Legislating the Internet - The Truly Awful

Sadly, I’m running out of space, and Goldman lists no fewer than ten Internet laws for his hall of shame. I’m going to focus on only two of those. These two make the seventh and the first spots, respectively, on Goldman’s list.

The Digital Millennium Copyright Act (DMCA) rates the number seven spot; specifically, the anti-circumvention section. The law states that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The idea behind the law was to make those putting copyrighted work online feel safer in the knowledge that any copyright protection technology used was backed by law; it was now literally a criminal offense to try to get around it. However, the Law of Unintended Consequences kicked in again. Certain companies have attempted to use this part of the DMCA to restrict other companies from reverse engineering their products to make something compatible (think cheaper printer cartridges). “As a result,” observes Goodman, “the law has increased the cost of doing business and given plaintiffs another tool to try to restrict legitimate competition, while doing almost nothing to advance its principal goal of increasing protection for content owners.”

The worst Internet-related law – by far, according to Goldman – is the Communications Decency Act (CDA). Passed in 1996, it was a comprehensive attempt by Congress to regulate Internet content. It was motivated by the desire to shield children from porn on the Internet. The problem is, Congress overreacted to the problem because the information it received mistakenly portrayed porn as being far more widespread on the Internet than it actually was. And then things got worse from there.

It turns out that separating porn from other kinds of content on the Internet and filtering it out, at least with 1996 technology, was much more difficult than anyone ever thought. Goldman speaks eloquently of the law’s effects: “Because web and email content publishers had no easy way to comply with the law, the law threatened to restrict virtually every Internet speaker. Further, Congress imposed punitive and draconian sanctions (including stiff jail time) for breaking the law. Congress really, really wanted to wipe porn off the Internet, but it chose a particularly mean-spirited way of doing so.”

Fortunately, this particular law has been unanimously struck down by the U.S. Supreme Court. A number of legislators have been looking for ways to resurrect the law, attempting to modify it so it won’t be declared unconstitutional. Let’s hope they don’t come up with another law that belongs in the Internet legislation hall of shame.