On Hate Speech, Internet Service Providers Exempt from First Amendment, Attorney Says

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WASHINGTON, October 17 – Protecting children in an age of broadband–connected wireless devices and Web 2.0 applications will require pro-active cooperation by internet service providers (ISPs), a panel of child safety experts and industry representatives said Thursday at the National Press Club.

Christopher Wolf, an attorney at Proskauer Rose, said that ISPs should play a greater role in patrolling against hate speech. The terms of service of broadband providers are “not constrained by the First Amendment,” he said, and could have a role to play in taking such speech down.

Wolf also said one of the most pressing threats to “digital natives,” or young people who have grown up online, is that they are more likely to  constantly post information about themselves and their activities, creating a potentially permanent “digital dossier” that could come back to haunt them later in life.

“Kids speak digital as a first language” and are more likely to let down their guard when posting information online, said Wolf. These risks are sharpened by the lack of a uniform national privacy law and a Congress that legislates “re-actively,” he said. While praising the efforts made by legislators in Virginia, Illinois and Texas to create cyber-safety education programs in schools, Wolf stressed the importance of parental involvement as the first step in protecting young people.

Parents can’t abdicate responsibility for their kids’ online activities because they don’t understand the technology, he warned. Another danger lurking online comes from the proliferation and routine exposure of children to so-called hate speech on sites that indoctrinate or recruit at-risk youths, Wolf said. Wolf chairs the Anti-Defamation League’s internet task force, and said that increases in cyberbullying might be linked to the increased accessibility of such content and the ease with which kids can now communicate with each other.

Wolf said that ISPs need to more vigilantly “keep track” of sites with racist materials in order to keep kids away from such content. Wolf is also co-chairman of the AT&T-supported “Hands Off the Internet” coalition, a group opposed to Net Neutrality rules,

The role of the ISP is mainly one of education, said Brent Olson, assistant vice president for regulatory policy at AT&T. Olson said that AT&T’s goal is to “help parents be parents.” He pointed to tools available on his company’s web site. He also said that AT&T has also invested in cybereducation for kids, included a program called iKeepSafe and D.A.R.E., or Drug Abuse Resistence Education.

While internet safety protection efforts once focused on keeping children away from certain types of content, kids today produce it themselves and share it in a “stream of consciousness,” said Family Online Safety Institute CEO Stephan Balkam.

Balkam expressed concern over cases in Texas and Ohio where kids who sent each other photos of themselves have been prosecuted under child pornography statutes. Of similar concern to Balkam are new anti-cyberbullying statutes like the Megan Meier Cyberbullying Prevention Act, H.R. 6123.  Congress must be careful about criminalizing “so-called normal behavior” of children, he said.

The actual dangers from strangers online must by evaluated in a “cool, calm way,” Balkam said, dismissing fears perpetuated by shows like NBC’s “To Catch a Predator,” which he sarcastically referred to as true “Perverted Justice.” “Perverted Justice” is the name of the online vigilante group NBC collaborated with to produce the controversial shows.

When dealing with kids’ activities online, Balkam said a more productive approach would be education on the three “c’s:” content, conduct and contact. Education should be grounded on real research, he said, and should not neglect the real questions at the heart of the matter: “How will we, as parents, control what kids are exposed to, …or expose of themselves?”

Balkam suggested that ISP terms of service would be the “next battleground” on hate speech and cyberbullying. Public pressure will work to pressurize web site operators and service providers on the issue, he said.

Governmental action must take the form of a measured approach by the next Congress and the new administration with regard to online safety issues, he said. “We must not overreact.”

The next administration should take executive action on online safety, Balkam said. While the Clinton administration had regular meetings on the issue, over the past eight years different agencies have tried to help in the own way, but with little success, he said.

In spite of the inclusion of an anti-child pornography provision in the recently passedBroadband Date Improvement Act, S. 1492, the bill does little to help bring all safety efforts under one umbrella, said Balkham. But Balkam addded he is “very encouraged” by the records of both presidential candidates.

Sen. John McCain held hearings on Internet safety when he chaired the Commerce Committee, while Sen. Barack Obama’s proposal for a national chief technology officer could include a chief safety officer under the CTO. Both candidates, he said, appear strong enough on the issue to help kids be “safe at any speed.”