Washington, D.C.
October 16-18, 1996
Jill Lesser, Deputy Director of Law and Public Policy
America Online
I always welcome the opportunity to talk to audiences like this because, as a policy person in Washington, it is so important to both talk to and hear from people outside of Washington in order to have a better understanding of what all of you are experiencing out in the field. We can then give you an idea of what we are experiencing, which, in the Internet arena, has been a barrage of attacks.
I would like to give you some context for my reasoning, and also an explanation of the attacks on content on the Internet. I will make a plea to the information community to take a leadership role in sorting through some of the issues facing universities, their libraries, and libraries in general. We should be trying to figure out how to provide access to the Internet (for students and for the public), as well as how to distribute information.
I originally worked as a civil liberties lawyer. I was part of a small coalition of public interest and civil liberties organizations that joined with the information industry to fight the Communications Decency Act (CDA) in the legislative arena. Although we were generally unsuccessful, we were successful in raising the awareness of the issues surrounding the CDA. However, we ultimately could not convince Congress not to pass the law.
I was instrumental in pulling together the industry with the American Library Association and other civil liberties groups, as well as with many people in the Association of Research Libraries and in the higher education community to fight the CDA. I cannot emphasize enough the value of the participation of this community in raising awareness of these issues. Had we seen a case go forward with only the American Civil Liberties Union, civil liberties organizations, or with the industry alone, the outcome of the case would have been quite different.
At the hearings for the CDA, all three judges found that there was particular interest in and many questions about the library issues. It is very easy to say that commercial content and access providers must find a way to monitor content as a price of providing access or information, but the library situation is entirely different. Monitoring content is not what libraries do most regularly. Therefore, when library witnesses talked about their mission and the ways in which this new technology is an opportunity for the library community to provide more access to information for more people, it gave the judges pause in terms of considering the case.
Some background on the CDA follows. There were several parts to the Act, some of which applied to the direct communication of indecent material to a minor, and some to the display of information in a way that would be available to minors. That is clearly the more difficult of the constitutional questions. The judges in the District Court collapsed all the parts and found the entire statute unconstitutional on both First and Fifth Amendment grounds.
In its appeal to the Supreme Court, the Solicitor General’s office has, in its jurisdictional statement, endeavored to separate the two amendments. The office has tried to point out that the judges were clearly mistaken with respect to sending indecent information directly to a minor. Their argument is that people know when they are doing so and can therefore control it, hence, it is clearly constitutional. They acknowledge that the display provision has more problems, although they claim it is unconstitutional. They have now tried to convince the judges to segregate that from the rest of the CDA.
The Supreme Court will not do that. It will not write the display provision to apply only in the commercial context, which is actually what the advocates of the act are trying to have the Court do. The Court may, however, go back and decide that the entire statute is severable, that it can be segregated.
The two main questions raised in this case concern both the First Amendment, and the Fifth Amendment. The First Amendment is overbroad, and the question is whether you are really getting to constitutionally-protected material, and the second question, regarding the Fifth Amendment, is the vagueness question: Are we giving people a clear enough definition of what falls under the term “indecent”? In the lower court, two out of three judges decided that the definition of indecency was vague.
Given the history of Supreme Court jurisprudence and looking at some recent cases, there is less than a 50 percent chance that we will win the part of the case that deals with vagueness. In some ways this makes it more important as we look at all the kinds of information—-related information, breast cancer information, educational, artistic, or political information— there, including “indecent” information.
If it is not found to be vague, it is not invalidated per se, although we will win on the First Amendment challenge. This is a challenge regarding whether or not there are more pointed ways of ensuring that children do not obtain access to certain material, while at the same time ensuring that we are not reducing everything on the Internet to the lowest common denominator.
So that is where we find ourselves in this case. Once the Supreme Court upholds this preliminary injunction, we must go forward from a factual point of view and a research point of view, but we must also go back to the District Court with real evidence of how individuals can control information and how library and information specialists can facilitate their users' control of information.
There was a real lack of understanding, both in the legislative arena and, to some degree, in the courts during the hearings. In the legislative arena we had to create solutions, and so we tried the PICS solution, a set of protocols that allows people to put ratings into browsers. Instead of being based on just one rating system, many different people could come in and give a rating, allowing people to sort through the contents and give the suitable ratings on their own.
It is up to the research community and other users of the Internet to continue to push the envelope. They need to know how to manipulate the technology and how to let users be their guide.
Perhaps the most troubling part of what comes out of the CDA case and debate is that this is just the tip of the iceberg. I will give you a few examples of what we are seeing, both from a company perspective in the online service provider world, and also from a civil liberties perspective, regarding content control.
For instance, you are all aware of the intellectual property debate. It is certainly not the same as the government putting limits on the content of the things people can or cannot produce, however, content control issues are similar in many ways when viewed alongside intellectual property issues. They both deal with taking a traditionally commercial construct and applying it in a largely non-commercial environment, and deciding afterward who owns the information and how it will flow. The initiatives that have been put forward by the Administration lead to some of the same questions dealing with understanding the way this technology works and the things that can be done with it, and coming up with a top-down, governmental approach. But this approach is not the right way to go, especially because this technology opens up a new universe of information for everybody in the world.
There are several other issues that I would like to address in order give you an idea of the potential problems in these areas. Recently there was a two-day session at the Food and Drug Administration (FDA) where they brought in representatives of drug companies that are putting information on the Internet for a roundtable discussion. The discussion, attended by a thousand people in Silver Spring, Maryland, was initiated in order to talk about how the companies will control the kinds of information that are on the Internet, both that which is put out by drug companies and also that which is coming up in chat rooms. The question is, Is there information available that is not reliable, and, if so, whose liability is it?
From listening to the questions the representatives from the drug companies were asking, it seems to me that it is not the FDA that is initiating these regulations, but the industry itself. This is an industry that is completely unaware of what the available technology does. They think it is a great thing to have a web site and a chat room, but they do not think about all the different issues that present themselves, or their possible responsibility for them. The companies want to be told what is considered labeling, what is advertising, what kinds of information they need to make available, and whether a product is considered an over-the-counter drug or a prescription drug.
Some of the same issues that were raised with the CDA will be raised in these FDA discussions, especially regarding international companies, over whom we have no jurisdiction. We cannot control information about drugs that may be approved in other countries but are not approved in this country. So, both in the regulatory arena and in the congressional arena, people are thinking about these other factors.
These outside factors are gaining attention partly as a response to both the TWA crash and the Oklahoma City bombing. There were several amendments that were more or less defeated on the Senate floor that proposed to control bomb-making information on the Internet, even if it was a Department of Agriculture publication about blowing up tree stumps. Every time a story hits the front page of the newspapers, Congress or the regulators come in and immediately want to do something about the situation. Given that, we are lucky to have judges like those who tried the CDA case and who spent as much time as they did learning about the Internet, especially since apparently Congress is not willing to take the same time to educate themselves.
Another area, for example, is privacy. At America Online, we certainly take this very seriously. We have some very strict policies about how we collect information, what we do with that information, and what kind of notice we give to our members about what we plan to do with the information, such as whether it is kept private or sold. These issues are also being looked at by Congress. There are several bills currently pending.
Interestingly, what we did with the Federal Trade Commission (FTC) was to go in as an industry and as a set of civil liberties groups and make it clear that we are concerned about privacy. We would like to develop technology like the PICS technology that will essentially allow people to have some control when they surf on the Internet. Thus, if the web site that a person would like to access does not maintain the same privacy practices that he has indicated in his privacy preferences, he will not be able to go there unless he undoes that block in the preferences. We are in the process of developing that kind of technology, both for the Internet and for proprietary network services like AOL.
At the FDA hearing, someone from the FTC said that he wished people would focus more on the technology. Through the CDA process in June of 1996 we found that we need to learn about the technology and then figure out whether there is something that a government agency can do. We are still engaged in an education process. Information specialists come out of the environment that developed this technology, and which is leading the development of the technology into the next century. If the CDA case can serve an instructive purpose, it is that you must participate in continuing to inform members of Congress and the public at large about the issues, and also about how important it is to preserve the protections of the First Amendment.
People do not understand how easy it is to communicate, how easy it is to participate in our democracy, and how easy it is to get ideas out and to learn a lot about what affects their lives. This is especially true because only about 14% of the American public is online. As more people understand this situation, they will appreciate the First Amendment issues. Hopefully it will not be too late.
Copyright � 1999 by Jill Lesser
MR. CAMPBELL (University of Southern California): I have a question for Jill Lesser. I know that AOL is one of a group of companies that sometimes get caught in the crossfire between competing values. One example of that would be the difference in valuing information for its use in discovery of knowledge as opposed to valuing information for its economic value. And you get caught right in the middle of that, or at least you can if the law turns a certain way.
MS. LESSER: That's right.
MR. CAMPBELL: Does AOL, as a company, debate within its own walls the value issues, or do you really only look at the legislative outcome which then would dictate how you would have to go from there?
MS. LESSER: We actually spend a lot of time talking about the value issues. As I mentioned earlier, I have only been at AOL a short time, but I have already been involved in about five or six meetings with high-level people thinking about these very issues, because, although we are obviously affected by legislation and the regulatory environment, our business cannot grow unless we are true to our users.
So we certainly look at things from an economic perspective in terms of other business opportunities, but the core of our business is obviously our users. Most of our users, especially at this point in the development of the Internet and online services, are fairly sophisticated. So we have a huge incentive to do this right, from our users' perspective, and we therefore spend a lot of time talking about it; and I will tell you there are no easy answers.
A good example is the lawsuit in which we are now involved regarding spamming, which is when companies essentially go in our files and harvest AOL e-mail addresses and screen names and then send out all sorts of commercial information to our users. They basically make it look like AOL has either endorsed or sent the information, which is a big trademark problem, or they simply clog up our systems. We get about 5 million e-mail messages a day. At one point, approximately two million unsolicited e-mails were coming from the company we are in litigation with. When we tried to block those e-mails, they claimed that we were violating their First Amendment rights because we were essentially providing a public forum and an e-mail platform, and we therefore had no right to block the e-mail addresses.
A judge issued a temporary restraining order, which has now been lifted, mostly because of the technical arguments that say that this company clogs up our system, thereby preventing our members from being able to use our services, regardless of whether we agree with the messages that are being sent or not. So what we are trying to do, frankly, as an answer to the litigation problem and the technical problem, but also in order to create a good environment for our users, is provide a technical solution that will enable users to pick out certain domain names from which they do not want to receive e-mail. With the users making the decisions, AOL will not have to face those kind of problems.
(Audience Member): Jill, how is AOL handling the new, very aggressive campaign in which the Software Publisher's Association is engaged?
MS. LESSER: With fear. Well, let me give you a little bit of background. The Software Publisher's Association over the past couple of months -- and I'm not sure exactly when they started this -- essentially decided to send out to all ISPs -- or what they deemed as such, though it's not clear to me that they've gotten everybody -- a sort of contract that says that they would monitor software piracy. So, really, you are pressured to sign this document as your statement of responsibility for the activities of software piracy that take place, essentially, over your network.
A surprising number of interactive service providers actually signed that document, I think largely out of fear. Most of them are small enough operations that they don't have legal counsel and they certainly don't have time to spend getting legal counsel. Some did not, and several of those organizations were sued last week by the Software Publisher's Association for copyright infringement and basically for participating in software piracy.
AOL has not signed the document and has not been sued, but certainly knows that, potentially, we can be sued. We certainly have had incidents with people calling our legal department and telling us, for example, "I have been monitoring this; I know there is someone who set up a chat room on AOL and is essentially sending my software between members. You have to stop it." Our response has been that, although we have not agreed to shut down any chat rooms, if we do have information about illegal or inappropriate activities, we will try to stop them.
We don't have a firm policy yet, but, in answer to your question, we are struggling with these issues. Under the Electronic Communications Privacy Act, we cannot monitor the contents of e-mail, so we are, as Texas A&M is, existing on a complaint basis for now. It is the same way, really, as we found out and responded to the spamming; we didn't go out there and monitor why there was so much e-mail traffic, and then find out that it was coming from essentially one domain. We waited until we got hundreds, if not thousands, of AOL subscriber complaints and acted as we had to.
Obviously, we have been very involved in the legislative and international fight with these problems. I think that, as a company, we are hoping to get some guidance from legislation in this area, because otherwise we're going to basically be floundering for a long time. It has a very difficult set of issues.
(Audience Member): If everything goes sour and the legislation passes, how would you practically and operationally take up your liability responsibilities?
MS. LESSER: Well, during the legislative debate, everybody who was involved said we would shut down. I hate to give that kind of knee-jerk reaction, but it is hard to imagine that we would be able to provide a service that is anything like the service that we provide today.
Obviously, we would have to provide a much more closed, monitored system. We would probably have to get rid of e-mail, to a certain extent, and just allow people to access our propriety network, where we were in control of the content. We would no longer be able to allow people out into the Internet and certainly not onto Internet sites that were not housed in the United States. It would really destroy the environment, certainly from a commercial perspective.
MR. HEATH: I am not sure what we would do at Texas A&M. What I would like to think that we would do would be to deliberately and systematically shut down the student electronic accounts and invite the litigation, which we would then rapidly lose and establish good case law for all of us then return to the status quo.
And that's the awful thing. It would be very, very expensive to reverse the legislation, and the reversal ultimately would probably not stand anyway. So that's the awful dilemma that we face.