Week 9

Massachusetts Institute of Technology
Harvard Law School

MIT 6.805/6.806/STS085: Ethics and Law on the Electronic Frontier

Week 9

Starting next week, there will be a series of writing assignments aimed at moving you through the steps of getting your paper done.

Monday Class at Harvard: Private Sheriffs - MAPS, Marsh, Intel v. Hamidi (Zittrain)

In the "real" world we experience a mix of private and public -- houses and parks. The infrastructure of the Internet is almost completely privately owned, from the pipes to the ISPs to the computers we use.

The conventional political and social wisdom of the Net appears essentially libertarian, celebrating this entirely private zone, with the threat to Net freedoms coming from outside Government(s) -- those weary giants of flesh and steel, as Barlow put it so lyrically in his now-venerable Declaration of Independence for Cyberspace. With most of cyberspace being "private," the setup is of a pleasant anarchy which need only come together to keep the inept (if not evil) government out.

As the first of two sessions winding up the course, we ask whether this remains true as either a descriptive or normative principle. We might confront the idea that threats to freedom come not from Big Brother but from Middle Siblings, a panoply of "private sheriffs," whether motivated by ideology or greed, who are increasingly in a position to govern our online behavior. The readings offer two case studies of private parties seeking to control the behavior of other private parties - while government claims no involvement in the dispute.

Readings:

• Bill McSwain, Harvard Law Review, "The Long Arm of Cyber-reach".
• A Declaration of Independence for Cyberspace, by John Perry Barlow
• MAPS RBL
• Intel v. Hamidi 
• Marsh v. Alabama 
• "Sidewalks, Sewers and State Action in Cyberspace", Molly Shaffer Van Houweling (DRAFT)

Thursday Class at MIT: Regulation of Communications Media (Weitzner)

Today we'll be discussing government control of communications media, from radio through the internet.

1. Please read the Supreme Court cases:
   • FCC v. Pacifica Foundation, 438 U.S. 726 (1978): In this case, the Court upheld the power of the FCC to regulate indecent (as opposed to obscene) speech in broadcast media, thereby codifying into law the principle that material broadcast over radio or TV has narrower Constitutional protections than material written in books or newspapers. The rationale for this rests on the "pervasive presence" of the medium -- that it is difficult to avoid unintentionally running across objectionable broadcasts even in the privacy of one's own home -- and that the medium is "uniquely accessible to children." The question of whether material transmitted via the internet is more like broadcasts or like books was central to the arguments over the constitutionality of the CDA.
   • Sable Communications v. FCC, 492 U.S. 115 (1989): The Court ruled here that a 1983 law banning "dial-a-porn" services was unconstitutional, on the grounds that it was overly broad. The opinion by Justice White lays out the famous "least restrictive means" test.
   • Reno v. ACLU, 117 U.S. 2329 (1997). We asked you to skim this earlier in the semester. This time read it more carefully.
     
   
   
2. Read the April 4, 2002 Reuters article "Judges End Library Porn Trial on Skeptical Note." The hearing on the constitutionality of The Children's Internet Protecton Act (CIPA) has just ended. Are we in for a repeat of Reno?