UIC John Marshall Journal of Information Technology & Privacy Law


Dawn L. Johnson


The age of the Internet has allowed users of all ages to access an infinite number of subjects. However, some of those Internet sites may consist of subjects that may not be suitable for children under eighteen based on the content of those sites. The content may include sexually explicit and violent text and images. In 1996, the Communications Decency Act (hereinafter CDA) was created to help protect children from "obscene" or "indecent" subject matter by imposing criminal liability for violations. However, the American Civil Liberties Union has obtained a preliminary injunction against enforcing the CDA because of the potentially unconstitutional provisions included in the CDA. Currently, the Department of Justice is appealing the case to the United States Supreme Court. In combating "obscene" or "indecent" subject matter, technology can be used to identify and filter such material. This filtration can be done through software, a trusted service provider, or manually. Therefore, the legislation that has been created to fight against indecent exposure on the Internet is not necessary. Furthermore, existing laws already prohibit illegal expression, and judicial doctrines are also capable of assessing liability for harmful material communicated through on-line services. Therefore, the medium, such as the Internet, through which the material is transmitted does not matter. The first Amendment does not protect the transmission or distribution of obscene expression. Thus, existing laws nationwide can treat Internet communication the same as selling pornography to a minor at a local bookstore. Without any regard to the means of the communication, the end result would be that the conduct is illegal. Therefore, intrusive government restriction, such as the CDA, is unnecessary.