Reno at 20: The Internet and Contested Content, Then and Now
December 8, 2017
9:00 A.M. – 4:30 P.M.
St. Regis Hotel
125 3rd Street, San Francisco, CA
Breakfast & Registration
Welcome and Opening Remarks
Deirdre Mulligan, associate professor, School of Information, UC Berkeley, faculty co-director, Berkeley Center for Law & Technology
The Reno Vision of the Internet: Is it Valid Today?
In a 1995 Yale Law Journal article, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, Jerry Berman and Danny Weitzner described the then-nascent internet as uniquely decentralized, abundant and user-controlled, with unprecedented democratic potential and deserving of the highest form of First Amendment protection. The District Court panel hearing the ACLU’s challenge to the Communications Decency Act largely endorsed that vision in its findings of fact, which the Supreme Court relied on in striking down Congress’ first attempt to regulate speech online. Were the courts in 1997 correct? Does the internet of today share the properties of the Internet that were so essential to the First Amendment analysis of 1997? What has changed in terms of architecture, business strategy, social convention, and use, and how and why do those changes matter? Does the Reno vision work globally?
Moderator: Alan Davidson, public interest technology fellow, New America
Strategy for Internet Policy Then and Now: Conversations Between Principals in the Reno v. ACLU Case and Those in the Field Today
Reno v. ACLU can be seen as the last stage in a multi-pronged strategy that combined grassroots, legislative and litigation tactics. That strategy was premised on the need to educate decisionmakers (legislators and judges) who began with little understanding of the internet. It centered around a coalition of mainstream companies, advocacy groups of diverse ideology, and engaged “netizens.” It drew on themes of innovation, corporate self-interest, individual empowerment, and civil liberties. How does internet advocacy work today? This segment will consist of a series of conversations between those who framed and implemented the strategy that culminated in the Supreme Court’s decision 20 years ago and those in the field today defending internet freedom.
The Reno Legal Framework: Strengths and Limitations
At the end of the Reno litigation, the internet was afforded the highest form of First Amendment protection, indecency and patent offensiveness were soundly rejected as standards for internet content (setting up the later rejection of the “harmful to minors” standard), and the intermediary protection and Good Samaritan or safe harbor provisions of Section 230 survived. The internet grew at an unprecedented rate and platforms for social networking and user-generated content flourished, for which many credit the Reno framework. But today, there are critics of the framework and calls for its revision, as the internet faces problems of sex trafficking, terrorist use and nation-state manipulation. Legislation carving out from 230 content related to sex trafficking seems likely to pass Congress. Should 230 be revised, and if so how? What is the abiding essence of the Reno framework? What are its limitations? Is more speech still the best response to objectionable uses of the internet?
Moderator: Robert Corn-Revere, partner, Davis Wright Tremaine
Looking Forward: What are the challenges to free expression online today?
How do free expression interests co-exist with the corporate bottom line? How does freedom of expression survive in the face of extra-legal pressure? How do we deal with disparate impacts on marginalized people? What is the effect of changing business models on freedom of expression? Internationally, what are the free expression challenges facing corporations, civil society advocates, and individuals? How are freedom of expression battles waged in countries that lack strong civil society organizations, a corporate responsibility culture, or other elements that were important to the outcome in Reno v. ACLU? Where do we (corporations, governments, advocates, individuals) go from here? Considering competing values and developments in technical infrastructure, law, and the marketplace, what are likely trajectories for free expression?
Moderator: Deirdre Mulligan, associate professor, School of Information, UC Berkeley, faculty co-director, Berkeley Center for Law & Technology
Berkeley Center for Law & Technology
Center for Democracy & Technology
Electronic Frontier Foundation
High Tech Law Institute Santa Clara University School of Law
Stanford Center for Internet and Society
Special thanks to Mozilla for generous funding.
UC Berkeley School of Law certifies that this activity has been approved by the State Bar of California for 6.75 hours of Continuing Legal Education credit.