Lawyers Tangle With Taming the Internet
Courts disagree on vision for vast computer network
THE more America looks for a way to control the Internet, the more confusing the picture becomes. Is it a postal system or a bookstore? A publisher or a broadcaster?
Because United States regulators and courts can't agree on how to treat the vast computer network, they're passing a bevy of conflicting rulings and regulations. For example:
* A federal judge in Detroit Wednesday threw out charges against a University of Michigan college student who loaded onto the Internet a violent fantasy about a female classmate. Prosecutors claimed he had broadcast an electronic threat. The judge ruled it was merely savage and tasteless fiction.
* Pornography on the Internet so worries the US Senate that it passed broad anti-smut provisions last week as part of a telecommunications bill.
* On-line-service companies that screen out offensive material actually may be punished for doing so. A New York judge ruled last month that Prodigy Services Company was responsible for a user's libelous message about an investment-banking firm. The judge based his decision on the fact that Prodigy screens out indecent messages, making the company an editor and publisher of the material it carried.
"We need a lot more experience to figure out what this beast is," says Mark Rasch, law-policy director for Science Applications International Corporation, an information-security consulting company in Tysons Corner, Va.
"It's a new thing, and one of the problems we're all having is trying to find the right metaphor," adds David Post, a Georgetown University law professor who teaches a cyberspace-law course.
Should the Internet be regulated like a mail service? The system does carry loads of electronic mail, but it also makes some of its messages public, legal experts point out. Is it a print publisher? Yes, but the Internet itself makes no choices about the content it carries.
Sometimes, the Internet works as a telephone system. But the system also transmits material from one individual to many others, which sounds like a broadcaster. The difference is that the government regulates broadcasters because a limited number of them can coexist. On the Internet, there are no such limits.
The best analogy for the Internet is the bookstore, Professor Post says. "We may not want to get rid of the laws of libel on the Internet. But we don't hold the bookstore liable."
Last week's Detroit decision about the Internet fantasy is one of the few legal rulings on the matter. "There's no question whatsoever that all rights of free speech and expression exist in cyberspace as they do in the print medium or with utterances made in public," says the college student's defense attorney, Douglas Mullkoff.
But the Senate antipornography measures passed last week would make free-speech protection much narrower on the Internet. If voted into law, anyone making "any indecent comment, request, suggestion, proposal, image, or other communication" to a minor could be a criminal, "regardless of whether the maker of such communication placed the call or initiated the communications." The idea, argues Sen. James Exon (D) of Nebraska, who sponsored the legislation, is to protect minors from on-line pornography and pedophiles.
The problem is that an "indecent comment" is a term so broad as to be unconstitutional, says Robert Corn-Revere, a Washington attorney and former chief counsel of the Federal Communications Commission.
The Senate measure still has to go to the House of Representatives. Two congressmen, Christopher Cox (R) of California and Ron Wyden (D) of Oregon, are fighting it. "As a matter of national policy, we should establish that the federal government will not enter into the business of economic regulation or content," Representative Cox says. "It is absurd even to try.... Even if we were to establish a new federal computing commission, we could not hire enough bureaucrats to view all the files."
The Senate legislation also poses other law-enforcement problems, legal experts say. For one, the Internet is international. "How are you going to tell someone in Paris what they can or can't put on the Internet," asks Ira Glasser, executive director of the American Civil Liberties Union.
Then there's the question of whose standards of indecency one uses. Liberal New York City? Conservative Alabama? What should Britain do if Saudi Arabia, using its standards, seeks to extradite Salman Rushdie because his Islamic critiques have somehow gotten on the Internet, Mr. Rasch asks. "The real answer to this, ultimately," Rasch says, "is going to be technological."