This again is Congress regulating code as a means of regulating behavior—mandating that multiple copies be imperfect as a way to minimize illegal copying. Like the telephone regulation, this regulation succeeds because there are relatively few manufacturers of DAT technology. Again, given a limited target, the government’s regulation can be effective.

Televisions

A fourth example is much closer to cyberspace. The Telecommunications Act of 1996 required the television industry to develop and implement the “V-chip.”¹ The V-chip would facilitate the automatic blocking of television broadcasts, based on criteria of content that have not yet been completely determined. The crudest proposals involve something like the Motion Picture Association’s movie rating system; the more sophisticated envision selections based on a much richer set of factors.

The legislation was passed in response to the perception that violence on television had increased dramatically, and that this increase was harmful to kids. People were concerned that TV violence would affect behavior. Studies had suggested as much; less reflective evidence had confirmed it. Congress sought to discourage the violence by providing a way to filter it out.²

Given the state of First Amendment law, it would have been difficult for Congress to restrict violence on TV directly. (Though the regulation of broadcasting has been subject to special First Amendment rules,³ and the life of these doctrines now seems limited.)⁴ Even if applied only to children’s television, such regulation would raise difficult constitutional questions—difficult enough, that is, to motivate Congress to seek a different way.

Thus Congress chose code. It required television manufacturers and media producers to develop a technology to rate what is broadcast on television so that parents could block what they do not want their children to see. It requires that televisions be built with a code that facilitates discrimination by consumers of television broadcasting. And it does this to advance a social aim of the government: to empower parents. By giving parents more power to discriminate, Congress indirectly discourages an ill (exposure to violence) that it is constitutionally unable to regulate directly.⁵

Encryption

The examples so far have involved regulations directed against code writers. But sometimes the government tries to act indirectly by using the market to regulate the code. An example is the United States government’s failed attempt to secure Clipper as the standard for encryption technology.⁶

I have already sketched the Janus-faced nature of encryption: the same technology enables both confidentiality and identification. The government is concerned with the confidentiality part. Encryption allows individuals to make their conversations or data exchanges untranslatable except by someone with a key. How untranslatable is a matter of debate,⁷ but we can put that debate aside for the moment: it is too untranslatable for the government’s liking. So the government sought to control the use of encryption technology by getting the Clipper chip accepted as a standard for encryption.

The mechanics of the Clipper chip are not easily summarized, but its aim is to permit encryption that keeps open a back door for the government.⁸ A conversation could be encrypted so that others could not understand it but the government would have the ability (in most cases with a court order) to decrypt the conversation using a special key.

Footnotes

¹ See 47 CFR 15.120; see also Telecommunications Act of 1996 Pub.L. 104–104, 551, 110 Stat. 56, 139–42 (1996), 47 USC 303 (1998) (providing for study and implementation of video blocking devices and rating systems). Edit Delete

² For a review of the evidence considered, see U.S. Senate Committee on Commerce, Subcommittee on Communications, Hearings on Violence on Television, 93d Cong., 2d sess. (1974); U.S. Senate Committee on Commerce, Subcommittee on Communications, Hearings in Review of Policy Matters of Federal Communications Commission and Inquiry into Crime and Violence on Television and a Proposed Study Thereof by the Surgeon General, 91st Cong., 1st sess., pt. 2 (1969); see also Surgeon General’s Scientific Advisory Committee on Television and Social Behavior, Television and Growing Up: The Impact of Televised Violence: Report to the Surgeon General (Washington, D.C.: U.S. Government Printing Office, 1972); Matthew L. Spitzer, Seven Dirty Words and Six Other Stories (New Haven, Conn.: Yale University Press, 1986), 95–118; Television and Social Behavior: Media Content and Control, edited by George Comstock and Eli A. Rubinstein (1972); George Comstock, “Television and American Social Institutions,” in Children and Television, 3d ed., edited by John C. Wright and Aletha C. Huston (1983), 27; George Comstock, “Violence in Television Content: An Overview,” in National Institute of Mental Health: Television and Behavior: Scientific Progress and Implications for the Eighties: Technical Reviews 2 (1982), 110; Harry T. Edwards and Mitchell N. Berman, “Regulating Violence on Television,” Northwestern University Law Review 89 (1995): 1487, 1535; E. Barrett Prettyman Jr. and Lisa A. Hook, “The Control Of Media-Related Imitative Violence,” Federal Communications Law Journal 38 (1987): 317. Edit Delete

³ See Red Lion Broadcasting Company v Federal Communications Commission, 395 US 367 (1969) (ruling that the FCC’s orders requiring radio stations to provide time for response to personal attack do not violate the First Amendment); see also Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US 622, 637–38 (1994). But see Denver Area Educational Telecommunications Consortium, Inc. v Federal Communications Commission, 518 US 727 (1996) (ruling that provisions permitting cable operator to filter content on leased access channels are consistent with First Amendment, but that similar provisions with regard to public access channels are not). Edit Delete

⁴ Increasingly the opinion is that the rationale behind Red Lion (scarcity of spectrum justifies certain regulation) is no longer valid; see Roxana Wizorek, “Children’s Television: The FCC’s Attempt to Educate America’s Children May Force the Supreme Court to Reconsider the Red Lion Rationale,” Catholic University Law Review 47 (1997): 153, 182–86; but see Laurence H. Winer, “The Red Lion of Cable, and Beyond?–Turner Broadcasting v FCC,” Cardozo Arts and Entertainment Law Journal 15 (1997): 1, 21–25 (arguing Turner may revive gatekeeper aspect of Red Lion). Edit Delete

⁵ The consequence of an efficient v-chip on most televisions would be the removal of the standard justification for regulating content on broadcasting. If users can self-filter, then the FCC need not do it for them; see Peter Huber, Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm (New York: Oxford University Press, 1997), 172–73. Edit Delete

⁶ For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip (New Haven, Conn.: Yale University Press, 1997), 32–43. For a sample of various views, see Kirsten Scheurer, “The Clipper Chip: Cryptography Technology and the Constitution,” Rutgers Computer and Technology Law Journal 21 (1995): 263; cf. Howard S. Dakoff, “The Clipper Chip Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementation,” John Marshall Law Review 29 (1996): 475. “Clipper was adopted as a federal information-processing standard for voice communication” in 1994; see Gurak, Persuasion And Privacy in Cyberspace, 125. Edit Delete

⁷ See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of Encryption Research, Wiretap Politics, and Chip Design (Sebastopol, Calif.: Electronic Frontier Foundation, 1998), ch. 1. Edit Delete

⁸ For a good summary of the Clipper scheme, see Baker and Hurst, The Limits of Trust, 15–18; A. Michael Froomkin, “The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution,” University of Pennsylvania Law Review 143 (1995): 709, 752–59. For a more technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, 2d ed. (New York: Wiley, 1996): 591–93. Edit Delete