The Toronto Star
March 18, 1997

Internet `decency' law endangers free speech

by Stephen Handelman

NEW YORK -- U.S. Supreme Court decisions don't normally affect Canadians, but a case coming before America's highest court tomorrow could change the way many of us work and play.

The case is about freedom of speech on the Internet.

Lawyers for the American Civil Liberties Union (ACLU) are challenging a law passed by the U.S. Congress last year which makes it a crime punishable by up to two years in jail to "knowingly" transmit indecent material over the Internet to anyone under 18 years old.

Since more than 60 per cent of the "host computers" which relay material in cyberspace are physically located in the United States, the legislation affects consumers everywhere. Among the plaintiffs who have joined the case are on-line companies such as Prodigy that have Canadian subscribers.

If the nine black-robed U.S. justices allow the so-called Communications Decency Act to stand, it could have a suffocating effect on the flow of information to an estimated 10 million people worldwide who now use the Internet.

It could also dramatically change the nature of a medium that already has revolutionized the language of communication. ACLU supporters call this case, with good reason, "the first free-speech case of the 21st century".

The law is a perfect example of how good intentions can have evil consequences. During the run-up to the U.S. elections, President Bill Clinton and a coterie of U.S. lawmakers cooked it up in an excess of zeal about protecting "family values".

While there's no doubt the Internet can be used - and has been used - for illegal or immoral purposes, we should be suspicious of any piece of law that contains the word "decency".

It smells of the sulphur-and-damnation crusades to impose behavioral norms on other people in the name of the wider community.

Since the act never defines "indecent" material, the ACLU warns that it criminalizes a wide variety of types of communication that some might find offensive, but which have social or educational virtues.

Some of the other plaintiffs make this point vividly. Critical Path, a group which provides on-line information and links regarding AIDS, often uses graphic material on sexual activity to illustrate ways of preventing the disease.

Stop Prisoner Rape, a U.S. non-profit organization, uses similar raw material to advocate better conditions in prisons. Human Rights Watch frequently makes available on its web site horror stories about sexual mutilation and torture as part of its pressure campaign against governments.

The list goes on. The key point, as the ACLU argues, is that no purveyor of information on the Internet can hope to have any control on who sees or uses the information.

Unless the material is provided with criminal intent, asking Internet providers to keep children away is a form of advance censorship. It's also technically impossible.

"The vast majority of Internet users can only comply with the (act) by self-censoring their speech to a level deemed acceptable for minors", the ACLU said in its 31-page brief to the Supreme Court.

It argues that proper control of children's viewing or "surfing" habits rests not with the government, but with parents, who also now have available to them filtering technology that can screen out objectionable material.

So far, most lower courts in the U.S. have agreed. This week's case arose from a challenge to the constitutionality of the law brought by several Internet users who run discussion groups on the World Wide Web. A Philadelphia court upheld the challenge, and the government appealed.

Most legal experts tentatively predict the U.S. government will lose. But that hasn't stopped other U.S. jurisdictions from trying the same tactic. Similar "cyber-cases" are pending in New York state and Georgia.

There's another interesting issue, which isn't formally part of the case. Since the law directly affects consumers and subsidiaries of American companies outside the United States, it's as worrisome an example of the extra-territorial application of a nation's laws - however unwitting - as the Helms-Burton Act, which attempts to penalize foreign companies trading with Cuba and a few other nations.

Should the Internet be controlled by government at all? You won't be surprised to learn you can follow the arguments on the ACLU's web site:

Copyright © 1997 by The Toronto Star. All Rights Reserved. Reprinted with permission.