War Over Net Restrictions Just Beginning

Moments after President Clinton signs the Telecommunications Reform Act of 1996 into law today, a passel of civil liberties lawyers will be 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 online world and imposing restrictions on what takes place there.

From parents hoping to thwart online pornographers, to Scientologists trying 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 that the law continues to allow.

In many respects, freelance regulation is better than the traditional kind, because laws aimed at governing online communications create more problems than they solve. The absence of rules has its dangers too, though, and the Internet access providers and online 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.

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.

When police go undercover to investigate such activities online--or, as they recently did, obtain a warrant to search America Online e-mail files as part of a murder investigation--they’re simply exercising their traditional function.

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.

Since legal precedents dictate that restrictions on something like free speech be drawn as narrowly as possible, many legal experts expect the indecency ban to be thrown out as overly broad.

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.

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 value system and then install the software to implement it on their own computer.

So far, so good, though some ugly tussles can be expected when proprietors of particular Internet sites don’t like the rating they’ve been assigned.

But another, much more problematic kind of private-sector rating system is emerging as well--one imposed by online 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, and some believe they should exercise that authority aggressively.

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 that 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 that similar rules need to be developed for the online world.

Though it’s unlikely that a fringe group would ultimately be unable to find a service provider willing to provide it with an account, Cooper says it’s important to keep such groups as far out of the mainstream as possible.

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.