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Should The Internet Be Policed?

Few observers could have predicted the fuss that the Internet began to generate in political and legal circles in the mid-1990s. After all, the global computer network linking 160 countries was hyped relentlessly in the media in the early 1990s. It spawned a multimillion-dollar industry in Internet services and a publishing empire devoted to the online experience—not to mention Hollywood movies, newspaper columns, and new jargon. But the honeymoon did not last. Like other communications media before it, the Internet provoked controversy about what was actually sent across it. Federal and state lawmakers proposed crackdowns on its content. Prosecutors took aim at its users. Civil liberties groups fought back. As the various factions engaged in a tug-of war over the future of this sprawling medium, the debate became a question of freedom or control: should the Internet be left alone as a marketplace of ideas, or should it be regulated, policed, and ultimately "cleaned up"? Although this question became heated during the early- to mid-1990s, it has remained a debated issue into the early 2000s.

More than three decades after DEFENSE DEPARTMENT contractors put it up, the network remains free from official control. This system has no central governing authority for a very good reason: the general public was never intended to use it. Its designers in the late 1960s were scientists. Several years later, academics and students around the world got access to it. In the 1990s, millions of people in U.S. businesses and homes signed on. Before the public signed on its predecessors had long since developed a kind of Internet culture—essentially, a freewheeling, anything-goes setting. The opening of the Internet to everyone from citizens to corporations necessarily ruptured this formerly closed society, and conflicts appeared.

Speech rights quickly became a hot topic of debate. The Internet is a communications medium, and people have raised objections to speech online just as they have to speech in the real world. The Internet allows for a variety of media—text, pictures, movies, and sound—and PORNOGRAPHY is abundantly accessible online in all these forms. It is commonly "posted" as coded information to a part of the Internet called Usenet, a public issues forum that is used primarily for discussions. With over 10,000 topic areas, called news groups, Usenet literally caters to the world's panoply of interests and tastes. Certain news groups are devoted entirely to pornography. As the speed of the Internet increased dramatically with the development of broadband access in the late 1990s and early 2000s, not only has more of this type of information become more available, but also users have been able to access this information in greater quantity.

Several signs in 1994 predicted a legal crackdown on the Internet. Early on, U.S. attorney general JANET RENO said criminal investigators were exploring the originators of online CHILD PORNOGRAPHY. In July 1994, federal prosecutors won an OBSCENITY conviction in Tennessee against the operators of a computer bulletin board system (BBS) called the Amateur Action BBS, a private porn subscription service. Quickly becoming a cause célèbre in the online world, the case raised the question of how far off a general Internet crackdown could be.

In December 1994, a college student's fiction raised a furor. Jake Baker, a sophomore in linguistics at the University of Michigan, published a story about sexual torture in the alt.sex.stories news group on Usenet. Its lurid detail was not unique in the news group, but something else was: Baker used the name of a female classmate for one of his fictional victims. Once the name was recognized, campus critics of pornography lashed out at Baker.

Baker's case demonstrated how seriously objections to Internet material would be taken. In January 1995, the University of Michigan opened an investigation, and soon, FEDERAL BUREAU OF INVESTIGATION agents began reviewing Baker's E-MAIL. Baker insisted he meant no harm, suggesting that he wanted to be a creative writer. He even submitted to a psychological profile, which determined that he posed no danger to the student named in his story or to anyone else. But on February 9, 1995, federal authorities arrested him. He was charged with five counts of using inter-state communications to make threats to injure—and kidnap—another person. Lacking any specific target for Baker's alleged threats, yet armed with allegedly incriminating e-mail, prosecutors charged that he was dangerous to other university students. The AMERICAN CIVIL LIBERTIES UNION (ACLU) came to his aid, arguing in an amicus brief that the accusations were baseless and moreover violated Baker's FIRST AMENDMENT rights. A U.S. district court judge threw out the case.

The U.S. Senate had its own ideas about online speech. In February 1995, Senator J. James Exon (D-NE) introduced the Communications Decency Act (S. 314, 104th Cong., 1st Sess. [1995]). Targeting "obscene, lewd, lascivious, filthy, or indecent" electronic communications, the bill called for two-year prison sentences and fines of up to $100,000 for anyone who makes such material available to anyone under the age of 18. In its original form, the bill would have established broad criminal liability: users, online services, and the hundreds of small businesses providing Internet accounts would all be required to keep their messages, stories, postings, and e-mail decent. After vigorous protest from access providers, the bill was watered down to protect them: they would not be held liable unless they knowingly provided indecent material.

Several groups lined up to stop the Decency Act. Opposition came from civil liberties groups including the ACLU, the ELECTRONIC FRONTIER FOUNDATION (EFF), and Computer Professionals for Social Responsibility, as well as from online services and Internet access providers. They argued that the bill sought to criminalize speech that is constitutionally protected under the First Amendment.

Although Congress eventually outlawed obscene and other forms of indecent sexual material on the Internet in the Communications Decency Act of 1996, 47 U.S.C.A. § 223, the statute was challenged immediately. In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court found that most of the statute's provisions violated the First Amendment. Congress subsequently sought to focus its attention on legislation that proscribes the transmission of child pornography, though the Supreme Court in a series of cases found that these statutes were likewise unconstitutional.

The central concern in Reno and the subsequent cases was that Congress has prohibited constitutionally protected speech in addition to speech that is not afforded First Amendment protection. Some members of Congress and supporters of such legislation suggested that restrictions on obscene and indecent information are necessary in order to protect children who use the Internet. But opponents of these restrictions noted that the Internet cannot be reduced to include only that information that is appropriate for children, and the Supreme Court reached this precise conclusion.

Although the debate about whether the government should regulate pornography and other obscene material continued, much of the focus about Internet policing shifted to other issues that involve the Internet. One important issue has been how the government can protect COPYRIGHT and other INTELLECTUAL PROPERTY owners from PIRACY that is somewhat common on the medium. Another major issue is how the government can prevent the dissemination of unwanted advertising, usually sent through e-mail and commonly referred to as spam. Likewise, computer viruses have caused millions of dollars of damages to computer owners in the United States and worldwide in the 1990s and 2000s, and most of these viruses have been distributed through the Internet.

Many Internet users, some of whom may otherwise object to government regulation of the medium, view governmental regulation that protects users from such problems as piracy, viruses, and spam more favorably than other forms of regulation. Nevertheless, even regulation of COMPUTER CRIME raises issues, such as whether such regulation may violate users' First Amendment rights or how government regulation protecting against these harms can be effective. As the Internet continues to develop, and even as the medium gradually becomes more standardized, these questions largely remain unanswered.


Crandall, Robert W., and James H. Alleman, eds. 2002. Broadband: Should We Regulate High-Speed Internet Access? Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies.

Federal Trade Commission. 1999. Self-Regulation and Privacy Online: A Report to Congress. Washington, D.C.: Federal Trade Commission.



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