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  • Supreme Court Report

  •   Smut Ruling Ratifies the Internet's Founding Principles

    By Rajiv Chandrasekaran and Elizabeth Corcoran
    Washington Post Staff Writers
    Friday, June 27, 1997; Page A20


    When Defense Department researchers wired together a set of university computers 31 years ago, creating a communications network that became today's global Internet, the goal wasn't to make something that could deliver photos from a service called "Bianca's Smut Shack."

    But technology has a way of spawning uses never imagined.

    Yesterday, after fierce debate in Congress and American society, the Supreme Court made its first pronouncement about what's allowed on the Internet and other computer online services. It struck down as unconstitutional the Communications Decency Act, a federal law that imposed criminal penalties on people offering "indecent" material to children on the information medium that is now used by millions of Americans.

    The decision upholds the network's anything-goes tradition. From its earliest days, those who built it saw it as a new frontier of ideas, one in which they could explore new thoughts and theories on a strong base of individual and academic freedom, without fear of censorship from Washington.

    The Defense Department enforced no rules for what could be sent over the network. Rather, it generally left it to users to govern themselves.

    Today, the Internet community is far bigger and more diverse than the group that used the computer network to share science and engineering information three decades ago. These days, you find fourth-graders, sky divers, historians, politicians, astrologers – and porn lovers – on the network, all pursuing their various passions.

    Net users hailed the court's decision that the law was too broad and would restrict legitimate expression as confirmation that First Amendment rights extend into the electronic realm known as cyberspace.

    "It is political coming of age for the Internet," Marc Andreessen, a co-founder of the Internet software company Netscape Communications Corp., said of the decision. "It demonstrates that the Internet is becoming a very important thing in people's lives and it can't be controlled or be made to fit our preconceptions of it."

    The Internet had its roots in a data communications network for academic researchers and military contractors funded by the Defense Department's Advanced Research Projects Agency in the 1960s. In its early days, it was a fairly small community, recalls Danny Hillis, a Walt Disney Co. fellow who used it as a researcher at the Massachusetts Institute of Technology. "I still have my Arpanet directory, which was a half-inch thick," said Hillis. The directory included the names of everyone using the networks, most of whom knew one another personally, he said.

    Although the government had some guidelines for online behavior, the early Internet community generally policed itself, recalled Robert Kahn, who directed creation of the network for the Defense Department. "Commercial activities were certainly frowned on, as was the use of the Net for personal gain," Kahn said.

    In the 1970s, Hillis recollected, a group of wine lovers began sending automatic messages to one another about their hobby – but stopped when other users let them know it was not considered suitable material. "Flaming," or sending sharply worded messages, was a common form of self-government, said Tim Berners Lee, head of the Boston-based World Wide Web Consortium.

    Government control was not entirely out of the picture, however. There was "the distant threat of the removal of [the funding] line because the powers that be didn't approve of the activity," he said.

    In many new information formats, sex has proven to be a powerful stimulant of expansion. Not long after the first cameras were invented in the mid-19th century, secret studios were photographing nudes. And the videocassette recorder got a boost in sales in the mid-1980s from its ability to let people view sexual films at home.

    It was the same with the Internet. Not too long after it began, people were placing digital versions of sexual pictures on Internet computers for others to see.

    Today, the Internet's academic origins are a distant memory as the network has gone commercial and mass-market. America Online Inc., the Dulles-based online service, now has 8 million members, all of them with Internet access. Estimates of total Internet use in this country run to more than 30 million people.

    No longer hidden in an obscure academic network, the Internet's sex sites, some of them now moneymaking businesses, caught the attention of conservative and parents' groups. Citing cases of children downloading hard-core pornography, they began a lobbying campaign that culminated in Congress's passage of the Communications Decency Act as part of an overhaul of the nation's telecommunications laws last year.

    In their view, the Internet should be treated like television or radio, where content is closely regulated by the government. Just as airing a television program with obscene content would mean fines for the broadcaster, people who operate Internet sites should have responsibility for what they distribute, they feel.

    Many in the Internet community, however, advocated treating the medium like printed matter, whose distribution can be regulated for only very limited reasons. They argued that the casual Internet surfer can't turn on a computer and immediately be bombarded with pornography or other adult content. Users have to request such information, they said.

    Civil libertarians and many in the Internet industry champion the concept of individual regulation. Instead of limiting what people offer on the network, they advocate that parents should use special software that will filter what their children might see.

    Such software, with names like SurfWatch, NetNanny and CyberPatrol, began to be developed in earnest when Congress began debating the decency act. Critics contend the software is not effective enough to block out all the unwanted material that a child might encounter on the Internet. "Right now, it's like a defective condom," said Mariam Bell, vice president of Enough Is Enough, a Fairfax-based anti-pornography group. "It doesn't work."

    Privacy advocates admit that filtering software doesn't provide an impregnable barrier against objectionable content, but they say such tools are constantly being updated. "If you went back 10 years ago and asked about the safety of jungle gyms and backyard swimming pools . . . [you'd see that] we've come a long way in how we think about safety," said George Vradenberg, America Online's general counsel.

    Industry executives and analysts also dismiss concerns that the flurry to develop such technologies will wane in the wake of the court's decision. "If anything, there's going to be a bigger interest in this software because people will realize this area won't be regulated and they're going to need to take precautions," said Walter A. Effross, a law professor at American University.

    At the same time, the government may still look to keep a hand in shaping the Internet, said Jay Friedland, a co-founder of SurfWatch, which makes filtering software. The Supreme Court decision "is the first stake in the ground," he said. "We're waiting to see the next part of the legislative agenda."

    Hillis says he welcomes the debate.

    "In a funny way, [the Supreme Court decision] legitimizes the government in a lot of people's eyes," Hillis contended. "It's a funny thing to say but there's a generation of people growing up with the Internet and their interaction with the government has been almost completely adversarial. Watching the system work and do the things that they learned it's supposed to do in school is a positive lesson in civics and government. I think that may be the biggest of changes."

    © Copyright 1997 The Washington Post Company

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