Internet Tests Boundaries of Decency--and Nations
When the Supreme Court hears arguments today on the Communications Decency Act, some people think the justices will be mostly wasting their time. That’s because national law is increasingly irrelevant when it comes to governing the Internet.
The global computer network is blind to the terrestrial boundaries that have traditionally dictated legal jurisdiction--and there’s nothing resembling consensus among the nations of the world on what can properly flow across them.
An eclectic collection of legal scholars, libertarians, crypto-anarchists and ordinary Internet users is predicting that cyberspace will ultimately render the nation-state as we know it irrelevant, with law rooted in physical control of geographic territory giving way to new forms of governance springing from online communities.
“Activity in cyberspace ultimately forecasts the end of national control,” said David Post, visiting associate professor of law at Georgetown University. “People will still sell shoes and send their kids to school. But there will be an enormous upheaval in the status quo.”
Regulation of indecent communications and other forms of speech is only the beginning when it comes to earthbound laws being subverted by the cyberspace sprawl. States are now struggling to assert their authority over online gambling. The federal government remains mired in a largely futile effort to control the use of encryption technology in the name of national security.
The growth of online commerce and development of “digital cash” systems, moreover, promise to strike at the heart of government power: the ability to levy and collect taxes.
The challenge to the age-old notion of geographically based political power springs, first of all, from the simple fact that in cyberspace, there is no distance between two points. From Los Angeles, it takes about as long to look at a picture stored on a computer in China as it does to view one housed in Santa Barbara.
Therefore, if the CDA--which prohibits placing indecent material on computer networks where children might find it--is upheld, Americans who want unrestricted access to indecent material can simply point their World Wide Web browsers to Finland, or to any other country where such information is unregulated.
And those who want to distribute indecent items can--albeit not without a certain degree of hassle--find citizens of other nations willing to rent out computer space to house the material.
The American Civil Liberties Union is leading a broad coalition--which includes the American Library Assn., the Newspaper Assn. of America and Microsoft Corp.--in challenging the CDA, whose enforcement has thus far been blocked by lower courts.
The plaintiffs’ case focuses mainly on the arguments that the CDA bans constitutionally protected adult communications in the guise of protecting children, and that the term “indecent” is so ill-defined that it could include everything from AIDS pamphlets to hard-core pornography. They also argue, though, that because about 40% of the “indecent” material on the Internet is located outside the United States, the law is unconstitutional because it won’t achieve its goals.
In principle, of course, it is possible to control the Internet by controlling the physical infrastructure: Authoritarian governments in China, Singapore and Vietnam do just that to maintain restrictions on political speech.
Short of such draconian measures, though--which would be all but unthinkable in the United States--governments must resort to the strictures of law. And that’s already proving ineffective.
Last year, Germany ordered Internet service providers to block access to a site in the Netherlands that carried a left-wing magazine called Radikal, which is banned in Germany. The site, XS4ALL, simply rotated its Internet address continuously, thwarting many of the automated blocking efforts.
Similarly, when the German government banned a Holocaust revisionist site, Internet activists created multiple “mirror” sites--in California, among other places--where the same information could be obtained.
As a recent report prepared for the European Parliament notes: “Where certain acts are punishable under the criminal law of one member state but not in others, practical difficulties of enforcing the law may arise.”
“These laws tend to reflect their own national customs and national interests,” said Barry Steinhardt, associate director of the ACLU. “I suspect that in the end there will have to be international treaties, and the only effective controls are likely to be on things where there is broad international acceptance that content should be illegal.”
This broadening of jurisdictions forced by the Internet doesn’t necessarily mean that laws will become more liberal. In the United States, the Supreme Court decreed in a 1973 case that obscenity should be defined locally by applying “contemporary community standards” to a particular form of media. Thus a pornographic movie could be banned in Memphis, Tenn., but freely screened in Los Angeles.
But in writing the CDA, Congress said in a conference report that its intention was to create a “uniform national standard of content regulation.” And most experts agree it is likely that the standards of the most conservative communities would prevail on a national level.
The one precedent--set before the CDA was passed--is the case of Robert and Carleen Thomas, a California couple who were convicted of 11 counts of obscenity in Memphis because an undercover postal inspector there downloaded sexually explicit images from their Milpitas-based bulletin board.
As states pass their own versions of the CDA--at least 11, including California, have done so--sticky questions of jurisdiction get even more complex. An Internet message posted in New York and retrieved by readers in Georgia and Connecticut might well be illegal for different reasons in each state.
The ACLU has challenged New York’s law on the grounds that it violates the interstate commerce clause, which states that only Congress has the right to issue laws having to do with things that are interstate in nature.
Meanwhile, jurisdictional disputes are beginning to crop up in other areas. A Minnesota state judge ruled in December that Minnesota could block a Las Vegas corporation, Granite Gate Resorts, from soliciting gambling business in the state via the Internet. But the issue is sure to be broached elsewhere as the online gambling business grows--and even Minnesota might be out of luck if Granite Gate were to, say, move its gambling site to the Cayman Islands.
Many believe the advent of digital cash systems, which in their most sophisticated form enable people to move money over computer networks with complete anonymity, will deal another big blow to traditional government by making tax evasion and money laundering far easier.
“The supranational nature of electronic payment mechanisms may be a primary factor in the nation-state becoming a fleeting footnote in social history,” said Roger Clarke, a visiting fellow in computer science at Australian National University. “In the near future, not only wealthy corporations but also ordinary individuals will utilize opportunities to place monetary flows, profits and assets beyond the grasp of national taxation agencies”
Perhaps the most dramatic face-off between national sovereigns and the electronic frontier centers on encryption, the ability to encode data so that law enforcement officials can’t get at it. The U.S. government has launched a global--and so far unsuccessful--campaign to unify the world around a plan to allow law enforcement officials with legitimate warrants access to the keys to every user’s code.
The plan has drawn ferocious opposition from “netizens” and civil libertarians, who say encryption is the only way that individuals will be able to protect their privacy in the Digital Age.
Some legal scholars argue that no matter what governments do, cyberspace will ultimately be governed by the architecture of the Internet. If privacy is to be protected, for example, it cannot be legislated but must be built into software code--as in Netscape Communication’s recent decision to allow users of its Web software the option of disabling a feature that corporations use to track Web-surfing habits. “Law is becoming irrelevant,” said Lawrence Lessig, a law professor at the University of Chicago. “The real locus of regulation is going to be [computer] code.”
David Post and David Johnson, co-directors of the Cyberspace Law Institute, propose an explicit rejection of the view--first formalized by philosopher John Locke in the 17th century--that political power in modern society derives from the state’s ability to impose physical punishment.
They say cyberspace should be treated as a legal jurisdiction unto itself, subject to laws and regulations that are created and enforced by members of individual online communities. Rather than the use of physical force, banishment could become the most effective way to handle criminals.
If, as German social theorist Max Weber put it, “the state is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory,” then cyberspace is a voluntary human community where “netizens” join based on common interests and rules are imposed as a condition of membership.
As one Clinton administration official responsible for information technology policy puts it: “Government is formed because there’s a community of allegiance people have based on language and territory. So as communities begin to form in cyberspace that are not based on territory, the question becomes ‘What is government?’ ”
CDA ONLINE
* For all stories in this series and to give us your comments about the Communications Decency Act, visit The Times’ Web site. Go to:
https://www.latimes.com/HOME/BUSINESS/CDA/
