Among the more obvious benefits the Internet provides
it enables people to come up with all sorts of wonderful analogies to
describe what the Internet is. The more popular image of the Net being
likened to a web is mostly accurate but suggests that a giant spider is
waiting in the shadows to swallow up whoever travels along its silky threads.
There is and can never be a single body that will completely control the
Internet like a menacing spider. Government insistence to regulate content on
the Internet may seem menacing but will never be entirely effective. But as
Lessig points out, "A regulation need not be absolutely effective to be
sufficiently effective." [1]
I wish to add my own analogy to Cyberspace that hopefully helps to explain
the issue of controlling the Internet. It goes something like this: Imagine
a room full of people with a corresponding number of lights on the ceiling
and each person with their own switch to these lights. People have
different shades or frequencies of light to serve their own purpose. What
government regulation wishes to do is tell people what shade of light they
must or must not use. How the various governments achieve this is only one
of the problems with this approach to Internet content. The governments
could interrupt all of the electrons passing through into the room, in turn
the electrons would need to be converted to readable form, then if the
frequencies or shade of light would contravene the legislated law, the
government would have to decide who has broken the law. Could it be the
originator of the electronic signal, the recipient or end user; maybe it is
the owner of the room who is ultimately responsible. If it were so simple
that everybody could agree to what is offensive and the argument for the
greater good outweighed individual choice, then the room of lights could be
controlled. All that would be needed would be to go around the room and
remove the offending light bulbs and prosecute whoever is deemed prosecutable.
Imagine now that there are 40 million such rooms worldwide and that each
room had its own culturally specific laws, some established, some in flux.
This analogy hopefully is becoming clearer. Various governments are trying
as hard as they can to introduce laws that will seek to regulate and hence
control the Internet in their own "rooms." Furthermore some governments are
trying to manipulate the content in "rooms" across the globe.
[2]This is
physically and morally not possible or allowable argue Johnson and Prost.
Governments cannot stop electronic communications from coming across their
borders, even if they want to do so. Nor can they credibly claim a right to
regulate the Net based on supposed local harms caused by activities that
originate outside their borders and that travel electronically to many
different nations.[3]
Who controls the Internet?
I think this question ties in with who would want to control the Internet.
- Users
Of course! The users of this new medium of communication control what
material is added. Just like the room analogy, everybody has unique needs
and preferences that they bring to the Net. But users have more control of
what material they add than what material they wish to remove.
- Communications companies
Probably the most pragmatic inclusion to this small list is that the
telephone companies who own the infrastructure of electronic communication
can have some immediate control of the Internet. However, this starts to
raise issues of responsibility and liability should laws be accepted
regarding Internet content, although this would be like prosecuting the
freight company for carrying goods it had no knowledge it was carrying. The
volume of material moved around daily over the communications lines would
also make this option futile.
- Service Providers
If the telecommunications companies could be seen as the transporter company,
then the Internet Service Providers (such as Prodigy, On Australia,
CompuServe) could be seen as the companies that pack the information ready
for travel, a potential port for content control. Service providers have
some albeit limited ability to control the content on their systems. The US
courts found that Prodigy was responsible for the content on their systems.
It was said that by monitoring, editing and censoring transmissions, Prodigy
exercised control over the Internet.
[4]
Against the real or potential ability to control system content the balance
must be met to address public interest/right to privacy. In the case where
the German government persuaded CompuServe to remove access to certain
newsgroups, CompuServe's existing members in the US started to leave the
service. Furthermore thousands more flooded the ISP with questions about
whether their private emails were being read.
[5]
- Governments
Obviously governments wish to lay their hands on on-line content because it
may contravene local established law. But the reaction by industry, the
courts and Internet users tell us that this approach is far from acceptable
primarily because of the threat to privacy and unique nature of Cyberspace
plus the associated practical problems such as sheer size and international
nature. This has not stopped or will likely stop various governments from
pushing legislation on the Internet and electronic communication in general.
The ranging severity of proposed legislative intervention and prosecution
vary from State to State in Australia and indeed globally which is not
surprising. In Australia there is various legislation being shoe-horned to
fit the Internet, such as the
Telecommunications (Interception Act) 1979 or
laws are being created specifically to target the Net which fly in the face
of Commonwealth attempts to target the Internet specifically such as the
Western Australian Censorship Act 1996.
The US government originally passed the
Communications Decency Act 1996
whilst saying the justification was to protect the innocents.
"I want to make the information superhighway safe to travel for
children and families."[6]
said Senator Exon, on introducing the CDA bill. The reaction to the CDA was
swift and damning. Upholding a successful action by a number of civil
libertarian and Internet industry groups, the courts said much about the
role of government intervention:
...the Internet may fairly be regarded as a never-ending worldwide
conversation. The Government may not, through the CDA, interrupt that
conversation. As the most participatory form of mass speech yet developed,
the Internet deserves the highest protection from governmental
intrusion...Just as the strength of the Internet is chaos, so the strength
of our liberty depends upon the chaos and cacophony of the unfettered speech
the First Amendment protects.[7]
In February 1996, in an attempt to control the Internet, the Chinese
Government introduced a set of regulations aimed at deterring people from
engaging in subversive activities online.
To ensure complete control, the government said all Internet links would run
through its own computers and is also planning to extend the law to its
territories, including Hong Kong.
[8]
The regulations forbid the use of networks
"for activities that will harm the state or its security and for
producing, retrieving, duplicating and spreading information that may hinder public
order, and obscene and pornographic materials."
[9]
Likewise, the Singaporean Government wishes to simply censor all material
that enters and leaves the country. Announcing the new regulations,
information Minister George Yeo said:
We refuse to accept that the free flow of information means
allowing an environment for crime and sleaze to flourish. We continue to
censor our films, books, magazines, and television programs, not because
censorship can ever be one hundred percent effective, but because the act of
censorship is itself symbolic and an affirmation to young and old of the
values we hold as a community.[10]
However questionable, problematic or draconian the various state and federal
legislations are in Australia and internationally, they do constitute a form
of controlling the Internet. Widely criticized and opposed as such legislative
approaches are, it is unlikely that they will ever be wholly enforceable or
successful.
Conclusion
Nobody can or should control the Internet independently. Various industry
groups, service providers, governments, voluntary organisations and users
should all have a part to play in determining the content on the Internet.
I suggest that in the special case of child pornography the various governments
have a justifiable reason to pursue perpetrators and eradicate this type of
behaviour. This does not mean that they can or should be allowed to dictate to
the rest of the world what content we should put up on the Net, nor do I have
or could possibly have an answer that would please everybody.
Presently, the consensus amongst most commentators is that of multi layered
approaches to control such as I am suggesting here. Professor Walker states
that:
In the current stage of modern, or post-modern society, one can
expect a trend towards 'governance' rather than the 'government', in which
the role of the nation state is not exclusive but may need further
sustenance by the activation of more varied levels of power at second hand.
[11]
A multi-layered approach could consist of a mixture of government and self
imposed regulation by users such as the 'switch the light off method' or the
use of filter software and such, plus the combined effort of service
providers perhaps by a means of industry code such as proposed by the
Committee of Australian
University Directors of Information Technology (CAUDIT) in January 1997.
It is certainly a challenge for all concerned to come up with
a workable solution before access to the Internet is as commonplace as
television sets and video entertainment.
Recently, a
European Commission Communication Paper suggested that:
The answer to the challenge will be a combination of self-control of the
service providers, new technical solutions such as rating systems and
filtering software, awareness actions for parents and teachers, information
on risks and possibilities to limit these risks and of international
co-operation. [12]
Self-regulation at the user end is the most acceptable and encouraged means
of controlling the Internet although it should be encouraged that government
regulation must intervene in the case of child pornography at least. Self
and Industry regulation should balance the public interest/ private rights
issue more agreeably than full-scale government intervention.
Legislation is too big a hammer for this particular nut: it would destroy
more than it would protect. [13]
Footnotes
[1] Lessig, Lawrence, The Zones of Cyberspace, Stanford
Law Review, May 1996 vol. 48 No.5, p1405.
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[2] For a recent example, the German government seeking to
enforce its laws against the distribution of pornographic material
ordered CompuServe to disable access by German citizens to offending
news groups.
See
Lucyga, Dierk Mar 13 1996
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[3] Johnson, David R, and Prost, David, Law and Borders -
The Rise of Law in Cyberspace, Stanford Law Review, May 1996 vol.
48 No.5, p1390.
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[4] Butler, Annabel, Regulation of content of on-line
information services - can technology itself solve the problem it
has created? The University of New South Wales Law Journal, vol. 19
No2 1996.
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[5] Lucyga, Dierk Mar 13 1996
http://www.uni-konstanz.de/%7Edierk/censorship/compuserve/chronik.html
Subsequently, CompuServe reposted the newsgroups and issued filter software
to its customers.
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[6] Senator Exon, NY Times, Letter to the Editor, 31 March
1995, In
L. Allison and R. Baxter, Protecting our Innocents
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[7] Communications Decency Act, 1996 (USA)
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[8] Newsbytes Pacifica Homepage 1996
http://www.nb-pacifica.com/reg/singaporetoregulateus_523.shtml
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[9] Ibid
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[10] Ibid
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[11]
Akedniz Yaman, Feb 1997,
The Regulation of Pornography and Child Pornography on the Internet
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[12]
European Commission (Green Paper) (1996) Green Paper on The
Protection of Minors and Human Dignity in Audiovisual and Information
Services, Brussels, 16 October 1996.
http://europa.eu.int/en/record/green/gp9610/protec.htm
Or
http://www2.echo.lu/legal/en/internet/content/content.htm
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[13]
Paul F. Burton, Content on the Internet: Free or Fettered? Feb 1996
http://www.dis.strath.ac.uk/people/paul/CIL96.html
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