New hope for spam relief

A federal court decision issued last week dealt a major blow to congressional efforts to curtail access to adult-content Web sites. The decision involved a challenge by public libraries, library users and Web content providers to a congressionally mandated funding scheme where public libraries that provide Web access for patrons must agree to run Web filtering software on terminals that the public uses.

The court ruled the program unconstitutional because it impermissibly infringed on the library patron's right to access a designated public forum — i.e., Internet terminals. The court determined that the patron's right to receive communications freely is entitled to the same protection under the First Amendment as the more traditionally recognized right to speak freely.

Moreover, according to the court, because the regulation at issue is content-based — that is, it requires filtering only for adult content — it is subject to judicial "strict scrutiny." Under this standard, the government must prove that the restriction is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest.

The court had no difficulty in recognizing several government-protected interests as compelling, including interests in protecting the terminal users from accidental viewing of unwanted images and protecting minors from accessing inappropriate sites. However, the court found that the restrictions did not adequately promote those interests, because filtering software simply does not work.

According to the court, all filtering software is subject to technical limitations inherent in Web design. Any filter that blocks a large percentage of illegitimate sites will also block many legitimate sites. On the other hand, any filter that allows access to most legitimate sites will also allow access to many illegitimate sites. These practical considerations doom to constitutional failure any regulatory scheme based on mandatory filtering technology.

However, the court's decision also points the way to a much more effective, and constitutionally permissible, way to protect Internet users from unwanted material. As the court noted, content- neutral rules are subject to a different, "rational-basis" standard of review. Under this standard, the challenged rule need only be reasonable, the government interest need not be compelling, the restriction need not be narrowly tailored and the restriction need not be the most reasonable.

Under that standard, the government could forbid outright the sending of unsolicited bulk e-mail, known as spam, regardless of its content. Such a rule would be constitutional. It also would strike at the real problem much more directly, by prohibiting unscrupulous people from foisting their repugnant material onto people who don't want it, without stopping people who want the information from using the Web to find what they want.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

RELATED INKS

Material discussed in this column includes: American Library Association Inc. v. United States, No. CIV.A.01-1303 (E.D. Pa. May 31, 2002).

"Will privacy be protected?" [Federal Computer Week, May 27, 2002]

"Shirking 911 duties" [Federal Computer Week, May 13, 2002]

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