies First Amendment protections for controversial online publishers and e-commerce sites. Protecting the privacy of Web surfers also was a hot issue, as was trying to broaden the rights of global computer users to use encryption for secure digital communication.

The cyberliberty losses and victories of 1998 were considerably low-key compared with the media and Netizen frenzy that surrounded the passage of the Communications Decency Act (CDA) in 1996 and the subsequent Supreme Court decision overturning the law last summer.

"People are becoming numb to the idea that freedoms are being lost on the Net," said Shari Steele staff counsel for the Electronic Frontier Foundation.

Added David Sobel, general counsel for the Electronic Privacy Information Center: "Nineteen ninety-eight was mixed with respect to the First Amendment and the Internet."

One major blow dealt to free speech advocates was the passage by Rep. Mike Oxley (R-Ohio) of the Child Online Protection Act--dubbed the CDA II by foes.

Buried in a $520 billion spending package, the Act makes it a federal crime for commercial Web sites to give minors access to "harmful material" such as sexually explicit communication. Potentially, any community could crack down on content--even content created by people who live outside its jurisdiction--if a court decided that the material lacked social, political, or educational value. Violators could face up to $100,000 in fines and six months in prison per offense.

Last month, a federal court temporarily blocked enforcement of the law after the American Civil Liberties Union sued the government on behalf of plaintiffs such as Salon Magazine and A Different Light Bookstore. A three-day hearing is scheduled to begin January 20, 1999, to consider the First Amendment implications of the law.

"The Child Online Protection Act is clearly the biggest issue this year, and that is going to be ongoing for next year," Steele said.

Free speech groups did, however, slam dunk their first lawsuit against Net filtering at a public library in 1998.

The ACLU and the People for the American Way Foundation sued the Loudoun County Public Library in Virginia, which in October of 1997 installed a filtering program on all of its Net terminals that screened sites deemed "harmful to minors." Last month, U.S. District Judge Leonie Brinkema sided with the plaintiffs in a precedent-setting ruling stating that "such a policy offends the guarantee of free speech in the First Amendment" because it was too broad and stifled adults' access to protected speech.

Loudoun is not expected to appeal Brinkema's ruling, and now offers unfiltered Net access in its public libraries. But Ann Beeson, the ACLU's leading staff attorney on Net issues, says the library filtering battle is not over yet.

"This situation will emerge again in state legislation," Beeson said. "We are almost certain to file another lawsuit against mandatory filters at libraries."

State policymakers are gearing up for other fights in 1999 as well, she added. The ACLU will head to a federal appeals court early next year to defend its win against a New Mexico law that, like the now-defunct provision of the CDA, makes is a crime to send minors "indecent" material over the Net.

New York passed a CDA-like law too, but a federal district court in the state overturned it on grounds that it violated the interstate commerce clause of the Constitution, which forbids one state from regulating another state's commercial activity.

"If we win in the [New Mexico] appeals court, that will be the highest court to rule on this issue," Beeson said. "This could send a strong message that states can't pass laws like this because they interfere with communications in the home state and all over the world."

The outlook for 1999

Privacy: "The encryption debate didn't move much closer to resolution. The incremental changes we saw in the past year will not benefit the average user--the U.S. policy will continue to prevent the creation of a uniformly secure infrastructure.

"On the consumer privacy front, 1998 was the year that this became a major issue. I would like to see Congress go beyond children's privacy issues to begin to recognize all online consumers' privacy."
--David Sobel, general counsel, Electronic Privacy Information Center

State action: "We're waiting for a decision in the Urofsky vs. Gov. George Allen case, [which challenged a 1996 Virginia law banning public employees from downloading 'sexually explicit' material using state computers]. That is on appeal to Fourth Circuit Court, which is very conservative.

"There also will be more cases regarding sting operations against Internet service providers, such as the case in New York in which an ISP's equipment was seized [during a child pornography sweep]. We will become more involved on improper searches and seizures, which is a Fourth Amendment issue. We have been monitoring this, and are alert to potential problems about the government's ability to get records from an ISP, and people's right to challenge that."
-- Ann Beeson, staff counsel, American Civil Liberties Union

Fair Use: "We still have concerns about whether the digital copyright law passed this year meets First Amendment muster when it comes to the [right to use] encryption. Congress also will try again to create new protections for owners of databases that have never existed in the past. We will fight on behalf of libraries and public interest groups that can't afford to pay for access to this public information."
-- Sheri Steele, staff counsel, Electronic Frontier Foundation