Censorship in Cyberspace

Back in 1994 anyone cruising Usenet groups, listservs and Web pages could easily pick up, along with more conventional information treasures, steamy servings of sex, drugs and raunch and roll on the Net. And, although the threat of censors seemed imminent, conservative groups that railed about racy library books displayed, surprisingly, little interest in the Net.

Those were the good old days. The Net has become a high-profile target for all manner of opportunistic censors. It provides the excuse for bombast (always useful for rai sing money) and an opportunity for displays of political force. The bluenoses' most notable victory has been the passage of the Telecommunications Reform Bill, which includes the Communications Decency Act of 1996. The most publicized feature of the CDA is its claim to protect minors from electronic smut. The act's many critics maintain it is rooted in fear and ignorance.

The indecency provisions were tacked on to the Telecommunications Reform Bill, and while the Clinton administration more or less opposed Congress' attempt to police cyberspace, the White House at the same time didn't want to imperil the broader legislation. And so both needed reform and ham-handed censorship became law. In a special ceremony, the president used an electronic pen to broadcast the signing over the Internet. This gesture added insult to injury for those who regard the bill as dangerous. Vice President Al Gore—the reported coiner of the phrase information superhighway—stood at the president's side. At the other end of Pennsylvania Avenue, Newt Gingrich had also talked a good game about the liberating power of technology. But after a glance at the strength on his right, Gingrich became uncharacteristically silent.

The Net censorship wars have only begun—and Congress is just one of the battlefields. In California, for example, two women who attended Santa Rosa Junior College sued the school on the grounds that an officially all-male college chat group discussed them in "bathroom-wall" language, which constituted sexual harassment. In Florida, the state bar has cracked down on lawyers' Web pages, treating them as sales pitches that should be regulated.

Will the CDA and other initiatives by censors produce "500,000 channels and nothing to watch," as one disgusted onliner puts it? Probably not. The censors must contend with constitutional guarantees as well as the uniquely antihierarchical characteristics of cyberspace. Nevertheless, the debate promises to be long and complicated.

What Cybercensors Want

The new indecency law prohibits making available to minors any communication "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." This description is more restrictive than the constitutional standard for obscenity. To be considered obscene, material must pertain to sex ("excretory activities" don't qualify) and appeal to the prurient interest. It must also be patently offensive under community standards and lack what is known in the legal community as Slaps: "serious literary, artistic, political or scientific" value. As UCLA law professor Eugene Volokh points out, a medically sound though explicit Web site on AIDS prevention wouldn't violate obscenity law (it would offer no prurient interest and would have plenty of Slaps), but it could well be viewed by law enforcement officials as "indecent" and thus violate the new law.

The courts have long upheld the authority of government to keep particular materials away from children. But such materials cannot be withheld from everyone. To safeguard minors, a state may want to ban all sales of, say, Playboy or The Anarchist Cookbook. The First Amendment doesn't permit it, though. The state has a compelling interest in keeping sexy photos and bomb recipes away from kids, but banning such material altogether isn't the least restrictive way of accomplishing that end.

The unique nature of the Net means that valuable information regarding AIDS prevention or birth control is in danger of censorship. On the freewheeling, globe-spanning Internet, what is accessible to adults is accessible to children, too. The only sure way an Internet service provider can keep materials out of kids' hands is to bar the stuff from everyone. Some of today's cyberporn sites do include instructions such as "if you're over 21, click to enter." But such (enticing) warnings may not insulate the site owners from liability under the new law.

Moreover, self-censorship may be even more powerful than the new law. The potential for legal action is often enough to motivate providers and site managers to remove questionable material. Even before the bill was signed, a Wisconsin bulletin board dropped 50,000 files because the operators feared a legal problem that could lead to seizure of computer equipment.

Business is Business

Unlike folks who set up private porn sites or exchange sex stories online, for-profit service providers can't afford to make trouble. This was illustrated last year when Compuserve cut off access to an assortment of sex-related newsgroups such as alt.sex.stories, alt.sex.movies and even the downright respectable alt.religion.sexuality. A Compuserve spokesman explained that the Columbus, Ohio–based company acted because a prosecutor in Munich had determined that the sex-oriented groups violated Bavarian law.

The only way to appease the German prosecutors was to bar the newsgroups from all customers, not just those in Germany. Andrew Brown of the London Independent once remarked that, thanks to the Internet, the U.S. was exporting the First Amendment to the world. The Compuserve example illustrates the importing of foreign restrictions into the U.S.

It also showed how the new technology can get tangled up in balance-sheet considerations. Compuserve launched its German service without installing hardware in Germany, choosing instead to link German users to its servers in Columbus. Hence, if it pulled one plug, it pulled them all.

Compuserve hastily announced plans to create a German subnetwork that would allow it to restore newsgroups to customers in the rest of the world. The whole hoo-ha, as digital-industry reporter Robert Silverman of Inside Media magazine pointed out, had more to do with "corporate laziness and cost-cutting" than with anything inherent to the medium.

We've been down this road before

Nearly two decades ago the Supreme Court confronted an apparently similar situation in the "seven dirty words case." In 1973 Pacifica Broadcasting played a George Carlin routine that listed seven words you can't say on radio. During the 12-minute segment, as Justice John Paul Stevens wrote in his 1978 opinion, Carlin chanted the seven words and repeated "them over and over in a variety of colloquialisms." Pacifica preceded the routine with a warning that some people might find Carlin offensive. But that wasn't enough to forestall a lawsuit: A listener, who heard the broadcast with his young son, complained to the Federal Communications Commission.

The Supreme Court upheld the FCC's power to punish Pacifica. The risk of having children overhear "indecent" language on radio, the court said, was sufficient to ban the broadcast entirely, even though the effect was to keep it from adults, too. Carlin's routine couldn't be banned in print, but it could be kept off the air because broadcasting is "uniquely pervasive" and "uniquely accessible to children."

The Internet, which is becoming pervasive and readily accessible to computer-literate children, gives new legs to the "seven dirty words" doctrine. Supporters of the CDA believe that the Pacifica decision means their legislation is constitutional. This, of course, overlooks the differences between the Net and broadcasting. Carlin's stuff doesn't pop up on the screen unless you go looking for it.

The ACLU, along with the Electronic Frontier Foundation, has taken the fight to the censors. EFF made the text of the Pacifica decision available through its online legal archive. Because the court's opinion lists Carlin's seven dirty words, posting the decision could, in theory, make EFF liable for transmitting forbidden materials to minors. EFF volunteer Carl Kadie posted a note on the Net when announcing the availability of the case: "Welcome to the infofuture, where even case law must be kept under lock and key." More than 20 groups, including the American Booksellers Association and Microsoft, have filed suit to have the new law overturned. (Almost immediately, a temporary restraining order was issued against parts of the CDA.)

Censorship is Traditional

Two Christmases ago, Senator James Exon (D–Neb.) was home for the holidays, visiting with his children and their families. He watched in amazement as two of his young granddaughters played with their new PC. "I realized they know more about computers than I do," he recalled for reporter Graeme Browning of National Journal.

The Christmas epiphany helped give birth to the CDA. So did pressure from social conservatives and from the new Republican majority in Congress. Exon's aides began compiling the infamous Blue Book, a thick binder stuffed with GIFs and other images downloaded from Net sites. The Blue Book was waved in front of the CSPAN cameras but never actually opened so civilians could see the images of what Exon said was bondage, bestiality and water sports. By the next Christmas Exon and his allies had their legislation ready.

Again, the real wonder was that it took Congress so long to get on the Net's case. Quite simply, no one should be surprised that governments try to censor the Internet. In his 1950 book Empire and Communications, media theorist Harold Innis observed that the modern state is essentially an information management system. In practice, "management" often means "restraint." Hitler and Stalin enacted laws against the possession of shortwave radios, Brezhnev regulated the use of photocopiers, the Ayatollah Ruhollah Khomeini sought to ban camcorders. Right now, the aging mandarins of the People's Republic of China are trying to entice Chinese graduates of American schools to come back home—to build digital fire walls against "undesirable information" (i.e., Western political and sexual materials). Server checkpoints and user software supposedly will give the Chinese leadership something that resembles a government-controlled network within the Internet—something like an Internet Lite.

Cyberenthusiasts envision an idyllic technology-crafted world where information of all types flows freely. They're dreaming. The nation-state's urge to control information is far too deep-rooted. Governments will try to "protect" themselves, their citizens and their children. They won't always succeed. They'll waste resources in the effort. They'll cut off access to more information than necessary, and still miss plenty of "subversive" sexual, political and social stuff. But they won't give up.

The PC must be PC

The Netheads are convinced that the technology will sound the death knell for censorship. They argue that the Supreme Court's doctrine for defining obscenity in terms of community standards is meaningless online. Again, it may not be that simple. In one celebrated case the government used the community standards present where the materials were downloaded, rather than where the materials originated, as the basis for charges.

In United States vs. Thomas a Memphis federal prosecutor was pitted against online entrepreneurs Robert and Carleen Thomas of Silicon Valley. The Thomases wanted their porno bulletin board—which they advertised as the "nastiest place on earth"—to be judged by Bay Area standards. The government applied the test of Tennessee standards (some images were downloaded in Memphis). The couple lost at trial and in federal appeals court, but they hope to take their case to the Supreme Court.

On the Internet, "the notion of community standards is a nice idea, but it just doesn't work," says Eugene Volokh, speculating about what the court will do. "One way or another you're going to have a national obscenity standard." If the courts attempt to retain the notion of community standards, the de facto national standard will probably be more Memphis than Bay Area.

As the Thomases' lawyers argued, online information effortlessly seeps over borders separating communities and nations. Protecting sensitive communities—or children—becomes problematic when it is difficult to know for certain a user's location or age. Or, for that matter, gender or orientation. Many lesbian chat areas on the Internet are dominated by straight men masquerading as gay women, exchanging dirty talk with other straight men who also masquerade as gay women. Cyberspace is, as writer William Gibson has observed, a gargantuan "consensual hallucination."

The Canadian government has no doubt that technology has outstripped policing powers. Three years ago, the authorities forbade publication of information about a particularly sensational murder case in an attempt to control publicity and to ensure the defendant a fair trial. The gag order silenced the mainstream Canadian media, but it was swept away on the Internet. Someone created a Usenet group called alt.fan.karla.homolka (the name of one of the defendants). Users began posting news and rumors. Provincial officials ordered Canadian systems operators to delete the group from their disks. The operators complied—but zealous Canadians found they could easily use the Internet to reach the newsgroup from Usenet systems in the U.S., Japan or in other countries.

Similarly, when Compuserve banned sex-related newsgroups in light of German sensitivities, its users in Germany and the rest of the world found plenty of ways to access the verboten material. Just telnet to another account (including no-cost freenets that carry all the newsgroups) or use gopher to check out the sex newsgroups at a university. Or activate an automated server in Japan that sends newsgroup posts on request via e-mail. Online censorship makes information harder to access, but only rarely does it manage to squelch information entirely.

It is reasonable to expect mainstream online services to continue to impose rules. They'll carve out serene, family-friendly settlements. To reach the Net's raunch, adult users will have to leave the gates of the enclave, perhaps sinning an informed-consent form as they pass. The corporate chieftains will continue to set the tone, imposing community standards all their own. They'll seek a sanitized shopping space—idealized, safe, a suburban mall. Indeed, that's already happening. America Online scanned and banned user profiles for the word "breast" last year, until protests rolled in from breast-cancer survivors. A gay guy we know was bounced off AOL not long ago for entering a gay chatroom and typing "Greetings, fellow faggots," an unremarkable salutation among many gay men but one that offended AOL's discourse police. On image-conscious online services, PCs must be PC.

The Law may be Toothless

The Communications Decency Act has enough murk to keep attorneys busy for years. The law is unclear, for example, on whether a service provider is liable if one of its customers creates a dirty site on the customer's own equipment. Such liability may require providers to monitor their customers' Web pages, requiring considerable manpower and raising everybody's access costs. Interactive Web pages, where users can chat with one another in real time, raise further questions. Would Carlinesque dirty-talking and barfly come-ons land a user in the slammer if his online chatmate turned out to be 13? Is the provider liable for facilitating the communication? And what if Humbert from Hartford persuades Lolita from Louisville to meet him in St. Louis? Internet service provider, phone your lawyer.

Some ambiguities in the statute may turn out to be loopholes. Assume, says activist Timothy May, that a Web site called Tim's Hot Pix Service (Open to Thrill-Seekers of All Ages) carries users to a wealth of pornographic images on overseas Web sites. The creator of the page wouldn't post any porn himself. He would just create pointers to the stuff. His machine would contain URL addresses of other sites, not a single dirty picture. Moreover, the digitized porn would be on machines outside the jurisdiction of the U.S. "This is actually a common situation," May notes, "with many porno Web pages being nothing more than a bunch of clickable URLs (continued on page 150) Censorship in Cyberspace (continued from page 74) to other sites, often in Sweden, Denmark, Norway, etc." If the censors don't go after Tim's Hot Pix, then the porn will simply gravitate overseas, and Americans will be able to access it via American Web pages.

There may be justice in cyberspace. The CDA—the handiwork of Net-challenged lawmakers—may prove unenforceable long before the courts finish assaying its constitutionality.

Software to the Rescue?

Civil libertarians advocate the use of "nanny software" to let parents regulate kids' activities online. A number of such products are already on the market. They block hundreds of sites and scan for words, in part because the present generation of software can not analyze photos. As Volokh observes, "to a computer, a Mapplethorpe and a Mickey Mouse are both just ones and zeroes." Although software is becoming more sophisticated, it will never be able to distinguish an "offensive" nude from an artsy one.

Even the expensive site blockers and word filters (one costs $49.95 a disk plus a monthly $5.95 users' fee) are imperfect. If a Web page features a misspelled dirty word ("coc-sucking"), the software will let it pass. The attempts to filter produce laughs as much as anything else.

Earlier this year the White House updated its Web site (http://www.white house.gov), with Socks the cat leading virtual visitors around the mansion. Boom! The popular nanny software Surfwatch listed the White House home pages as a possible pornucopia. It seems that the site features photos of "The First and Second Couples," and "couples" is a trigger word to Surfwatch.

Despairing of word recognition, some other software developers—for example, the Tapestry project at Xerox' Palo Alto Research Center and Webhound at MIT—are trying to create numerical ratings systems. Users would pool their evaluations and could also share kill files and similar options to delete posts involving certain people, places and things. Other Webheads (including Volokh) propose a sort of V-chip for the Net. Each Web site operator would be responsible for giving his pages a rating of appropriateness for children. Kids' browsers could be programmed to avoid adults-only sites. Sites rated X would be immune from liability for presenting improper material to minors (though they might still violate obscenity laws for adults).

One problem with the idea, though, is that innocuous sites can lead to "problem" sites. What sounds more dull and bureaucratic, for instance, than the U.S. Department of Education's gopher site? Just a handful of links away, though, you'll find the School Stopper's Textbook, a late-Sixties Yippie publication offering tips for teenage terrorists bent on disrupting their schools. Some high school gophers and Web sites lead to universities, which in turn lead to sex-related newsgroups or Web pages. Another, more fundamental fact: Hormone-charged high schoolers are often more computer-savvy than their parents and teachers. If there are any locked doors in the adult playrooms, kids will find the keys. But if software can't be the perfect screening agent, neither will the legal filters created by Congress. Official censorship, too, will be over- and under-inclusive. It will allow some hard-core stuff the authorities wish to censor, for whatever state-sanctioned reasons, to come through (such as that originating overseas). At the same time, it will chill some protected First Amendment speech—at least until the courts strike down the Communications Decency Act.

Whatever happens, a shining moment has passed. The early promise of cheap, immediate and irrepressible communications will almost certainly be honored more in memory than in practice. The wild frontier will be pacified. Then, the first settlers will tell their grandchildren about the old days in the early Nineties when, for a time, cyberspace looked like a place of pure freedom.