The Internet has brought the constitutional right of freedom of speech and freedom of the press within the reach of virtually everybody as a practical matter for the first time in our history. The history of First Amendment interpretation is one that consistently prizes a robust public debate and the availability of all kinds of speech; only in the most threatening of circumstances should speech be curtailed. In the rush to tame the Internet, Congress and government policymakers, aided by a computer industry that wants an accommodation with government, are ready to snatch away this nascent "every citizen is a publisher" atmosphere and sacrifice it on the altar of civility. A free society means being able to say things that others find distasteful.
It didn't seem nearly so hard as many Internet advocates had thought to bring about the legal demise of the Communications Decency Act (CDA). A federal district court judge, the Third Circuit and the Supreme Court all ruled -- without any dissent along the line -- that the CDA was an unconstitutional restraint on the rights of adults to publish and communicate any information short of that which is legally obscene.
Certainly, the Third Circuit had a hard time understanding the fine distinction the government was trying to make concerning the coverage of the CDA and existing laws restricting or banning pornography. But rather than tell government to leave the Internet alone, the courts suggested, and even embraced, the idea that there were less onerous software fixes that would achieve the same goal -- keeping indecent material out of the reach of impressionable children.
Pornography, or sexually suggestive material inappropriate for children, has traditionally been kept out of the hands of children by making it off-limits at stores where such magazines or books are available, or these materials were kept in hidden places in the home where adults could view them but children could not. Finding your father's stash of Playboys or Penthouses was often a rite of passage in becoming a teen-ager. Even medical textbooks or back issues of National Geographic contained images to which many suburban kids had never been exposed.
But the Internet provides a certain equality of access that knows few age limits. Apparently, sites that are in the business of providing sexually explicit pictures and material often require a credit card number or some other form of age verification before allowing a visitor further access. But, judging by the number of homegrown Web sites on virtually any topic, there are surely plenty of sites put up by enthusiasts who really don't care who has access to them.
However, if pornography was all the CDA was meant to stop, there would have been no need for it since the courts agreed that dissemination of such information would be covered by existing criminal statutes. Instead, the CDA reached out to cover material considered "indecent" -- a word much broader than any in current law, and one that civil libertarians felt would prohibit discussions of such topics as AIDS, safe sex and breast cancer. The courts agreed that the CDA's reach was too long, but they suggested the continued development of various software programs that allow parents to better control their kids' Internet explorations.
For Internet players like Microsoft, Netscape and America Online, the taming of the Internet -- if it should be tamed -- is a business decision just like any other a retailer is forced to make. If a mall has a reputation for being dangerous, store owners have a vested interest in reducing crime and bringing shoppers back to their stores. In the same way, Internet providers -- looking for an explosion of Internet users to drive Internet commerce as a way of doing business -- need to bolster public confidence that their subscribers won't be subjected to voyeurism or worse when they turn to an unexplored corner of the Internet. Because the Internet is so frequently pushed as a learning tool -- schools and libraries are quickly moving forward to provide connections for their students and patrons -- parents want assurances that their children can safely use the Internet. Without those assurances, home use is likely to drop as adults sacrifice the Internet in favor of the peace of mind of knowing their children won't be exposed to inappropriate materials.
Programs like Net Nanny have been developed and marketed to allow parents to block access to certain types of sites. Just like any other software fixes, however, these programs have gaps or misfires and are not yet able to guarantee the blocking out of everything the parent considers objectionable. As the programs develop a track record, they will become more reliable. However, in a nation where many parents rely on their kids to operate the VCR, it is far from clear how many parents will feel comfortable operating these various programs. Maybe the kids will be called upon to set the limits for mom and dad.
The seamy side of the Internet certainly poses problems for children, and the comfort level parents feel about this issue has to increase before the matter is put to rest. But it is difficult to tell how serious the problem of unexpected sexual surprise may be when surfing the Internet. The problem of meeting disguised child molesters, pedophiles or worse in chat rooms seems to be a much greater problem.
Late last year the Clinton administration arranged for a meeting of Internet players and wannabes to try and thrash out a solution to the problems left by the CDA's demise. Certainly, Congress could learn by the Supreme Court's rejection of the CDA and reshape "Son of CDA" in such a way as to survive constitutional scrutiny. But the solution that quickly became obvious was a rapid move toward blocking software. What also emerged from the conference was a scheme to rate Web sites for content along the same lines as the recent television ratings policy. While this may seem like an obvious answer, it may not only separate the good from the bad on the Internet, but also the haves from the have nots.
In the television industry, even the smaller cable networks have considerable capital in comparison to the average Web site owner. For a cable network, using a ratings system is a bother, but it's not likely to cause economic destruction. For a small-Web site owner, maintaining a rating may be a nuisance that might make the owner think twice about investing the effort to maintain a site. Most small Web sites are put up by enthusiasts wanting to share their knowledge or images with others. Beyond creating small groups of like-minded computer users, these offbeat sites also allow casually interested visitors to learn more about certain topics, often more than might be available through common reference materials. But if the major Internet directories -- Yahoo!, Lycos, AltaVista, etc. -- stop including these small Web sites in their search engines because they are unrated, then these sites will begin to disappear, available only through word of mouth to those who know their addresses. Such a ratings restriction will accomplish the same thing the CDA tried to do -- it will cast a net over a significantly broader area than needs to be restricted for the sake of children. While the ratings system will be voluntary, it seems obvious that if the Internet players don't do something to clean up the Internet, then Congress or state legislatures will. It is a "voluntary" system driven by the threat of government coercion.
Other side issues are already cropping up. The ACLU and other civil liberties groups believe that public libraries should not be allowed to use blocking software on public terminals because it amounts to government censorship of library content. That may lead some libraries in the short run to close down Internet terminals until that issue is satisfactorily resolved. Questions are now showing up on the FOI-L listserve asking whether the list of sites being blocked by public libraries would be available under a state's open records law.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <75111.743@compuserve. com>. *
March Table of Contents