The Internet and Pornography: What If Congress and the Supreme Court Had Been Comprised of Techies in 1995-1997? by Cheryl B Preston [Michigan State Law Review]

Abstract: The legislative and political choices at the birth of the information technology society caused and will likely continue to cause significant ramifications in the course of digitizing human culture. This article considers both the positive and negative ways that the crash of the Communications Decency Act (the CDA), as well as Congress and the Supreme Court’s understandings of the Internet at the time, may influence subsequent technological, legal, and social developments involving the World Wide Web.This article explores answers to these questions: What we can assume about Congress and the Supreme Court’s Internet understanding in 1995-1997? What if the 104th Congress and the Supreme Court that dealt with the CDA had been more tech-savvy? Would Congress have written a better, tighter statute or none at all? What sorts of technological advancements might have been allowed to flourish, and what sorts would have stalled? Would the U.S. government have kept a tighter hold on the ability to enforce violations of law in the Domain Name System? Would the Court have framed its analysis differently, even if it ultimately ruled that the CDA was unconstitutional? How might the lives of members of the Net Generation played out differently?After considering various arguments that the failure of the CDA was beneficial to the Internet and society, this article suggests that the CDA debacle may have cost us dearly in terms of what we value most. It looks at the importance of the continued unregulated “Wild West” mentality and the incentive of the pornography industry in developing new technology. The Article then suggests that the Wild West was sold out to economic interests anyway and that other kinds of technology were left undeveloped.The Article surveys what happened in terms of age-inappropriate sexually explicit content online: the increase in the quantity, ease of access by children, and availability of more graphic, more intense, and more dangerous images. In addition, if an appropriate regulation were in place, perhaps the U.S. government and the public would have made different choices in spinning off Internet root control to a private corporation, the International Corporation for Assigned Names and Numbers (ICANN).Finally, the article compares the Internet to radio and television and argues that a better informed Reno I Court might have dealt differently with the 1978 precedent of FCC v. Pacifica, even in finding the CDA unconstitutional. I conclude that the events of these early years in addressing Internet pornography laws have vastly complicated the work that must now be done.

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