FRAMINGHAM (04/03/2000) - A recent decision in California on free speech (or on sending porn to a minor, if you prefer that description of the case) raised an issue that's far more interesting than the particulars of the case. The courts said that the laws were too vague and that prohibiting someone from sending an e-mail containing a "pornographic" image, regardless of who the recipient was - in this case, a cop posing as a minor - violated the sender's First and 14th Amendment rights.
J. Robert Flores, senior counsel for the National Law Center for Children and Families, objected to the decision, saying, "The companies that run the Net have already won the battle that the Net is not a free place. It belongs to the people who own the hardware and software over which you communicate."
This is really an interesting point. And a disturbing one.
Although it is, in fact, absolutely the case today, to say that the access points to the Net - such as America Online Inc., your Internet service provider or your company - are private entities that are entitled to censor you or set anti-free-speech rules, regardless of their constitutionality, is shocking. And it covers everyone in America.
That struck me as being the equivalent of, say, Bell Atlantic or GTE Corp. setting rules on what I can say on the phone. But any Internet service provider can say, "Anyone using foul language or transmitting lewd' material will be booted [read: censored]," in effect giving corporations a choke hold on the First Amendment.
Could I put up my own server and say whatever I darn well please? Yes, but I would still need to connect it to the Internet, and my bandwidth provider would almost certainly reserve the right to pull the plug on me if it objected to my site - even if it's legally protected speech.
The Internet has become something of a legal twilight zone, with the courts being asked to decide, in effect, "Does the Constitution apply to the Internet?" That the debate even exists is pretty scary. Too many judges, attorneys and legislators have a woefully deficient knowledge of technology and tend to view the Net as some alien thing to be handled with rubber gloves.
Some cases presented to the court are fairly clear-cut (like the Communications Decency Act), and judges have, thankfully, blown them out of the water.
But what's scary is the idea that all Internet access, and therefore all Internet speech, can be owned by private entities that can make up their own rules.
Flores' quote by itself can serve as a call to action for those of us who want to keep the Internet a free and lively place to ask our leaders to pass laws protecting our rights from arbitrary corporate censorship.
It is indeed true that your Internet service provider, AOL and others are private entities and entitled to set their own rules. But the Internet doesn't belong to them. All they provide is the link. When service providers have been sued for the content on their servers, they have rightly - and successfully - argued that they're just a conduit and not responsible for the content their subscribers create or trade. Very honorable? More like self-serving, albeit serving the greater good.
What we should ask for is a law that says, "If it's legal, you can't censor it." All Internet service and other providers would have to strike any "terms of service" that violated this law. The Constitution's free speech protection doesn't stop at your service provider's doorstep. Then, the Net would indeed remain free and it would be established that it belongs to everyone.
Alex Torralbas is an independent IT consultant and Visual Basic developer in New York. He can be reached at firstname.lastname@example.org.