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Beware Tyranny in the Guise of Decency

By Howard Rheingold

The Electronic Decency Act of 1995, S.314, introduced by Senator Jim Exon (D-NE) on February 2, has a good chance of passage, which would be a shame for all those who abhor censorship and ineffective, fuzzily-defined, morality legislation. A zealot in Washington who knows nothing about the technology he is attempting to regulate has cloaked this attack on every American's freedom of expression in anti-pornographic rhetoric. This time, it's a Democrat, but he has a lot of Republican support. Conservatives who want the government to get its nose out of business and citizens' private behavior and liberals who are concerned about the erosion of civil liberties all need to get on the horn, or the fax, and prevent them from slipping this one in on us.

Besides its threat to our freedom, S.314 could be disastrous for the electronic messaging business at the moment a new industry is poised for dramatic expansion. It would have a chilling effect by requiring communication service providers to police their users. It's bad for citizens, it's bad for business, and we need to tell our Congressional representatives to see through the rhetorical disguise of this bill, which superficially appears to be an extension of legislation against using the telephone to stalk or harass.

The way in which the language of the current bill would extend the law against telephone harassment would mean that the operator of every little computer bulletin board system, office local-area network, online messaging service could be liable for a $100,000 fine and two years imprisonment if a user of that system flames another one or engages in consensual conversations of an "indecent" kind.

Citizens need protection against stalking, harassment, sexual predation, but we ought to find protective measures that are effective and which do not infringe our rights. The Electronic Decency Act is ineffective against the electronic transmission of pornography for technical reasons: It is now possible to hide information, including images, in the software that encodes other material; a dirty picture can be hidden in the data that makes up an innocent-looking image. Technical means for encrypting (making electronic communications private) also mean that we will also have to sacrifice another privacy protection in order to chase criminals who have ample other channels at their disposal.

University of Pennsylvania Professor David Farber, one of the pioneers who built the Internet, and Board member of the Electronic Frontier Foundation, says: "I am at a bit of a loss understanding how any carrier defends itself against carrying prohibited material. For example, say that email/netnews/web traffic from Finland to say Japan passes via the USA and has "obscene" material in it. What does a carrier do? Clearly neither the Finnish or Japanese citizens are easy to prosecute. It may be that the article is in Finnish or Japanese. It may be encrypted or hidden in an image of the Mona Lisa. How does a carrier protect itself? What does a school do when the material is being sent to a bulletin board at that school with a public key possessed only by people who "register" with the originator? Do you outlaw encryption? The tendency of this nation to pass laws that are unenforceable lowers the respect for the law."

You can find the text of the bill via ftp or via gopher, or via the Web

Register your objections to Senator Exon and Senator Pressler, Chairman of the Commerce Committee.

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Copyright 1995, Howard Rheingold