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24 Hours of Democracy

The Communications Decency Act, Censorship and the Net

Wade Rowland

© 1996 Wade Rowland

The Internet is known as a place of strong opinions plainly spoken, but it has never seen anything like this week's protest over the "Communications Decency Act" signed into law on February 8, 1996 by U.S. President Bill Clinton.

This new law imposes heavy fines and jail sentences on anyone found guilty of posting "indecent" text or pictures on the Net or other on-line services, where they can be accessed by minors. It would appear to make much of what might be found in any decent library, illegal on the Net. It makes depictions of nudity illegal. It even makes discussion of abortion illegal, according to some interpretations. In short, at a single stroke it has made the Internet the most heavily regulated information medium in the U.S.

Activists of the Christian Coalition immediately began distributing legal advice kits to prosecutors across the country, pushing for an immediate and severe crackdown on "net porn".

The Act is part of a package of comprehensive deregulation in the U.S. telecommunications industry that is designed to speed the development of the "information highway" there. Its draconian provisions against the foggy notion of "indecency" on the Internet and other on-line services would appear to be transparently in violation of the First Amendment freedom of expression, and The ACLU was in court the day of its passage, challenging it on several counts. Perhaps the law's vulnerability explains the Administration's otherwise inexplicable assent: "Why not concede this one to the Moral Majority, if it means getting the important deregulation measures passed? After all, it's bound to be thrown out in the courts in short order."

Outrage on the Net has nevertheless been palpable and highly visible. One well-known Net denizen called the Act "a crime against humanity," given that its impact would be felt around the world. A campaign to have American World Wide Web publishers give their home pages a black background has been highly successful. And a similar symbolic protest involving blue ribbons on Web sites has been just as visible, even among high-profile commercial content providers like Netscape, Yahoo, HotWired and leaders in the computer and entertainment industries (examples).

There is good reason for Canadians to take an interest in the fuss south of the border. There is no immediate threat of similar legislation here, and CRTC Chairman Keith Spicer is emphatically on record as stating that Net censorship is not on the regulatory agenda. Nevertheless, there are more subtle, one might even say more Canadian, ways to put a muzzle on the uncomfortably anarchic Internet, and they need to be understood.

Yes, there is smut on the Net. There are nude photos and there are photos of sexual acts and there are erotic fantasies and adult discussion groups; Playboy and Penthouse and Hustler are there. Who hasn't heard about In fact, there's a Net version of just about everything you can find in real life by checking your local library or book store or the Yellow Pages. I'm told (I haven't the time or inclination to confirm it) that you can even find bestiality, if you look hard enough.

The fact is, just about anything you can find in the real world has its mirror in cyberspace on the Net. That's a big part of the fascination of it all. One thing most novice users like to do best is try to stump the search engines with queries about the arcane and obscure. They are seldom disappointed by a "no hits" return.

But it is hard not to share the widespread skepticism among Net users as to whether pornography is really the whole issue in the current American drive toward censorship. Given the astronomical revenue potential of on-line services including the Internet, it is not difficult to imagine that the anti-porn drive is seen in some corporate circles as a useful stalking horse for the kinds of controls that make business investments more secure in a volatile environment.

After all, there have always been laws about pornography and there has never been any question that those laws apply publishers on the the Net, just as they do to conventional publishers. Yes, it can be difficult to prosecute if the content provider is in another country. But 90 percent of what might be called pornography on the Net originates in the U.S.A. (In Canada, there has already been one successful prosecution for purveying child pornography via an electronic bulletin board.)

Perhaps a more serious freedom-of-expression concern is the existence of hate propaganda on the Net. Once again, there are laws prohibiting it, and they can be enforced. But better and more effective than laws are the Net's own, built-in mechanisms for handling hate. Because the Net is open to anybody with access to a computer and modem, anybody can be a publisher on the Net. If Nazis can publish, so can anti-Nazis, and they do. If a skinhead on your news group says something obnoxious, you're free to reply, instantly and in public. You don't have to send a letter to the editor and wait for him to decide whether there's room for your opinion.

If a holocaust denier sets up a Web site, anyone who cares to can set up a site refuting his arguments, drawing on the full weight of historical authority, in unlimited detail. This, too, has been done, and it is bound to be more effective in the long run than high-profile prosecutions, which have an unfortunate way of acting like recruiting campaigns.

It is also important for the uninitiated to understand that much of what is loosely being called "Internet porn" in the conventional media is in fact being purveyed by Bulletin Board Systems or BBS's, and not the Internet. A BBS is a commercial enterprise. You pay the owner a subscription fee, which gets you a password and access to the BBS database via your modem. There are BBS's that are community-based and there are special interest BBS's on everything from particle physics to motorcycles. And there a lot of BBS's that specialize in selling pornography, either through the mail or over the phone lines connecting the BBS with the client. For a dollar or two, a subscriber can download a photo of the activity or perversion of his or her choice.

A few of these porn-merchant BBS's have set up shop on the World Wide Web. But most have not, fearing that the heightened public profile that would bring would also bring prosecution under the good old-fashioned pre-CDA laws.

It also needs to be understood that America On-Line is not the Internet. Neither is Compuserve or Prodigy or any of the other commercial on-line services. They are all really just very big BBS's (and nowadays they provide access to the Internet). They operate on the same principles, charging subscribers for access by providing a password in exchange for a blank cheque in the form of your Visa number.

It has been estimated that more than half America On-Line's revenue comes from people using the "chat" forums AOL provides. As you might expect, given the youthful demographics of the average AOL subscriber, sex is a popular topic, just as it is around the office water cooler or in high school corridors. There are some 3 million AOL subscribers and most of them know about sex chat. Word gets around. Time magazine writers hear about it. But, I repeat, AOL is not the Internet.

These are important distinctions, and here's why. It is one thing to restrict people's right to express themselves in a private place, and quite another to try to impose the same restrictions in a public place.

My free-thinking neighbour could, if he so wished, prohibit his visitors from ever uttering the word "Baptist" in his home and he would be within his legal rights. More to the point, shop keepers and other commercial property owners are free to regulate deportment, language and even the dress of their patrons. Teenagers and social misfits are routinely turfed from malls for merely looking weird, and they have little legal recourse.

In public space, on streets and in parks and public conveyances, civil rights are better protected. I can't legally incite people to riot, I can't distribute pictures that fall on the wrong side of the pornography/erotica line and I can't with impunity commit slander or libel, but short of that I can express myself pretty much as I please.

This, then, is the important distinction: the Internet is public space; AOL, CompuServe and the BBS's are not. People have a right to expect rigid respect for freedom of expression in the public space of the Internet so long as the public laws of the land, ie. the Criminal Code and the Constitution, are being respected. In other words, the only restrictions on freedom of expression that can be permitted on the Internet are those provided for in the country's constitution.

When CompuServe last month removed a score of sex-related news groups from its service at the behest of the German government, it was not in violation of the American constitution's First Amendment, because the news groups resided in space that can, at best, be described as only quasi-public. An analogy from the real world might be the foyer of an office building or the food court in a shopping mall. CompuServe provides the electronic environment for the news groups, and its ownership of that environment is recognized in the fees paid by subscribers. When CompuServe reopened access to all but four of the banned groups on Valentine's Day, it was recognizing competitive commercial imperatives rather than legal responsibilities.

Why is the Internet public space? For two reasons, which are sides of the same coin. The Internet is public space in the first place because it has to be, on order to function. And in the second place because its technology is incompatible with private ownership or bureaucratic regulation. It is public because it can't be anything else and still be the Internet.

The Internet was devised by the Rand Corporation, a cold war think tank, and built by the Pentagon. It's design criteria required it to be capable of carrying on operations in the face of a nuclear attack which would blow away large chunks of the American communications infrastructure. It could have no headquarters or administrative heart because that would be the natural target of a first-strike attack.

The design succeeded brilliantly. As a distributed network, or network of networks, it allowed any node to send and receive data directly to any other node. Information resident at one node could be copied or "mirrored" at any number of others. All data was to be encoded in digital packets of a few bits each, and every packet carried the address of its destination. If it could not find its way by one route, it would automatically search through the network until it found a pathway which did connect. The computer on the receiving end would assemble the packets and translate them back into a usable message.

The protocols which make it possible for computers, regardless of make or model, to read each other's messages and which therefore allowed the Net to grow and expand, were deliberately placed in the public domain in 1974 by their inventors, who were farsighted enough to understand the Net's potential as a medium of global communication. Many observers believe that by sometime during the decade of the 1990's the Internet had achieved a world wide "critical mass" that made it, for all practical purposes, impossible to shut down. And virtually impossible to censor, since data can be transferred any computer anywhere and remain transparently accessible.

While each small component of the Net is owned by someone or some agency, there are hundreds of thousands, soon millions, of such components, each contributing in its small way to the overall network. Like language itself, the Net is owned by everybody and nobody at the same time. It is public space because it can be nothing else.

Nevertheless, it would be a mistake to take the Net's inviolability for granted.

There is the historical precedent of radio to be borne in mind. In the decade immediately after its invention, radio was a public-access medium that could be used interactively by anyone with a few dollars for simple electronic components and the wit to be able to follow a simple schematic diagram. All radio was amateur radio.

Then, in rapid succession, regulations were promulgated by governments to give the military priority access to the airwaves and then to divide much of the usable spectrum up among commercial users, notably commercial radio stations and networks. Before long, radio "amateurs" were crowded into tiny bands of frequencies in regions of the spectrum nobody else wanted. New regulations told them what they could talk about (no business dealings) and which countries they could communicate with. Restrictions were placed on the types of equipment they could use, and how they could use it. Operators had to obtain a licence from the government, the granting of which was contingent on passing a stiff examination in electronics and Morse code. Only the irrepressible technical ingenuity of the small remaining Ham fraternity kept it busy communicating over the airwaves in the face of all obstacles.

The move to "privatize" the radio spectrum in the 1920s occurred immediately subsequent to the invention of the broadcast network by a handful of bright technicians at AT&T. By finding a way to amass audiences large enough to interest advertisers, linking stations together by telephone lines to form a radio network, the AT&T planners changed the industry forever. Until then, nobody had been able to figure out how to make money from the new medium; with the network idea, radio investors hit the jackpot.

The regulations that divvied up the spectrum and had the effect of taking radio out of the public domain and handing it over to private commercial interests, were put in place ostensibly in the public interest, to avoid the chaos of overlapping signals and other interference. But they also had the effect of establishing a near-monopoly industry and placing it in the hands of a few of smart investors. Much the same thing happened in Canada.

And now that the radio spectrum was no longer true public space, but was occupied by commercial interests, government stepped in again to impose censorship through licencing regulations. "Indecent" words and ideas that were common currency in literature, were forbidden on the radio waves. Licences to operate stations and networks were granted by government regulators according to "fitness" criteria, which, because of their arbitrary nature, were open to abuse.

Like early radio, the Internet, too, has been a puzzle to entrepreneurs who have been able to smell its money-making potential but have been unable to quite figure out how to put it to work for them. Until last year, when the World Wide Web took off like a rocket with its attractive, easy-to-use mix of text and graphics. The light went on, and advertisers and commercial publishers have been flocking to the Web in land rush numbers. The Web is expected to generate something in the order of $12 billion U.S. in revenue by 2000.

With this kind of money at stake, it would be naive not to expect attempts to co-opt the Net by commercial enterprises and to regulate it by government. And we have seen both. The cable television and telephone industries are currently scrambling to put a lock on network access, shutting out the current crop of thousands of tiny to medium-sized Internet service providers. And then, of course, there is the "Communications Decency Act".

Is the Net's technological bias to communication freedom and open access robust enough to transcend this sort of corporate and government scheming? Perhaps. There are obvious and important differences between radio and the Net that may help keep the Net a genuinely democratic environment for communication.

First of all, the rationale for regulation of the radio spectrum was wrapped up in the idea that spectrum was a scarce resource, limited by the laws of physics, and thus needed to be rationed out. However, spectrum shortage on the Net is known to be a short-term problem, to which there are well-understood technological solutions.

The corresponding property to radio spectrum on the Internet is something called bandwidth, which is a measure of the signal-carrying capacity of a given conduit. Ordinary telephone service carries signals on a twisted pair of copper wires, and the bandwidth available using today's best digital signal compression technologies is barely enough to accommodate a single television channel. Cable television is carried on co-axial cable, a copper wire wrapped with insulation and a metallic shield to fend off outside electrical interference, and which can carry several hundred TV channels. Fibre optic cables, which are now widely used in telephone trunk lines and in some cable TV systems, are capable of carrying tens of thousands of channels each, and when bundled can provide virtually unlimited bandwidth.

Bandwidth, in other words, is not a scarce commodity for the Internet; quite the opposite is true. Thus, there is no need for government interference in its allocation, beyond ensuring that conditions of adequate competition prevail in the market, or that prices charged by monopoly providers are regulated. This is important when we recall that it was spectrum scarcity that gave regulators their foot-in-the-door where radio was concerned.

A second important difference, both conceptual and practical, between radio and the Net is that the Net is interactive. In practice this means that while radio and television broadcasts are passively received by their audience, content on the Net must be actively sought out, and can be added to and modified by the user. There is little or no need to protect users from "accidental" exposure to the lewd, vulgar or profane on the Net, because in order to see it they have to first actively and knowingly seek it out.

As recently as early 1995, the huge corporate interests backing trials of so-called video-on-demand in Canada and the United States, and in Britain, envisioned an environment that was interactive in name only. What those initial telco and cableco trials in Florida, Québec and elsewhere demonstrated was a broadcast model with audience feedback features or "interactivity" that was limited essentially to making program selections, playing video games (for a fee) and forwarding payment. Because it allowed the distributor to also produce and control content, this was the preferred corporate model, since profit margins in content-providing are high compared to those of content distribution. Anything beyond the merest token interactivity by an audience was thus nothing more than a costly nuisance in this model.

Because the system envisaged was to be "private space" owned and controlled by individual corporations, government regulation on the model of radio would be inevitable. But this was not seen as a drawback in corporate boardrooms, where, despite public protestations to the contrary, regulation is seen to be a plus in business plans. The fact is, government regulators tend to be controlled by the industry they regulate and they serve the important purpose of making business cycles and profit levels more predictable.

In the event, these video-on-demand trials have distinguished themselves mainly in the degree of the indifference they aroused in potential customers, and most have been scrapped. People, it seems, are not much interested in more convenient access to content identical to what is already available to them through conventional outlets such as cable television and video stores.

And by 1995, public consciousness of the Internet and the World Wide Web had begun to swell, to the point where the offerings of the video-on-demand proponents seemed remarkably parochial and uninteresting by comparison. The Web, with its millions of content providers, won the content contest hands down.

The victory for the public space paradigm was the speediest conquest since the Gulf War. By late 1995, video-on-demand had conceded victory to the Net, and both cable and telephone industries shifted their attention to getting in on the Internet as high-speed access providers and Web publishers. The only issue that remained to be resolved was whether video-on-demand services would be incorporated into the Internet or sold separately, like cable TV.

What all of this boils down to is that there is good reason to feel confident in the Net's ability to preserve its open and democratic character, legislation like the "Communications Decency Act" notwithstanding. It has proven its superiority as a commercial product in the face of competition from the biggest and best conventional media suppliers; it has shut the door on "scarce resource" arguments for government regulation and it is technologically proof against overt censorship due to its distributed nature.

But most comforting of all has been the swift and vehement reaction of the users of the Net to the signing of the CDA. Net opinion is more and more a force to be reckoned with in politics, and this issue has shown how quickly and effectively it can be mobilized. In the end, it is true on the Net as anywhere else that democracy is a journey and not a destination and that vigilance is the price of the ticket to ride.

© 1996 Wade Rowland

credit: Wade Rowland is a journalist, author and media consultant active in online information applications. He is a partner in Blue Cat Design, a pioneering Web design house specializing in Internet marketing and strategic planning. He can be reached at the Blue Cat Design offices or via email

Other articles written by Wade Rowland:

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