Don Daufenbach stared at his computer screen. "Bobby2vt" was e-mailing him again, and this time he seemed excited. "Sounds like we have a deal," was the message that came in, Daufenbach says. "As for what I like . . . the younger the better," it said. In the next week, Daufenbach says, Bobby2vt sent him dozens of pictures of children having sex, hoping for videos in return. Instead, Bobby2vt ended up with a swarm of federal agents at his door last February. Daufenbach, it turned out was an undercover agent with the U.S. Customs Service.
The purpose of this research paper is to discuss the Communications Decency Act (CDA), to focus on legal issues facing censorship on the Internet, and to consider alternatives to protect children from 'indecent' material on the Internet rather than government censorship.
The Internet is a complex and limitless network of information stored on millions of computers worldwide, assessable to people through telephone lines and other communication channels. The term Internet is so elusive, since it is not so much a physical entity as a description of an intangible. Because of its ability to give voice to many people communicating with many others, it has the potential for being the first truly democratic communications tool.
There is no accurate way to determine how many people are connected to the Internet because the number grows exponentially every day. Figures become obsolete before they can be published. The Internet started as a military strategy and, more than thirty years later, has evolved into the massive network of more than three million computers worldwide. One of the most prominent features of the young Internet was its freedom.
Laws that have been developed for other forms of communication are being stretched to new limits as they try to work in this different world. Unlike in the physical world, there is no physical location where communications take place, making it difficult to determine where violations of the law should be prosecuted.
Perhaps the greatest threat to free speech on the Internet comes under the mask of protecting children. The American Library Association has a definition that states censorship is "the change in the access status of material, made by a governing authority or its representatives. Such cases include: exclusion, restriction, removal, or age/grade level changes"(1). The Internet has no 'central' authority and therefore it makes it difficult to be censored.
The freedom of speech that was possible on the Internet could now be subjected to governmental approvals. The most striking evidence that United States Congress went overboard was language in part of the new law called the Communications Decency Act that could make it a felony, punishable by five years in prison and a $250,000 fine, to discuss topics such as detailed information about birth control, AIDS prevention and how to get a legal abortion. China is attempting to restrict political expression, in the name of security and social stability. It requires users of the Internet and electronic mail (e-mail) to register, so that it may monitor their activities. In the United Kingdom, state secrets and personal attacks are off limits on the Internet. Laws are strict and the government is extremely interested in regulating the Internet with respect to their issues.
To regulate such a medium, would be a breech of the First Amendment. The Constitution of the United States of America declares that
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (Jefferson 3).
The Internet cannot be regulated in the way of other mediums simply because it is not the same as anything else, it is a totally new and unique form of communication. Laws of one country cannot hold jurisdiction on another country and holds true on the Internet because it has no borders.
Communications Decency Act
Perhaps the greatest threat to free speech on the Internet comes under the mask of protecting children: protecting children from sexually explicit materials, protecting children from violence, and protecting children from abuse.
While this theme might push some buttons for the many parents who recognize that their children are more computer literate than themselves and who fear their own ignorance, the wearers of the protectionism mask stirring things up are familiar censors from the real world. The Religious Right, unable to win censorship battles in the print world, has taken its war online. And the blood has been flowing.
In January 1996, the United States Congress passed a massive telecommunications reform law - the first of its kind in more than sixty years. The legislation addressed important issues such as competition amongst telephone service providers and rate reform. But nestled in this important legislation are two sections that are devastating to free speech online. Both of these were written and supported by the Religious Right. Today it is estimated that more than forty million people use the Internet. According to Congress, new laws must be put into place for people.
The first section, originally introduced by retiring Senator Exon of Nebraska, is known as the Communications Decency Act (CDA). This section repeats several things that are already illegal both online and off, such as the possession and dissemination of child pornography and the dissemination of obscenity.
The CDA goes a serious step further - it criminalizes indecency, which is constitutionally protected speech. The U.S. Supreme Court has held that indecency, which it has roughly defined as the "seven dirty words you can't say on television" (Silencing 1), cannot be prohibited completely but rather can be limited to times over the broadcast media (i.e., television and radio) when children are less likely to have exposure. This is because television and radio are considered highly intrusive, in that someone can accidentally see or hear offensive materials when simply flipping channels.
The CDA takes the same restrictions developed for highly intrusive television and radio transmissions and applies them to cyberspace. But cyberspace is not highly intrusive; on the contrary, the Internet is a search-driven tool. No one accidentally is exposed to pornography, and one must affirmatively search for obscenity in order to be exposed. Furthermore, information in cyberspace cannot be limited to certain times of the day, since online systems like the Internet are available whenever anyone chooses to access them. Still, the Communication Decency Act has made the dissemination of indecent material whenever a child may be exposed to them a crime.
The test devised by the United States Supreme Court for the broadcast media turns cyberspace into only that which is fit for children. Falling into this vast net of prohibited materials are Harlequin romance novels, discussions about breast cancer and AIDS, and the Bible.
There is another section of the telecommunications reform legislation that is equally troubling for free speech online. A last minute insertion by Representative Henry Hyde of Illinois criminalizes "any written . . . notice of any kind giving information, directly or indirectly" about abortion over an "interactive computer service" (Silberman 7). In other words, mere discussion about abortion is now illegal online.
It is outrageous to many in the civil liberties community that such blatant abrogations of the First Amendment are included in the telecommunications reform legislation. Yet the bill was signed into law by President Clinton on February 7, 1996. On that same day, the American Civil Liberties Union and the Electronic Frontier Foundation brought suit against the government, asking for a temporary restraining order and an injunction on the decency provisions until the Court finally decides the case.
On June 12, 1996, Internet users celebrated the upholding of their First amendment right with the overturning of the Communication Decency Act. The three-judge U.S. Federal District Court panel heard arguments for and against the CDA and ruled it, in the words of Judge Stewart Dalzell:
"The Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through
the CDA, interrupt that conversation. Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony on the unfettered speech the First Amendment protects. For these reasons, I without hesitation hold that the CDA is unconstitutional on its face." (128)
The United States Congress is not the only government that has tried to impose its own speech restrictions on cyberspace. Pressure by the German government caused Ohio-based CompuServe to limit access temporarily for all of its subscribers worldwide to two hundred discussion groups. CompuServe restored access when thousands of its American subscribers vowed to cancel the service if the groups were not made accessible. And in the words of Steve Dasbach, chairman of the Libertarian Party, "The decision will help keep meddling politicians away from a technology that most of them don't even understand." (128)
Legal Issues Facing Censorship on the Internet
The legal issues facing the Internet are changing every day. There has been significant debate about what kind of censorship should be taken on the Internet. The controversy is the Telecommunications Bill that President Clinton signed on February 1, 1996. Among other things, the Telecommunications Bill would prohibit certain kinds of material to be shown on the Internet.
A student from the University of Michigan was arrested in 1995 for naming a person on campus that he would like to rape in an e-mail message sent to a user in Canada. An operator of a BBS (bulletin board system) named Amateur Action was jailed for producing a web site in a town which was supposed to have violated the local community standards. The previous cases show how the government is starting to take in interest in the Internet. Few people are aware that until 1991 there were no regulations governing the Internet. It was a frontier where people could freely share ideas without ever having to risk any fear of censorship. Material considered 'obscene' floated freely around without anybody paying any particular notice. All of this changed with the advent of the World Wide Web in 1993.
Even with items such as the Telecommunications Bill in place, web sites that offer obscene material will still be able to survive on the Internet. Since the Internet is linked worldwide, a person maintaining an obscene web site would have to do is move the site onto a server in a country where that kind of web site is legal. People in the U.S. where most issues of censorship have developed will still be able to access that web site, but the person cannot be prosecuted because the server is in another country. This is a real problem for governments. Germany, for example, wants to keep neo-Nazi propaganda from its citizens even thought the information is posted on a server in Canada where it is perfectly legal.
Objections to censorship may be the loudest in the United States, where members of the Internet have grown accustomed of late to seeing blue ribbons adorning many web pages. These ribbons are pleas for the right to free speech in cyberspace. Controversy is arising over the ease with which objectionable material can be accessed electronically. Equally controversial are the steps some governments are taking to limit access to certain kinds of information on the Internet. "We should resist measures that go too far. If authorities aren't careful, they'll eliminate much that's good about the interactive medium while trying to root out 'bad' content." (Gates 3)
Protecting Your Child Online
Can the Internet police itself? Until now, it has done so successfully in many areas, but concern is growing about whether the Net is a wholesome environment for families, schools, and businesses.
The Internet has changed the world. However, there are a few bad apples in the Internet that have information, literature, graphics, and images that have been deemed inappropriate for minors. But instead of making everyone be a peasant to government tyranny over the Internet, parents with minors that are concerned about what their kids see should purchase filtering software to censor their personal computer. "If we are to make the Internet a powerful resource for learning, we must give parents and teachers the tools they need to make the Internet safe for children," demands President Bill Clinton. "With the right technology and rating systems, we can help ensure that our children don't end up in the red-light districts of cyberspace." (Silencing)
With effective filtering programs in place, the Internet can remain a free forum for the exchange of ideas and information, while individuals can protect themselves or others from material they find offensive. Many private companies have taken the responsibility to offer censorship software available to parents to help them protect children from pornography or 'offensive' materials. The software lists sites that are considered pornographic and is constantly updated. When a child tries to access such a site, the software would deny entry to this web site. The settings of the filtering software would be protected by passwords. Using this technology, the user would maintain control of the information available on interactive media instead of the government or network operators. In choosing a program to ensure safe surfing, flexibility is essential. The limits appropriate for a seven-year-old, will proves stifling to a fourteen-year-old. Parents, educators, and others also need to pay special attention to young children making Internet contacts. The effectiveness of any filtering program depends on whether it is properly installed and configured.
If parents want to control what their children see on the Internet, they will probably have to resort to an old-fashioned, low-tech solution: they will have to supervise their kids' time online. By placing the family computer in a public room in households, a child and be easily monitored and guided in the right direction for happy and safe Internet surfing.
There are many people who have said that enforcement is impossible over the Internet, so the threats to free speech are inconsequential. But any erosion of basic civil liberties is important, and the mere passage of censorship laws or threats of lawsuits will have a chilling effect on electronic communications. It is important that people join the fight now, before the basic rights of communications are eroded even before many persons have ever logged on.