A random foray into Internet surfing one day led me to the University of Nottingham's School of Education. It's http://acorn.educ.nottingham.ac.uk/SchEd/begin.html. The school has set up for its students a beginner's guide to the World Wide Web, with sites of interest categorized by geographic area. For example, there is one area for China, one area for Great Britain, and another for the United States.
One of the fascinating aspects of the World Wide Web is that by ignoring the limitations of physical distances, it allows Internet users to encounter perspectives on themselves from people who live far away. In this case, this is what the University of Nottingham had to say about the United States:
"Most of WWW comes from the US. The US Government has a very open policy on information and encourages electronic communication."
Is this statement really true? The School validates its claim by linking its page to the WWW site of the White House [http://www.whitehouse.gov/], but does the mere fact that the Executive Branch of the US Government has acknowledged the existence of the Internet and made some information available on it render the Government worthy of such glowing praise? It would take further analysis to discover whether the praise is warranted.
The quote was, "The US Government has a very open policy on information and encourages electronic communication." If this were true, what could we expect to find evidence of? Would we expect a hands-off approach to the emerging technology? Or would we see a prescribed pattern of development set forth by the government to nurture the emerging technology into a complete infrastructure? First we must decide whether these debates focus solely on government intervention on the development of technology or instead on the regulation of content. For the sake of this paper, the issues can be centered on government intervention with respects to content.
There have always been debates on the extent to which the government should control communication. In the United States, the First Amendment has not been an absolute guarantee that anyone can disseminate whatever information the individual chooses. The Government has, at various given times, decided it could see good reason to curtail certain types of information. Arguments over whether this type of censorship is justified have perpetuated throughout American history.
However, there is a fundamental difference between the traditional debates on regulating media and the debate on whether or not the government should regulate content of electronic information. With respect to traditional debates, according to Ithiel de Sola Pool, communication and corresponding regulation falls into three "domains": print, common carriage, and broadcasting.
Print media is the most immune from regulation as it is the simplest to protect with the First Amendment. "In the domain of print and other means of communication that existed in the formative days of the nation, such as pulpits, periodicals, and other public meetings, the First Amendment truly governs. In well over a hundred cases dealing with publishing, canvassing, public speeches, and associations, the Supreme Court has applied the First Amendment to the media that existed in the eighteenth century," Pool wrote. In other words, since the First Amendment reads "Congress shall make no law.... abridging the freedom of speech or of the press," there is no place for the government to justify regulation by the nature of the medium. Congress cannot abridge the freedom of the "printing press," and thus any arguments for censorship in this domain must be based on grounds independent of the nature of the communications medium.
The second domain Pool lists are the domain of common carriers. "In the domain of common carriers, which include the telephone, the telegraph, the postal system.... a different set of policies has been applied, designed above all to ensure universal service and fair access of the public to the facilities of the carrier." The intentions of such regulation are probably noble in their support of pluralism. If, as Ralph Nader says, "communication is the currency of democracy," how could a democracy exist if only certain individuals had access to communication? Again, the importance here is that the government justifies its presence as a regulatory agent in these types of communications systems by virtue of the characteristics of these media.
The third domain is broadcasting. The government justifies regulating broadcasting under the pretenses that since there is a finite amount of bandwidth, the government needs to allocate it in order to prevent chaos. Such was the reasoning behind the advent of the FCC and its predecessor in the late 1920s when radio broadcasting was inhibited by the plethora of unregulated, interfering signals. This idea was upheld in 1969 with the US Supreme Court decision of Red Lion Broadcasting v. FCC. In this case, Red Lion, a broadcasting licensee, was protesting an element of FCC regulation called the "fairness doctrine," which is itself a throwback to the ideals behind the regulation of Pool's second domain. In this case the Supreme Court upheld the intentions behind the fairness doctrine and reaffirmed the government's ability to allocate the broadcast spectrum since its scarcity as a resource meant it could not be unregulated as the traditional printing press is. Again we see how the nature of the medium sets forth the extent and nature of the regulation.
But with the Internet we see a very different creature than those before mentioned. Even if the government did choose to regulate, the technology itself might prevent it from doing so. To begin with, to be able to control information one needs to be able to wield a coercive power over the source of the information. To censor a newspaper is relatively simple because it is easy to find the publisher. The problem with the Internet is that there is no single, clear, direct source.
To understand what the Internet is, imagine this as a model: there is a town square, with all the townspeople assembled on the square. Each person knows certain information, and each person has certain curiosities. Accordingly, each person begins talking, providing their information for anyone who chooses to listen. If no one is listening, the information has no influence. If many people are curious, the person becomes a popular fixture on the square. To shift this model to the Internet, imagine every computer attached to the Internet as being a person on the square. It has information to disseminate, but the information doesn't travel on its own. It only is communicated if someone comes to hear it.
So what is the Internet? The most common misconception is that it is a physical thing. It is not, at least not as we usually consider a physical entity. The Internet is not a specific network. Its origins date back to government-sponsored networks like NSFNET, a network run by the National Science Foundation, but this national backbone is more and more circumvented by many other, various networks. Instead, the Internet is a rather gestalt institution, being greater than the sum of each of the computers connected to it and the common protocol they share to exchange information. This definition makes the Internet a little abstract and thus more difficult to regulate. Ultimately one of the Internet's most defining characteristics, that makes it unique from any other communications model, is that any computer, or node, on the Internet can be both a source and receiver of many different types of information. It is a vibrant, expanding organism impossible to constrain.
Similarly, imagine again the town square. The government could come along and throw all the people into jail to prevent them from possibly saying anything undesirable, but what kind of civil society imprisons all the people who empowered it? The government could perhaps tear up the townsquare, maybe turning it into a garbage dump, but there would be problems. First of all, this regulatory step would be a slap in the face to the people who had empowered the government. Secondly, destroying the forum for ideas does not destroy the ideas. Somehow those ideas will find a means of expression. Thirdly, how could a similar action be applied to the Internet? The Internet is not a physical place. On the other hand, it is not to say that the Internet uses no infrastructure. Parts of this infrastructure are publicly funded or subsidized. The government could remove this funding, but the Internet is no longer dependent on the government to pay for its existence. The NSF is actively seeking to shift control of the Internet to private sectors. So here is one fewer coercive tool the government could use. In addition, the Internet stretches beyond US borders, with computers around the world connected to it. At this point, how could the government destroy that much infrastructure without an act of war? Furthermore, remember about the Internet that what makes it distinctive is not that it exists as a physical network but that it is a common protocol, a universal language for computers. The physical network could be broken, but, since its physical infrastructure is the least defining characteristic of the Internet, and since it is the protocol and the users of the Internet that make it such a distinctive means of communication, another physical network could be instituted to replace the one that the government overran.
In theory, the government could try to regulate Internet access providers according to the philosophy of Pool's second domain, but again, there are enforceability problems. As with any other regulation the government might try to implement on the Internet, an additional logistics problem is that there is just too much information to monitor. Rumors have passed throughout the Internet that the CIA notes down the addresses of any user that logs into its Web page. The technology permits the CIA, or anyone else, to do so if they wish but there is nothing to gain in doing so. Information is just bits, many, many bits which are meaningless without an additional context. The advantage for those who would like to monitor Internet usage is that the bits tend to leave a trail. But why would anyone want trace all the bits without a good reason?
Imagine, for a moment, a good reason. Perhaps the government might like to monitor the communications of militia groups. The FBI could easily monitor their Internet activity. There could be taps all over the place. But there are a couple of issues to consider. Even when the government requests phone taps there is a certain procedure it must follow. It cannot arbitrarily request a tap without just cause. So arbitrarily monitoring Internet activity already has one "real life" model which prohibits it.
There is another argument against this type of government activity. What if the better analogy is not to compare the Internet with the telephone, an element of the second domain, but with the townsquare, or the pulpit, or the printing press? The relationship between the source of information and its audience is much more similar to the one-to-many communication of the latter examples than the one-to-one example of the telephone.
Given these models, should the government arbitrarily tap, there is an issue of prior restraint. In the past it has been determined that there is certain information which the First Amendment doesn't protect and is subject to other laws, such as libel. However, it has also been decided in cases such as Near v. Minnesota that the government cannot take any action against a publisher on the suspicion that the publisher MAY violate these laws. To do so would constitute prior restraint by administering punishment before the commission of the crime.
If it could, what might the government like to regulate? Pornography is an example high on the government's list as an "enemy to the people." To counter the proliferation of pornography, US Senator Exon has proposed what is known as the Communications Decency Act of 1995. This act takes an existing statute relating to the telephone, a second domain technology, from the early 20th Century and amends it to apply to all Information Technology. One of the presumptions of the law is that because pornography is so easily available on the Internet, naturally "everyone" must be dealing in it, with it coming straight into the homes with young children. This presumption is a fallacy. True, pornography is widely accessible to anyone who wants it on the Internet, including curious children. But one must seek it out. An Internet connection does not beam lewd pictures into the home of the unsuspecting American without their control. It is available to people who want to find it, and it is hidden amidst all the other millions of files accessible on the Internet for those who don't want it.
The universality of the Internet, the fact that it reaches an audience spread widely over geography, is also something to consider. For example, obscenity is generally judged based on community standards. But communities are local, and tastes among them can vary widely. There was a case where a man running a bulletin board server in the San Francisco Area, which is generally more permissive than many other communities in terms of what it deems obscene, was charged on obscenity statutes in Tennessee, a less permissive area, because his BBS was accessible in that area. What sort of hegemony is the government then protecting? It is not hegemony when attitudes are incompatible and cliquish. Tennessee's standards only represent its own hegemony, not a national one. How can the Federal Government decide which communities' attitudes are the most important?
Such action does not sit well for active users of the Internet. Hegemony comes from community, and the Internet is its own community. It may be a community that defies geographical boundaries, but it bears resemblance to many other "real" communities. There are social institutions and conventions that form, just as there are similar ones in real life. To prevent total chaos and wasting of resources, there is such a thing called "netiquette," which is a set of informal rules that people voluntarily follow. Netiquette includes such rules as not sending chain letters. These letters consume valuable bandwidth and time. If one transgresses with respect to these rules, they are subject to punitive consequences such as "flaming" or "spamming." These consequences occur if a person posts an unpopular opinion or commits some breach of netiquette. Such a breach might involve not reading a Frequently Asked Questions about a newsgroup before diving into the discussion and asking a question so basic that the usual participants are tired of it or is simply irrelevant and inappropriate for the group's topic. Lest there be the idea that to post an irrelevant message is not a critical issue, consider the fact that many Internet users pay for their access by the hour. To have to pay for information they are not interested in is expensive and irksome, to say the least. Also, consider how many people might be participating on newsgroups. Consider how much information is available on the Internet. The individual has not the time to forage through irrelevant postings. Netiquette demands that postings follow the topic of the newsgroup in light of the before mentioned problems.
And so people who post inappropriately are flamed. Flaming may involve anywhere from a polite email or posting requesting an activity be ceased or an opinion reconsidered, to harsh, insulting language against an individual and their ancestry. Spamming involves flooding an Internet account with unwanted email. Not only is this designed to get a specific message across, most likely it will cause their access provider to cancel their account and effectively get the offenders off the Internet.
Arguably, one could say that these reactions by the Internet community infringe on the individual free speech rights of others. At specific times, individually, this would be a correct analysis. But the occasions when the community feels it needs to enforce its rules tend to involve only situations with newsgroups when there are shared community resources. Furthermore, as a community, these consequences are quite sociologically sound.
In the origins of the Internet, there are many individuals in a "technological" State of Nature, as Locke described. But for all Internet users to use its resources at whim, there is little value to the Internet. Limited resources such as time, money, and bandwidth get wasted, and all information is so disorganized as to be virtually useless. So there is a common incentive to join together to form a civil society in order to improve the community, to bring order to the chaos. Has there been some cost to the individuals? Yes, a certain amount of personal freedom has to be sacrificed. One cannot post every thought that comes to one's head or mail any file they might happen to choose on a whim. But the gain far outweighs the cost, as now the users are part of a civil society, gaining protection from others who might otherwise have wasted their portion of shared resources.
"And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to everyone of that society to submit to the determination of the majority..." wrote Locke. There is virtually nothing different about the scenario Locke theorized and the reality of the development of the Internet as a community. Like a conventional, "real" society, there are laws (e.g. "netiquette") and consequences (e.g. "flaming"). "Citizens" are also free to leave the civil society, should they choose to cease to interact on-line or to violate the hegemonic structures of the society.
"In fact, life in cyberspace seems to be shaping up exactly like Thomas Jefferson would have wanted: founded on the primacy of individual liberty and a commitment to pluralism, diversity, and community," wrote Mitch Kapor. Even Jefferson knew of hazards of a free press, often complaining bitterly of the inaccuracies he saw being published. Still, he knew that only a truly free press could be a guard against tyranny, and instead he hoped that the individual would be able to discern which information was the most valid. The same would hold true on the Internet, where there is much information but not all of it credible.
c. 1995, 1999 Cathy Gellis
cathyg@csua.berkeley.edu
www.csua.berkeley.edu/~cathyg
Blog: www.cathygellis.com