Complete with RTMark-specific information! Article provided to habitual RTMark users so they know what the Harvard Journal on Legislation suggests should be done about them (hint: jail time). (Note: not all legal mentions of RTMark are this bonkers, e.g. in this much saner treatment of free speech and its problems.)

Model Statute: A Proposed Federal Criminal Statute Addressing the Solicitation of Commerical Terrorism Through the Internet
Bruce Braun* and Dane Drobny** and Douglas C. Gessner***

Winter, 2000
37 Harvard Journal on Legislation 159

* Partner, Winston & Strawn, Chicago, Ill.. B.A., Haverford College, 1985; J.D., University of Virginia, 1989.
** Associate, Winston & Strawn, Chicago, Ill. B.A., Colgate University, 1989; J.D., Washington University, 1993.
*** Associate, Kirkland & Ellis, Chicago, Ill. Adjunct Professor of Law, Trial Practice, John Marshall Law School. B.A., University of Michigan, 1986; J.D., Harvard Law School, 1989.

{page 159} The development of the Internet as a means of communication marks a dramatic change in the manner in which information is exchanged and disseminated in our culture. Quickly fading are the days in which a person's main venue for expressing her revolutionary views included standing on a soapbox or distributing leaflets. Instead, the Internet provides any person with any opinion the ability to reach a virtually unlimited audience without the formidable barriers previously posed by costly and inaccessible mainstream visual or print media. n1 In the current "Information Age," the marketplace of ideas is booming on the Internet.

However, along with the benefits of increased access to information, ease of communication, and new avenues for commerce have come the problems associated with a largely unregulated {page 160} environment. In its present infant stage, the Internet resembles the lawless "Wild West." The Internet is open to governance by human instincts, including those of greed, deception, and hate. In recent months there has been an alarming increase in the use of the Internet to sponsor, solicit and encourage the use of "commercial terrorism." n2 For the purposes of this Model Statute, "commercial terrorism" is defined as the unlawful use of force or violence against persons or property to intimidate or coerce commercial interests. n3 Inflammatory web sites promoting commercial terrorism have targeted corporations such as McDonald's, n4 7-Eleven, n5 Kinko's, n6 Walt Disney Company, n7 Blockbuster Entertainment n8 and Mattel. n9 These web sites foster animosity towards the corporation and urge readers to take affirmative steps to tarnish the corporation's image and to sabotage its operations. Indeed, such web sites threaten acts of destruction that may cause substantial financial damages to a targeted company.

Presently, the operators of these web sites have little reason to fear prosecution. Because the Internet transcends state boundaries, state and local authorities are ill-equipped to address the unique set of problems posed by commercial terrorism. Despite {page 161} the clear need for federal action, the Justice Department, faced with competing priorities, has devoted little in the way of time and resources necessary to track down and prosecute Internet terrorists. n10 Even if prosecution was a priority, current federal criminal laws have not kept pace with the new issues created by this unique form of terrorism. These statutes are often too broad, too cumbersome, or fail to address the type of destruction caused by Internet terrorism.

This Model Statute addresses that legislative void. We begin with an examination of whether existing federal criminal statutes are sufficient to include the conduct of Internet terrorists. Finding these statutes deficient, we propose a model federal criminal statute. We also discuss the numerous implications of enforcing such a statute, and address constitutional implications, such as First Amendment issues, that could arise from this statute.


The sponsorship of commercial terrorism on the Internet is a growing concern. Many web sites not only provide a blueprint for readers to perform acts of sabotage and destruction, but also actively encourage such acts. n11

For example, the "Phrack Magazine" web site contains a downloadable document entitled "Screwing over your local McDonald's" by "Charlie X." n12 The author boldly states his mission at the outset: "Everyone must realize that McDonald's sucks, and you must do your part to put the [expletive deleted} place out of commission." n13 The author begins by advocating a series of juvenile pranks including: publishing fake ads in local newspapers; melting trash can liners with hot water so that the employees have to pick up the garbage by hand, which is reported to be "hilarious to watch"; and disrupting the operation of a McDonald's by placing complicated orders. n14

{page 162} The author escalates from these nuisances to more serious methods of disrupting store operations. In a section entitled "Grease Disposal Fun," the author suggests opening the tightly sealed grease vats next to the garbage dumpsters behind most McDonald's. n15 The author states that the vats "smell like [expletive deleted}" and will "cause nausea, and definitely a loss of appetite", leading to a decline in customers. n16 On warm days, the author urges readers to empty the vats, leaving a long lasting "sticky, raunchy mess in the parking lot that will be impossible to clean up, and will stink infinitely." n17 For technologically minded vandals, the author includes aportion called "Computer Phun" where he gives a detailed description of how to break into McDonald's computer system and further disrupt store operations. n18 As a closing note, the author encourages bored individuals to molest children in the play area. n19 All of the above is designed to "create your local McDonald's into an utter McHell." n20

The web site author purports that the majority of the suggestions are within the guidelines of existing law: "Don't consider it illegal (most of it isn't . . .) consider it more of a public service." n21

However, those responsible for the Phrack Magazine web site implicitly acknowledge the dangerousness of the activities they describe with the following disclaimer: "NOTE: The following file is presented for informational and entertainment purposes only. Phrack Magazine takes NO responsibility for anyone who attempts the actions described within." n22

McDonald's is not the only quick-service business targeted by commercial terrorists. The "How To Turn The Work Life Of A Local 7-Eleven Employee Into A Living Hell" n23 web site offers sixty-four ways to accomplish its stated objective. The author begins by suggesting immature stunts such as using a needle to {page 163} poke holes in condoms; putting laxatives in donuts, coffee machine, and the cashier's soda; and mixing all of the items in the condiments bar together to form a disgusting salad. n24 The author further advocates crimes such as the dismantling of store air conditioning units and the disconnection and destruction of telecommunications equipment. n25 In addition, the author urges 7-Eleven employees to steal money and property from their store and describes over a dozen step-by-step methods for committing such thefts. n26 Unlike other commercial terrorists' web sites that conclude with a broad and self-serving disclaimer, n27 this web site ends with a paragraph claiming responsibility for all actions taken as a result of its exhortations:

DISCLAIMER: RedBoxChiliPepper takes all responsibility for your actions. If anyone gets pissed off at you, anyone dies or anything is damaged, just show them this file and the note below:
To whom it may concern: The information presented in this text has brainwashed ___. Please refrain from doing anything to him as RedBoxChiliPepper takes absolutely all responsibility for their action(s). Contact him if problems arise. n28

One particularly dangerous commercial terrorist advocating criminal acts over the Internet is Pal D. Ekran, a.k.a. "the avenger." n29 On the avenger's web site, he posts a handbook that provides ninety-nine ways to "make your mark [intended victim} suffer in one way or another." n30 Among the acts of terrorism advocated and taught in the avenger's handbook are the filing of false tax returns on behalf of the mark, the sending of death threats to the mark, the destruction of the mark's property, and the commission of credit card fraud on behalf of the mark. n31

In addition, the avenger's web site publishes the works of other commercial terrorists and thus provides a forum for commercial terrorists to share their methods of operation. For example, there are links to articles promoting vandalism on golf {page 164} courses, n32 simple ways to disrupt people's lives, n33 and a revolutionary guide for high school students. n34 Furthermore, the avenger's web site actively solicits the submission of articles to aid those in need of getting even with someone. n35 Although several of the avenger's advocated acts of terrorism are directed at individuals, as opposed to direct commercial targets, a terrorist looking to harm commercial interests may choose to sabotage a corporation by terrorizing its officers or other employees.

Despite the destructive nature of these web sites, they receive relatively little publicity. n36 Also, the existing federal criminal statutes do not adequately address these costly and damaging problems. This Model Statute proposes a solution.


A federal prosecutor seeking to indict a group or individual who uses the Internet to encourage acts of terrorism has at her disposal a wide array of criminal statutes aimed at punishing and preventing various forms of fraud, sabotage, and general societal misconduct that implicate a federal interest. The statutes that may apply to such Internet crimes include laws against mail and {page 165} wire fraud, n37 the federal riot act, n38 consumer protection acts, n39 commerce protection acts, n40 and statutes prohibiting the issuance of threats n41 and solicitations of violent crimes. n42 However, most of these criminal provisions have been in effect for decades and were neither crafted nor enacted to address the unique problems posed by Internet terrorists. The speed at which the Internet has grown and the fact that Congress has been slow to react to Inter-net-related issues may explain the absence of Internet-tailored statutes.

The lack of criminal statutes specifically designed for the Internet forces federal prosecutors to use statutes that were created to combat non-Internet criminal behavior. For example, mail and wire fraud statutes criminalize schemes to defraud another of money or property by use of mail or the wires. n43 Prosecutors have utilized mail and wire fraud statutes to attack conduct ranging from student-aid fraud n44 to defrauding financial institutions, n45 fraudulently obtaining a liquor license, n46 stealing cable television n47 and fraudulently running a lottery. n48 However, the provisions are poorly tailored for use against Internet terrorists. For instance, the McDonald's-related Internet web site discussed {page 166} above, n49 which is broadcast over the Internet through wire transmissions, has stated that its goal is the deprivation of property. n50 Yet the creators of the web site would be liable under the wire fraud statute only if it is proven that they aided or abetted the readers who acted to deprive the company of its property. n51 In addition, law enforcement agents must prove that the web site was made with the intent to defraud, and not merely to ridicule, the company. n52 These problems of proof would impact the prosecutor's discretionary decision to pursue the case.

A prosecutor might also consider using the lesser known federal riot statute. n53 This statute broadly defines a riot as a public disturbance involving:

(1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual, or

(2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any individual. n54

The statute prohibits any use of the wires with the intent to incite, organize, promote, encourage, participate or carry on a riot. n55 To address First Amendment concerns, the statute provides that such actions "shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts." n56 Courts have routinely upheld this statute against First Amendment challenges. n57

{page 167} Finally, the statute criminalizes any use of the wires with the intent to commit an act of violence in furtherance of a riot or aiding or abetting another for the same purpose. n58 An overt act is required for prosecution. n59

On its face, the riot statute appears to apply to the conduct undertaken by Internet terrorists. For example, the McDonald's web site seemingly was prepared with the intent to incite or encourage others to damage the company's property. However, the application of this statute implicates difficult issues of proof. The Internet terrorist whose web site results in corporate property damage may have aided or abetted another in inciting the harm, but the statute only applies to groups of three or more. n60

An even greater problem, however, may be convincing a prosecutor to apply this relatively infrequently used statute to such a novel situation. n61 Congress enacted this statute as part of the Civil Rights Act of 1968. n62 The purpose of the Act was to combat "racial terrorism" by "strengthening the capability of the Federal Government to meet the problem of violent interference, for racial or other discriminatory reasons, with a person's exercise of civil rights." n63 Thus, the statute was intended not to address acts of violence against corporations, but to deal with the deep-seated and historical problem of discrimination, including that of race, religion, and national origin. n64

Furthermore, the intent of an Internet terrorist is not to incite a riot as that term is defined by the statute, n65 but instead to disrupt or destroy a corporation's business operations. For an Internet terrorist, that result may be better achieved without the commotion commonly associated with a riot. Consequently, federal prosecutors may choose to not apply the riot statute in these situations.

To the extent that Internet web sites have resulted in the tampering of a company's products, the "Tampering with Consumer {page 168} Products Act" n66 may apply. In addition to prohibiting food tampering, n67 the statute also forbids the communication of false information that a product has been tainted:

(c)(1) Whoever knowingly communicates false information that a consumer product has been tainted, if such product or the results of such communication affect interstate or foreign commerce, and if such tainting, had it occurred, would create a risk of death or bodily injury to another person, shall be fined under this title or imprisoned not more than five years, or both. n68

The statute further criminalizes threats to tamper with a product under circumstances in which the threat may reasonably be expected to be believed. n69

The applicability of the Product Tampering Act to Internet terrorists depends on several factors. The statute could apply if the Internet web site presented false claims of product tampering, which if true, would have subjected an individual to bodily harm. In addition, the authors of the web site would have to have schemed with or aided or abetted the readers who acted upon the information in the web site. n70 However, the Product Tampering Act's main limitation with respect to Internet terrorism is its inapplicability when the terrorist's conduct does not affect a company's products, but only involves property damage.

Federal prosecutors could also try using the Hobbs Act, n71 entitled "Interference with Commerce by Threats or Violence." This Act applies to anyone who "in any way or degree obstructs, delays or affects commerce . . . or commits or threatens physical violence to any person or property" that similarly impedes commerce. n72 This statute would apply where an Internet web site threatens physical violence to property and interferes with a company's business. The primary issues of relevance would be whether the definition of "physical violence" applies to the conduct of an Internet terrorist and whether a web site encouraging or threatening physical violence against a company's property falls within the scope of the statute.

{page 169} In addition to threats that affect commerce, the federal government also protects people from the interstate transmission of threats of physical violence with the Interstate Communications Act. n73 This statute imposes criminal liability for the threat itself, whether or not it was actually acted upon. The drawback of this statute, however, is that it only criminalizes threats to people, not property.

If a prosecutor was able to prove only that an Internet Web site itself constituted a solicitation as opposed to a threat, then she could use the "Solicitation to Commit a Crime of Violence" statute. n74 This Act criminalizes the solicitation or inducement of another to engage in the use of physical force against the person or property of another "in violation of the laws of the United States." n75 Although seemingly applicable to the situation posed by Internet terrorists, this statute is limited in that it only applies to the solicitation of conduct that constitutes a federal crime. Therefore, a broader statute is necessary to cover conduct that does not independently rise to the level of a federal offense.

In sum, several statutes exist that a prosecutor could conceivably employ to combat commercial Internet terrorism. However, each suffers from fundamental limitations that could lead a federal prosecutor to decline to charge the Internet terrorist. For an attorney to prosecute this misconduct effectively, Congress must approve legislation designed to address it specifically.


A. Language of the Model Statute

U.S.C. 2001 Online Solicitation of Commercial Terrorism

I. Definitions:

a. "Internet" shall mean the international computer network of both Federal and non-Federal interoperable packet switched data networks,

{page 170} b. "Interactive computer service" shall mean any information service, systems, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

c. "Information content provider" shall mean any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or other interactive computer service.

II. Online solicitation to commit a crime of violence.

a. Any information content provider who authors and then transmits or causes to be transmitted via the Internet or interactive computer service in interstate or foreign commerce any communication containing any demand or request that another person engage in conduct constituting a felony in violation of state law or the laws of the United States, shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

b. It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. A renunciation also is not "voluntary and complete" if the defendant merely removes, retracts, or deletes, or causes to be removed, retracted, or deleted, the solicitation from the Internet. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

c. It is a defense to a prosecution under this section that a defendant interactive computer service provider or Internet {page 171} service provider show that it did not author or create the content of the communication containing the solicitation, but was merely a conduit for dissemination of the communication without partial or complete knowledge of the content of the communication.

d. It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.

B. Sources and Operation of Model Statute

The Model Statute, based largely on the language of two current federal statutes, n76 prohibits an individual from using the Internet to solicit the commission of a felony involving violence. n77 The definitions of the terms "Internet," "Interactive Computer Service," and "Information Content Provider" contained in the Model Statute parrot the definitional provisions of the Communications Decency Act. n78 Although the Supreme Court recently struck down the provisions of the Communications Decency Act that prohibited the dissemination of pornographic material to minors via the Internet, certain provisions of the statute, including the definitional provisions, remain in force. n79

The second section of the statute detailing the actual crime and defenses originates from the federal solicitation statute. n80 The Model Statute states that an individual violates the law if he authors and transmits a message over the Internet that solicits another to commit a felony. n81 In so doing, the Model Statute deviates {page 172} from the language of the federal solicitation statute in three important ways.

First, the Model Statute does not limit the offense to solicitations of violations of federal law. Rather, it includes the solicitation of any felony. Thus, a person violates the statute if he solicits another to commit a crime cognizable as a felony in the state in which the solicited offense was committed, or was intended to be committed. n82 This broader definition operates to include the type of offenses that Internet terrorism usually implicates.

Second, the Model Statute includes the solicitation of any felony rather than just those involving violence, or threats of violence, to people or property. By eliminating language that limits violations to solicitations of violent felonies, the Model Statute will apply to the felonies commonly perpetrated by Internet terrorists. For example, the Model Statute would apply to both the solicitation of false advertising in local newspapers committed by the McDonald's terrorist n83 and the solicitation of theft committed by the 7-Eleven terrorist, n84 assuming the amount stolen qualifies the theft as a felony. The elimination of the "violent felony" requirement would also allow prosecutors to use the statute to punish solicitations of non-violent crimes, such as computer sabotage.

Finally, the Model Statute does not include "specific intent" language requiring that the defendant actually intend to solicit the offense. This would preclude the defendant from arguing that the Internet message did not constitute a "solicitation" per se, but rather was an expression of satire or a sharing of ideas.

The affirmative defense of renunciation outlined in the Model Statute differs from the federal solicitation statute in one significant aspect. While both statutes permit a person to avoid criminal liability by manifesting a voluntary and complete renunciation of criminal intent, n85 the Model Statute states that the renunciation is insufficient if the defendant simply removes, retracts, or deletes the solicitation from the Internet. n86 This additional language recognizes the fact that even if the defendant {page 173} later deleted a solicitation, a person browsing the Internet could have viewed it on the Internet almost immediately after it was first posted. Consequently, further action is required to satisfy the Model Statute's affirmative defense, including perhaps sending out another message urging readers to ignore the prior solicitation, notifying the intended victim about the message, and/or notifying law enforcement authorities.

The second defense provision of the Model Statute creates a safe harbor for Internet service providers whose systems merely act as conduits for the dissemination of the illegal communication. n87 Accordingly, the statute does not impose criminal liability on Internet service providers, such as America Online, for failure to censor every message that passes through their systems. This safe harbor is consistent with recent federal court decisions that have struck down statutes that imposed criminal liability on Internet service providers for allowing the posting of illicit messages authored by third parties. n88 However, this provision should be interpreted narrowly so as to provide no protection from liability for individuals or entities that, although not the creator of the solicitation, knowingly forward or transmit the solicitation with knowledge of its contents.

The severity of the punishment under the Model Statute is tied to the gravity of the solicited crime. The Model Statute imposes a penalty equal to one half the maximum penalty, whether imprisonment and/or a fine, prescribed for the crime solicited. n89 If the crime is punishable by death or natural life, then the statute prescribes a twenty-year maximum sentence. n90 This penalty scheme is identical to that contained in the federal solicitation statute. n91 It is consistent with the policy of most jurisdictions that the punishment for an incomplete crime such as solicitation should be less severe than the punishment for the underlying offense. n92 This policy recognizes the notion that if the solicited offense {page 174} is actually committed, then both the solicitor and the actual offender will be punished for both the offense itself and conspiracy to commit the offense. The solicitation would not be separately punished as it would be a lesser included offense of the conspiracy.

C. Enforcement of Proposed Statute

The Model Statute raises a number of law enforcement issues unique to the Internet. The Internet has changed the way people communicate and disseminate ideas and opinions. A sophisticated Internet speaker has a number of tools that allow him to conceal his identity from his audience. This technological "advance" is also a limitation in terms of law enforcement, for prosecutors need to be at least as sophisticated in order to track down Internet terrorists.

In a typical criminal solicitation not involving the Internet, the illegal acts tend to occur in a physical place and the solicitation is either spoken or written. In these conventional situations, the government may rely on eyewitness testimony of those present at the time the solicitation was made. Written solicitations may be investigated using forensic devices such as fingerprint and handwriting analyses. Prosecutors can rely on decades of law enforcement experience in identifying and apprehending individuals involved in these crimes.

These traditional investigation methods do not readily transfer to the enforcement of crimes committed via the Internet. Online solicitations come in many forms, including electronic mail, postings on a message board or in a "chat room," or postings on a specially designed web site. The unique challenge to law enforcement is to overcome the sophisticated Internet user's ability to remain anonymous. The culture of the Internet is intensely democratic and fiercely individualistic. n93 Anonymity, or at least {page 175} attempted anonymity, is actively encouraged on the Internet. n94 Indeed, there are web sites devoted to assisting Internet users in remaining anonymous. n95 The most technologically sophisticated, pernicious, and organized Internet terrorists are likely to be best positioned to make use of these tools.

Furthermore, experience to date has shown that the federal government can not solve these crimes alone, but needs to rely on the academic community, the private sector, and the Internet community at large to succeed in this type of cyber-manhunt. The authors reach this conclusion based upon three assumptions. First, many, if not most, of those with the necessary technological skills and expertise are employed in the private sector or in academia. Second, the rise of Internet consultants who offer cyber-protection services to businesses n96 will require increased co-operation with law enforcement officers. Finally, the incredible size of the Internet will render centralized government enforcement ineffective.

Because the Internet is made up of thousands of computer networks and millions of computers all over the world, n97 no accurate accounting exists as to the total number of web sites. According to recent estimates, however, the number exceeds 800 million. n98 It is not feasible for the federal government to police hundreds of millions of ever-changing web sites. In addition, the authors believe that given limited resources, a prosecutor exercising her discretion will be unlikely to pursue violations of {page 176} the proposed statute unless she is convinced that there is a clear and imminent danger of economic injury or bodily harm as a result of an Internet terrorist's web site.

There are several other factors, however, that may make enforcement easier. First, not all Internet terrorists attempt to preserve their anonymity. n99 These individuals will not be difficult to identify, locate and arrest for they leave a number of easily discernible trails for the police to follow. n100 For example, a user who sends electronic mail through the Internet automatically includes a return mail address. n101 Also, many web sites download files onto the computers of people who visit their web sites. n102 These files, known as "cookies," allow web site operators to track an individual user's movements throughout the Internet. n103 Finally, every posting on the Internet is linked to a special address known as an "IP address," which is a numeric code that uniquely identifies a particular computer on the Internet. n104 Prosecutors can use these tracers and traditional law enforcement measures to apprehend less savvy Internet terrorists. n105

Also, the federal government has resources that could be allocated to enforcing the proposed statute. For example, the Federal Bureau of Investigation recently established a "cybercrime" unit known as the National Infrastructure Protection Center. n106 In addition, {page 177} the Department of Justice has formed an internal Computer Crime and Intellectual Property Section ("CCIPS") to address international computer crime. n107 Finally, the federal government might be assisted by the spontaneous unified action of the federal government, academia, and the Internet community at large. The authors believe that the Internet is self-policing and when focused, can bring together hundreds of computer-forensic experts and freelance sleuths. For example, there are approximately eighty Computer Emergency Response Teams ("CERTS") around the world. n108 The CERTS, funded and organized by national governments, businesses and academia, work with the Internet community to facilitate responses to computer security events, including the detection and defeat of computer viruses. n109

One recent example of cooperation between law enforcers and the larger Internet community occurred during the outbreak of the "Melissa" virus. n110 This virus rapidly spread around the Internet and paralyzed many corporate and municipal computer systems. n111 The author of the "Melissa" virus was tracked down in less than one week. n112 The suspect was identified through the collaborative efforts of private companies that provide Internet {page 178} security services, individual Internet users in Sweden (a computer science student) and the United States (a computer engineering student), America Online, and federal and state law enforcement. n113 The unusual collaborators pinpointed the origin of the offending virus to a single telephone line in New Jersey. n114 While the typical virus writer seemingly is motivated by a quest for notoriety, the authors believe that most individuals in academia and the Internet community want to locate and disable such viruses in order to protect the infrastructure of the Internet. As the "Melissa" case demonstrates, international, not just domestic, collaborative efforts are needed. Without such cooperation, Internet terrorists can operate off-shore with little fear of arrest or prosecution.

The existence of Internet terrorism presents unique enforcement issues. Confronted with a violation of the Model Statute, law enforcement officials will not be able to rely solely upon standard investigative techniques, but will have to apply their ever-increasing level of technological sophistication and call upon the advanced expertise of the academic and Internet communities at large.


A. Freedom of Speech and the Regulation of Internet Terrorism

As with any piece of proposed legislation that regulates the content of certain types of speech, the Model Statute potentially implicates the First Amendment to the United States Constitution. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." n115 When determining whether a particular statute infringes on an individual's freedom of speech, courts apply the highest level of scrutiny to content-based regulations that carry criminal sanctions. n116 Courts increase their vigilance because statutes that regulate the content of speech have a greater chilling effect on free speech than do {page 179} time, place, and manner restrictions. n117 Moreover, statutes that impose criminal penalties have an even more dramatic impact and "may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images." n118

Consequently, the Model Statute, at first read, apparently invites the highest level of judicial scrutiny under the First Amendment. Nevertheless, it is well settled that not all types of speech, whether transmitted over the Internet or some other type of medium, trigger a First Amendment inquiry. n119 Specifically, the Supreme Court has held that the First Amendment does not protect obscenity, n120 fighting words, n121 libel, n122 commercial speech advertising illegal activity, n123 and speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (the Brandenburg standard). n124

The Model Statute falls within the final category of unprotected speech because it only regulates speech that solicits unlawful conduct, and not mere advocacy. Although the Supreme Court has stated that "mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment," n125 lower courts have found that "speech, commercial or otherwise, which solicits illegal activity is not protected {page 180} by the First Amendment." n126 While the First Amendment protects advocacy, it does not extend to criminal solicitations merely because they are spoken or written. n127 Thus, when an individual uses printed words to encourage and counsel others in the commission of a crime, the First Amendment confers no protection on the communication. n128

According to a strict reading of the Brandenburg standard, speech advocating lawless action that poses no imminent, likely threat still retains its First Amendment protections. Imminence is a significant issue for the Model Statute because of the duration of certain Internet messages. A person can read a message on the Internet years after it was posted. However, commentators have noted that the context and content of the speech, rather than the immediacy of the advocated crime, is more important in determining whether the speech poses a threat of imminent lawless action:

The Brandenburg standard of "imminence" does not mean immediate. Imminence is not an absolute term, but rather a relative term, which must always be evaluated against the backdrop of setting and risk. Particularly for serious crimes such as murder, defendants should not be permitted to escape liability because months intervene between their conduct and the crime. n129

Accordingly, the Brandenburg imminence test can still be satisfied even if substantial time passes between the speech and the lawless action. For example, in Rice v. Paladin Enterprises, Inc., n130 the United States Court of Appeals for the Fourth Circuit {page 181} found that a book which provided detailed instructions for planning, committing, and concealing a murder merited no protection under the First Amendment. n131 In Rice, the relatives of murder victims sued the publisher of a book that the killer used as a handbook to commit the crimes. n132 In its decision, the court emphasized that the publisher admitted that it knew the book might be used by murderers and was intended to provide such assistance. n133 The speaker's criminal intent precluded the speech from fairly being characterized as "advocacy." n134

The court then noted that the Brandenburg standard n135 protected only the "abstract advocacy of lawlessness and the open criticism of government and its intentions [rather than} the teaching of the technical methods of criminal activity -- in this case, the technical methods of murder." n136 The court found that "this book constitutes the archetypal example of speech which, because it methodically and comprehensively prepares and steels its audience to specific criminal conduct through exhaustively detailed instructions on the planning, commission, and concealment of criminal conduct, finds no preserve in the First Amendment." n137

The Rice case and prior decisions suggest that the Model Statute does not contravene the First Amendment. Because the Statute on its face and in practice regulates communications that solicit the commission of a felony, it reaches the same conduct that other courts have found unprotected by the First Amendment. The Model Statute does not proscribe the types of communications that could be considered "advocacy." n138 For example, it would not operate to regulate speech that merely criticizes the business practices of commercial entities. Nor would it serve to prohibit communications directing others to boycott a particular business. Instead, the Model Statute simply criminalizes solicitation over the Internet of unlawful acts. Thus, the Statute is not over broad in the activities it seeks to prevent or vague in its terms.

{page 182} Indeed, no court has found that any conviction under the longstanding federal solicitation statute, which does not directly regulate Internet communications, n139 offends the First Amendment. n140 Prohibiting criminal solicitations over the Internet likewise should not implicate the First Amendment. Although the Supreme Court has refused to acknowledge a special justification for government regulation of speech transmitted over the Internet, n141 the same decision suggests that courts likewise will not afford Internet speech any additional First Amendment protection. n142

In this case, Reno v. ACLU, n143 the Supreme Court invalidated, on First Amendment grounds, two provisions of the Communications Decency Act ("CDA") that criminalized transmissions over the Internet. n144 Congress enacted the CDA in 1996 in an attempt to protect minors from "indecent" and "patently offensive" Internet communications. n145 The first provision of the CDA at issue in Reno prohibited the "knowing" transmission of "obscene or indecent" messages to any recipient under eighteen years of age. n146 The second provision prohibited the "knowing" sending or displaying to a person under eighteen of any message "that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." n147

The Court found that these provisions were too vague to achieve the congressional goal of protecting minors from exposure to harmful material disseminated over the Internet without {page 183} unduly burdening protected speech directed towards adults. n148 Specifically, the Court stated that the statute's failure to define the terms "indecent" and "patently offensive" would lead to uncertainty. n149 The Court concluded that the vagueness of the CDA would envelop legitimate speech on topics that adults have a constitutional right to receive, such as birth control, homosexuality or the dangers of prison rape. n150 Because the cited provisions of the CDA were not narrowly tailored to meet the statute's purpose and because less restrictive alternatives existed, n151 the Court held that the statute's heavy burden on free speech violated the First Amendment. n152

Despite the fact that both the CDA and the Model Statute are criminal statutes that regulate transmissions over the Internet, the Model Statute can be distinguished from the CDA, rendering Reno v. ACLU inapplicable. Importantly, the statutes regulate different types of speech. Whereas the CDA regulates the transmission of offensive and indecent material of a sexual nature which adult audiences have the right to receive, the Model Statute regulates the transmissions of criminal solicitations, which are not so protected. Thus, the Model Statute does not place a heavy burden on free speech like the one created by the CDA. In addition, even if a court were to find that the Model Statute did burden free speech, the Model Statute, unlike the CDA, is narrowly tailored to achieving its purpose of preventing Internet terrorism. The language of the Model Statute confines its application to speech that solicits felonies. n153 Since separate state and federal statutes defines all felonies, the Model Statute regulates aneasily definable, narrow class of speech. Accordingly, critics of the Model Statute could not successfully challenge its constitutionality by promoting an extension of the Court's decision in Reno v. ACLU. n154

{page 184} B. Federalism and the Model Statute

In addition to First Amendment concerns, the Model Statute needs to have a sufficient federal interest to justify its existence. The worldwide reach of the Internet and the manner in which the information crosses state lines justifies the need for federal legislation. The broad power of the federal government to regulate interstate and international trade is well recognized. n155 The Internet undeniably is a growing tool of interstate commerce n156 . As indicated by booming stock prices of Internet-related companies, in the not too distant future, the Internet may become the primary means by which interstate transactions are conducted.

Another rationale for the Model Statute is the federal government's role in the development of the Internet. n157 Equally important is that individual states seem ill-equipped to punish conduct that so readily transcends state and national boundaries. Even if state enforcement were possible, federal legislation is necessary to ensure uniformity. It would be anomalous for an Internet Web site to subject an individual to criminal liability in one state but not another when the web site is equally accessible and could cause the same harm in each state. The Model Statute prevents such a result, except in the rare circumstances when conduct constitutes a felony in one state and not in another.

{page 185} CONCLUSION

The world in which we live is rapidly changing. As society reaps the benefits from the daily advances in technology, it must also act to protect itself against the myriad of ways that individuals on the fringes of society inevitably use those advances to further their goals, and, in the end, to try to harm society as a whole. The enactment of the proposed federal statute to criminalize Internet sabotage fills a glaring gap in the federal criminal code, a gap that did not exist even a few years ago, but one that was created by the lightning-fast developments of the information age. This proposed legislation will arm society with an important weapon against this new, virulent strain of terrorism.


n1 Anyone with access to a computer and a modem can potentially reach a vast Internet audience.

n2 See infra notes 3-9 and accompanying text.

n3 See Jimmy Sproles & Will Byars, Cyber-terrorism (visited Oct. 27, 1999) .

n4 See infra notes 12-22 and accompanying text.

n5 See infra notes 23-28 and accompanying text.

n6 See (R) TM ark, The Mutual Funds/Full Projects List (visited Oct. 27, 1999) . This Web site requests funds and workers for projects designed to tamper with corporate products and limit corporate wealth. "Investors" can pledge money to sponsor a project. The Kinko's project, which has not attracted any financing, seeks someone to make copies of the Kinko's logo with the phrase "Thank you for your patronage" over an obscene pornographic backdrop. These copies would then be placed upside down in the paper trays of Kinko's self-serve machines. See id.

n7 See id. The "Mutual Funds" Web site lists two Disney projects. First, $ 200 has been raised to encourage 20 individuals to jump the fence around the perimeter of Disneyland and simultaneously run to the security office to turn themselves in. A second unfunded project attempts to sponsor up to five individuals to don a character's costume, enter a Disney theme park, and distribute children's literature explaining the problems with Disney's depictions of revisionist history. See id.

n8 See id. According to the "Mutual Funds" Web site, Blockbuster edits the content of many of its videos. The Web site currently has one unfunded project to rent the edited Blockbuster tapes and record onto them the unedited versions of the videos, with the goal of having Blockbuster press charges in order to attract media attention. See id.

n9 See id. The "Mutual Funds" Web site has an entire division known as the "Barbie Liberation Organization." One project, which has received $ 50 in investments, seeks individuals to alter the "Cheerleading Barbie" doll into "Activist Barbie." Barbie's pompoms will be replaced with protest signs, and her recorded audiotape will have information on social issues instead of football cheers. See id.

n10 Even though the federal government funds some projects to address computer crime, see infra notes 106-109, the authors believe that this action is insufficient given the magnitude of the problem.

n11 See supra notes 6-9 and accompanying text.

n12 Charlie X, Screwing over your local McDonald's, PHRACK MAG. Vol. 5, 45 (visited Oct. 12, 1999) .

n13 Id.

n14 See id.

n15 See id.

n16 Id.

n17 Id.

n18 See id.

n19 See id.

n20 Id.

n21 Id.

n22 Id.

n23 See RedBoxChiliPepper, How To Turn the Work Of a Local 7-Eleven Employee Into A Living Hell (visited Oct. 12, 1999) .

n24 See id.

n25 See id.

n26 See id.

n27 See supra. note 22.

n28 RedBoxChiliPepper, supra note 23.

n29 See Pal D. Ekran, The Avenger (last modified Apr. 12, 1998) .

n30 Id.

n31 See id.

n32 See Tim Masterson, F[expletive deleteding} Up A Golf Course (visited Oct. 12, 1999) . The author writes, "We should be going after the big corporations and [sic} what is the number one sport of those rich bastards? Golf! The following are some ways to [expletive deleted} up a golf course." Id.

n33 See RedBoxChiliPepper, Ruining Someone's Life (last modified Oct. 23, 1994) . This author suggests various techniques ranging from forwarding a mark's mail to Africa to canceling a victim's credit cards and damaging real property. See id.

n34 See Anonymous, The School Stopper's Textbook (visited Sept. 14, 1998) . This Web site encourages the disruption of schools through acts such as filling school locks with glue, stealing gym equipment, and burning the whole building down. See id.

n35 See Ekran, supra note 29.

n36 Although such Internet postings are so outrageous that one might expect them to be widely reported in the mainstream media, the opposite appears to be true. The authors believe the companies or individuals being targeted by Internet terrorism have a strong incentive to avoid publicity, since publicity of this sort would attract copycats who create and publish on the Internet other ingenious ways to attack. See Jim Benson, Cyberterrorism Resource Center (visited Nov. 8, 1999) (reporting that British computer hackers have extorted $ 1.6 million as "cyber-ransom" from two banks. The banks did not notify the authorities or the press for fear of hurting investor and depositor confidence). Publicity could expose the targeted company's vulnerability, thereby increasing the chance that Internet terrorists could succeed in their plan to disrupt the company's activity.

n37 See 18 U.S.C. 1341, 1343 (1994).

n38 See id. 2101.

n39 See id. 1365.

n40 See id. 1951.

n41 See id. 875.

n42 See id. 373.

n43 See id. 1341, 1343.

n44 See United States v. Berger, 22 F. Supp. 2d 145 (S.D.N.Y. 1998) (determining that defendants' actions causing the Department of Education to mail Student Aid Reports to individuals apparently enrolled as students at various post-secondary institutions, in furtherance of a scheme to fraudulently obtain student grant money, constitutes mail fraud); United States v. Olatunji, 872 F.2d 1161 (3d Cir. 1989) (finding false statements made by a Nigerian citizen for purpose of obtaining student financial aid falls within the meaning of the mail fraud statute, even though the false statements and representations were not made directly to the ultimate victim, the Department of Education).

n45 See United States v. Cherif, 943 F.2d 692 (7th Cir. 1991) cert. denied, 503 U.S. 961 1992) (affirming conviction for mail and wire fraud in connection with a scheme to obtain confidential information from a bank and use that information to trade on stock market).

n46 See United States v. Ianniello, 677 F. Supp. 233 (S.D.N.Y. 1988) (holding that submitting false liquor license applications as part of a scheme to skim profits from the operation at bars and restaurants supports a mail fraud conviction).

n47 See United States v. Coyle, 943 F.2d 424 (4th Cir. 1991) (upholding conviction under the mail fraud statute for using the mail to sell and distribute cable television descramblers intended to allow customers to receive cable programs without paying for them).

n48 See United States v. DeFusco, 930 F.2d 413 (5th Cir. 1991), cert. denied, 502 U.S. 885 (1991) (declaring that use of the mail to fraudulently lead victims to believe they had won a contest supports a mail fraud conviction).

n49 See supra notes 12-22 and accompanying text.

n50 See Charlie X, supra note 12.

n51 See 18 U.S.C. 1341, 1343 (1994).

n52 See id.

n53 18 U.S.C. 2101 (1994).

n54 Id. 2102(a).

n55 See id. 2101(a)(1)-(2).

n56 Id. 2102(b).

n57 See National Mobilization Comm. to End the War in Vietnam v. Foran, 411 F.2d 934 (7th Cir. 1969) (holding that the statute did not raise a "substantial constitutional question" sufficient to require the convening of a three-judge district court); United States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971) (following National Mobilization Comm. and rejecting defendant's claim that the statute was unconstitutional).

n58 See 18 U.S.C. 2101(a)(3)-(4) (1994).

n59 See id. 2101(b).

n60 See id. 2102(a).

n61 See 18 U.S.C.A. 2101 (West 1999). The United States Code Annotated reveals fewer than a dozen cases prosecuted under this statute. See id.

n62 See S. REP. NO. 90-721, at 3 (1967).

n63 Id.

n64 See id.

n65 See 18 U.S.C. 2101 (1994).

n66 Id. 1365.

n67 See id.

n68 Id. 1365(c)(1).

n69 See id. 1365(a).

n70 See id.

n71 Id. 1951.

n72 Id. 1951(a).

n73 Id. 875(c) (prohibiting "any threat to kidnap any person or any threat to injure the person of another . . .").

n74 Id. 373.

n75 Id.

n76 See 47 U.S.C. 230(e) (1994); 18 U.S.C. 373 (1994).

n77 The Model Statute does not criminalize merely spreading rumors about a company's products on the Internet or making a fake "official" web site with false information, mainly because the harm, if any, to the company is too attenuated and does not involve the solicitation of a felony. Such actions may be prohibited under other federal statutes and/or may subject the actor to civil liability.

n78 See 47 U.S.C. 230(e) (1994).

n79 See Reno v. ACLU, 521 U.S. 844, 874-81 (1997) (invalidating 223(a) and (d) of the statute for constitutional infirmities). See also infra notes 141-152 and accompanying text.

n80 See 18 U.S.C. 373 (1994).

n81 See supra Statute Part II.a.

n82 As state laws vary, the imposition of criminal liability under the Model Statute may also vary depending on the laws of the state in which the solicited offense was committed or intended to be committed.

n83 See supra notes 12-22 and accompanying text.

n84 See supra notes 23-28 and accompanying text.

n85 Compare supra Statute Part II.b with 18 U.S.C. 373(b) (1994).

n86 See supra Statute Part II.b.

n87 See supra Statute Part II.c.

n88 See ACLU v. Reno, 31 F. Supp.2d 473, 497 (E.D. Pa. 1999) (invalidating portions of the Child Online Protection Act because, in part, it imposed an unconstitutional burden of self-censorship on Web site providers).

n89 See supra Statute Part II.a.

n90 See id.

n91 See supra note 74.

n92 See SANFORD KADISH & STEPHEN SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 185-86 (1995). The majority of states punish inchoate crimes at a lower level than the punishment for a completed crime, e.g., CAL. PENAL CODE 664 (1998); N.Y. PENAL LAW 110.05 (McKinney 1998). However, a substantial minority of states have followed the Model Penal Code 5.05(1) and made the punishment for solicitation and attempt on a nearly equal basis with the completed crime (with an exception for the death penalty and life imprisonment, and reducing first degree felonies to to second degree felonies). Among the state codes that follow the Model Penal Code are 720 ILL. COMP. STAT. 5/8-4 (West 1999), CONN. GEN. STAT. ANN. 53a-51 (West 1999), DEL. CODE ANN. tit. 11, 531 (1998), and PA. STAT. ANN. tit. 18, 905 (West 1999).

n93 As a matter of logic, the individualistic nature of the Internet community will make it more difficult for prosecutors to identify Internet terrorists; as the number of other people with whom an individual works falls, the potential number of people who can provide law enforcement authorities with incriminating evidence also declines.

n94 For example, a large number of Internet Web sites host "chat rooms," where users are permitted to discuss any (or a specific) topic. Although most Web sites require a user to "sign in" and give some basic information about themselves, users can select a pseudonym, and the information a user gives is rarely verified. See also The Beginner's Guide to Internet Chat (visited Oct. 29, 1999) ; Netscape Chat FAQ (visited Oct. 29, 1999) .

n95 See, e.g., Anonymizer (visited Oct. 12, 1999) . This Web site is one of the most popular Web sites on the Internet. It provides users with the tools necessary to send anonymous e-mails, to browse Web sites anonymously, and post Web sites anonymously. In fact, it boasts that it has helped "anonymize" over 252,395,800 Web sites as of October 12, 1999. See id. See also Arnould Engelfriet, Anonymity and Privacy on the Internet (last modified Jan. 26, 1997) . This Web site shows its readers how to post Web sites and send e-mails with "almost impregnable anonymity." Id.

n96 See, e.g., Yahoo! Security and Encryption (visited Oct. 29, 1999) (listing over eighty computer security companies).

n97 See 20 Questions: How the Net Works (visited Oct. 29, 1999) .

n98 See Peter Rojas, The Race is on to Build the Most Comprehensive Search Engine, RED HERRING, Nov. 1991, at 48.

n99 See supra note 29 and accompanying text.

n100 In addition, for any given crime, there will be a natural group of suspects toward whom law enforcement officers can direct their efforts. For example, with a targeted corporation, a likely initial list of suspects would include disgruntled former and current employees, dissatisfied customers, competitors subject to perceived sharp business practices, and other individuals known to hold a grudge against the target.

n101 See Andre Bacard, Anonymous Remailer FAQ (last modified Sept. 1, 1999) .

n102 See The Unofficial Cookie FAQ (visited Oct. 27, 1999) .

n103 In the conflict between the tracking of users in cyberspace and the desire for anonymity, some Web sites specialize in blocking the use of cookies. See, e.g., Electronic Privacy Information Center: Cookie Busters (visited Oct. 12, 1999) .

n104 See Webopedia, IP Address (visited Oct. 27, 1999) ; Chuck Semeria, Understanding IP Addressing: Everything You Always Wanted to Know (visited Oct. 27, 1999) .

n105 The prosecutor's challenge does not end with the positive identification of the computer from which the criminal solicitation originated. She must still prove the identity of the person who used the computer in question.

n106 See National Infrastructure Protection Center: Welcome to NIPC (visited Oct. 28, 1999) . The Federal Bureau of Investigation has also announced plans to unveil an Internet fraud complaint center as a cooperative effort between the FBI and the National White Collar Crime Center, which is a federally funded research organization. See FBI Plans to Unveil Internet Website to Report Web Crimes in Summer, WALL ST. J., May 11, 1999, at B5.

n107 See Computer Crime and Intellectual Property Section (last modified Nov. 24, 1998) . CCIPS attorneys work with "government officials . . . the private sector . . . academic institutions, and foreign representativesto develop a global response to cyberattacks." Id.

n108 See Meet the CERT(R) Coordination Center (last modified Oct. 11, 1999) . A division of the Department of Defense formed CERT in December 1988. Carnegie Mellon University houses the first CERT and current command center. See About the CERT/CC (last modified Oct. 11, 1999) .

n109 See id.

n110 The "Melissa" virus came in the form of electronic mail, usually containing the subject line "Important Message From . . ." followed by the name of a friend or colleague. When opened by an unsuspecting user, the virus automatically recreated itself, and sent an electronic mail message to the first 50 people in the infected user's electronic mail address book. As each of those people opened their electronic mail, the virus would strike again, growing exponentially until entire electronic mail servers across the world began to crash. The virus disrupted the operations of thousands of companies and government agencies whose employees were unable to communicate by electronic mail. See Elinor Mills Abreu, Officials: Suspect Admits Creating Melissa (visited Oct. 28, 1999) ; Patrick Thibodeau, The Melissa Virus Lesson: Quicker Reaction Needed (visited Oct. 28, 1999) .

n111 See Dean Takahashi & Dean Starkman, "Melissa" Shows It's Harder to Hide in Cyberspace, WALL ST. J., Apr. 5, 1999, at A3.

n112 See id.

n113 See id.

n114 See ZDNet News Staff, Officials: AOL Info Cracked Virus Case (visited Oct. 29, 1999) .>

n115 U.S. CONST. amend. I.

n116 See Reno v. ACLU, 521 U.S. 844, 871-72 (1997).

n117 See id.

n118 Id. at 872.

n119 See infra notes 120-124 and accompanying text.

n120 See, e.g., Miller v. California, 413 U.S. 15, 24 (1973) (holding that the state may regulate material which: "(a) appeals to the prurient interest; (b) depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) lacks serious literary, artistic, political, or scientific value").

n121 See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (finding that a statute that prohibited offensive, derisive, or annoying speech addressed specifically to another person in a public place did not violate the First Amendment). The "fighting words" exception involves speech that "by [its} very utterance inflict[s} injury or tends to incite an immediate breach of the peace." Id.

n122 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964) (while upholding libel laws in general, declaring that an otherwise impersonal criticism of a government official for governmental operations is protected by the First Amendment and does not constitute libel).

n123 See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) (finding that a statute which prohibited advertisements that illegally discriminated on the basis of sex did not violate the First Amendment).

n124 Brandenburg v. Ohio, 395 U.S. 444, 447 (1973) (holding that a statute which punished the mere advocacy of lawless acts violated the First and Fourteenth Amendments).

n125 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982) (declaring that the First Amendment generally shielded boycott participants from liability damages resulting from all violence and threats made during the boycott, but did not shield those whose conduct was the proximate cause of loss).

n126 Record Revolution v. City of Parma, Ohio, 492 F. Supp. 1157, 1178 (N.D. Ohio 1980) (upholding an ordinance which regulated the advertisement of drug paraphernalia), aff'd, 709 F.2d 534 (6th Cir. 1983). See also United States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990) (affording no First Amendment protection to an anti-tax organization that conducted a course on preparing false or fraudulent tax returns), cert. denied, 498 U.S. 828 (1990); United States v. Mendelson, 896 F.2d 1183 (9th Cir. 1990) (declaring that a computer program producing information for bookmakers on how to run an illegal gambling operation was not protected under the First Amendment); United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982) (finding that the First Amendment did not protect defendant's sale of printed instructions for the manufacture of PCP); United States v. Buttorff, 572 F.2d 619 (8th Cir.), cert. denied, 437 U.S. 906 (1978) (holding speech that gave listeners instructions on how to violate federal income tax laws unprotected by the First Amendment).

n127 See United States v. Freeman, 761 F.2d 549, 551 (9th Cir. 1985) (holding that "words alone may constitute a criminal offense, even if they spring from the anterior motive to effect political or social change"), cert. denied, 476 U.S. 1120 (1986).

n128 Barnett, 667 F.2d at 843.

n129 1 RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH 10.35 at 10-41 (1996) (citations omitted).

n130 128 F.3d 233 (4th Cir. 1997), cert. denied, 118 S. Ct. 1515 (1998).

n131 See id. at 266-67.

n132 See id. at 241.

n133 See id. at 247-48.

n134 See id. at 248-49.

n135 See supra notes 124, 129 and accompanying text.

n136 Rice, 128 F.3d at 250.

n137 Id. at 256.

n138 Id. at 249.

n139 See supra text accompanying note 74.

n140 See 18 U.S.C.A. 373 (West 1999).

n141 See Reno v. ACLU, 521 U.S. 844, 869-70 (1997). However, previous Supreme Court opinions have recognized special justifications for government regulation of television or radio based upon the invasive nature of these forms of communication. See id. at 868 (citing FCC v. Pacifica Foundation, 438 U.S. 726, 728 n.2 (1978)). In Pacifica, the Court upheld an FCC sanction on a radio station for transmitting obscene, indecent, or profane broadcasts and noted the "special treatment" afforded to broadcasting. Pacifica, 438 U.S. at 728. Yet in Reno v. ACLU, the Court distinguished the Internet from radio and television since "communications over the Internet do not invade an individual's home or appear on one's computer screen unbidden." Reno v. ACLU, 521 U.S. at 869 (quotations omitted).

n142 See Reno v. ACLU, 521 U.S. at 870 ("We agree with [the District Court's} conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet}.").

n143 Id.

n144 See id. at 871-72.

n145 47 U.S.C. 223 (1994).

n146 Id. 223(a)(1)(B)(ii).

n147 Id. 223(d).

n148 See Reno v. ACLU, 521 U.S. at 875.

n149 See id. at 870-71.

n150 See id. at 871.

n151 See id. at 879. The Court referenced alternatives such as "tagging" indecent material in a way that facilitates parental control, with exceptions for messages with artistic or educational value. Some portions of the Internet, such as commercial Web sites, could be regulated differently than others, such as chat rooms. See id.

n152 See id.

n153 See supra Statute Part II.a.

n154 Courts have recently refused to expand Reno v. ACLU when faced with challenges to the surviving provisions of the CDA. See, e.g., Apollomedia Corp. v. Reno, 19 F. Supp. 2d 1081, 1096 (N.D. Cal. 1998), aff'd, No. 98-933, 1998 WL853216, at *1 (U.S. Apr. 19, 1999), amended by 119 S. Ct. 1450 (1999). In Apollomedia, a multimedia technology company brought First Amendment challenges against provisions of the CDA that regulated the content of electronic mail messages sent over the Internet which were "obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person." Id. at 1084. The district court interpreted this statute only to prohibit the transmission of obscene material over the Internet. See id. at 1096. Because the First Amendment does not protect obscene speech, the court found that the challenged provisions did not violate the First Amendment. See id.

n155 See U.S. CONST. art. I, 8, cl. 3. See also Hodel v. Virginia Surface Mining and Reclamation Assoc., Inc., 452 U.S. 264 (1981) (holding that Congress's rational determination that the regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from such activity is sufficient to validate a regulatory act under the Commerce Clause).

n156 See, e.g., (visited Nov. 8, 1999) ; eBay (visited Nov. 8, 1999) .

n157 The Internet began as the ARPANET [Advanced Research Projects Agency} in the late 1960s during the Cold War. The United States Department of Defense, together with a number of military contractors and universities, developed the Internet to explore the possibility of a communication network that could survive a nuclear attack. Research for the Internet continued because the involved parties found that it provided an efficient way to communicate. See Internet History (visited Oct. 29, 1999) .