IP: Telecom bill was a shot heard round the Internet (from

[Dave Farber <farber () central cis upenn edu>]

Telecom bill was a shot heard round the Internet
By Jonathan Weber


Moments after President Clinton signed the Telecommunications Reform
Act of 1996 into law Thursday, a passel of civil liberties lawyers
were in court seeking to strike down a provision banning the
transmission of "indecent" material on the Internet. And they will
probably succeed: Most constitutional lawyers believe the provision is
too broad to pass legal muster.


But if you think such a decision will mean even a temporary end to
efforts to regulate cyberspace, think again. For one thing, many
governments around the world, from China to Germany, are forging ahead
with cyberspace restrictions of various kinds, and the very nature of
the Internet means such crackdowns will have a global impact.


At the same time, this country is witnessing the rapid development of
a kind of privatized regulatory regime, in which individual companies
and interest groups, through a variety of mechanisms, are policing the
on-line world and imposing restrictions on what takes place there.


 From parents hoping to thwart on-line pornographers to Scientologists
hoping to silence their critics, to Nazi-hunters battling Holocaust
denial, to Guardian Angels on the lookout for all manner of nefarious
deeds, people are taking it upon themselves to stop things the law
continues to allow.


In many respects, free-lance regulation is better than the traditional
kind, because laws aimed at governing on-line communications create
more problems than they solve. The absence of rules has its dangers,
too, though, and the Internet access providers and on-line publishers
who are increasingly finding themselves caught in a cross-fire might
soon be wishing they had the government telling them what they can and
should do.


Unquestionably illegal


Some aspects of the emerging system of ad hoc rules are actually
simpler than they seem. Much of the most alarmist talk about the
perils of the Internet revolves around activities that are illegal,
and such things are illegal no matter where they take place. Child
pornography, for example, or soliciting children for sex, or plotting
to blow up government buildings can all be prosecuted under existing
laws.


What's complicated is coping with speech and activities that are
objectionable to many people, but legal. Pornography isn't illegal,
nor is advocating Nazism, nor is distributing instructions on how to
build a bomb -- but a lot of people want to see such things banned
from cyberspace.


The telecommunications bill takes a head-on approach, making it
illegal to transmit "indecent" material to children over computer
networks. Since much of the Internet is by nature a public system in
which it's impossible to screen out underage individuals, the
provision would in many respects amount to a ban, though some
individual World Wide Web sites and bulletin board services could
probably circumvent it with password systems.


In the absence of a new law, the most important private sector
response to the indecency involves rating Internet sites and
discussion groups, and using software to selectively block access. A
group of Internet and computer software companies is working on
technical specifications that will enable sites to accommodate
blocking software and ratings systems.


Multiple ratings


In contrast to the single ratings system for movies, there will be a
plethora of private Internet ratings systems, some of which are
already under development.  Parents, or anyone else, will be able to
select a ratings system that corresponds to their values, and then
install the software to implement it on their own computer.


But another, much more problematic kind of private-sector rating
system is emerging as well -- one imposed by on-line service operators
and Internet service providers. These companies are free to refuse
service to individuals or groups that say or do things they don't
like.


Rabbi Abraham Cooper of the Simon Wiesenthal Center in Los Angeles
argues that just as a newspaper will sometimes refuse to carry an
offensive advertisement, so Internet providers should tell neo-Nazis
and other hatemongers to take their business elsewhere.


"We're saying, `Come up with your own approach, but just don't say
that anything is free speech,' " says Cooper. He notes there have
always been ad hoc "rules of engagement" on how mainstream society
deals with fringe elements -- books denying the Holocaust are legal to
publish, for example, but they don't make the Book of the Month club
 -- and similar rules need to be developed for the on-line world.


Not an easy task


Putting the burden of censorship on the Internet access provider,
however, is a very tricky business. Unlike services such as America
Online or Prodigy, which in some respects act as publishers of
information, many access providers offer little more than
communications and computer services, like telephone companies.  And
phone companies not only do not make judgments about how their phone
lines are used, they are prohibited by law from doing so. Under the
doctrine known as "common carriage," they must provide service under
equal terms to anyone who asks.


Barry Steinhardt, associate director of the national office of the
American Civil Liberties Union, says he would advise Internet access
companies to act as much like common carriers as possible. Otherwise,
they'll be in the hopeless position of having to monitor all the World
Wide Web pages of all their customers, for example, and deciding which
ones are OK and which ones aren't.  And then they would have to decide
what links between sites are OK and what newsgroups are OK and so on
and on.


The telecommunications bill provides some relief in this regard,
establishing that Internet providers cannot be held liable for illicit
information flowing on their networks if they do not know about it.
Thus in key respects, ignorance is bliss.


But as powerful interest groups make their voices heard about what
should and should not be permissible on the Internet -- and as
self-appointed monitoring groups see to it that activities they don't
like are reported -- the access providers are going to find it
increasingly difficult to do nothing. And the next round in the war
over Internet restrictions will be joined.


Jonathan Weber is the technology editor for the Los Angeles Times
business section. He can be reached at:


Jonathan.Weber () latimes com .