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Legal Realism and the Internet: Revolution or Social Contract?

C. Bruce BAIRD <brucebaird@erols.com>
Attorney at Law
USA

Abstract

This paper engages in and refines the debate over the manner in which the Internet, and particularly those who provide and use it, should be regulated by government, if indeed some form of regulation is desirable or needed at all. More importantly, it also defines a way by which members of the Internet community can evaluate, identify, and respond to proposals that involve unwise or ineffective regulation.

In the absence of an overarching legal theory for dealing with the extraordinary innovation in global communications and commerce and attendant influences on social and economic relationships among all of humankind that characterizes the Internet, this paper focuses on the issue jurisprudentially, using some of the defined tools of reason and science that have evolved over the last two centuries.

These fundamental tests are then applied to some of the recent experiences in Internet regulation by governments in the United States, Germany, Singapore, and the People's Republic of China to obtain a global perspective for analysis. A series of conclusions is drawn, designed to sharpen and focus the debate on how to deal with this new and emerging global entity of bad laws and regulation that now threaten the growth, freedom, and vitality of the Internet.

Contents

The emerging regulatory framework

Is the Internet "born free, but everywhere in chains?" More than two centuries ago, Jean-Jacques Rousseau particularly stressed the idea of "social contract" as the basis of the relationship of individuals to governments. Social contract defines how a method of associating can be found that will defend and protect the rights of the individual while also preserving the freedom of the individual. This is the essence of the "social contract" between humankind and their governments. This theme is also now the most important central question before the Internet community, for within this very framework so powerfully articulated by Rousseau, there exists the vision of an emerging "Internet Social Contract."

More recently, within the past half century, a theoretical school known as American Legal Realism has evolved to define a series of formal criteria that all "laws" must meet if they are to be considered laws at all within the meaning and terms of Rousseau's social contract, or whether they are simply a nullity or routes to disaster. The theme of this paper is that these criteria can form a touchstone -- an analytical filter -- by which existing and proposed laws and regulations can be evaluated by the Internet community to determine if they meet the terms of the Internet Social Contract.

American legal realism -- The morality of law

Many legal theorists and writers have taken the view that law is best understood by examining the actual operation of the legal system in practice, and by comparing the "letter of the law" with the way it actually operates. That is the analytical approach taken here. In an article published in the spring of 1934, an American legal theorist named Lon L. Fuller observed that members of the realist movement liked to consider that the movement originated with a lecture delivered by Justice Oliver Wendell Holmes in 1897. [1]

In his later book, The Morality of Law, Fuller propounded a unique legal philosophy arising out of Rousseau's notion of "social contract" -- unless laws meet certain criteria, they are not laws at all. As Fuller summarized it:

Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him or that came into existence only after he had acted, or was unintelligible, or contradicted by another rule of the same system, or commanded the impossible, or changed every minute. It may not be impossible for a man to obey a rule that is disregarded by those charged with its administration, but at some point obedience becomes futile -- as futile in fact as casting a vote that will never be counted. . . . There is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect, "These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct." When this bond of reciprocity is finally and completely ruptured by the government, nothing is left on which to ground the citizen's duty to observe the laws. [2]

Enlarging the theme by means of a fairly lengthy allegory involving a zealous monarch who made a number of attempts to reform the legal system of his kingdom, but clearly failed in the endeavor, Fuller codified eight distinct ways through which attempts to create and maintain a system of legal rules may miscarry. He called them "eight distinct routes to disaster."

Eight routes to disaster -- Laws that are not laws at all

  1. A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis;
  2. A failure to publicize, or at least to make available to the affected party, the rules he is expected to observe;
  3. The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change;
  4. A failure to make rules understandable;
  5. The enactment of contradictory rules;
  6. Rules that require conduct beyond the powers of the affected party;
  7. Introducing such frequent changes in the rules that the subject cannot orient his action by them;
  8. A failure of congruence between the rules as announced and their actual administration. [3]

Examples of Internet regulation

As in case examples of regulatory approaches to the Internet within this framework of "laws that are not laws at all," the focus of this paper is on the sharp differences among nations with regard to the regulation of political speech and opinion. Although laws and regulations aimed at preserving or extending social and religious values have received widespread attention, the issue of regulating political speech and opinion will dominate the forthcoming Internet free speech debate.

The United States

In the United States, the core values regarding the regulation of politically motivated speech grew out of judicial limitations placed on criminal prosecutions at the beginning of the 20th century. The Espionage Act of 1917 made it a crime to incite resistance to cripple or to hinder the United States in the prosecution of the war -- an unquestioned right of any sovereign power. Six Russian factory workers were arrested in New York City for throwing printed leaflets from a loft window to the street below. The leaflets contained a bitter attack against the sending of American soldiers to Siberia. They urged a workers' general strike in support of the Russian Revolution. Two of the workers were arrested, tried and convicted, and sentenced to long prison terms. The convictions and sentences were appealed to the Supreme Court of the United States.

"Free trade in ideas" -- Acceptance in the competition of the market

On appeal, the convictions and sentences were affirmed by the United States Supreme Court. But in a famous dissenting opinion, Justice Oliver Wendell Holmes, joined by Justice Louis D. Brandeis, set forth the foundation of the meaning of the First Amendment:

In this case, sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. . . .
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . .
Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States. (emphasis added).
Abrams v. United States, 250 U.S. 616 at 630-31 (1919) (Holmes, J. dissenting). [4]

"A clear and present danger"

The reasoning urged by Holmes in his dissenting opinion disagreeing with the legal reasoning of the majority was, in a later case, embraced and adopted by a majority of the United States Supreme Court. It provides a substantial guarantee in the protection of free speech. The test had been articulated by Holmes in an earlier case in which he wrote for the majority in upholding a criminal conviction for similar acts:

[T]he character of every act depends upon the circumstances in which it is done. . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. (citations omitted).
Schenck v. United States, 249 U.S. 47 (1919) at 52 (Holmes, J.) [5]

In the United States, about 2,000 persons were prosecuted under the Espionage Act, most of them for anti-war speech occurring during and just after the First World War. After Holmes' opinion, and since the second quarter of the 20th century, such prosecutions have been subjected to a "rule of reason," which makes it impossible for them to be brought successfully when the analytical test devised by Holmes is followed.

Although the early judicial interpretations of the cases imply bad law in the sense that critically important issues were decided on an ad hoc basis, each case builds on the reasoning of the cases before. As experience is gained through the application of the law to the facts, precision is obtained and eventual stability is the result.

"Indecency" and the American Constitution

The regulation of speech is accomplished through the criminal justice system, and the penalties for breaking the law can be severe. Awareness of the published statutory law is presumed, but the basis of crimes must be set forth with great clarity. The United States Congress recently enacted a law that had as one of its objectives the regulation of so-called "indecent" material on the Internet. The Supreme Court found that those provisions were unconstitutional. [6]

Within the framework of the school of legal realism, the collective result is a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis.

Since the terms of the statute were held to be at square odds with the First Amendment to the Constitution, the Communications Decency Act is also an example of the enactment of contradictory rules.

Commercial firms whose business is publishing so-called adult entertainment on the Internet welcome rather than deplore clear regulations so that an inherently risky business in the prevailing social environment can be conducted with a greater degree of legal certainty. [7] Thus, from the perspective of the purveyor of adult entertainment, the situation is one of introducing such frequent changes in the rules that the subject cannot orient his action by them.

Germany

As reported in a scholarly mini-treatise by Professor Dr. Ulrich Sieber, Germany has a number of legal prohibitions against "pornographic, racist, national-socialist, or defamatory elements, or material that glorifies violence." In addition, there are provisions regarding the dissemination of publications morally harmful to youth and provisions for the protection of young persons in public as well as media laws that are of interest to the Internet community. Of these, racist, national-socialist, and, perhaps, at least some of the material that could be characterized as "defamatory" or "glorif[ying] violence" would fall within the purview of constitutionally protected free speech in the United States. [8]

Germany sent an early shock wave throughout the global Internet community in late 1995 as a result of the CompuServe incident and related censorship activities that have been extensively reported and analyzed elsewhere. [9]

The best interpretation of the CompuServe incident is that it represents a clear example of bad laws -- the failure to make rules understandable; a failure to publicize, or at least to make available to the affected party, the rules that he is expected to observe; and the imposition of rules that require conduct beyond the powers of the affected party.

Even with the assistance of Professor Dr. Sieber's scholarly article, the fundamental basis and legal theory upon which the prosecutors acted in the CompuServe matter seem very difficult to resolve.

The "unlegislated area of Cyberspace"

Following the CompuServe incident, the scholarly article prepared by Professor Dr. Ulrich Sieber concluded:

"In connection with the practical problems of prosecution. . . , the results relating to substantive law lead to the following situation: The authors of criminal statements disseminated on the Internet are, of course, liable to prosecution under the applicable substantive law, but in practice they cannot be prosecuted due to the difficulties in furnishing evidence, the lack of international cooperation, and the different statutory provisions in the individual states. On the other hand, service providers are responsible under criminal law for the data transported by them and, due to the present technical situation, are not in a position to exercise effective control.. . . This at least factually creates the "unlegislated area of cyberspace" complained about by many network users, which is not controlled by any national legal system.. . . "
Obviously, this situation is not satisfactory. In particular, it cannot be justified that the dissemination of pornography, racist statements, or national-socialist propaganda is subject to prosecution only in the traditional media but not on the Internet by which the relevant data can be disseminated even more effectively. . . [T]he legislator must provide for a solution which must give regard to the specific technical, legal, and international challenges of the Internet." [10]

The German legislative response

Almost a year after the CompuServe incident (at about the time Professor Dr. Sieber's article appeared), Germany moved to enact legislation to correct the problems described. According to a disquieting report in Reuters dated December 11, 1996, ". . . the German law puts responsibility for suspect content on "suppliers," but this is not clearly defined. Online services such as CompuServe and America Online could be held responsible for legally questionable material after being warned that such material can be accessed through their systems, provided they have the technical means to block it." (emphasis added). [11]

Thus, this later approach by Germany is an example of the failure to make rules understandable.

Singapore

Far beyond the aggressive censorship imposed by Germany, the Singapore Broadcasting Authority Act makes it the duty of the Singapore Broadcasting Authority (SBA) to ensure that nothing is included in any broadcasting service that is against public interest or order, threatens national harmony or offends good taste or decency. Extensive and informative rules and issues of interest to users and providers of Internet services are posted through the SBA home page. [12]

The organizational framework established by Singapore differs from many other nations, and represents an overarching integrated approach to regulation of the telecommunications and broadcasting media. In Singapore, the Internet is part of the national information dissemination continuum. Unlike the framework in the United States, with many different government organizations and controls, Singapore would appear to be less likely to attempt inappropriate application of broadcast media standards to the regulation of content as in the Communications Decency Act. [13]

A turnaround on the censorship of political speech and expression?

From the standpoint of the analytical focus of this paper on the regulation of political speech and opinion, Singapore initially appears to have made a significant turnaround in its regulatory approach to Internet content, and certainly has done much to serve its image in public opinion. In the first version of its Internet Code of Practice (effective July 15, 1996), the SBA regulations were divided into three major headings: (a) Public Security and National Defense, (b) Racial and Religious Harmony, and (c) Public Morals. Content regulation was the important theme. [14]

The public security and national defense provisions of the former regulations were a clear and sharp prohibition against many forms of political speech: "Contents which jeopardize public security or national defense; Contents which undermine public confidence in the administration of justice in Singapore; Contents which present information or events in such a way as to alarm or mislead all or any part of the public; Contents which tend to bring the Government of Singapore into hatred or contempt, or which excite disaffection against the Government of Singapore."

Likewise, the racial and religious harmony provisions of the former regulations were a prescription for political correctness: "Contents which denigrate or satirize any race or religious group; Contents which bring any race or religious group into hatred or resentment; Contents which promote religious deviations or occult practices such as Satanism. Prohibitions dealing with public morals in the former regulations were also blunt: "Contents which are pornographic or otherwise obscene; Contents which propagate permissiveness or promiscuity; Contents which depict or propagate gross exploitation of violence, nudity, sex or horror; Contents which depict or propagate sexual perversions such as homosexuality, lesbianism, and pedophilia."

All this was changed by sweeping revisions to the Internet Code of Practice that became effective on November 1, 1997. The new regulations did not include any of the former provisions on public security and national defense, which were clearly directed against political expression and free speech. Likewise, only faint hints of the former provisions designed to ensure racial and religious harmony and public morals were included in the revision. [15]

Structurally, the new Internet Code of Practice abolishes the former three-part structure, and sets forth a single section on "prohibited material" that greatly enlarges the definition. Prohibited material under the current SBA Internet Code of Practice is defined as "material that is objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws."

The current approach to determining what is prohibited material is an extensive multiple factors test: (a) Whether the material depicts nudity or genitalia in a manner calculated to titillate; (b) whether the material promotes sexual violence or sexual activity involving coercion or non-consent of any kind; (c) whether the material depicts a person or persons clearly engaged in explicit sexual activity; (d) whether the material depicts a person who is, or appears to be, under 16 years of age in sexual activity, in a sexually provocative manner or in any other offensive manner; (e) whether the material advocates homosexuality or lesbianism, or depicts or promotes incest, pedophilia, bestiality and necrophilia; (f) whether the material depicts detailed or relished acts of extreme violence or cruelty; (g) whether the material glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance. In considering the multiple factors, the Code provides that "a further consideration is whether the material has intrinsic medical, scientific, artistic or educational value." [16]

As a series of subjective tests that could only be clear in the mind's eye of the beholder, Singapore appears to have created an elaborate framework resulting in a potential failure to make rules understandable. The Code recognizes the problem, however, and further provides that "a licensee who is in doubt as to whether any content would be considered prohibited may refer such content to the Authority for its decision."

On the other hand, and in sharp contrast to what could be interpreted as an apparent move toward greater freedom of political speech on the Internet, Singapore recently has banned the making and showing of politically motivated videotapes and films. Under amendments to the Film Act of 1981, fines of up to $62,000 or sentences of up to two years in prison may now be imposed for importing, producing, distributing and screening a "political party film" -- a film or videotape "made by any person and directed toward any political end in Singapore" or containing "partisan or biased references on any political matter," which reportedly includes "any matter which is intended or likely to affect voting in any election." [17] More important to the Internet community, the definition of "film" is reported to have been enlarged to include modern optical disk storage media and computer files with moving images similar to those found in a movie or video. In addition, films sent via e-mail are reported to come under this definition now. [18] The combined effects of revisions to the Internet Code of Practice and legislative changes to the Film Act of 1981 suggest that Singapore may be on the course of introducing such frequent changes in the rules that the subject cannot orient his action by them.

At the same time that "film" has been banned from the Singapore political arena, it is clear from contemporaneous reports that the Internet is envisioned as a current and emerging vehicle for political debate and expression. "Without politics on film, the public can be no less politically aware. Opposition parties can make better use of the Internet, newsletters and letters to the press." [19] More important, there is strong evidence that the Internet has already become a safe haven for preserving and publishing important critical and scholarly works whose publication in "dead tree" versions has been suppressed in Singapore. [20]

The double dilemma of censorship

Singapore also has addressed whether and how censorship should be reported to subscribers. In the series Myths and Facts about SBA and the Internet, the SBA has included the following exchange:

Myth: When a network connection error message is received, it means that SBA has blocked the site.

Fact: SBA only blocks some pornographic sites. For pornographic sites which are blocked, the message will refer to SBA's Internet regulations. All other connection errors or inability to access sites have [sic] nothing to do with SBA. [21]

The question of content restriction raised by this "Myth and Fact" exchange posted by the

SBA or by any other government that restricts the freedom of access to information remains: How can the citizens be expected to trust their government when their government does not trust them? In the censorship arena, the critical fear is a failure of the congruence between the rules as announced and their actual administration.

Peoples' Republic of China

Unlike the situation on Internet regulation by the United States, Germany, and Singapore, original source materials which reflect the true state of affairs in the Peoples' Republic of China have not been found. Secondary sources report that the rules were announced at a news conference to which foreign journalists were not invited. It was also reported that the government did not publish the text of the rules. Second- and third-hand reports indicate that the government prohibits using the Internet to "split the country" -- Chinese terminology applied to supporters of the Dalai Lama or formal independence for Taiwan. Another article of the regulations is said to ban "defaming of government agencies," which was analyzed as applying to statements by democracy advocates on Web pages or in e-mail. [22]. Thus the People's Republic of China has made bad law which is not a law at all by a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe.

Other observers make the point that it would be unrealistic to expect a government like China's to completely refrain from regulating computer networks while many nations of the world are adopting some kind of content regulation. They see the new regulations as being more flexible than they might first appear -- legalization of the Internet rather than shutting down the connections; recognition of diversity and competition among information networks rather than centralization; evaluation of Web site blocking efforts as "window dressing" rather than complete suppression; and practical and technical limitations on monitoring of user activity by the Ministry of Public Security. [23] There is no question that the Internet will be an increasingly important factor in the future of China. The China Education and Research Network (CERNET) has well-established plans and a structure for the road ahead. The organization and potential market implications for the future of the Internet in China have received the highest international recognition. [24]

From the analytical focus of this article, there is a question on the horizon as to whether China will introduce such frequent changes in the rules that the subject cannot orient his action by them. Recently, as part of a sweeping consolidation and restructuring of the entire government that cut the number of government ministries from 40 to 29, China created a new "super-ministry" combining the functions of the Ministry of Electronics Industry, the Ministry of Radio, Film and Television, and the Ministry of Posts and Telecommunications. Headed by the former Minister of Posts and Telecommunications, the new organization is expected to more easily handle the convergence of voice, data, Internet, and broadcast systems. [25]

Regulation of the Internet -- Revolution or social contract?

It is clear that the governments of the world have collectively failed in providing for a system of lawful regulation of the Internet based on "good" laws, and the situation must be carefully monitored. All of the analytical tests suggest that there has been widespread adoption of "laws that are not laws at all."

Yet it is not equally clear that the situation is heading for disaster. In the United States, the Communications Decency Act is back on the drafting table, and opponents of censorship in any form are gathering their forces for the forthcoming debate. [26] And as detailed above, new legislation is forthcoming in Germany, the Singapore Broadcasting Authority censors are polishing their public image, and the larger and in China a more dramatic picture about what is going on appears to be emerging.

More important, public awareness is taking hold; people are asking profound questions about how overall regulation and site blocking, if and when enabled, will be administered. Will the proponents of a sites be notified by the providers when the site has been blocked? Will there be blocking messages to explain why freedom of access has been denied and by whom? Will there be a central repository of blocking activities from which it can be determined who is doing what to whom?

They were building a tool, they say, not passing a law. And in that spirit, little notice was taken of their action, which revolved around the arcane technical specifications and lines of computer code that define the Platform for Internet Content Selection or, in the trade, PICS. But a growing number of civil libertarians argue that these technologists are in some ways acting as an unelected world government, wielding power that will shape social relations and political rights for years to come. In cyberspace, these critics assert, computer code has the force of law. The filtering system, a technology for defining what parts of the Web will be accessible from a particular computer or group of computers, was originally conceived as a way to head off government regulation of speech in cyberspace. [27]

Is this technology clearly aimed at heading off government regulation destined to have a perverse effect? It is clear that the Internet as a potential instrument of freedom and democracy could easily be misused to chain and enslave the world.

Are the architects of the Internet acting as an unelected world government? The solution lies in the interaction and further development of the technology and the law. Just as technical developments have profoundly shaped the future of the Internet, the developments in legal understanding of the issues appear equally impressive and as difficult. There is much work to be done, and the hard work of the law is just beginning.

There is a source of wisdom in the words of Justice Oliver Wendell Holmes:

The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. [28]

References

1. Lon L. Fuller, American Legal Realism, 82 U. Pa. L. Rev. 429 (1934). For a scholarly analysis of Fuller's extensive contributions to legal theory, see James Boyle, Legal Realism and the Social Contract: Fuller's Jurisprudence of Form, Private Jurisprudence of Substance, 78 CORNELL L. REV. 371 (1993).

An earlier version of Professor Boyle's article is at: http://www.wcl.american.edu/pub/faculty/boyle/fuller.htm

2. Lon L. Fuller, THE MORALITY OF LAW 39, 40 (rev. ed. 1969).

3. Fuller, supra note 2, at 39.

4. Abrams v. United States, 250 U.S. 616 at 630-31 (1919) (Holmes, J., dissenting).

Available through: http://supct.law.cornell.edu/supct/

5. Schenck v. United States, 249 U.S. 47 at 52 (1919) (Holmes, J.).

Available through: http://supct.law.cornell.edu/supct/

The free speech decisions are by far the best known and celebrated of all the opinions that Holmes wrote. For a rich historical discussion, see G. Edward White, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 412-454 (1993).

6. Reno v. American Civil Liberties Union, 521 U.S.___, (June 26, 1997).

Available through: http://supct.law.cornell.edu/supct/

7. Seth Warshavsky, Strict, but Constitutional, Internet Regulation Is a Must, HOUSTON CHRONICLE, HoustonChronicle.com (July 9, 1997 but internally indexed as July 10, 1997).

http://www.chron.com/content/chronicle/editorial/97/07/10/warshavsky.0-1.html.

8. Ulrich Sieber, Criminal Liability for the Transfer of Data in International Computer Networks, New Challenges of the Internet (English Draft translation of an article originally published in Juristenzeitung (JZ) 1996 at 429 et seq. and 494 et seq.) The translation appears online in two parts:

9. Stephan Wilske and Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet? 50 FED. COMM. L.J. 1, 117 at note 24 (Dec. 1997).

Available at: http://www.law.indiana.edu/fclj/pubs/v50/no1/wilske.html.

See also, Nathaniel C. Nash, Germany Moves Again to Censor Internet Content, N. Y. TIMES, Jan. 29, 1996, CyberTimes (Jan. 29, 1996).

Available through search features at: http://www.nytimes.com/

10. Sieber, supra note 8, at Part V. Summary and Outlook, B. Consequences.

Part Two: http://www.jura.uni-wuerzburg.de/lst/sieber/stvipen/SVIE02.HTM

Wilske and Schiller, supra note 9, present a wholly different perspective giving short shrift to the reasoning advanced by Professor Dr. Sieber. They analyze the situation under the "territoriality" principles of the Restatement (Third) of Foreign Relations Law of the United States and conclude that the problem is entirely one of software development!

11. Reported by Infowar.com, Vol. 27 No.16, December 17, 1996, German Cabinet Approves Internet Regulation, http://www.infowar.com/class_1/class1_q.html-ssi.

See also Wilske and Schiller, supra, note 9 at note 61.

12. Singapore Broadcasting Authority home page: http://www.sba.gov.sg/index.html

13. See Sandra Davey, Singapore Internet Regulation -- Censorship or Cultural Concern? A Web site containing an excellent and informed discussion of the history and background of the many issues involved.

http://www.fl.asn.au/singapore/index.html

14. Singapore Broadcasting Authority, Internet Code of Practice, (July 15, 1996, repealed Nov. 1, 1996).

http://www.sba.gov.sg/netreg/govgaz/code.htm

15. Singapore Broadcasting Authority, Internet Code of Practice, (Nov. 1, 1997). http://www.sba.gov.sg/netreg/code.htm

16. Although the Singapore Broadcasting Authority Internet Code of Practice clearly omits consideration of whether or not the material is "political" as part of the multiple factors test, the last sentence of the above-quoted language is faintly reminiscent of the "third prong" of the three-part test for permissible regulation of "obscenity-pornography" adopted by the United States Supreme Court: ". . .(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15 (1973) at 24.

Available through: http://supct.law.cornell.edu/supct/

17. Andrea Hamilton, Questions of Censorship -- A Ban on Political Films Sparks Debate, Asia Week, The Nations, (Mar. 27, 1998).

http://www.pathfinder.com/asiaweek/98/0327/nat2.html

18. The Straits Times Interactive, Tougher Porn Penalties, No to Party Political Films, (Feb. 28, 1998).

http://www.asia1.com.sg/straitstimes/pages/q9802821.html

19. The Straits Times Interactive, Can Political Film Ban Help Mould Thinking Nation? (Feb. 28, 1998).

http://www.asia1.com.sg/straitstimes/pages/q9802830.html

20. For an excellent example of how the Internet is preserving free speech, and for a scholarly and succinct presentation of the historical issues and origins of obscenity law in Singapore, see Chan Wing Cheong, Obscenity and the Law, in Looking at Culture (Sanjay Krishnan, Sharaad Kuttan, Lee Weng Choy, Leon Perera and Jimmy Yap, ed., 1996 online edition). The editors report: "This is the online version of Looking at Culture, the issue of Commentary which the National University of Singapore Society killed in 1994 for fear of offending the powers-that-be. . ." The online version is at: http://www.happening.com.sg/commentary/

Chan Wing Cheong's article traces the origins of the legal definition of "obscenity" in Singapore to the famous English case of The Queen v. Hicklin, 3 L.R. 360 at 371 (Q.B. 1868). Chief Judge Cockburn set forth the reasoning of the case: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." The case is a "kernel" in the jurisprudence of free speech, and it continues to have a global impact on the development of the law, as in the following examples:

Australia: David Flint, Press Law in Australia, Chapter 1 in PRESS LAW AND PRACTICE A Comparative Study of Press Freedom in European and Other Democracies, Constitutional & Legislative Policy Institute, Open Society Institute, Budapest (ed. Sandra Coliver, Mar. 1993, reprinted Aug. 1994).

Available at: http://www.osi.hu/colpi/a19/presslaw/praustra.htm

Canada: Gareth Sansom, Illegal and Offensive Content on the Information Highway, A Background Paper, Long Range Planning & Analysis, Industry Canada (June 19, 1995).

Available at: http://xinfo.ic.gc.ca/ic-data/info-highway/general/offensive/offens_e.html

and (Français): http://xinfo.ic.gc.ca/ic-data/info-highway/general/offensive/offens_f.html

21. Singapore Broadcasting Authority, Myths and Facts about SBA and the Internet.

(visited April 17, 1998). http://www.sba.gov.sg/netreg/myth.htm

22. Erik Eckholm, China Cracks Down on Dissent in Cyberspace, N. Y. Times, Dec. 31, 1997, (CyberTimes Dec. 31, 1997).

Available through search features at: http://www.nytimes.com/

A more extensive version of what are purportedly the People's Republic of China, Computer Information Network and Internet Security, Protection and Management Regulations (approved by the State Council on December 11, 1997 and promulgated by the Ministry of Public Security on December 30, 1997) sometimes appears at the home page of the Global Internet Liberty Campaign, when the site can be accessed. Typically, the message appears: "There was no response. The server could be down or is not responding. If you are unable to connect again later, contact the server's administrator." http://www.gilc.org/speech/china/net-regs-1297.html.

23. Xixiang Tan, Milton Mueller, Will Foster, China's New Internet Regulations; Two Steps Forward, One Step Back, Association for Computing Machinery, Communications of the ACM, New York (December 1997) at 11.

24. On December 12, 1997, Chairman and Chief Executive of Microsoft Corporation, Mr. Bill Gates, visited CERNET Center in Tsinghua University. Professor Li Xing, Vice Director of CERNET, greeted Mr. Gates and introduced CERNET to him.

http://www.net.edu.cn/new/bill.html

25. Michael Lewis, China Approves Cabinet Ministers, Pragmatic Policymakers Expected to Put Stamp on Economy, The Washington Post, March 19, 1998 at A33.

Available through (fee-based) search features at: http://www.washingtonpost.com/wp-srv/

26. Jeri Clausing, Sponsor of Communications Decency Act Introduces a Sequel, N. Y. Times, Nov. 13, 1997, (CyberTimes November 13, 1997).

Available through search features at: http://www.nytimes.com/

27. Amy Harmon, Rules for Filtering Web Content Cause Dispute, N. Y. Times, Jan. 19, 1998, (CyberTimes Jan. 19, 1998).

http://www.nytimes.com/library/cyber/week/011998filter.html

28. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897), reprinted in, LANDMARKS OF LAW 40 at 57 (Ray D. Henson ed., 1966 edition).

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