B y G r e g o r y M c N a m e e
BY CONSERVATIVE ESTIMATES, some 30 million Americans now surf the Internet, using computers at home and work to monitor Coke machines in greater London, hot tubs in upstate Michigan and fish tanks in Singapore--and even sometimes to get something useful done.
Some of those 30 million Americans are perverts. In the darker corners of the Internet and its user-friendly face, the World Wide Web, lurk sexual predators, kiddie-porn freaks and other monsters in fact and potential. You can find them in places like alt.sex.bestiality; and you can occasionally eavesdrop on them in the public-chat areas of America Online and CompuServe. But you have to do the looking and listening, and you have to be quick about it. Most of the Internet's habitués shun these few deviates as jackals, and most services clamp down on them as soon as they crawl into view.
But the United States Senate seems to believe that this doomed handful is representative of the whole keyboard-tapping community. To silence their furtive comings and goings in cyberspace, the Senate has proposed legislation that, if passed into law, has the very real possibility of introducing large-scale government censorship into all Internet traffic.
A rider to the sweeping Communications Reform Act, passed two weeks ago in the Senate by a vote of 84-16, the Communications Decency Act would impose a fine of up to $100,000 and a prison term of up to two years for anyone who "knowingly makes or makes available any indecent communications...to any person under 18 years of age."
Sponsored by conservative senator Jim Exon (R-Neb.), an avowed technophobe, the Communications Decency Act has been endorsed by Arizona senators John McCain and Jon Kyl, although neither senator has yet issued a public statement explaining his endorsement.
Exon has claimed that the act is only an extension of dial-a-porn laws passed over the last few years, which originally intended to remove dirty talk from the wires altogether. When it became evident that such a ban was unconstitutional on First Amendment grounds, the Senate eventually restricted such services to 900 numbers.
Just as with the dial-a-porn legislation, the proposed cyberlaw is so full of holes that it cannot help but fail as written. A central problem lies in the phrase "making available." If the Web, a decentralized congeries of electronic sites that lie scattered all over the world, allows a prurient conversation or a Hustler centerfold to appear, who is responsible? Is it the telecommunications company that provides the link from the computer on my desk to the vast cyberworld beyond? The parents who allow their children to use computers and fail to stand at their shoulder whenever they're logged on? The power companies that supply the juice for the enterprise to begin with? Does ATT become a panderer when its lines carry data nasties across the continents, the Department of Defense a porn distributor when its computers shunt an incivil civilian message from nation to nation?
Perhaps so, if the Exon bill is taken to its logical conclusion. Telecommunications law is a notorious tangle, and the Internet is mired in regulations affecting telephones, railroads and newspapers, with all of which it has commonalities--but also profound differences. One of them lies precisely in the fact that one cannot accidentally view pornography (or recipes for making bombs, for that matter) on the Internet. You have to go actively looking for such things, have to point a mouse or type a command line to be transported into the weirder corners of cyberspace. Smut and sedition do not lurk in dark bushes waiting to leap out at innocents, and the scattershot distribution of indecent, uninvited material is already forbidden by law.
But this fact of volition does not seem to carry much weight on Capitol Hill, adding more confusion and haziness to the conversation, which is already so murky that under the proposed act record companies or music fans posting the lyrics to, say, N.W.A.'s song "F--- tha Police" are as criminal as those who distribute pictures of children engaging in sexual acts.
Strong resistance to the Communications Decency Act is already rising. Civil libertarians have a seemingly unlikely ally in Speaker of the House Newt Gingrich, that Third Wave champion of the body electric. "I don't think it will survive," Gingrich remarked on June 20. "It is clearly a violation of free speech and of the right of adults to communicate with each other...I think by offering a very badly thought out and not very productive amendment, if anything, that puts the debate back a step."
The United States Court of Appeals for the District of Columbia ruled as well on June 6 that legislation like the Communications Decency Act is inherently unconstitutional because, among other things, it destroys the local-standards basis by which material is judged obscene or not.
Sen. Patrick Leahy (D-Vt.) has unsuccessfully introduced legislation requiring that providers offer subscribers a means to lock out material that they do not wish their children to see--whether snuff films or Barney--and to disable access to "chat groups" where questionable conversation, often anonymous, takes place. Under this proposed legislation, the responsibility falls to the parents, and not the State, to determine what their children may or may not be exposed to and participate in. Leahy's is a far more sensible approach than Exon's, providing technological fixes for technological problems, and it convincingly counters those moral majoritarians who seem to believe that it is the government's brief to raise their children for them.
In the whole debate on children's exposure to prurient materials, it makes much more sense to regulate cable and network television, which thrive on sexually suggestive material. Theirs is a world in which it is thought advisable to insert the word "fuck" into shooting scripts just to be certain that their films will earn a coveted--and potentially lucrative--PG-13 or R rating. Still, those industries field powerful lobbies on Capitol Hill who see to it that politicos find other targets; and for the most part the videodrome goes unchallenged, the occasional Bob Dole broadside notwithstanding.
Pandering to the religious right, the Communications Decency Act substitutes blind censorship, an unworkable solution, for a rational approach to the very real problem of the sexual endangerment and exploitation of children. Thirty million Americans will not be made to pay for the deviations of a few; the wires will not be made to hum to the government's tune. The Act will not stand.
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