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Law Professor Ranks The "Ten Worst Internet Laws"

April 24, 2007

Santa Clara Law University Professor and Internet law expert, Eric Goldman is out with his take on the ten worst U.S. Internet laws currently on the books.

"What makes a law ,'bad?,' he asks. "Unfortunately, there are many routes to ignominy, and mere legislative cluelessness isn’t sufficient. Some common themes: poor/ambiguous drafting, unintended consequences, justification bait-and-switch (publicly declaring that the law was intended to accomplish a goal it was never designed to do), and attempts to legislatively manufacture markets or change consumer behavior.

His top ten are:

10. E-Sign
9. DMCA Online Safe Harbors
8. Unlawful Internet Gambling Enforcement Act of 2006
7. Digital Millennium Copyright Act (DMCA) Anti-Circumvention
6. Electronic Communications Privacy Act
5. Utah Digital Signatures Act
4. Anti-Kid Spam Laws in Utah and Michigan
3. Dot Kids Implementation and Efficiency Act of 2002
2. Utah/Alaska Anti-Adware Laws

And #1 is:

The Communications Decency Act.

Here's what Prof. Goldman has to say about the CDA:

Based on the discussion above, clearly there was plenty of competition for the worst Internet law of all time. However, I found picking a "winner" surprisingly easy. In fact, in my book, it isn’t particularly close.

The Communications Decency Act, passed in 1996, was Congress’ first comprehensive attempt to regulate Internet content. Not surprisingly, Congress made a lot of rookie mistakes. The CDA tried to keep kids away from Internet porn, a reaction to a sensational 1995 article (the "Rimm Report") published in the Georgetown Law Journal that proclaimed that the Internet was awash in porn. But later examinations thoroughly discredited the Rimm Report—meaning that Congress’ efforts/overreactions were based on bad social science.

Worse, Congress mistakenly assumed that non-porn content could be easily segregated from porn. In defense of this assumption, the government’s expert witness proposed a content-tagging system that would enable browsers to wall off porn. But this exposed a deep flaw in the law: the tagging system didn’t exist, browsers weren’t written to honor the tag, and it turns out that requiring publisher self-tagging for all Internet content is burdensome and cost-prohibitive.

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.

Not surprisingly, the law fared poorly in the courts. Within a week, it was enjoined. The next year, the U.S. Supreme Court unanimously struck down the law (although two judges would have found a way to preserve some of the law). For its lack of policy support, its sloppy blunderbuss approach to regulating speech, and its flat-out meanness, I hereby crown the CDA the worst Internet law (to date...).

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