The Globe & Mail
Monday, December 2, 1996
(Commentary) page A13

Patrolling the Internet

by Anthony Keller

He is young and computer-comfortable, as nimble with a World Wide Web search engine as a dairyman's son with udders. The Internet is his revolution, a crusade against all governmental or societal restraints on individual liberty. Cyberland, for our hypothetical surfer, is a place without walls, without parents, and so, Johnny thinks, without all that old-fashioned in loco parentis stuff known as law. The Net means doing whatever you want.

He has an opposite. She is older, maybe even his mother, and hasn't the faintest idea how to navigate the Net. And she's worried. Didn't Time magazine do a cover story on the overflow of smut on the Net? Didn't the G7 foreign ministers say that measures must be taken to control terrorists on the Net? Aren't there all sorts of pedophiles and hate-mongers roaming free?

He thinks all this free speech is a return to the Garden, a state of bliss that the soft-tongued serpent of government regulation is plotting to destroy. From where she sits, it looks like Lord of the Flies.

So is there law in cyberspace? Last September, Industry Canada convened public consultations and commissioned research papers from a number of lawyers. "This study of content-related Internet liability", said the Industry Canada guidelines, "will assume that liability is possible on the Net". That's a reasonable assumption: If there's libel on the Net, somebody published it; if there's child pornography, somebody put it there.

"There's no doubt that law applies to the Net", says Mark Hayes, a lawyer at Fasken Campbell Godfrey in Toronto and author of one of those as-yet unreleased papers. "And the more people say it's unlawful and a kind of Wild West, the more government will try to move to regulate it." Or overregulate it. There are rumblings out of Ottawa about -- I'm not making this up -- placing Canadian-content requirements on the Net. Help.

In the United States, meanwhile, Congress passed the Communications Decency Act earlier this year, and the legislation promptly took a beating in the courts. A legal rebuke is exactly what it needs; the CDA treats Internet communication like 1950s television. There are things on the Net -- a pornographic picture, for example -- that a communications regulator such as the Candian Radio-television and Telecommunications Commission might not allow a station to show on Saturday-morning television. But it would be perfectly legal to sell it at a video store, at least if it were sold only to adults.

Under the terms of the CDA, adult, legal material might have to be taken off the Net. The reasoning seems to be that, since the Net comes to you via something that looks like a television screen, the law should treat it just like old-fashioned TV. "They see it and say, my God, let's regulate it", says Mr. Hayes.

Which would be a terrible mistake, not to mention probably unconstitutional, at least in the United States. A U.S. District Court judge, placing an injunction on the CDA, called the Internet "the most participatory form of mass speech yet developed", and therefore "deserving of the highest protection from government intrusion". Score one for Johnny and his hacker buddies.

The net is not a dumb TV screen, but rather a global library stocking everything from Playboy to Plato, from Mein Kampf to The Mining News. But the netizens are going to have to compromise: No country treats free speech as limitless. Mom should be happy to hear that.

The trick is enforcing the law, because this library has no borders. What's more, its users have not only unimpeded access to the books, but almost uncontrolled opportunities to add manuscripts of their own to the multi-million-document collection.

Internet service providers can and sometimes do try to block certain Web sites and discussion groups. Earlier this year, Istar, an Ottawa-based internet provider, blocked access to a number of possibly illegal, child-porn-related discussion groups. Such screening is not impossible, as some Netizens claim, but it is difficult. the resourceful may be able to detour around the barricades. That, however, was true long before computers. We've always had speeding, drug-smuggling, and murder despite laws against them. If you really want to break the law, you can. But you risk getting caught, in the digital world as elsewhere.

Besides, a lot of things that people want to ban from virtual reality go unmarked down here in real reality. A web site offering advice on bomb-making had all sorts of people in a snit earlier this year -- until somebody realized you can buy a comparable tract, The Anarschists Cookbook, at bookstores. It's not Julia Child, but it's legal. And there is software that parents can buy to block their children from logging on to certain sites.

Many high-profile attempts to regulate speech on the Net are ultimately self-defeating. When German officials tried to block the Ernst Zundel Web site, which originates in the U.S., it was picked up and "mirrored" in other places. Quarry outside a country's borders can be elusive. But in cases where national laws accord -- kiddie porn is almost universally illegal -- prosecution and shut-down could be swifter.

Neo-Nazis and other racists are a more challenging case, because the United States does not consider hate speech a crime. Maybe the Americans are on to something. Consider: In the U.S., Mr. Zundel is an anonymous crank. In Canada, he's a celebrity.

And Canada's favourite neo-Nazi is about to get even more free publicity. The Canadian Human Rights Commission wants its crack at the California-based Zundel Web site. Good luck. All these attempts to prosecute Mr. Zundel only make things worse. How many readers would even have heard of the guy if Canadian governments hadn't gone to the trouble of offering him a decade's worth of courtroom soapboxes?

New technology, same old mistakes.


Copyright © 1996 by The Globe & Mail. All Rights Reserved. Reprinted with permission.