This article by Stuart L. Adams, Jr. appeared in the
Louisville Computer News
Internet Regulation, Part 1
Should we? Do we still have a choice?
This is the first in what will be an intermittent series of articles on regulation of the Internet. I have been following this "evolution" of the Internet for several years. Things, however, have just changed, and the timetable has been irrevocably altered. Even as I write this article, one month after the horrible tragedy in Littleton, Colorado, another school shooting has occurred in Georgia with several students wounded. The front lines of the "war" have also moved closer to home for me personally, since this week two students at the high school one of my sons attends, were arrested for attempting to explode a bomb in a church parking lot in this community. It was reportedly configured much like some of those planted at the Littleton high school.
As Jon Katz said in an article posted at Slashdot, a Web site subtitled "News for Nerds," full text available at http://www.slashdot.org/article.pl?sid=99/04/29/0124247) "since Littleton, the cost of being different has gone up." A Gallup pole taken just after Littleton indicated a majority of Americans surveyed said the Internet was at least partially responsible for the Colorado massacre and favored more regulation of the Internet. The result of such sentiment, whether you feel it to be right or wrong, is that the surge of efforts to regulate, and therefore restrict, multiple aspects of the Internet, has already started.
PROTECTING KIDS FROM THE INTERNET
Politicians (and others who aspire to be leaders) are, of course, reacting vigorously to such public sentiment, by proposing a multitude of laws and regulations. Al Gore, for instance, has announced that he intends to create a resource for parents, to be called the Parents Protection Page, which would be available on a number of major portals, and would be focused on providing help for parents to monitor and filter the content of the Internet which could be accessed by their children. The chief of the Justice Department, Eric Holder, is reported to be taking a public position favoring new regulations for the Internet.
Within the last few weeks, the Federal Trade Commission announced plans for enforcement of a new law that bans companies from collecting personal information on children on the Internet without the permission of the parents. The new FTC proposed rules would require commercial Web site operators to make "reasonable efforts" in most situations to obtain parental consent before attempting to obtain identifying details, such as name, address or phone number, from a child under thirteen. Under the rules, such companies could not entice "more information than is reasonably necessary" by using games or prizes, as many now do.
Somewhat typically of many new "laws in progress," the proposed FTC regulations do not suggest how companies should try to contact parents, how hard they should try or how this should be documented. The effort is now vaguely described as that which "must be reasonably calculated, in light of available technology." Does that mean dad will get e-mail or mom will get a fax? If so, what verification will there be that the child has not created a virtual parent to overcome the proposed regulations hurdle to obtaining the new game or prize offered by the company? Whatever specific methods could have been put into the new regulations, undoubtedly the regulations would have become anachronistic as new methods of communication spring into the marketplace. Some kids, back in my era, were known to write up doctors excuses for themselves for missing school. Kids today are light years ahead of my generation on such techniques, and, after all, someone inevitably will create a Web site devoted to ways to beat the new regulations.
The proposed regulations will be adopted after a 45 day public comment period and will take effect next April. The law would not prohibit a company from obtaining a childs e-mail address to send the child something on a one time basis, such as a digital coupon. It would, on the other hand, give parents the right to review whatever details were collected about their child by the online company and give them the choice as to whether such information could then be passed on to other companies.
THE GREAT WALL OF PROTECTION (Protecting the Internet from the kids)
Centuries ago China build its great wall, designed to be an impregnable barrier to the barbarians outside its gates. The wall was very successful for a time, until political corruption and decay, as well as more sophisticated and powerful enemies allowed the invaders to breach it. The Maginot line in France enjoyed similar success, on a lesser scale, until tactical parachute drops became available in volume.
There are already many software filter programs on the market, designed to allow parents to nearly automatically prohibit access to the "wrong" types of Web sites, but if you prohibit a child from accessing sites with the word "bomb" they may not be able to get information on development of the atomic bomb during World War II for their history class. They may not be able to obtain information on NATOs current air strikes on Kosovo for their civics project. If youre worried about your kids accessing pornography, you can filter out words such as "breast" but that would somewhat limit research for that science report your kid is supposed to write this weekend on recent developments in the treatment of breast cancer.
Lets face it, todays adolescent in this country typically has computer abilities vastly superior to those of his or her parents. Every day, if not every minute, some child around the world is successfully hacking into the sensitive digital files of a major company or military organization. Just how much easier do you think it is to crack the Internet nanny software parents and schools put in place to try to block "unauthorized" access to smut?
MORE LAWS vs. ENFORCEMENT OF EXISTING LAWS
As a lawyer, my life is inevitably focused on the myriad laws which already seem to regulate every aspect of how we live and breathe. Having started my professional life as a criminal prosecutor, I know that we already have many more laws than we enforce. Sometimes passing more laws is not the answer. The answer may, in part, simply be to more strictly enforce the laws we already have.
For the last two decades, my legal practice has focused on assisting entrepreneurs and others in the business community. In that arena, my clients have driven home the point to me that there is usually a substantial cost to every law or regulation aimed at business. Over-regulation can choke creativity and the capitalist system upon which much of the success of our country is based. That does not mean, however, that just because it will cost a business money to comply with regulations enforced by the Environmental Protection Agency, they should be free to dump toxic waste in a creek. Obviously, there must be a balance. The question is, where to put the fulcrum to achieve that balance.
CHICKEN AND EGG
Inevitably, some people gain from every new law and some people lose. Greater regulation of the Internet, on multiple fronts, is inevitable as a result of the fallout from Littleton and its many copycat events. The ACLU is reportedly overwhelmed with complaints from students, in the wake of Littleton, upset over what they deem to be overly harsh treatment by school officials. One particular example of such misguided efforts by schools to help, was that of a high school student, whose class was given the assignment of writing about their "feelings" after the Littleton tragedy. The student completed the assignment, indicating that he could sympathize with how the killers felt, since he too felt abused by jocks and other "model" students in his school.
As a result of successfully and faithfully completing this school project, the already self-conscious child was apparently yanked out of class to face a battery of school officials who were afraid he too would become a mass murderer. Rather than quietly getting this "outsider" some professional review and help if needed, he was singled out amongst his peers and made to feel like more of a freak than he already did. Throw another log on the fire.
In another incident, the ACLU is ready to challenge the ability of a school to "discipline" a child for posting a web site. TIME Digital reports that the ACLU is representing eleven Ohio high school students who were suspended from school and threatened with expulsion for creating a "Goth" theme Web site. The site was full of dark poetry and references to Littleton, although not necessarily in favorable terms.
Raymond Vasvari, ACLU Legal Director is reported to have said that "in cases like this, where the material in question was prepared and distributed off campus, and is neither obscene nor directly threatening, school officials simply cannot punish students for being involved with a web site the officials dislike." "The students are losing their constitutional rights" said Andy Brumme, staff counsel for the ACLU in South Carolina, according to a report by the Associated Press. Brumme represented a student who was suspended for criticizing his principal and some teachers on his Web site, but the student, who faced not graduating on time because of the dispute, later chose to remove the material from the Internet.
The purpose of this first article in the series is obviously not to try to answer the many questions circulating in the arena of Internet regulation. It is simply to introduce the topic and give a brief introduction to some of the pressures driving the inevitable impending push to legislate in this area. Like many issues confronting society these days, there are strong arguments on at least two sides of most of these disputes. Other articles in the series will try to focus in on some of the more specific areas of pending regulation, some as on the e-commerce frontier, where the fight between big government and big industry will probably lead to some of the most noticeable changes in how we use the Internet. If you have a particular area of Internet regulation, an issue or point of view on this, please e-mail me for possible inclusion in one of the upcoming articles on this topic.