12 September 1997
Can the rules and regulations of the 'real' world be applied to activity on the Internet? Dr Satvinder Juss confronts the challenges of pornography on the Web.
Nineteenth century American essayist Oliver Wendell Holmes once said: "The best test of truth is the power of the thought to get itself accepted in the competition of the market." The market today is becoming ever more complex, extending beyond simple telecommunications to embrace the newly discovered world of cyberspace.
In The Sovereign Individual (Macmillan Press, 1997), James Davidson and William Rees-Mogg argue that microprocessing will subvert and destroy the nation state, creating a new form of social organisation - the information society. This will liberate individuals, making them free to invent their own work and realise its full benefits. The greatest source of wealth will be ideas rather than physical capital.
But not all the effects of this brave, new world are so positive. Less savoury reaches of the information universe can be explored on the 10,000 sites on the World Wide Web devoted to pornography, from those offering pictures of topless centrefold models to ones which charge £1 a minute to view men and women performing sexual acts.
Last summer, the US Supreme Court made the first effort to extend the free speech principles of the First Amendment to cyberspace. It overturned the Clinton adminis- tration's Federal Communications Decency Act, which made it a crime to use a computer to transmit indecent material to someone under 18 or to display such material "in a manner available" to a person under 18.
The indecent material was not precisely defined, being referred to as "patently offensive" descriptions or images of "sexual or excretory activities". Violations of the Act carried penalties of two years in prison and a $250,000 fine.
A coalition of Internet users, computer industry groups and civil liberties organisations challenged the Act. The US Chamber of Commerce entered the case in the final stages to argue that the law presented a threat to the country's ability to compete globally in an age of new communications.
In the Supreme Court ruling, Justice John Paul Stevens held that speech on the Internet is entitled to the highest level of First Amendment protection, given to books and newspapers. He described the Internet as the "town crier" of the modern age, expanding the reach of the soapbox orator and the electronic pamphleteer.
He added: "The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
The judge said that although children needed protecting from indecency, the "wholly unprecedented" breadth of the law threatened to suppress speech among adults as well as children.
The decision has made it unlikely that any government-imposed restriction on Internet content will be upheld provided the material has some intrinsic value. So the responsibility for children's online activities now rests completely with the adults who watch over them.
Free pornographic pictures have long been available in encoded form on Internet news groups. There has also been an explosion in home-grown web sites that support themselves through advertising and provide pictures easily displayed on a personal computer.
Parents, it seems, can now do three things. First, they can use one of the major online services which offer parental control options. Second, they can sit with their children and supervise them while they are online. Third, they can install software which filters the Web by blocking sites known to harbour explicit material. For example, Cyber Patrol blocks about 20,000 Web sites and allows parents to alter the list of prohibited destinations; Surf Watch blocks about 45,000 sites; and Net Shepherd allows as many as 400,000 sites to be blocked.
The Internet poses questions that we all need to confront. Is the organisation and policing of the electronic world going to be resemble the "real" world? Are familiar crimes going to be punished by familiar laws because of a recognisable human interaction? Or will the electronic world evolve into something new? Already, these questions have been asked on everything from copyright protection to cyberstalking.
There are similar questions about the growing area of electronic commerce. Will there be laws that establish in cyberspace parallels to the way in which everyday business is conducted, verified or taxed? How much the cyberworld will reflect the physical one in this case will have wide-ranging implications. It is clear that the debate about how the Internet will co-exist with the real world and its laws is only just beginning.
Dr Satvinder Juss is a Harkness Fellow working in Washington DC and a Human Rights Fellow at Harvard Law School.