The Future of Free Speech:
Privatization and the Internet

04.14.1999 | TECHNOLOGY

"Where there is even a pretense of democracy, communications are at its heart."
--Noam Chomsky

Amidst the pork-barrel congressional legislation that seems to emerge like weeds in a garden, two laws were recently passed that further threaten the future of free speech on the Internet. The Child Online Protection Act (COPA) and the Digital Millennium Copyright Act (DMCA) are attempts to solve some troubling online issues by criminalizing speech that is deemed harmful to minors--as well as other activities that were previously protected under copyright law. The problem with these initiatives lie in that they empower online service providers to police the content they host, preemptively censuring according to a loosely defined sexual morality and copyright jurisprudence.

The American Civil Liberties Union (ACLU), along with the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF), filed a lawsuit against the Child Online Protection Act last November, which has recently yielded a preliminary injunction. Philadelphia District Court Judge Lowell Reed held that this law would restrict free speech on the Internet. "Indeed," he wrote in his decision, "perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection." The government, which had 60 days to decide on a course of action, decided to file an appeal against the preliminary injunction rather than proceed with a full trial. The case will now be moving up to the Third Circuit Court of Appeals.

It was back in June of 1997 that the Supreme Court struck down the Communications Decency Act (CDA), declaring to the world that "the content on the Internet is as diverse as human thought." The importance of this decision lies in their acceptance of the medium as contributory in nature (dare I even say international). Although capitulation to the free speech movement was partially spurned by the inability to provide effective enforcement, the political implications of passing laws of international scope provided its own obstacles.

The Child Online Protection Act is another attempt to pass what the Supreme Court rejected with the CDA. It provides that those involved in the commercial distribution of material that is deemed harmful to minors shall be held responsible for restricting access to minors under the age of 17. Those who are in non-compliance can be fined up to $50,000 or up to six months in prison. Additional fines of up to $50,000 per day will be levied against sites that remain operational. Constitutional doubts about First Amendment violations were not enough to prevent its pork-barrel passage with the federal budget. Of course, since the Clinton Administration was responsible for signing the CDA, one can question their level of commitment.

With the passage of COPA, all sexually-charged material that is online could be subject to prosecution. Does this mean that anything from the Ken Starr report to Robert Mapplethorpe photographs could be in violation? As with the CDA, the definitions of these terms are vague--although deemed by supporters to be enough--excluding only works of "serious literary, artistic, political, or scientific" value. Language such as this, however, did not stop the government from recently censuring the 1979 Academy Award winning adaptation of Gunter Grass's The Tin Drum and Gabriel García Márquez's One Hundred Years of Solitude. Furthermore, who is to say where sexually-explicit material intersects with artistic or political expression--especially in such areas as homosexuality, rape and abortion.

The price and feasibility of enforcing such laws, as was the case with the CDA, will be a major roadblock. Determining the age of a computer user is nearly impossible as things currently stand, pushing the material in question behind barriers and passwords while still accepting the visitor at their word. The inefficacy of this practice will undoubtedly translate into the development of more complex hardware and software systems to better filter-out unwanted visitors, thus putting the price of self-expression out of reach of the average person. The onus of enforcement, of course, then falls on the company, organization or individual who is "hosting" the information. The vagueness of this initiative does not differentiate between book retailers, non-profit organizations, publishers or internet service providers, thus promoting preemptive self-censorship due to financial accountability. This will undoubtedly spurn hefty cost increases, further curtailing accessibility for the average person.

The Digital Millenium Copyright Act, much like COPA, also places the burden of enforcement on the host, while imposing penalties on those who compromise the copyright holder's control over who reads or comments on their property. It now seems that privacy is no longer guaranteed, access to information can be restricted and "fair use" is subject to debate. Existing copyright laws are being deemed inadequate by major corporations with conservative definitions of private property.

This piece of legislation--recently passed by Congress--comes from a truce devised by online service providers and large media companies. Being an automatic conduit of information to the public, online service providers will not be liable for information stored on their servers until made aware of its existence. Therefore, based on their "good faith belief" that copyright infringement has occurred, they must "respond expeditiously to remove, or disable access to, the material" in question. In other words, in order to avoid legal responsibility... police first and ask questions later.

Looking beyond enforcement, the terms used to describe the usage of copyrighted material are simply too strict. To hack past technological barriers created to protect private property is considered illegal, even if it is done in order to use the material under "fair use" provisions. In order to quote, comment or parody a copyrighted work, online service providers will now pass judgement based on their personal interpretation of the law. When The Nation was sued by Harper & Row Publishers for using too many words from Gerald Ford's autobiography to discuss Cambodian policy, at least they were able to take it all the way to the Supreme Court. When individuals are censored and the burden of proof is laid on them, will they be able to afford legal proceedings? As large media companies continue to redefine our previously entitled rights, the window of opportunity for the expression of alternative voices continues to diminish.

The fragmentary nature of the Internet allows for the expression of many diverse perspectives. Not only should these perspectives find articulation, but they also provide necessary alternatives to the mainstream media. Since the medium is fiscally accessible and removes the need for distribution, it is fertile ground for all movements that seek an instant and broad audience. This decentralized, many-to-many architecture is a legitimate threat to the control that major media companies have over the information marketplace. With the emergence of online activists and alternative news sources, the government must fear that the Internet is too pure of a democracy and cannot be governed by capitalism alone. If these latest initiatives to censor and centralize online communications are not challenged, Congress will have moved us closer to sealing the medium's fate. As voices that stray from the chorus are tempered to be suitable for a sandbox, this inherently democratic model will become the corporate theme park and virtual mall that all businessmen dream of. The only thing that will remain interactive is our ability to purchase.

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