Beware of barriers to free speech

Will I run the risk of a prison sentence for sending birds-and- the-bees messages to my child by e-mail?
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To Senator Diane Feinstein


DEAR SENATOR Feinstein, This is the first e-mail, indeed the first communication, I've ever sent to my senator. I'm writing because events in the US Senate and elsewhere are, frankly, cause for deep concern. I'm one of your Silicon Valley constituents, whose life and livelihood are greatly affected by technology and particularly by the Internet.

For better or for worse, the large numbers of early Net adopters in the US make events in America highly visible, and influential in this truly international medium. It's not that you and your colleagues in Congress are doing everything wrong; initiatives to wire our schools and find funding for public Internet terminals in libraries are very good work, in my opinion. We should reap huge rewards in the form of a better informed and more globally aware citizenry. Children who've e-mailed their counterparts around the world should not easily fall prey to racists and other hate mongers who thrive in the fear and misunderstanding wrought from ignorance. Good riddance to a planet held hostage by fear.

But, an election year looms, and your colleagues in the Senate seem eager to curry favour among the electorate, regardless of the damage their ill- considered legislation can do. Of particular concern is Senator Dan Coats' bill, S.1482, also known as CDA II, and S.1619 sponsored by Senator John McCain. Both senators, or at least both of their press secretaries, claim their legislation protects children, Mom and apple pie, all worthy goals. However, both bills suffer the same extreme short-sightedness as previous efforts, such as the infamous Communications Decency Act that was struck down by the Supreme Court last year.

Question: do your colleagues think carefully before they tinker with a 200-year-old tradition of free speech that has so far served America exceedingly well?

People were as good, and as bad, 200 years ago as they are today, and the framers of the Constitution struck a remarkable balance between the rights and duties of citizenship. That this nation and this document have endured so long should be proof enough that they got it right. We don't need the misguided efforts of Senators Coats and McCain to "improve" it.

S.1482 purportedly seeks to force pornographers and other less-than-sterling citizens to put barriers in the way to children who could access their Web sites, a goal that I think no one has a problem with. The problem is the loose wording of the bill. What exactly constitutes "harmful to minors"?

Under the events surrounding the passage of the original CDA, some of your House colleagues read into the Congressional Record the opinion that any discussion of abortion was pornographic, and thus, presumably, "harmful to minors". That would have placed us in an Orwellian world where you'd have to watch carefully the opinion you uttered, depending on which medium was intending to carry it.

If a rabbi or a priest were to counsel a young couple on having a family, most Americans wouldn't have a problem with that person offering frank and explicit advice. Under the CDA, the same advice offered by fax or telephone would have been legal, but could have resulted in a jail term if sent by e-mail.

CDA II offers similar bizarre scenarios. While on an Indian Guides camping trip many years ago, my then five-year-old helpfully offered to explain sex to me. He hadn't quite got all the details right, and the story has become an amusing bit of family lore. Sitting around the campfire with my neighbour and his son, I gently offered a little fatherly wisdom, in the hopes of putting a curious child on the right track.

Now say that, in Senator Coats's new world, my five-year-old e-mails me the tale from camp. Were I to offer the same advice, some loony somewhere could decide that I was offering content "harmful to minors" and turn both me and my Internet service provider in to federal authorities for failing to put up a barrier.

Judging by some of the things federal prosecutors have chosen to pursue in recent years (notably the prosecution of Kevin Mitnick), I am not at all sure that an act of nurturing parenting wouldn't land me in prison. What if I tell my child that I will call him, knowing that I run the risk of prison for sending birds-and-the-bees messages by e-mail? And what if, as is already happening, my phone call were routed over the Internet? Would I and the Internet service provider once again be liable to prosecution? And, under Senator McCain's bill, would the Indian Guides camp be shut down for failing to block the e-mail?

In short, this legislation seems to be aimed at creating a world where pornographers can thrive simply by demanding a credit card for access to their wares, but parents, priests and rabbis could end up doing time merely for doing their jobs. I suppose parents and clergy could play it safe, and demand a credit card before we offered parenting to our kids or pastoral care to our flocks, but I, for one, don't see that as an improvement over current practice.

Dave Farber, a professor of computer science at the University of Pennsylvania, a board member of the Electronic Frontier Foundation, says it best: "There are nicer ways to protect our children than doing things that take away their rights when they grow up."


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