In 1997, at the time the Supreme Court struck down the Communications Decency Act (CDA) as an unconstitutional restraint on free speech, I wrote a paper and opinion piece indicating an alternative approach that Congress could adopt that does not have the constitutional difficulties of the CDA.
I proposed criminalizing knowingly misrepresenting a work by attaching a fraudulent content rating. There are already similar provisions regarding trademarks and certification marks. The proposed law would not require anyone to rate the content of their work, but would punish those who intentionally misrate a work. The law would not only cover Web content, but also email and newsgroups, allowing the development of rating schemes that would indicate the nature of a message so that spam could be filtered. It's a way for Congress to support the efforts of good Internet citizens to bring some order to things, instead of trying to regulate the Internet.
Instead of following the approach of my paper, Congress adopted a CDA-like law, the Child Online Protection Act (47 U.S. C. §231), which the Supreme Court has also found was too restrictive of free speech. But the Court seemed to endorse filtering technology, and my proposed approach enhances the ability of filters.
Although there have been some changes in the law since the paper was written seven years ago, including the enactment of a prohibition on misleading Internet domain names (18 U.S.C. §2252B, Public Law 108-21) and the CAN-SPAM Act, (15 U.S.C. §7701 et seq, Public Law 108-187), the proposal still makes sense. So, rather than update the paper to discuss the latest Supreme Court decision and the new laws, here it is in its original form.
Maybe the third time will be the charm.
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