Bad for the Internet, Bad for the Constitution

How we got a “Communications

Decency Act” and how we

can prevent similar missteps.

By Chris Leedy and Richard Wieland

nce upon a time, advocates of the Communications Decency Act (“CDA”) described it as an effort to protect young Americans from smut transmitted by the Internet and other electronic media.

     Today, few see it as a rational means to that end. On June 12, 1996, a specially appointed federal judicial panel barred the U.S. government from enforcing the CDA, ruling it unconstitutional; and on June 26, 1997, the Supreme Court agreed, finding that the First Amendment applies to the Internet and ruling the CDA, despite its laudable objectives, was too vague and too broad. “Governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it,” wrote Justice Paul Stevens. “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

      Well in advance of that ruling, the governmental tide had turned decidedly against the act. In January 1997, Congressional Internet Caucus co-founder Sen. Patrick Leahy (D-Vt.) introduced legislation to revoke it. Even the Clinton Administration, which had championed the CDA before the High Court, has at least tacitly retreated from its position by announcing a “hands-off” policy on the Internet, particularly as regards cyberspace commerce, in May 1997.

      So, in simple terms, the CDA was the wrong solution — bad for the Internet, bad for the First Amendment of the Constitution, bad for business.

      But in that simple analysis something important is lost: How the CDA came to exist in the first place. Examining that issue is instructive for understanding both how a laudable idea could turn into such a legislative albatross and how the problems of applying “real” law to “virtual reality” might be more rationally resolved.

A Bogus Report

      Oddly enough, the CDA had its genesis in a July 1995 cover story by Time magazine on pornography on the Internet.

      The issue of obscenity on the Internet, as it is in any conventional medium, is a touchy one. Few want to see a society awash in smut, but laws defining what is and is not obscene do not lend themselves to objectivity — or, to paraphrase a judicial comment regarding indecency, few can describe it, but many claim to know it when they see it. Other forms of expression, such as political dissent, can be labeled “obscene” and thus abridged.

      Time exacerbated the matter by claiming that the vast majority of images posted on the Usenet portion of the Internet — a substantial part of the Net — were pornographic. With millions of computer-literate children and more joining their ranks daily, parents were mortified.

      The story was based solely upon “Marketing Pornography on the Information Superhighway,” a then-unpublished study from Carnegie-Mellon University characterized as the work of a “prestigious team of university researchers.” Time crowed that it had gained “exclusive rights” to the study’s publication.

      The study was authored by Martin Rimm, who claimed that 83 percent of all images posted to the Usenet were pornographic. The impression Time intended to leave was clear: the Internet was rife with virtual indecency of the lowest order.

      Yet the truth was radically different — in almost every respect.

      “Prestigious university researcher” Rimm was actually a CMU undergraduate, his study reprinted without critical examination.

False information and a lack of truthful information can open doors to intrusive regulation and legislation.

      The figures given were found to be inflated beyond recognition. Pornographic image files were found on only three percent of newsgroups on Usenet — which is but one part of the Internet and represents approximately 11.5 percent of cyberspace. In short, an estimated .345 percent of the Internet was found to contain pornography, probably a smaller percentage of cyberspace than the quantity of real estate devoted to “adult entertainment” in Manhattan. And the majority of that portion of the Usenet was found on adult bulletin boards which charge fees, generally requiring proof of age before anything could be viewed. “If anything, pornography on the Web may be harder for minors to reach than the same material would be in a store,” says columnist Chris Cyr. “With all of the tools available for parents to keep objectionable material away from their children, it is hardly necessary for government intervention.”

      The study — and Time’s story with it — promptly came under scrutiny from respected academics and Internet users. Donna Hoffman and Thomas P. Novak, associate professors at Vanderbilt University’s Owen Graduate School of Management, investigated and concluded that “Given the vast array of ... flaws in this study ... Time magazine behaved irresponsibly in accepting the statements made by Rimm in his manuscript at face value.”

      But it wasn’t simply an uninformed accident. “Time reporters were made aware that the study appeared to have serious conceptual, logical, and methodological flaws that Time needed to investigate prior to reporting its story,” said Novak and Hoffman.

      “Time presented, around lurid and sensationalistic art, an uncritical and unquestioning report on ‘cyberporn’ based on Rimm’s flawed study,” said Hoffman and Novak. “This has had the extremely unfortunate effect of giving the study an instant credibility that is not warranted nor deserved and fueling the growing movement toward First Amendment restrictions and censorship.”

Train kept rolling...

      The article ran as the 1995 Senate telecommunications bill, S. 652, was moving through Congress — a bill which contained the Communications Decency Act, then known as the “Exon bill,” named after co-author Senator James Exon (D-Neb.). Aimed at clamping down on pornography on the Net, its opponents considered the bill overly broad and a threat to free speech.

      The “Cyberporn” article created new concern over the allegedly widespread problem and was employed by Exon bill advocates to generate congressional support. Language from the article was even added in the legislation.

      Within a few months, the holes in the Carnegie-Mellon study were exposed. The furor over the faulty study and Time’s article should have signaled the bill’s death knell, at least as to its core substance. But it didn’t. On February 1, 1996, Congress approved a modified version of the CDA as part of a telecommunications reform bill. With it came stiff penalties for distribution of obscene materials to minors on the Internet, tracking with those proposed by Exon and others. On February 8, the bill was signed into law.

      The Electronic Privacy Information Center, in conjunction with 19 other organizations, immediately initiated a constitutional challenge to the Communications Decency Act by filing a lawsuit in federal court in Philadelphia on February 8, calling for a temporary restraining order.

      They eventually won the relief they sought and a ruling that the CDA was unconstitutional.

Keeping cyberspace free

      A lesson from this example is that false information and a lack of truthful information can open doors to intrusive regulation and legislation. The CDA was born of worthy intentions, but was sorely flawed in execution. Solving problems of speech should not — indeed, must not — involve abridging freedom of speech.

      Other, similar examples exist, from attempts to control or limit encryption (the misguided “clipper chip” initiative) to efforts to impose taxes on commercial dealings through the Internet. Yet there is also a groundswell of support for the view that now is not the time to place burdensome restrictions on the Internet nor on any form of communication (e.g., the White House’s “hands-off” position regarding Internet commerce). And, on the positive side of Net-related legislation, a bill is pending which would enhance privacy by requiring web sites which “gather” information from its visitors to give notice to users and obtain their consent before then doing so. Ways of extending extant copyright law to deal with the advent and growth of the Internet are also being considered.

      The common thread is that technology generally possesses — or can create — the solutions to the problems which the Net faces. In the case of the CDA, the same result — protecting children from smut — was achieved through developing and distributing “blocking” software, now widely available from major internet service providers and elsewhere. And while government intervention is not the answer, it can also be seen that tolerance of irresponsible or illegal conduct within the Internet community can create a climate where such an option seems reasonable. “The anarchy that exists on the Net in the long run will not be beneficial to most people using the Net,” says Dan Duncan, vice president for government affairs for the Information Industry Association. In this regard, most agree that peer pressure from those who live and work in Cyberspace is the answer.

      The CDA began as an idea to protect America’s children and resulted in an affront to the Constitution. The best protection against such mistakes in the future is to get the facts – and then find solutions in technology. This approach gains popularity every time it works. It is up to all in the Internet community to see that it continues to do so.