7 Exporting the First Amendment

1 2 3 4 5 6 7

There is a place for censors and we only wish that we could tell you where it is.

-- Comedian Pat Paulsen, on the Smothers Brothers Comedy Hour, 19681 [1]

On June 26, 1997, the U.S. Supreme Court struck down, on constitutional grounds, specifically the First Amendment, the Communications Decency Act (CDA), passed on February 1, 1996, as a rider to the Telecommunications Bill and signed into law by President Clinton on February 8, 1996. The CDA would have criminalized the knowing transmission of indecent material to a minor. The notion that we might export American Puritanism is ironic, because in the early 1990s the great fear outside the United States was that the we would, via the Net, impose our tradition of freedom of speech on other countries who didn't want it. Even Britain, theoretically the closest to us, has an Official Secrets Act rather than a Freedom of Information Act, and observing the country that launched a thousand democracies up close makes you understand why the Founding Fathers wrote the Constitution and the Bill of Rights the way they did. Material banned in Britain in traditional media extends beyond the obscenity generally outlawed here; because of Britain's long fight against terrorism, bomb-making information is generally unwelcome (The Anarchist's Cookbook is banned in Britain), and its libel laws are much tougher than those in the United States.

Debates about censorship on the Net go a long way back, at least to the mid-1980s (the Pleistocene era, in Net terms) and the creation of the alt hierarchy. Besides Usenet, there are many other networks, often forgotten now that the focus is on the Internet, including Fidonet, a collection of an estimated 24,000 or more bulletin board systems (BBSs), which link to the Internet but also have their own newsgroups and email messaging systems, plus the entire collection of electronic mailing lists, some private, some public, and the many tens of thousands of public and private BBSs worldwide. It is presumably with this in mind that Burma has made it illegal to own a modem and China requires all Internet users to register with the police.

It would be a mistake to assume that the development of all these networks depended solely on the existence of a few specific people. Local hierarchies of newsgroups are built all the time, within organizations, by Internet service providers (ISPs) to serve their customers, and by people in specific regions, states, or countries to serve local interests. The owners of those newsgroups may decide whether or not to distribute them outside their organizations; other Usenet sites may decide whether or not to take them. The invention of Usenet, founded in 1979 as a grassroots answer to the Department of Defense-funded experimental network ARPAnet, is generally credited to three students, Steve Bellovin at the University of North Carolina, who wrote the first series of scripts, and Duke University students Steve Daniel and Tom Truscott, who rewrote and extended these in the computer programming language C. Because of its origins, Usenet does not require the Internet to propagate; it is based instead on a UNIX-based program called UUCP (for UNIX to UNIX Copy Program), and many sites still get their Usenet feeds by phoning other sites to exchange news. If Congress today passed a law banning ISPs from distributing Usenet, an underground network of private telephone exchange mechanisms would quickly develop alongside the many mechanisms that already exist for giving people without Usenet feeds access to newsgroups, such as public news servers that can be accessed by anyone with a newsreader (built into most Web browsers these days, and also readily available on the Net).

The situation has always been different on the commercial services. America Online (AOL) and CompuServe, for example, have built their systems by offering royalties based on traffic to those willing to run areas on those services and control what content is available and to whom. Exactly what areas get set up are business decisions that depend as much on the services' assessment of the proposed moderators as on the content itself. Even the WELL, with its much smaller membership, tightly controlled its conference list until early 1996, requiring would-be hosts (as WELL conference moderators are called) to prove there was sufficient interest before sanctioning the conference. Now, the WELL functions the way CIX always has: anyone may start a conference at any time and make it private or public. People seem unnerved by the notion that private areas may exist over


Copyright © 1997-99 NYU Press. All rights reserved.
Reproduction in whole or in part in any form or medium without written permission of New York University Press is prohibited.

Be sure to visit the NYU Press Bookstore

[Design by NiceMedia]