The impact of the CDA decision is almost certain to rank with defining moments in American jurisprudence

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Indy Lifestyle Online
In June, it is likely that the US Supreme Court will make a decision that will profoundly shape the future of one nation, and possibly the world.

Personal computers and the global communications network that connects them are about to collide head on with one of the 200-year-old premises upon which American democracy was founded.

Freedom of speech, a core tenet of the US Constitution, could be forever reshaped, or even done away with, when a section of legislation called the Communications Decency Act (CDA) is considered by the nine men and women who currently sit on the court's bench. At stake is the way Americans will speak, work and live in the new millennium.

This is big, big stuff. The impact of this decision is almost certain to rank with defining moments in American jurisprudence such as the 1857 Dred Scott ruling, the 1925 Scopes "monkey" trial and the 1954 racial desegregation rulings.

Passionately polarised camps of opinion have arisen, with religious leaders, industrialists, the media, civil libertarians and (surprise!) politicians all weighing in.

A CDA media circus has rolled into town big time, and a bewildered populace looks on in fear, uncertainty and doubt.

Characterising the Internet as the pornographer's superhighway into every child's bedroom, headline-hunting politicians have promised to protect a worried, if largely uninformed, electorate from cyberhorrors via the CDA.

The Clinton administration, running for re-election in 1996 against a formidable Republican array of fundamentalist religious leaders and other "family values" types, capitalised on the hype by signing into law the Telecommunications Act of 1996, which contained the CDA.

The Communications Decency Act makes it illegal to send, or even to own, a computer, network or service over which someone else sends, "to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs".

Telephone companies and Internet service providers immediately appealed, championed by the American Civil Liberties Union. US Judge Ronald Buckwalter agreed, and issued a temporary restraining order pending review by the Supreme Court.

The plaintiffs' concern was that they would have to monitor and censor every message and image sent over their systems, or face jail time if a court found it "patently offensive" that, for example, a 17-year-old peeked at www.playboy.com via data packets that had moved over their systems.

Currently, US law holds that the perpetrator, and not the carrier, is liable in the case of offences using media such as post or the telephone. If a smut peddler knowingly sends a kid dirty pictures in the mail, it is the pornographer, and not the unwitting postman, who faces prosecution.

Another issue comes down, as most "decency" debates do, to the nature of terms such as "patently offensive".

Today in the US, a family counsellor, say a priest or a rabbi, can legally mail, phone or fax information about family planning to a teenager. Under the CDA, the same missive in the form of e-mail or a Web page could bring two years in federal prison for the rabbi, his service provider and the phone company, if they provide the rabbi with a modem line.

Parents would not be immune. If your 10-year-old e-mailed you from computer camp, "Where do babies come from?" and you replied with a birds-and-the- bees missive, your service provider would have to block the message and turn you in, to be safe against prosecution themselves.

Another concern is that special-interest groups could set precedents for what constituted "patently offensive", as a way of forcing telecommunication companies to censor their foes and critics. Pro-life members of Congress have already read into the congressional record the opinion that abortion is "patently offensive" and thus illegal to discuss on the Internet under the provisions of the CDA.

At least one group has been caught distributing parental blocking software that censors contrary religious views as well as porn. Such a group could make hundreds of complaints against those who hold other views in the hopes that a successful prosecution somewhere would force Pacific Bell or AT&T to censor similar opinions or face prosecution.

Foes might try the same tactic, with the result that the Internet would conduct ever-diminishing kinds of information (from "superhighway" to "supertrickle").

You get the idea. I'm all for protecting children (who isn't?), but unwilling to let the politicians twist a basic freedom from my grasp under the guise of doing the job for me.

After all, my kids will have to live with this law long after those same politicians have been indicted and removed from office. You would have thought that having fewer ways to go to jail would have greater appeal in those circles.

cg@gulker.com

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