||The Privatization of Censorship
According to a still widely held conviction, the global data networks constitute the long desired arena for uncensorable expression. This much is true: Because of the Net it has become increasingly difficult to sustain cultural and legal standards. Geographical proximity and territorial boundaries prove to be less relevant, when it does not affect a document's availability if it is stored on your desktop or on a host some thousand kilometers away. There is no international agreement on non-prohibited contents, so human rights organizations and nazi groups alike can bypass restrictions. No single authority or organization can impose its rules and standards on all others. This is why the Net is public space, a political arena where free expression is possible.
This freedom is conditioned by the design of the Net. But the Net's design is not a given, as Lawrence Lessig reminds us. Originally the design of the Net allowed a relatively high degree of privacy and communication was not controlled directly. But now this design is changing and this invisible agora in electronic space is endangered. Governments - even elected ones - and corporations introduce new technologies that allow us to be identified, monitored and tracked, that identify and block content, and that can allow our behaviour to be efficiently controlled.
When the World Wide Web was introduced, soon small independent media and human rights organizations began to use this platform for drawing worldwide attention to their publications and causes. It seemed to be the dawning of a new era with authoritarian regimes and multinational media corporations on the looser side. But now the Net's design is changing according to their needs.
"In every context that it can, the entertaining industry is trying to force the Internet into its own business model: the perfect control of content. From music (fighting MP3) and film (fighting the portability of DVD) to television, the industry is resisting the Net's original design. It was about the free flow of content; Hollywood wants perfect control instead" (Lawrence Lessig, Cyberspace Prosecutor, in: The Industry Standard, February 2000).
In the United States, Hollywood and AT&T, after its merger with MediaOne becoming the biggest US cable service provider, return to their prior positions in the Seventies: the control of content and infrastructure. If most people will access the Net via set up boxes connected to a TV set, it will become a kind of television, at least in the USA.
For small independent media it will become very hard to be heard, especially for those offering streaming video and music. Increasingly faster data transmissions just apply to download capacities; upload capacities are much - on the average about eight times - lower than download capacities. As an AT&T executive said in response to criticism: "We haven't built a 56 billion dollar cable network to have the blood sucked from our veins" (Lawrence Lessig, The Law in the Code: How the Net is Regulated, Lecture at the Institute for Human Sciences, Vienna, May 29th, 2000).
Consumers, not producers are preferred.
For corporations what remains to be done to control the Net is mainly to cope with the fact that because of the Net it has become increasingly difficult to sustain cultural and legal standards. On Nov 11, 1995 the German prosecuting attorney's office searched Compuserve Germany, the branch of an international Internet service provider, because the company was suspected of having offered access to child pornography. Consequently Compuserve blocked access to more than 200 newsgroups, all containing "sex" or "gay" in their names, for all its customers. But a few days later, an instruction for access to these blocked newsgroups via Compuserve came into circulation. On February 26, 1997, Felix Somm, the Chief Executive Officer of Compuserve Germany, was accused of complicity with the distribution of child and animal pornography in newsgroups. In May 1998 he received a prison sentence for two years. This sentence was suspended against a bail of about 51.000 Euro. The sentence was justified by pointing to the fact that Compuserve Germany offered access to its US parent company's servers hosting child pornography. Felix Somm was held responsible for access to forbidden content he could not know of. (For further information (in German) click here.)
Also in 1995, as an attack on US Vice-President Al Gore's intention to supply all public schools with Internet access, Republican Senator Charles Grassley warned of the lurking dangers for children on the Net. By referring to a Time magazine cover story by Philip Elmer-Dewitt from July 3 on pornography on the Net, he pointed out that 83,5% of all images online are pornographic. But Elmer-Dewitt was wrong. Obviously unaware of the difference between Bulletin Board Systems and the Net, he referred misleadingly to Marty Rimm's article Marketing Pornography on the Information Superhighway, published in the prestigious Georgetown Law Journal (vol. 83, June 1995, pp. 1849-1935). Rimm knew of this difference, of course, and stated it clearly. (For further information see Hoffman & Novak, The Cyberporn debate, http://ecommerce.vanderbilt.edu/cyberporn.debate.html and Franz Wegener, Cyberpornographie: Chronologie einer Hexenjagd; http://www.intro-online.de/c6.html)
Almost inevitably anxieties accompany the introduction of new technologies. In the 19th century it was said that traveling by train is bad for health. The debate produced by Time magazine's cover story and Senator Grassley's attack caused the impression that the Net has multiplied possible dangers for children. The global communication networks seem to be a inexhaustible source of mushrooming child pornography. Later would-be bomb recipes found on the Net added to already prevailing anxieties. As even in industrialized countries most people still have little or no first-hand experience with the Net, anxieties about child pornography or terrorist attacks can be stirred up and employed easily.
A similar and related debate is going on about the glorification of violence and erotic depictions in media. Pointing to a "toxic popular culture" shaped by media that "distort children's view of reality and even undermine their character growth", US right-wing social welfare organizations and think tanks call for strong media censorship. (See An Appeal to Hollywood, http://www.media-appeal.org/appeal.htm) Media, especially films and videos, are already censored and rated, so it is more censorship that is wanted.
The intentions for stimulating a debate on child pornography on the Net were manifold: Inter alia, it served the Republican Party to attack Democrat Al Gore's initiative to supply all public schools with Internet access; additionally, the big media corporations realized that because of the Net they might have to face new competitors and rushed to press for content regulation. Taking all these intentions together, we can say that this still ongoing debate constitutes the first and most well known attempt to impose content regulation on the Net. Consequently, at least in Western countries, governments and media corporations refer to child pornography for justifying legal requirement and the implementation of technologies for the surveillance and monitoring of individuals, the filtering, rating and blocking of content, and the prohibition of anonymous publishing on the Net.
In the name of "cleaning" the Net of child pornography, our basic rights are restricted. It is the insistence on unrestricted basic rights that needs to be justified, as it may seem.
Underlying the campaign to control the Net are several assumptions. Inter alia: The Net lacks control and needs to be made safe and secure; we may be exposed inadvertently to pornographic content; this content is harmful to children. Remarkably, racism seems to be not an issue.
The Net, especially the World Wide Web, is not like television (although it is to be feared this is what it might become like within the next years). Say, little Mary types "Barbie" in a search engine. Click here to see what happens. It is true, sometimes you might have the opportunity to see that pornography is just a few mouse clicks away, but it is not likely that you might be exposed to pornographic content unless you make deliberate mouse clicks.
In reaction to these anxieties, but in absence of data how children use the Internet, the US government released the Communications Decency Act (CDA) in 1996. In consequence the Electronic Frontier Foundation (EFF) launched the famous Blue Ribbon Campaign and, among others, America Online and Microsoft Corporation supported a lawsuit of the American Civil Liberties Union (ACLU) against this Act. On June 26, 1997, the US Supreme Court ruled the CDA as unconstitutional under the provisions of the First Amendment to the Constitution: The Communications Decency Act violated the basic right to free expression. After a summit with the US government industry leaders announced the using of existing rating and blocking systems and the development of new ones for "inappropriate" online resources.
So, after the failing of the CDA the US government has shifted its responsibility to the industry by inviting corporations to taking on governmental tasks. Bearing in the mind the CompuServe case and its possible consequences, the industry welcomed this decision and was quick to call this newly assumed responsibility "self-regulation". Strictly speaking, "self-regulation" as meant by the industry does not amount to the regulation of the behaviour of corporations by themselves. On the opposite, "self-regulation" is to be understood as the regulation of users' behaviour by the rating, filtering and blocking of Internet content considered being inappropriate. The Internet industry tries to show that technical solutions are more favourable than legislation und wants to be sure, not being held responsible and liable for illegal, offensive or harmful content. A new CompuServe case and a new Communications Decency Act shall be averted.
In the Memorandum Self-regulation of Internet Content released in late 1999 by the Bertelsmann Foundation it is recommended that the Internet industry joins forces with governmental institutions for enforcing codes of conduct and encouraging the implementation of filters and ratings systems. For further details on the Memorandum see the study by the Center for Democracy and Technology, An Analysis of the Bertelsmann Foundation Memorandum on Self-Regulation of Internet Content: Concerns from a User Empowerment Perspective.
In fact, the "self-regulation" of the Internet industry is privatized censorship performed by corporations and right-wing NGOs. Censorship has become a business. "Crucially, the lifting of restrictions on market competition hasn't advanced the cause of freedom of expression at all. On the contrary, the privatisation of cyberspace seems to be taking place alongside the introduction of heavy censorship." (Richard Barbrook and Andy Cameron, The Californian Ideology)
While trying to convince us that its technical solutions are appropriate alternatives to government regulation, the Internet industry cannot dispense of governmental backing to enforce the proposed measures. This adds to and enforces the censorship measures already undertaken by governments. We are encouraged to use today's information and communication technologies, while the flow of information is restricted.
According to a report by Reporters Sans Frontières, quoted by Leonard R. Sussman in his essay Censor Dot Gov. The Internet and Press Freedom 2000, the following countries totally or largely control Internet access: Azerbaijan, Belarus, Burma, China, Cuba, Iran, Iraq, Kazakhstan, Kirghizstan, Libya, North Korea, Saudi Arabia, Sierra Leone, Sudan, Syria, Tajikistan, Tunisia, Turkmenistan, Uzbekistan, and Vietnam.
Center for Democracy and Technology
The Center for Democracy and Technology works to promote democratic values and constitutional liberties in the digital age. With expertise in law, technology, and policy, the Center seeks practical solutions to enhance free expression and privacy in global communications technologies. The Center is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.