WITH THE COMMUNICATIONS DECENCY ACT, WASHINGTON CONSIDERS CONTROLLING CYBERSPACE. WILL THIS THREAT TO UNRESTRICTED SPEECH CREATE A SUPERHIGHWAY PATROL?

By EW Staff
March 31, 1995 at 05:00 AM EST

In a prophetic 1983 book, Technologies of Freedom, Ithiel de Sola Pool, a professor at the Massachusetts Institute of Technology, heralded the limitless dividends of the information superhighway: ”More knowledge, easier access, and freer speech than were ever enjoyed before.” So it has come to pass as millions in this country and elsewhere roam the world through the Internet, participate in discussions on commercial on-line services, and even partake in a little cybersex. But back then, de Sola Pool tempered his optimism with a warning. Policy makers and politicians, accustomed to ”bureaucratic routines,” he wrote, could reduce the future to the past. This, too, may come to pass, if the proposed Communications Decency Act of 1995, introduced in the Senate last month by Senators James Exon (D-Neb.) and Slade Gorton (R-Wash.), gets written into law. According to the statute, anyone using a ”telecommunications device”-from a surfer on the Internet to the proprietors of such services as America Online and Prodigy-who ”makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication” which is ”obscene, lewd, lascivious, filthy, or indecent” will be subject to a fine of $100,000 or two years in prison. Left undefined are such subjective terms as ”lewd,” ”filthy,” and ”indecent.” The bill would let the Government decide what those terms mean. Or, to avoid fines and prison terms, on-line service providers will themselves exercise pervasive editorial control before allowing anyone into their domains. But such prior restraint of E-mail, files, and messages could turn out to be too onerous for most services to handle, considering the huge volume of material that passes through them. Instead, as Ken N. Weine predicts in the March 15 New York Law Journal, passage of the bill ”would change the role of telecommunications service providers from information carriers to information programmers.” The services would make available selected programs-not unlike television and radio networks do-and thus won’t have to worry about government censors, Weine wrote. On an info superhighway driven by individuals, there are no cops preventing ! users from downloading, say, a movie still or lyrics to a rap song that might cause offense. And with the freedom the technology currently enjoys, two people, for their own entertainment, can exchange very intimate, explicit E- mail over an on-line service. But under the new bill, the individuals-in addition to the on-line outfit-would be subject to criminal prosecution. By contrast, there is the case of Jake Baker, a college student who wrote fantasies of rape, torture, and mutilation on an Internet Usenet newsgroup. Baker, who used the name of a female classmate as his victim’s in his descriptions of terror, wound up in prison, charged with violating a federal law criminalizing the transmission of a communication ”containing any threat to kidnap any person or any threat to injure the person of another.” No new law was needed to charge Baker-least of all the Communications Decency Act. As for the concern about children wandering alone and vulnerable in cyberspace, the Center for Democracy and Technology, a public policy advocacy group, points out in a newsletter that the ”flexibility of interactive media enables parents to control what content their kids have access to, and leaves the flow of information free for those adults who want it.” Most interactive technology has the capacity, as the Center notes, ”to limit access to certain types of services.” In other words, there are ways to protect children without the Act’s intervention: blockage of certain areas, passwords, parental supervision. And adults-under protection of the First Amendment-can remain protected from government thought control. However, if the Exon-Gorton bill is passed, the First Amendment may effectively be excluded from cyberspace. As of this writing, there are no hearings scheduled to discuss the Communications Decency Act, and it’s unclear how much support or opposition the bill will gather. But cybercitizens can voice their concern by contacting their own senators, and particularly Sen. Larry Pressler (R-S.D.), who chairs the Senate Committee on Commerce, Science, and Transportation. The issue is whether this nascent technology will have its freedoms erased. Nat Hentoff is a staff writer for The Village Voice and author of First Freedoms.

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