Technology Law Column

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Published in the Chicago Daily Law Bulletin, January 11, 1996, at page 6.

Knee-Jerk Reaction Not a "Healthy Thing."

Copyright 1996 by David Loundy

This column addresses issues and events raised by the intersection of the law and technology (especially computers and computer networks). For this particular column, a reader asked me to address a situation that has been getting quite a bit of international attention-- the situation involving CompuServe's removal of approximately 200 UseNet news groups at the "request" of a German government official. This situation, in its various re-tellings, is noteworthy not because of what it says about actual cases and statutes, but rather for what it says about regulating "Cyberspace" in general.

In initial statements, CompuServe claimed that a German government official walked into its German offices with a list of UseNet news groups and a demand that either the listed groups be removed from CompuServe's system, or CompuServe's agents would be subject to possible prosecution for violating German law.

Later accounts state that a Bavarian prosecutor brought to CompuServe a list of "suspect" groups that his office was looking into in the course of an investigation into child pornography and other illegal content available on the Internet. According to the AP news, Manfred Wick, the Munich prosecutor, denies that any threats were made, and a CompuServe representative admitted that CompuServe's actions were voluntary.

What did CompuServe do when visited by the prosecutor? Whether voluntarily or under threat, it discontinued access to some 200 UseNet news groups. However, it did not block access to the forums only in Germany, but across its entire multinational system with 4 million subscribers. (CompuServe claims that it is currently incapable of filtering its news service to provide different news groups to different countries.)

Immediately, some groups applauded CompuServe's response. A representative for the Christian Coalition, a group which has been fighting against on-line pornography, called the move a "healthy thing" which will not result in damage to the Internet due to the removal of access to hard core pornography. Other groups have responded by calling for a boycott of CompuServe and German beer.

An examination into the groups on "the list," however, shows how misguided many of the responses have been to this situation.

Commenting on The Christian Coalition's response, U.S. House member Anna Eshoo (D-Calif.), a member of the Telecommunications Reform Conference Committee, submitted a guest editorial to the Electronic Frontier Foundation's Newsletter. In the editorial, she pointed out that:

Among the items that CompuServe is being forced to hide from its four million users are serious discussions about Internet censorship legislation pending in Congress, thoughtful postings about human rights and marriage, and a support group for gay and lesbian youth. Banning this material doesn't protect minors and adults--but it does have a chilling effect on political and social discussion in a free society.
Further analysis of the list of removed news groups shows that among the list of removed groups are ones such as "" Removal of such a group probably is a "healthy thing," especially since trafficking in child pornography is already a violation of U.S. law, and the laws of most other countries.

However, the list also includes "," part of the ClariNet News wire service. This particular group carries news items involving sex crimes (coincidentally, it is a group that CompuServe does not, and never has, carried on its service).

The list also includes such wonders as "" which, as anyone would have seen had they bothered to check, is a group devoted largely to discussing Captain Picard, from the Television show "Star Trek: The Next Generation." Nonetheless, the group name starts with "" and so it was removed with the rest.

As an aside, such categorical reflex responses have gained bad press for more than just CompuServe. A month earlier America On-Line came under fire for declaring the word "breast" obscene in certain contexts, which resulted in their censoring certain user profiles and "chat room" titles devoted to breast cancer survivors. Apparently this was not America On-Line's first encounter with this particular problem. Earlier in the summer, breast cancer survivors were blocked from creating the forum with the word "breast" in the title in the first place. Instead, members were allowed to created a "hooter cancer survivor" forum. Needless to say, at this point America On-Line changed its opinion of the title for the breast cancer survivor forum-- for a few months at least .

What lessons can be drawn from the CompuServe incident? Several.

First, the Internet, and many other channels of electronic communication, are inherently international. People providing services using such technology must keep in mind that they may be subjecting themselves to regulation in many different countries, and should keep this in mind when designing their services. Not all countries have a First Amendment. CompuServe should have known better in this case-- they have had similar trouble before, and specifically with the German government (involving the German laws against Nazi materials and one of CompuServe's on-line games).

Second, reflex responses can produce dumb results. If CompuServe was in fact threatened with prosecution, its response was probably in its best interests. If it was merely presented with a list of groups under investigation, then agreeing to discontinue world-wide access to political discussion groups and Star Trek forums was a not "healthy thing," and CompuServe has lost many subscribers in response to their actions.

Third, reflex responses are a problem even if they come from users. Some on-line service users have been calling for World War III. CompuServe is a private company, not a government agent. It has the right to take actions it deems in its best interests without regard to the First Amendment. Users, unless it is in their service contract, have no "right" to read certain UseNet news groups. Users are free to take their business to a service which will provide the forums and editorial policies they seek. In the outcry over this incident, a company has already been advertising an uncensored UseNet news service, and one month free service to anyone switching to avoid content restrictions placed on their service by their current Internet provider, school, or employer.

Which brings us to the fourth point: Some content, no matter which provider the users try to get it from, is just plain illegal. Pro-Nazi discussions are illegal in Germany. Trafficking in child-pornographic pictures or obscenity is illegal in the U.S. Certain discussions of Judaism and Christianity are illegal in some Arab countries. Users may claim censorship if they want, but that will not keep their system operators out of jail for violating relevant content restrictions.

Fifth, no matter what your views, they may be illegal somewhere. If every service removes all objectionable content world-wide, there may be very little content left. Just as the Christian Coalition objects to child pornography and seeks its eradication there are others who object to Christianity, too.

Sixth, on networks like the Internet, it is virtually impossible to block any particular content. Within hours of CompuServe's removal of the 200 news groups, users posted instructions on how to gain access to the news groups from other sources. Illegal or not, preventing access to content on the Internet is a gesture likely to fail. Any country that does not acknowledge this may find itself without any companies who are willing to do business in that country for fear of liability. This does not mean that system operators should not be required to make some efforts to restrict access to illegal content, but they should not be held liable for the inevitable circumvention of any restrictions which they cannot reasonably prevent. This inability to prevent access completely should especially be kept in mind by Congress as it works on reforming the U.S.'s telecommunications legislation.

And lastly, while we are discussing U.S. efforts to control on-line content, Congress should also keep in mind that there are already laws that make some content illegal, such as prohibitions on obscene and child-pornographic content. At the same time, Congress should remember that some speech, at least in some contexts, cannot be outlawed, a fact that seems to be ignored amidst the current furor to pass unconstitutionally restrictive content limitations. Other countries are looking to the U.S. to set an example as to how they should handle these new communications media. We must be willing to live with the results of the examples set by the U.S. See points five and six, above.

The CompuServe incident does not make new law. It does, however, show in clear detail where some of the difficulties lie with the current legal environment affecting on-line services. Unfortunately, it also shows how many parties to the debate are very quick to over-react to any challenge or potential threat.

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