In 1995, it was far from clear what First Amendment standards would apply to the emerging online environment. It was also equally unclear exactly what form the online world would ultimately take, with AOL a dominant player and direct Internet access still a rarity for most users. By 1996 Congress tried to rein in this nascent technology and reduce the level of discourse online to only what is fit for children. That attempt, via a law called the Communications Decency Act, was struck down on a constitutional challenge that relied in no small part on the argument that "user control" trumped the government's heavy hand of censorship.
In 1995, Jerry Berman and Danny Weitzner laid out the "user control" theory for protecting users from unwanted content while also protecting free speech online. Under this theory, if technology can provide users (including parents) with the ability to control what they (and their children) access online, government regulation of content would be unconstitutional.
John Morris and Cynthia Wong have published a paper
that examines the origins of this theory and how it has been applied in the courts -- and whether it has fared the test of time. In their paper they write:
As Berman and Weitzner suggested, with such a diversity of effective and feasible user control mechanisms within practical reach of parents, the goal of protecting children from pornography and other potentially harmful material on the Internet and other interactive media can be achieved without heavy-handed government restrictions.
In her opening remarks at the second of the FTC’s roundtables in its Exploring Privacy series, FTC Commissioner Pamela Jones Harbour was characteristically observant in noting that the mobile space is “crying out for greater privacy.” She reminded us of the 100,000 mobile apps that have been developed for just one mobile platform (the iPhone) among many, but aptly noted that “there’s no app” to give users greater control over their mobile data and the ways that data generated by mobile devices can be used for consumer tracking. Across all the most popular mobile applications platforms (including iPhone and Android), there are nearly 3000 location-based applications, and surely only a fraction, if any, are designed to enhance location privacy rather than invade it.
CDT's Alissa Cooper is participating today on a panel at the workshop that will focus on the privacy implications of mobile computing. In comments submitted to the FTC in advance of today's workshop, a section highlighting the privacy implications of mobile computing, saying:
The Center for Democracy & Technology welcomes today's Presidential appointment of Howard Schmidt to be the White House’s first Cybersecurity chief. CDT believes he brings the needed expertise to a critical new position.
In May President Obama declared the nation's digital infrastructure a strategic national asset and pledged that his Administration would make protecting these networks a national security priority. With the appointment of Schmidt, the President has taken an important step in meeting that pledge.
"President Obama has outlined an ambitious cybersecurity agenda we have full confidence that Howard Schmidt has the knowledge and skills to lead the federal government in the execution of that plan," said CDT President Leslie Harris.
The Administration’s sixty-day review of cybersecurity efforts include strong commitments to ensure protections for individual privacy are built-into any policy involving national cybersecurity. CDT has been tracking the progress of this "cybersecurity privacy checklist."