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Notes to Page 114
a Filtered Internet, in ACCESS DENIED: THE PRACTICE AND POLICY OF GLOBAL INTERNET
FILTERING (Ronald J. Deibert et al. eds., 2008).
56. See James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors,
66 U. CIN. L. REV. 177 (1997); see also Jonathan Zittrain, A History of Online Gatekeeping,
19 HARV. J.L. & TECH. 253, 295 (2006). Boyle believes the “Libertarian gotcha” to
be contingent, not inherent. In other words, because code can be changed, it is possible
to take a technology and then refashion it to make it easier to regulate.
57. FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND
ABROAD 81–85, 91–92, 156 (reprint ed. 2004).
58. Ingrid Marson, China: Local Software for Local People, CNET NEWS.COM, Nov. 14, 2005,
http://news.com.com/ChinaLocalsoftwareforlocalpeople/2100-7344_3-
5951629.html.
59. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior
restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity.”); see also LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW
(1999).
60. See Lyombe Eko, New Medium, Old Free Speech Regimes: The Historical and Ideological
Foundations of French & American Regulation of Bias-Motivated Speech and Symbolic Expression
on the Internet, 28 LOY. L.A. INT’L & COMP. L. REV. 69, 123–24 (2006) (noting
a possible connection between U.S. prior restraint doctrine and the U.S. conception of
the Internet as a “free marketplace of ideas”); John G. Palfrey, Jr. & Robert Rogoyski,
The Move to the Middle: The Enduring Threat of “Harmful” Speech to the End-to-End
Principle, 21 WASH. U. J.L. & POL’Y 31, 52 (2006) (discussing a Pennsylvania law requiring
ISPs to deny access to Web sites containing child pornography and a court decision
that declared the law unconstitutional, partly on prior restraint grounds) (citing
Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004)); see also
Zieper v. Metzinger, 392 F. Supp. 2d 516 (S.D.N.Y. 2005), aff’d, 474 F.3d 60 (2d Cir.
2007).
61. Exetel Hosting Support Facilities, Frequently Asked Questions, http://www.exetel.com
.au/a_support_hosting.php#webspace2 (last visited July 4, 2007).
62. See United States v. Am. Library Ass’n, 539 U.S. 194, 215–16 (Breyer, J., concurring)
(2003) (arguing that the standard should have been heightened scrutiny for a law requiring
libraries to use filtering systems in order to receive public funding and noting
that “[t]he [filtering] technology, in its current form, does not function perfectly, for to
some extent it also screens out constitutionally protected materials that fall outside the
scope of the statute (i.e., ‘overblocks’) and fails to prevent access to some materials that
the statute deems harmful (i.e., ‘underblocks’)”); ACLU v. Ashcroft, 322 F.3d 240, 266–
67 (3d Cir. 2003), aff’d and remanded by 542 U.S. 656 (2004) (“We conclude that [the
Child Online Protection Act (COPA)] is substantially overbroad in that it places significant
burdens on Web publishers’ communication of speech that is constitutionally
protected as to adults and adults’ ability to access such speech. In so doing, COPA encroaches
upon a significant amount of protected speech beyond that which the Government
may target constitutionally in preventing children’s exposure to material that is obscene
for minors.”); Katherine A. Miltner, Note, Discriminatory Filtering: CIPA’s Effect