50 ways to go to jail

As federal Internet law wends its way through the bureaucratic appeals process, a growing number of states are passing their own statutes governing online content, introducing the possibility of separate decency regulations based on geographic boundaries at all community levels.

This week's enactment of a new Internet law in New York, which makes it a felony to transmit indecent material to minors, is only the latest in a recent string of measures passed by state legislatures as they await a final decision from the U.S. Supreme Court on the federal Communications Decency Act, signed into law this year.

The state actions raise complicated jurisdictional questions on all levels of the legal system. The Justice Department has agreed not to prosecute any violations of the CDA until the Supreme Court renders its decision. However, that agreement does not apply to state or municipal laws that impose similar restrictions on local boundaries.

"Let's say 50 states pass indecency laws. Theoretically, if you put something indecent out on the Web you could get sued in 50 ways. Is it going to happen that way? Very likely not," said Lance Rose, an attorney with Lance Rose and Associates and author of Netlaw. "Is something short of that going to happen that is still ridiculous? Probably."

In addition to New York, at least three other states--Connecticut, Maryland, and Oklahoma--have passed laws restricting the transmission of online material in the last 1-1/2 years. Unless those laws are challenged and stayed by temporary restraining orders, law enforcement authorities are free to prosecute anyone who violates those statutes, possibly even if the accused resides in another state.

"Unfortunately, just because it gets struck down on the federal level, it doesn't automatically go away on the state level," said Shari Steele, legal counsel with the Electronic Frontier Foundation. "We have to wait for a challenge, and the laws will get struck down one by one in each individual state."

And even if those laws are upheld by the highest state courts, it is unclear how they would be enforced. Regulation of the Internet at any juncture requires technical and logistical feats far beyond the resources--and possibly the imagination--of the average state or county prosecutor.

Services that distribute material that may be challenged say content regulations drawn along geographic lines would be nearly impossible to oversee with any consistency. Already, they say, some countries such as China are attempting such control against seemingly impossible odds.

"There's no way that's clear," said William Giles, spokesman for online service CompuServe. "State by state, county by county, it's a huge task."

Giles also noted that a user could dial into an ISP outside the community, state, or even country that imposed such restrictions. "If you're trying to build a foolproof firewall around a geographic entity, it's not an easy situation," he said. "If you can't get it here, you can Telnet over there."

Others, however, note that the passage of a law itself would have an inhibiting effect on Internet users, regardless of whether it was enforceable on a wide scale.

"All it takes is a few prosecutions and put a few people behind bars to put a significant chill in the air," said Robert Corn-Revere, First Amendment lawyer with Hogan & Hartson in Washington,D.C.

That is a risk that some states seem more than willing to take. As Internet-related child molestation and other sex crimes continue to be reported, elected officials face increasing pressure from constituencies in this election year.

Bills that became law in 1995 and 1996
Connecticut: House Bill 6883, enacted June 1995: Creates criminal liability for sending an online message "with intent to harass, annoy or alarm another person."
Maryland: Senate Bill 21, enacted April 1995: Expands law that prohibits distribution of obscene material to minors to include online transmission.
New York: Senate Bill 210E, enacted July 1996: Criminalizes the transmission of "indecent" material to minors.
Oklahoma: House Bill 1048, enacted April 1995: Prohibits online transmission of material deemed "harmful to minors."

New York Governor George Pataki

"The governor is not taking any chances with the children of New York, and he wants to make sure that pedophiles are kept as far away from our children as possible," said Chris Chichester, spokesman for New York Gov. George Pataki. "This is one way to deter indecent material from being disseminated through the Internet."

No one involved in the legal battles over online content disputes the need for prosecution of child molesters. But Ann Beeson of the American Civil Liberties Union and other opponents believe that legislators who drafted the New York statute and similar laws in other states may not be aware of the broader legal consequences of their measures.

The ACLU, which led the first of two challenges to the Communications Decency Act, believes that lawmakers would have a vastly different perspective toward the Internet if they were educated about the new electronic medium.

"Hopefully, by continuing to educate state legislators, we will stop this wave," said Beeson, ACLU legal counsel. "It will definitely take a few years into the next decade, but we will be litigating as many issues as we can."

"Unfortunately, whenever a new communications medium comes along, we have a period of confusion--especially when it's democratizing."