Congress Privatizes the Net

Buried deep in the mammoth spending bills recently passed by Congress, with barely a whimper from the "all-Lewinsky, all-the-time" news media, were two complex pieces of legislation that threatened to further erode privacy and free speech on the Internet. Between them, the Child Online Protection Act (COPA) and Digital Millennium Copyright Act (DMCA) criminalize speech "harmful to minors," as well as many activities formerly protected under copyright law. In so doing, they managed to turn online service providers (like AOL and the Microsoft Network) into private police of sexual morality and copyright jurisprudence.

In its decision striking down the Communications Decency Act (CDA), the Supreme Court heralded the participatory, egalitarian character of Internet communication. In oft-quoted words, it recognized that "the content on the Internet is as diverse as human thought." On the Internet, by contrast, just about any political perspective one may imagine adopting finds its articulation somewhere, often with an extensive library of philosophical and political tracts that explicate it. Numerous web pages are dedicated to recording the suffering that these wars caused, and activist sites like the Iraq Action Coalition and the International Action Center mobilize resistance to the ongoing collective murder of Iraqi children (at a rate of over 4,500 children under 5 per month--UNICEF 1996) in the name of "keeping Saddam in his box." Many of these activist web sites (including the Iraq Action Coalition) reprint old newspaper articles for purposes of criticism or parody; some of them even (gasp) contain indecent and inappropriate language and "adult situations" (as they say on TV).

The Nation contributing editor Andrew Shapiro, in the summer issue of the Boston Review, describes what's at stake in the struggle over the Internet: "The decentralized, interactive, many-to-many architecture of the Net could mean the end of Big Media's choke-hold on the information marketplace." After these Congressional edifices of censorship and centralization of Internet communication sink in, this possibility may be foreclosed and the Internet finally transformed into a giant corporate theme park and electronic mall.

The Child Online Protection Act basically aims to reverse the Supreme Court's rejection of the Communications Decency Act of 1996 insofar as it would have reduced the level of discourse online "to that which would be suitable for a sandbox." It provides that anyone who "in or through the World Wide Web is engaged in the business of the commercial distribution of material that is harmful to minors shall restrict access to such material by persons under 17 years of age." Those who don't restrict access to adults only are subject to a fine of up to $50,000, up to six months in prison, and additional fines of up to $50,000 per day of operation of the site. The Clinton administration's doubts about the law's constitutionality, fueled by a critical report by the Justice Department, were apparently strong enough that the law was cited as holding up the budget compromise with the Republicans for a time. However, the White House relented, either from insufficient commitment to the First Amendment (this is, after all, the same president that signed the Communications Decency Act of 1996), or due to the priority of other legislative issues (most notably education).

This new law is a broad-based threat to freedom of speech online, potentially censoring any and all sexually-charged material online, from the Ken Starr report on the low end to Shakespeare on the high end. Supporters of COPA argue that the "harmful to minors" standard protects material having "serious literary, artistic, political, or scientific" value. The response to such claims is simple; this Supreme Court language has not stopped governments from censoring, in the 1990s, films such as the 1979 Academy Award winning version of Gunter Grass' anti-Nazi novel The Tin Drum. and novels as diverse as The Color Purple and One Hundred Years of Solitude. Much political information and opinion, dealing with anything from homosexuality to rape to abortion, may have to migrate behind a complex system of tolls, barriers, and passwords. Expect to whip out your credit card for virtually every step you take online. Furthermore, as the Supreme Court found in Reno v. ACLU, it is difficult and very expensive, if not impossible, to confirm the age of everyone accessing your web page. Thus the Act will undermine the egalitarian and participatory character of an Internet where anyone with the right hardware can publish essentially for free, and simply drive a lot of material off the Internet entirely.

Even worse, the bill makes providers of commercial web publishing services to individuals and organizations liable for distributing the "harmful" material they post on the Internet. A letter to the Senate opposing the law from the Internet Free Expression Alliance (whose members include the ACLU and gay rights groups) recognized that while the Act is "ostensibly aimed at "commercial" web sites, that term is so broad that it covers anything from an on-line book seller like Amazon.com to a non-profit website that sells books or T-shirts." Web site operators, forced into the role of private police for sexually explicit content, will err on the side of deleting material on their servers that is arguably "harmful" in order to be certain of avoiding costly prosecutions and fines, not to mention jail time. Intrusive snooping and arbitrary censorship by unaccountable private parties will be practiced even more frequently than they are now.

The DMCA, also passed by Congress this week, combines a strikingly similar regime of policing by online service providers with severe civil and criminal penalties for "breaking" the technological "locks" used by copyright holders to maintain perfect control over who reads or comments on their property, and when. It embodies a compromise between online service providers and the large media corporations to the effect that online service providers will not be strictly liable for their role as an automatic conduit between Internet publishers and the browsing public, for example in passing on newsgroup postings. However, hosts of web pages shall be liable for "Information Stored On Service Providers" if, on notice of a copyright holder's "good faith belief" that infringement is occurring, they do not "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

Groups concerned with privacy, the free flow of information and opinion, and preserving our rights under the existing copyright law to quote from, comment upon, and parody powerful cultural symbols, have attempted to fight these proposals. A letter from 50 law professors to the Clinton administration, expressing concern at provisions of the World Intellectual Property Organization Copyright Treaty that the DMCA is intended to implement, argued that requiring online service providers to police copyright infringement by those using their services "would undermine privacy and access and subject 'fair use' to the conservative interpretation of a private body."

The DMCA provisions criminalizing circumvention of technological locks on intellectual property are somewhat arcane and intimidating, but as they determine the extent of the public's right to access and comment upon copyrighted works in the future, they must be understood and questioned. These technological locks have the ability to restrict access to an article or picture to a pay-per-view basis; to deny the ability to copy even small portions of a work, even for non-profit scholarly or educational purposes; and to track any and all references to and uses of a work in cyberspace. This would be unproblematic if copyright owners were intended to exercise absolute control over their property, but copyright law has historically attempted to strike a balance between rewarding authors and preserving the rights of the public to resell, build upon, and criticize copyrighted work.

The Nation asserted its right to make "fair use" of President Ford's copyrighted biography in a prominent Supreme Court case, Harper & Row, Publishers, Inc. v. Nation Enterprises (1985). In that case, an article in The Nation that quoted some 300 words from then potential 1980 presidential candidate Gerald Ford's biography was held to infringe Ford's copyright. The article used Ford's own words to comment upon his pardon of Nixon, his relations with Reagan and Kissinger, and his policy on bombing Cambodia. As should be apparent, the standard for copyright infringement has become exceedingly broad, and extends far beyond the basement pirate operation to encompass forms of political speech that use a few too many of a public figure's own words to criticize his policies.

It is in this context that the DMCA's legal protection of attempts by media corporations to prevent unauthorized uses of their property via technological locks should be analyzed. Under the DMCA, it would certainly be a crime to hack technological locks to commit copyright infringement (as The Nation did), and it might even be a crime to do so to make "fair use" of a work. As Peter Jaszi noted in his testimony to Congress on behalf of the anti-DMCA Digital Future Coalition, it might even be "a criminal offense for a student to circumvent a technological protection measure to include a map in a multimedia school report." The crucial difference between this legal regime and the one that censored The Nation's article on Ford is that whereas The Nation got to litigate the question of its fair use rights all the way up to the Supreme Court, speakers deemed to be infringers by media corporations may find their copies and quotations instantaneously erased from afar, and have to take up the burden of litigation themselves.

It is not surprising that the Congressional battle over the DMCA pitted profit-oriented corporations against speech-oriented educational, scholarly, library, and consumer non-profits. The anti-DMCA Digital Future Coalition included in its membership the American Library Association, the Medical Library Association, The National Education Association, and The National Writers Union. On the other hand, the membership of the pro-DMCA Creative Incentive Coalition included the Association of American Publishers, the Microsoft Corporation, the Motion Picture Association of America, the Newspaper Association of America, the Recording Industry Association of America, the Software Publishers Association, Time Warner Inc., and Viacom Inc. The latter group, obviously, exercised more pressure on Congress, and their view carried the day.

This twin strategy to privatize the Internet by assigning the right to speak indecently to those big enough to afford expensive access-control systems, and by granting large media corporations the right and the ability to restrict many of the "fair use" rights the public has hitherto enjoyed, must be resisted by free speech advocates of every stripe. Similarly, we must challenge the accounts of "author's rights" and "economic incentives" used by the rapidly diminishing cabal of media corporations to censor alternative voices like The Nation and the small Internet speaker.

The response of Congress is apparently that our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," as the Supreme Court put it in the Pentagon Papers case, is trumped by the pressing need to "protect" kids from I Know Why the Caged Bird Sings, and to ensure near-complete control to people like President Ford (and his publishers) over profoundly public statements. It seems "the most participatory form of mass speech yet developed" turned out to be a little too cheap, a little too decentralized, a little too free. Perhaps no more, because from now on the supreme law of the Internet may be: censor first, ask questions later.

Hannibal Travis is a third year student at Harvard Law School, spending a year at the Boalt Hall School of Law in Berkeley. He is Associate Articles Editor, Berkeley Journal of Law and Technology.