New York Attorney General Andrew Cuomo recently succeeding in pressuring AOL and AT&T to join the ranks of Verizon, Sprint, and Time Warner Cable in limiting access to many or all of the Usenet newsgroups hosted on their servers. This tactic will hinder free speech and the access to information in Usenet communities, without deterring the child pornographer. But since the ISPs are “voluntarily” bowing to political pressure, rather than obeying a statutory edict, traditional First Amendment court challenges are unlikely to protect these online communities.

Attorney General Cuomo has pressured these companies into censoring enormous amounts of First Amendment-protected material after an investigation found 88 groups containing child pornography, or 0.5% of the active discussion groups in the alt.* hierarchy. Verizon and Sprint are taking down one gigantic subset of groups, the very popular alt.* hierarchy, AT&T will block all alt.binaries.* groups, while Time Warner Cable and AOL are shutting down their Usenet service entirely. (link) California's Governor and Attorney General have jointly called on California's service providers to follow New York's initiative in "removing child pornography from existing servers and blocking channels that disseminate the illegal material."

Usenet is a technology that predates the birth of the World Wide Web. Similar to bulletin boards, it allows for conversation threads on a wide variety of topics. The alt.* hierarchy alone contains nearly 19,000 different groups. (link) Blocking the alt.* hierarchy, which is the largest and most active, predominantly censors innocent discussions in order to stop illicit activity in a handful of them. Examples of some of the groups that will no longer be available are alt.adoption, alt.culture, and even alt.horology (discussing the science of timekeeping). Blocking all of Usenet throws out even more legitimate and useful expressive speech.

Congress and the courts have struggled for more than 10 years to address the issue of "objectionable" Internet content, without a constitutionally permissible result. Two well-known attempts by Congress were the passage of the 1996 Communications Decency Act and the 1998 Child Online Protection Act. Both attempted to punish individuals who transmitted indecent material that was harmful to minors. The U.S. Supreme Court has ruled these provisions unconstitutional because they block speech that would be protected by the First Amendment in contexts outside of the Internet. States have also attempted to preemptively censor material. In 2002, the Pennsylvania legislature attempted to hold ISPs criminally liable for child pornography available on the Internet. The Pennsylvania Attorney General was able to unilaterally and secretly order ISPs to block access to IP addresses suspected of containing child pornography, resulting in the blocking of many innocent sites (particularly when the same IP address was used to host a variety of websites). A state court soon struck down that law as unconstitutional for violating both due process and prior restraint of speech.

The censorship demanded by NY Attorney General Cuomo arbitrarily filters an entire electronic neighborhood due to the activities of a few of its residents. Measures already existed to take down objectionable material from Usenet. The kind of responsive enforcement that has been previously used balances free speech and the need to stop the dissemination of child pornography much better than the arbitrary, blanket ban to which the ISPs have agreed. Even so, the tactic will not stop committed child pornographers. ISPs are only blocking their own internal Usenet servers, access to Usenet groups on remote websites remains unblocked. As a result, these actions will do little to stop the threat they are intended to prevent. (link)

Because imposed online censorship inevitably goes to far and has never been upheld in the courts, it is not surprising that Attorney General Cuomo chose to apply political rather than legal pressure to the ISPs. While Internet users have First Amendment rights to speech and expression online, ISPs also have a First Amendment right not to carry content that they do not want to promote. To the extent the filtering program is “voluntary”, it is not the government censoring Usenet or the ISPs, but the ISPs choosing what speech they want to carry. Still, ISPs offer the critical public service of providing people with access to the prosperity of information available online. They have an obligation to consider the effects of their censorship on innocent material, and not just the political expediency of accommodating the Attorney General’s request. The heavy-handed approach of shutting down an entire online service is the least efficient and effective way to accomplish their legitimate goal. Usenet is a communication protocol, no different from Hypertext Transfer Protocol (HTTP), which makes the Web possible. Although the Web is also plagued by some amount of objectionable material, no one would remotely consider blocking access to the entire internet an appropriate solution. ISPs should not take advantage of the relatively small size of the Usenet community to deny their customers access to the diverse forms that content can take on digital networks.

*Thanks to Nick Jackson, summer intern, for his work on this Deeplink

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