The Laws that Could Be Used to Prosecute the Passage

In the United States, laws restricting the Internet tend to be much more invasive than similar laws for traditional media. Over the decades, many legislative guarantees for free speech have been hammered out for newspapers, telephone use, and so forth. The current legislative bodies are trying to skirt these guarantees and impose much tighter restrictions on speech using new media. We expect that the courts will declare many current provisions unconstitutional when they are challenged, but a great deal of harm can be done to commerce and research until then.

Most laws try to compare the Internet to a broadcast medium where a single owner has full control over everything that passes by. As any online user knows, the virtue of electronic networks is that they are precisely the opposite kind of medium: they permit anyone to say whatever he or she wants. This strength can be crippled by anti-pornography legislation, even if it is truly applied only to pornography (although we think pornography is just a start).

While bills generally claim to be aiming restrictions at minors, the open architecture of electronic networks makes it impossible to limit material to adults. Thus, censorship affects everybody. The ignorance of the legislatures threatens the growth of the information infrastructure upon which more and more of us depend.

The most immediate possibility for censorship lies in the bill that reforms national telecommunications policy, now being considered in Congress in both a Senate version and a House version. Censorship is mandated by Section 402 of S. 652, the Telecommunications Competition and Deregulation Act of 1995 (note the irony of calling a bill "Deregulation" when it imposes the heaviest government control that the medium has ever seen!). This section is inserted by Senator James Exon's famous Communications Decency Act. It imposes heavy punishments on anyone who:

(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent communication in any form including any comment, request, suggestion, proposal, image, to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or...

The term "indecent" has been ruled too broad by the courts when used to censor print media; it remains to be seen if they will let it be used here. Since almost anything can seem "indecent" by somebody somewhere in the United States, every Internet user will live in a fear.

Taking the damage of that clause even further, the following one includes a person who:

(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

The exact scope of this clause is subject to interpretation. But if courts show the same lack of sophistication as the Congress, it could be applied very broadly indeed.

If a newsgroup posting that some prosecutor finds "indecent" goes out over a Usenet newsgroup, the prosecutor can haul into court every system administrator who carries that newsgroup, and every Internet Service Provider whose lines have been used to carry the newsgroup! We're not talking about a slap on the wrist here; punishment could range up to a $100,000 fine and two years in jail. Even if administrators restricted newsgroups severely, somebody could find (or plant) an "indecent" file on a public FTP site, or a Web page.

Consider the harmless amusement known as guestbook, which is common on the Web. Even the White House site has a guestbook. If someone left sexually explicit material on the White House guestbook, the maintainer at the very least could be arrested.

In short, the Internet simply doesn't fit the model used by Congress to regulate speech. No provision could close down the information superhighway faster than a law mandating censorship. If the law passes and is allowed to stand, all electronic communication will have to be offered by centralized vendors--and one of the most democratic media ever seen on Earth will die.

The House's bill (H.R. 1555, the Communications Act of 1995) is hardly better. It provides a revealing illustration of legislative machinery at work. Originally, during open discussion, the House approved an amendment by Representatives Christopher Cox of California and Ron Wyden of Oregon, which would prohibit FCC regulation of speech on the Internet. This was a conscious rejection of censorship.

Around midnight, however, during the last hours of discussion, after most observers had left, the main sponsor of the bill (Thomas Bliley of Virginia) introduced a complicated and multi-sectioned amendment that touched on many parts of the bill. With very little discussion, it was voted in. Among the provisions was Item no. 41, titled "Protection of Minors." It contains the same kind of censorship language that appears in the Senate bill. Vindictively upping the punishment to five years in jail, it makes it a felony to send anyone under 18 "any material that, in context, depicts, or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Telecom regulations bills are not the final assaults on the Internet; other bills get introduced regularly, all embodying the same insistence on treating electronic networks as broadcast media.

For instance, Senator Bob Dole co-sponsored S.892, the "Protection of Children From Computer Pornography Act of 1995". It criminalizes "Transmission by remote computer facility operator, electronic communications service provider, or electronic bulletin board service provider: A remote computer facility operator, electronic communications service provider, electronic bulletin board service provider", or anyone who "permits access to transmit" material that is "indecent."

Once again, the bill defines illegal material so broadly as to allow tremendous leeway to trigger-happy prosecutors. Once again, it lumps together anyone who has any control over the computer systems through which material passes; if you don't know something passed through your system you can be arrested for "recklessness."

Author: Andrew Oram
cyber-rights @ cpsr.org

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Last updated: 22 November 1995