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Global Internet Liberty Campaign
Member Statement

The US Child Online Protection Act ("CDAII") Criticised

October 21, 1998


Dear Mr.Clinton:

There are no borders on the Internet, and actions by individual governments and international organisations can have a profound effect on the rights of the citizens around the world. Therefore, the undersigned members of the Global Internet Liberty Campaign (GILC) respectfully submit this statement to express our concerns about legislation enacted by the United States Congress that could adversely affect freedom of expression on the Internet.

The Global Internet Liberty Campaign is a coalition of international organisations founded in 1996 to defend civil liberties and human rights on the Internet and it has more than 40 members worldwide.

We are united in our belief that the Internet is a powerful, global and positive forum for free expression regardless of frontiers. It is a venue where "any person can become a town crier with a voice that resonates farther than it could from any soapbox," as the U.S. Supreme Court has observed in Reno v ACLU.

We, as the undersigned members of GILC, share a common interest in opposing the adoption of laws, techniques or standards that could limit the vibrancy and openness of the Internet as an international communications medium together with Internet users, online publishers, academic groups and free speech and human rights organisations through out the world.

The "Child Online Protection Act" (H.R. 3783), enacted by the US Congress as part of the omnibus appropriations bill, would punish "commercial" online distributors of material deemed "harmful to minors" with up to six months in jail and a $50,000 fine.

We share the concern of the supporters of this measure that the Internet remain a safe and rewarding medium for young people. However, we strongly believe that this legislation embraces an approach -- criminalisation -- that is both violative of free expression principles under Article 19 of the Universal Declaration of Human Rights and ultimately ineffective in providing children with positive online experiences.

The "Child Online Protection Act" should be rejected on the grounds that it contains many of the most troubling provisions of the Communications Decency Act that were unanimously overturned by the U.S. Supreme Court in Reno v. ACLU. Like the earlier "Communications Decency Act" (CDA), the bill would have the effect of criminalising protected speech among adults. Whatever governmental interest may exist to protect children from harmful materials, that interest does not justify the broad suppression of adult speech. Proscribing offensive content on the Internet for all users just to protect children would be "burn[ing] the house to roast the pig" as stated by the Supreme Court in Sable Communications v. Federal Communications Commission.

The age verification affirmative defence of the bill -- which precisely duplicates the CDA's defence -- ignores the finding in Reno v. ACLU that there simply is no way to verify age on the Internet. As the Supreme Court noted, the vast majority of web sites are not financially or technically capable of requiring a credit card or other form of identification to verify the age of users. No government should mandate the application of a legal standard to the Internet -- whether it be "indecency" or speech that is "harmful to minors" -- that requires speakers to distinguish between adults and minors when such a distinction cannot be made.

The European Court of Human Rights in its judgment in Handyside v UK, (App. no. 5493/72, Ser A vol.24, (1976) 1 EHRR 737) stated that the steps necessary in a democratic society for the protection of morals will depend on the type of morality to which a country is committed. Therefore, "harm" is a criterion which will depend upon cultural differences. Any restrictive action taken by the United States government would not only fail to prevent the distribution of material to users in the local jurisdiction, but constitute a direct assault on the rights and other interests of Internet users, consumers and producers of content in other jurisdictions, who are not subject to the "Child Online Protection Act."

Therefore we believe that it is time for all governments to recognise that the Internet is not a local, or even national medium, but a global medium in which regional laws have little useful effect.

Moreover, the prime responsibility for assuring an appropriate moral environment for children does not rest with Internet content suppliers or service providers. Instead, parents and teachers should be responsible for protecting children from accessing sexual or other material which may or may not be harmful to their development. Standards that are overly broad or too loosely defined will likely result from enforcement of the "Child Online Protection Act."

Finally, the "Child Online Protection Act" will not be effective in keeping from minors material that might be inappropriate for them. No criminal provision will be more effective than efforts to educate parents and minors about Internet safety and how to properly use online resources. Moreover, we note again that the Internet is a global medium. Despite all the enforcement efforts that might be made, a national censorship law cannot protect children from online content they will always be able to access from sources outside of the United States.

We believe the great appeal of the Internet is its openness. Efforts to restrict the free flow of information on the Internet, like efforts to restrict what may be said on a telephone, would place unreasonable burdens on well established principles of privacy and free speech.

Fifty years ago, the nations of the post-World War II era came together to affirm the fundamental rights of all citizens to the protection of basic human rights. Today, citizens of the new online community must affirm together the protection of basic human rights, such as freedom of expression, privacy and access to public information. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, states in Article 19 that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

The Covenant on Civil and Political Rights, article 19 states that:

(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally or in writing or in print, in the form of art, or through any other media of his choice.

Referring to article 19(2) of the International Covenant on Civil and Political Rights, we consider any attempt to restrict speech on the Internet as an illegal act. Additionally, the value of attempting to ban content that any government may find offensive on a global environment is highly questionable. The proper response to offensive expression is more and better expression, not censorship.

For the foregoing reasons we urge you to oppose any measure that would dilute the potential of this powerful medium. We hope you will agree with our view that educational approaches, as opposed to new criminal laws, are the best ways to address the issue of how our children use the Internet.

Respectfully submitted:

GILC Members Located Outside of the United States:

ALCEI - Electronic Frontiers Italy - http://www.alcei.it

Bulgarian Institute for Legal Development - http://www.bild.acad.bg

Campaign Against Censorship of the Internet in Britain - http://www.liberty.org.uk/cacib/

CITADEL Electronic Frontier France - http://www.citadeleff.org

Cyber-Rights & Cyber-Liberties (UK) - http://www.cyber-rights.org

Digital Citizens Foundation Netherlands - http://www.db.nl

Electronic Frontiers Australia - http://www.efa.org.au

Electronic Frontier Canada - http://www.efc.ca

Equipo Nizkor (Spain) - http://www.derechos.org/nizkor/

Fôrderverein Informationstechnik und Gesellschaft (FITUG - Germany) - http://www.fitug.de/

Fronteras Electronicas Espana (Spain) - http://www.arnal.es/free

Imaginons un Reseau Internet Solidaire (IRIS - France)- http://www.iris.sgdg.org

Internet Freedom - http://www.netfreedom.org

Privacy International (UK) - http://www.privacy.org/pi

Quintessenz users group (Austria) - http://www.quintessenz.at

 

GILC Members Located Within the United States:

American Civil Liberties Union - http://www.aclu.org

Center for Democracy and Technology - http://www.cdt.org

Computer Professionals for Social Responsibility - http://www.cpsr.org/

Derechos Human Rights - http://www.derechos.org/

Electronic Frontiers Foundation - http://www.eff.org

Electronic Frontiers Texas - http://www.eftexas.org/

Electronic Privacy Information Center - http://www.epic.org

NetAction - http://www.netaction.org

Peacefire - http://www.peacefire.org

PEN American Center - http://www.pen.org/

 

Additional Links, Reports and Statements by GILC

The Global Internet Liberty Campaign web page is at http://www.gilc.org

GILC Members wrote to German Chancellor Helmut Kohl Protesting CompuServe Prosecution, 4/23/97, at http://www.gilc.org/speech/germany/kohl_release.html

GILC made a submission on the Illegal and Harmful Use of the Internet to the Irish Minister for Justice, July 16, 1997 http://www.leeds.ac.uk/law/pgs/yaman/irish.htm

GILC testified for a briefing of Members of the European Parliament on 27th January 1998, in Brussels and issued a paper on Human Rights and the Internet. See http://www.gilc.org/news/gilc-ep-statement-0198.html

GILC released report entitled "Cryptography and Liberty: An International Survey of Encryption Policy," Washington DC, February 1998, at http://www.gilc.org/crypto/crypto-survey.html. The report found that most countries do not restrict the use of encryption.

GILC released a statement on the "Impact of Self-Regulation and Filtering on Human Rights to Freedom of Expression," to the OECD on 25 March 1998, in Paris. The statement discussed to role of ISPs, anonymity, self-regulation and freedom of expression. See http://www.gilc.org/speech/ratings/gilc-oecd-398.html

GILC Sponsored a conference entitled "The Outlook for Freedom, Privacy and Civil Society on the Internet in Central and Eastern Europe," in Budapest 4-6 September 1998. See http://www.gilc.org/events/budapest/

GILC report, "Regardless Of Frontiers: Protecting The Human Right to Freedom of Expression on the Global Internet," Washington. September 1998, at http://www.gilc.org/speech/report/. The report concluded that, given the Internet's uniquely open, global, decentralized and user-controlled nature, the Universal Declaration of Human Rights and other international human rights agreements should be read as offering especially strong protection to freedom of expression on-line.

GILC Campaign to Relax International Crypto Controls. Twenty four members of GILC have issued a statement calling on members of the Wassenaar Arragement, an international group of 33 countries to end limits on crypto software and hardware. See the GILC Wassenaar campaign page at http://www.gilc.org/crypto/wassenaar/. See the statement at http://www.gilc.org/crypto/wassenaar/gilc-statement-998.html.

GILC sponsored a conference on "The Public Voice in the Development of Internet Policy," in Ottawa on 7 October 1998. The meeting examined privacy, encryption, free speech, access, consumer and human rights issues. See http://www.gilc.org/events/ottawa98/.

Global Internet Liberty Campaign report, "Privacy and Human Rights: An International Survey of Privacy Laws and Practice," October 1998, at http://www.gilc.org/privacy/survey/.