IP: OF SEDITION ACTS & CENSORSHIP" -- The CDA Law

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

           -    G O   R E G U L A T E    Y O U R S E L F !   -


                    The Telecommunication Act of 1996
                   Is a Good Law, but has a Grave Flaw.


                        By J. Christopher Robbins




        In the process of unbridling the burdened telecommunications
industry last week, Congress somehow forgot itself and managed to regulate
a new and blossoming business; one which was -- until last week -- a true
and unadulterated free-market: the internet.
        This marketplace, which resides everywhere yet nowhere in a place
called cyberspace, deals in one commodity: information. Each day, millions
of people trade countless letters, photographs, and innumerable other
conventional and unconventional communiques at the rate of millions of
gigabytes each hour. 
        Nevertheless, tucked away under Title V of the otherwise agreeable
telecommunications deregulatory law, is a measure called the
"Communications Decency Act" (CDA). Others call it the "State Censorship
Edict." Whatever its name, it is simply disastrous. 


        In the new law, cyberspace's first encounter with red tape, the
President and members of Congress seek to shield us from what they call
"obscene, indecent" and "offensive" material. Though specifically aimed at
protecting minors from pornography, Title V is both nebulous and broad.
The law will hold citizens culpable if they use the internet to make
public or accessible to minors "any comment, request, suggestion,
proposal, image, or other communication" depicting sexual organs or
excretory functions. 
        If signed by Mr. Clinton in the next few days, the CDA will
adversely affect millions of internet users, it will create legal
double-standards, it will result in the "criminalization" of the
commonplace, and it will set a dangerous precedence for state interference
in cyberspace. 


        The CDA will affect far more than just the "hard-core" 
pornography legislators say they had in mind when they wrote the law.
        Assuming the law is strictly enforced, countless textual and
photographic works in art, literature and the sciences will become
illicit. Such items will include pictures of the "Venus De Milo," the text
of J.D. Salinger's work, The Catcher In The Rye, and sensitive accounts of
rape and abuse posted to support newsgroups. All carry fines of up to
$100,000 and five years in prison, according to the legislation.  The
measure applies equally to internet newsgroups, word-wide-web pages, and
any public databases, chat-rooms, or archives which minors can access. 


        The very notion that a citizen may be culpable under the law, yet,
in matter of fact, be without malice, criminal intent, or even blame, is
not only silly, it's frightening.
        In addition, there are irreconcilable legal inconsistencies in the
CDA. For example, neither Penthouse magazine nor the corner-store that
sells it is guilty of a federal crime when a minor buys the publication
and exposes himself to "obscene, indecent" or "offensive"  pictures of
female sexual organs. Likewise, do we hold authors, publishers or even
librarians accountable when, through one of them, a minor obtains one of
thousands of novels containing "obscene, indecent"  or "offensive" scenes?
        Moreover, the law does not even mention -- nay, acknowledge --
consent. Regardless of whether it is you or the recipient (or both) who
"initiated the communication," the act is considered "criminal." 
        To be sure, that is criminal.
        To strike another person in the face, without permission, is known
as assault. It's usually against the law. Yet, to strike a man
continually, with his consent, as he endeavors to hit you too, is called
prize-fighting. It's lawful and often fun to watch.
        One can illustrate the same point with sex: devoid of consent,
putting yourself upon a woman is rape. But with her permission, it's legal
and frequently pleasurable.
        To call a man a "criminal" after another willingly takes actions
to log into, and then access information from his account, world-wide-web
page, or database (which he makes public just as I do this article) is
ludicrous. There is, to be sure, neither crime nor blame.
        What's more, statutory rape laws in most states make Title V into
statutory hypocrisy. 
        If Mr. Clinton signs the legislation, an assenting citizen will be
permitted by law to do most anything with most anything after his 16th
birthday. That is the age of consent in most states. Yet, in cyberspace a
man or woman will be relegated to downloading weather maps and images from
the Hubbell Space Telescope until his majority two years later. How can
sex be lawful, but "cybersex," which at least is safer, be a crime? 


        Federal tampering with speech and individual volition is nothing new.
        The Sedition Act of 1798 once allowed federal officials to
imprison citizens who defamed or brought "into contempt or disrepute" the
President and Congress. I do that every day. 
        Worse yet, even now, the FCC maintains volumes of "administrative
law" regulations (none of which were voted upon) governing demeanor and
speech on the airways. Today we face yet another censorial order.
        The problem is that so long as people are deluded or deceived into
believing that measures like the CDA are moral, they will continue to pass
into law. 


        The logical solution to all this lies not with government, but
with parents. If they choose, parents may monitor their children's
internet use -- a far easier chore than monitoring television, books and
magazines. In addition, computer programs and the actual machines too, can
be made to require passwords. Finally, like always, rooms can be locked
and keys hidden.
        Yet putting the onus as well as blame on artists, scientists, and
orthodox and unorthodox lovers of the human form, is simply unjust. 
        To President Clinton I say: please don't sign this bill until
Congress takes out Title V. It's an easy and painless operation. If you
do, however, I'll have but one thing to say in response to your new law: 
go regulate yourself!
        
        J. Christopher Robbins is a Philadelphia-based writer. His e-mail
address is jrobbins () mail sas upenn edu and his www page is
http://www.sas.upenn.edu/~jrobbins.