The United States: the Constitutional Frame

In one line

American cyber law is what is left after the First Amendment has taken most of the regulatory options away.

In the wording a student can write in an exam: the United States has no comprehensive statute corresponding to the Information Technology Act, 2000, and its regulation of the network is shaped by three constitutional and structural features, namely the First Amendment's protection of speech which subjects content regulation to strict scrutiny, the enumerated and limited legislative powers of the federal government which leaves much of the field to the States, and the state action doctrine under which constitutional guarantees bind the government and not private platforms.

The First Amendment

"Congress shall make no law ... abridging the freedom of speech, or of the press."

Three features of American free speech doctrine explain almost every difference from Indian law.

There is no equivalent of article 19(2). The Indian Constitution permits reasonable restrictions on eight enumerated grounds: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence. The First Amendment states no exceptions at all, and the exceptions the courts have recognised are far narrower: incitement to imminent lawless action, true threats, obscenity in a narrow sense, child sexual abuse material, fraud and defamation with a fault requirement.

Content-based regulation attracts strict scrutiny, meaning the government must show a compelling interest and that the law is narrowly tailored to it, a standard almost nothing survives.

And there is no reasonableness standard. Indian courts ask whether a restriction is reasonable in the interests of one of the eight grounds. American courts ask whether the government has met strict scrutiny. Chapter 1190 shows what the Indian test produced in Shreya Singhal.

The consequence for cyber law is that a general statute regulating what may be said or hosted online is very difficult to enact, and the attempts have failed.

In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court struck down the indecent transmission and patently offensive display provisions of the Communications Decency Act of 1996, holding that the internet is entitled to the full protection given to print rather than the reduced protection given to broadcasting, and that the provisions were vague and overbroad because they suppressed a large amount of speech adults had a right to receive in order to protect children. That decision is why there is no American statute regulating online indecency, and why what survives of the Communications Decency Act is section 230, which chapter 640 works.

The Indian comparison is exact and worth making. Section 66A of the Indian Act was struck down for vagueness and overbreadth in Shreya Singhal, which cites Reno among other American authority, and the two decisions rest on the same reasoning applied under different constitutional texts.