The Media's Miscommunication:

What Exactly is the Internet?

Benjamin Self

 Introduction

Ever since Vice President Al Gore coined the phrase "Information Superhighway" during his speech to the Superhighway Summit, the Internet has fascinated the American public. Businesses rely on both the World-Wide-Web (web) for commerce and email for inter-company communication. Compared to five years ago, the general public has become considerably more technically knowledgeable about both computers, and, more specifically, the Internet. People talk about their favorite web sites and newsgroups in their everyday conversations. Internet etiquette has gradually seeped its way into the American culture. Most newspapers and magazines are now dually published -- both electronically and in print. Marriages are now even starting to emerge out of relationships begun in cyberspace!

Even with so much "knowledge", many of the people who talk about and try to regulate the Internet still do not truly understand the medium. Even in today's technically savvy society, people incorrectly use the word "Internet" everyday. The word "Internet" is commonly used to refer to many different applications or sections of the Internet -- from the web to email. This shows that although people are starting to use the Internet more regularly, they still do not understand exactly what they are doing, or exactly how they are doing it. Many people are still confused about the differences between gopher, the web, and Usenet. This ignorance of how the Internet works has caused the legal system to waste millions of dollars and countless hours trying to regulate and censor what kind of material can and cannot be allowed on the Internet. Through methods such as the Communications Decency Act (CDA) of 1996, Congress has attempted to keep minors away from material deemed inappropriate for children under the age of 18. The passage of this act undoubtedly showed that Congress and the American public do not understand this medium dubbed the "Information Superhighway". They do not realize that each separate application of the Internet is a different form of media. As a result, the government does not see that they should regulate each with respect to its nature, rather than regulate the entire Internet as a whole.

When a new media technology is developed, the American government immediately begins to decide what material is considered illegal to say or broadcast using that medium. Over the past fifty years, the First Amendment to the Constitution has come in conflict with four basic types of media -- printed material, broadcast material, mail, and the telephone. While each of these media is used for the same basic purpose -- to transfer information across long distances to a multitude of people -- they have been regulated independently of each other. As the Supreme Court said in the decision Red Lion Broadcasting Co. v. FCC, "differences in the characteristics of new media justify differences in the First Amendment standards applied to them". Therefore, the courts have tried to discover the true characteristics of each media when initially regulating it with regards to the First Amendment. They have then used this information to censor it in a fair and constitutional manner. This process has been repeated for many different types of media.

Obscene content is not protected in any form of media by the First Amendment. In the case Miller v. California, the courts upheld this limitation on freedom of speech. Although many Americans voiced concern over their freedom of speech being limited, the court disagreed, stating in that decision, "A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value." Previously to this case, the only speech that had been censored by the federal government was speech that presented a "clear and present danger" to the American public (the most obvious case being to yell ‘fire' in a crowded theatre). After the Miller v. California decision, no medium, whether it be a print, broadcast, or other media, was allowed to transmit or publish any material that was considered obscene to the courts. The courts upheld California Penal Code 311.2 which said that "Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor." In addition, the courts also defined the word obscene in this decision. Obscene material was defined as material "that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance." This three part test for obscenity clearly laid out to many different media industries what types of content was and was not protected by the First Amendment. This decision also set the standards for other cases soon to come.

When regulating with respect to the First Amendment, the government had to approach each media separately. For instance, newspapers and other print media (such as magazines, newspapers, and books) are very strongly protected by the First Amendment. While obscene material still cannot be distributed in print, besides child pornography there are virtually no other limitations on what can and cannot be distributed through this media. Although previously material that presented a "clear and present danger" to the United States (such as pro-communism literature) had been banned through various litigation, in Brandenburg v. Ohio, this restriction was lifted. In a later Supreme Court decision in the case of FCC v. Pacifica Foundation, the court said that "even a nudist magazine may be within the protection of the First Amendment". This protection is very strict because of the inherently proactive nature of print media. While other media such as television can be viewed reactively, in order to see something in print, a person must proactively read or look for it. This proactive nature makes it the reader's responsibility to censor what content they do and do not want to read or see.

On a different note, the telephone industry needed to be regulated as well. Although it had endured many years of being censored, in 1989, the Supreme Court ruled in the case of Sable Communications v. FCC that telephone pornography services were not illegal. This ruling overturned a previous law that banned "dial-a-porn" services in order to shelter minors from this potentially objectionable erotic material. In addition, this ruling established the "least restrictive means" test that said that the First Amendment should not be violated when there exists a lesser restrictive means of prohibiting the injustice (such as requiring people to prove that they are not minors) . As Justice White said in his opinion, "The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Because the current ban of "dial-a-porn" was not the least restrictive way to prevent minors from accessing pornographic telephone services, this unconstitutional ban was lifted.

Society has no trouble differentiating between the nature of the newspaper and the television. When regulating these media, the government took into account these differences and regulated them accordingly. In broadcast media, such as the television and the radio, it is often difficult to prevent accidentally running across potentially objectionable material. As the Supreme Court said in their decision in FCC v. Pacifica Foundation, "The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching children."

Therefore, freedom of speech must be limited with regards to broadcast media. For instance, no one would want their 10-year-old child coming across an overtly sexual television program while flipping through public television stations. In the FCC v. Pacifica decision, the Supreme Court upheld the lower court's decision that the FCC has the power to regulate indecent material in broadcast media. When describing their motivation for this restriction, Justice Stevens wrote in his decision, "Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference... (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space" The definition of indecent speech provided by the courts is much broader and stricter than that previously given for obscene speech. As defined in this decision, the word indecent "merely refers to nonconformance with accepted standards of morality." These standards, as later defined in the decision, include such things as a list of seven words that are not allowed to be used while broadcasting to an unknown audience.

The final form of media that the federal government has regulated through Supreme Court decisions is mail sent through the United States Post Office. In many ways, material sent through the mail is no different from other printed materials. Just as with any other form of media, it is illegal to send obscene material through the post office. Indecent material, however, is still legal to send.

Each of these Supreme Court decisions are important because when attempting to regulate the Internet, activists often compare it to other well established and regulated media. When arguing about the CDA, the Internet was compared by various sides to both a broadcast media and a print media. Free speech activists claimed that the Internet behaved like a print medium and should be strictly protected through the First Amendment. These activists felt that in order to view sexually explicit material on the Internet, someone must proactively look for it. Therefore, they felt that only obscene material should be censored on the Internet so that their freedom will not be overly restricted. Other lobbyists, however, viewed the Internet as a broadcast medium. These people think that many times, people, and more specifically minors, can accidentally access or download overtly pornographic material when searching the Internet for other non-erotic material. They wanted not only obscene but also indecent material to be censored over the entire Internet. Each of these lobbying groups have drawn on these previous landmark Supreme Court decisions in order to help further their arguments about the Internet. Neither, however, has won a decisive victory in front of the Supreme Court. Although the CSA was overturned as unconstitutional, the debate over how the Internet should be regulated is far from finished.

Unfortunately, neither the free speech nor the pro-censorship lobbyists look at the Internet in the manner most appropriate for a medium of its nature. Each of these groups considers the Internet to be one specific tangible object. When they talk about the Internet, they have one Internet application in mind -- whether it is the web, email, or some other tool for using the Internet. Congress, which tried desperately to regulate and censor the Internet through the CDA, does not understand that different sections of the Internet work and appear differently. The most obvious example of this ignorance is Senator Exon. One of the strongest lobbyists for the CDA, Exon claimed to have a basic understanding of the Internet and the problems that it propagates. Senator Exon claimed that "there are some dangerous places ... on the information superhighway" and went on to say that the "worst, most vile, most perverse pornography is only a few click-click-clicks away from any child on the Internet". Based upon his description of searching the Internet, one can only suppose that Senator Exon is concerned about children accessing pornographic web sites instead of simply the pornographic Internet. However, later in this speech, Senator Exon begins to talk about other erotic things available on the Internet. He talks about "bulletin boards" that make erotica easily and quickly available to everyone on the Internet. He goes on to list some of these bulletin boards: "Multimedia erotica; erotica fetish; nude celebrities; pictures black, erotic females; pictures boys; pictures celebrities; pictures children". Again, Senator Exon proved through his words that he does not actually understand the way the Internet works. In these two statements, he has equated the Usenet to bulletin boards -- two entirely separate things. While Usenet is an application, bulletin boards are most often stand-alone machines that one can dial into using a modem. This constant mixing of different areas of the Internet shows that Senator Exon does not truly understand the characteristics of this new medium. He does not even attempt to say that some parts of the Internet need reforming while other parts should be left as they are. Rather, because of his lack of knowledge, he lumps the entire Internet into one big category. This lack of Internet understanding caused the pornography scare of 1995 to spread throughout Congress, and eventually it led to the passing of the CDA.

Senator Exon, however, is not the only person guilty of misunderstanding the Internet. The news media also misunderstands the true nature of the Internet, and additionally, propagates a false sense of what it truly is. In his infamous Cyberporn article, Philip Elmer-DeWitt single-handedly caused the cyberporn scare of 1995 because he severely misunderstood the Internet. He writes about children being "bombarded with X-rated porn" through email and over the "Internet". His main source for the article, a study by Marty Rimm at Carnegie Mellon University, stated many facts about the Internet that are completely false and contrived. The most notable incorrect statement that Rimm made, and then DeWitt quoted, was that 83.5 percent of all pictures on the Internet were pornographic. Senator Grassley later raised this same issue in Congress based upon information he gained from this article. He stated that "83.5 percent of all computerized photographs available on the Internet are pornographic. Mr. President, I want to repeat that: 83.5 percent of the 900,000 images reviewed -- these are all on the Internet -- are pornographic, according to the Carnegie Mellon study." This percentage in itself is ridiculous. First of all, the article never qualified whether these pictures were in newsgroups, the web, or somewhere else on the Internet. As it turns out, these pictures were not even attached to the Internet and were instead on private bulletin boards that were completely unattached to the Internet. This, once again, shows that the lack of technical knowledge about the Internet can cause the public, through the news media's propagation, to become frightened about this new media that they do not truly understand.

Its creators' lack of knowledge about the Internet caused the CDA to fail when investigated by higher courts. The bill unfortunately was doomed from the outset; it treated the entire medium of the Internet similarly to a broadcast medium, and therefore, it strictly limited freedom of speech over the Internet. Under the bill, neither obscene nor indecent material could be transmitted over the Internet by any means or application. People who sent email with one of the seven ‘forbidden words' in it could be strictly punished with a fine of 250,000 dollars under the CDA. The Internet community immediately began protesting against this bill because they realized the problems created by it. They realized that Congressmen who did not understand "their" world of the Internet designed the bill. It was clear to the Internet users from the statements of Senators James Exon and Senator Charles Grassley that Congress did not understand the nature of this medium. An electronic-style grass roots campaign was immediately launched against the CDA, that eventually led to its overturn in the Supreme Court case ACLU v. Reno in 1996. In this argument, the courts stated that censoring indecent material on the Internet was unconstitutional and against the First Amendment because it violated the "least restrictive means" test.

The Internet is not one singular body. Lumping email in the same category as the web is similar to comparing personal mail to a newspaper. While no one has any problems saying what is and is not allowed in the newspaper, people can send whatever they want (as long as it is not obscene) to other adults by using the United States Postal Service. Imposing the same restrictions on email that are imposed on the web is no different from extending the censorship found in newspapers to an individual's personal mail.

The nature of the Internet depends greatly on the application used. For example, while people may view emailing someone an ad for a weight loss program as imposing, most people would not view the same add posted appropriately to a newsgroup as such. Posting a picture to a newsgroup alt.binaries.pictures.erotica also seems very different than emailing that picture directly to a minor. Therefore, the nature of these two different applications -- Usenet and email -- must be different in some way. So, instead of censoring and regulating the Internet as a whole, why not instead regulate each individual aspect of the Internet based upon its characteristics. It is especially important when trying to regulate something that changes as rapidly as the Internet, however, to pass laws that can easily be applied to new areas as they develop. Therefore, classifying something according to its nature should be simple and non-objectionable.

There are seven major categories of Internet applications. These are email, web, newsgroups, telnet, ftp, instant messaging, and push technologies. Some of these applications are very well known, and it seems obvious how they should be categorized. However, others are not as easily understood. Each category, though, has a specific nature based upon its characteristics, whether it is similar to broadcast media, print media, or something in-between. By examining each application's properties and usage, it should become easily apparent to any user which category of regulation the application should belong to.

The most common use of the Internet is email. Email allows messages, programs, and other digital information to be quickly and cheaply sent to any person in the world. Because of its ease of use, may people who are not comfortable using a computer are comfortable sending and receiving email through graphical interface programs such as Eudora or Lotus Notes. Identifying the nature of email is simple: the characteristics of this medium are identical to the medium of normal mail. Erotic pictures can be sent through email; however, these exact same pictures can also be printed out and sent in an envelope through the USPS. The main difference between regular mail and email is the speed of delivery. While normal mail may take over a week to reach its destination, email can be sent and received within minutes. Even so, regulation with respect to email is simple -- it should be regulated identically to ordinary mail. It should be illegal to send obscene material through email, however, indecent material should not be censored among adults.

Misclassification of email was one of the main reasons that many Internet users felt that the CDA was not an appropriate tool with which to regulate the Internet. Many people were outraged that the federal government was trying to regulate what they could and could not say while privately corresponding to people using personal email over the Internet. Instead of trying to understand the difference between email and the web, Congress tried to regulate them both under the same classification of "the Internet".

The second most common usage of the Internet is the web. These days, almost every business, as well as many people, have home pages on the web. The web is built so that every person who so desires can publish his own work for the entire world to look at simply and quickly. This ease of publishing strongly attracts the erotica business. While every person cannot go out and publish his own erotic magazine, almost every person with Internet access can design an erotic home page with graphics and stories for people to look at. Because a large number of erotic web sites exist, many people believe that by accidentally clicking in the wrong place on the screen, a minor could stumble across potentially objectionable material. Even though this might be possible, it is still important when regulating it to focus on the true nature of the web.

In its most basic form, the web is no different from a print media. The main difference from the web and any other print media is ease of publishing. While a person must complete a multitude of tasks in order to publish a newspaper, someone can easily publish something on the web. However, on the user's side, the web is virtually no different from any other printed magazine or newspaper. In order to view a page on the web, someone must actively look for it, just as someone must actively read a newspaper. Although it may be simpler to look for something over the web than it is to go to a bookstore and buy a magazine, the process is basically the same. Both are proactive, rather than reactive. Both again require the user to say, in effect, that they want to view the material. In addition, many adult sites now have a front page that says that there is pornographic material at the site -- so that it is completely impossible to stumble across objectionable material. Therefore, while it should be illegal to provide pornographic material -- or obscene material -- to minors, the federal government should not censor erotic web sites any more than they censor erotic magazines. Rather, each individual proprietor should monitor their own personal site and make sure that no minor is allowed to access material that is inappropriate for a person of their age. This age verification process in itself is no different from checking the age of each person who walks into an erotic magazine store. Just as people under 18 are not allowed to buy a Playboy at a bookstore, Internet users under 18 should not be allowed to access and view adult sites. This age verification process can be done simply through web pages specifically built for this purpose. Upon proving your age to these age verification services, the user would be given a name and password that would identify that user as an adult to any other adult web site.

One of the most prolific sites of pornography, Usenet is the part of the Internet used most often by the media and legislators, such as Senator Exon, to demonstrate the extreme extent of pornography on the Internet. In Usenet, people post data to a newsgroup, where it is replicated around the world. Although this data is usually text, Usenet can also be used to distribute pictures and other digital information. Any person with access to a Usenet server can view the articles posted by any other person. While it is true that many people post ads for pornographic sites on Usenet, these advertisements are typically limited to newsgroups where they are appropriate, such as alt.binaries.pictures.erotica. Very few people would be surprised to find an erotic picture or advertisement on a site labeled as such. Once again, however, it is a proactive process that is needed to view these pictures. In order to view a picture posted to a newsgroup, a person must first select the messages that contain the encoded picture. After selecting the appropriate messages, the person must then decode and save the erotic picture to the user's personal computer. After this, the user can finally open the picture and view it. Once again, this process is similar to a print rather than a broadcast media. It requires the user to actively search and find erotic pictures and then complete several other processes in order to view them. Although erotic text messages do not have to be decoded, it still takes several steps in order to view them. This shows again that obscene, but not indecent, material should be prohibited on Usenet.

Newsgroups, however, are much trickier to regulate than the web. Because newsgroups are not centrally located on one main server, and instead are replicated from server to server, it is the responsibility of each individual internet service provider to regulate and censor what is appropriate and inappropriate due to the community standards of where they are located. The service could, for example, have one "child safe" Usenet server that filters out erotic pictures and text and another "for mature users only" that would contain all messages uncensored. This would allow both children and adults to view messages and pictures appropriate for their age, thus satisfying both freedom of speech and pro-censorship activists.

Telnet and its applications, such as Multi-User Dungeons (MUDs) are another medium similar to the telephone. When you telnet to a particular site on the Internet, it is very similar to calling a phone number. One of the main uses of telnet is to participate in MUDs or other talk-based programs. These MUDs are places where people get together and participate in some activity, whether it is to play a role playing game, talk about a favorite musician, or even, in some cases, to have erotic, adult conversations. Because of its similarity to the phone industry, telnet applications should be regulated with the same standards at the telephone industry. While it should be legal to have adult-oriented sites (just as it is legal to have "dial-a-porn" services), the adult material should not be available on any telnet or MUD site where minors can access the erotic material. Similar to the web, in order to access the adult sites, an individual should be required to prove that they indeed are not a minor. Once this age verification process is completed, the user should be allowed to access the adult-oriented sites. This regulation can be done quickly and easily in a way similar to the web. A user can receive a name and password from an adult verification site that identifies them as an adult to the erotic telnet sites.

File Transfer Protocol (FTP) is a way of transferring raw data across the Internet. While it is typically used to transfer harmless shareware programs, some erotic FTP sites exist where users can download erotic pictures, stories, and programs. Once again, however, the user must actively find these sites and files, and then transfer them to their own individual personal computer. In this way, FTP is very similar to the web. Unlike the web, however, FTP involves an extra step in order to view a file. When you transfer a file to your computer, the computer does not automatically open the file for viewing. Therefore, to view the pornographic picture or story, the user must actively open the file. This demonstrates that FTP is not an intrusive medium, and that it is virtually impossible to accidentally stumble across possibly offensive material. As a result, FTP should be regulated the same way as Web -- as another print media. As before, obscene but not indecent material should not be accessible through FTP. Having a name and password that identifies an individual as an adult rather than a minor can complete an age verification process quickly and effectively.

Instant messaging systems are one of the new up and coming technologies for Internet commerce. An instant messaging service is a server that will send a message client to client instantly across the entire Internet and make it appear on another person's desktop. Many companies are striving to make a dent in this virtually unfilled and endless marketplace. Although pornography has not yet invaded this new market, many possibilities exist for erotica companies on this application as well. An "erotic shop" instant message service could reply to a person -- when they send it a message -- by sending an erotic picture or story that then displays on the requestor's screen. In addition, individuals or companies could instantly send unrequested messages or pictures to a multitude of people of different ages without their request. The inherent nature of this medium is that of intrusion. Every time someone sends a message, the recipient is at least forced to look at the message or glance at it in order to remove it from their screen. Therefore no active process is needed in order to view the message or picture -- it simply appears in front of an individual -- requested or not. This intrusive nature forces the instant message system to behave similarly to the television or radio -- a broadcast media. Just as in a broadcast media, whatever the sender wants will immediately appear on the customers screen. Therefore, the material allowed on this application should be strictly regulated, because it is virtually impossible to know who is looking at the screen at any given moment. Both indecent and obscene material should not be transmitted via an instant messaging system.

The Internet changes daily. New technologies and applications are being developed and released constantly -- the possibility for new applications is still virtually endless. Many relatively new technologies have been developed that at first glance seem to cross previously set boundaries. In some cases, this may be true. However, in most cases these new applications, are simply extensions of already existent applications. When regulating each of these new technologies, however, it is important to examine the true nature of the individual application rather than simply to categorize it as an application already regulated.

Web Television is an example where an existing application has been extended in a way that makes it appear a new medium. It takes an application previously determined to be similar to a print media and makes it seem more similar to a broadcast media. Web TV basically allows a computer illiterate person to view the web by removing much of the technical knowledge needed to connect a personal computer to the Internet. It basically makes the web easily accessible to a larger number of people. At first glance, this may appear to help prove the fact that the web is a broadcast rather than a print media. However, using Web TV is still no different from searching the web using a personal computer. Although less technical knowledge is needed in order to use Web TV, the actual process of web searching is still basically the same. Therefore, Web TV should also be regulated as a print media where displaying obscene material is illegal. Indecent material, however, should still not be censored when using Web TV.

Another broad area of Internet applications is push technologies. A person using these applications, the most famous being Point Cast Network (PCN), can "subscribe" to certain channels or certain areas of interest, and information on these areas will be displayed on the user's screen without further prompting. The inherently passive nature of this application makes it very comparable to a broadcast media such as television. As with television, the user selects a certain channel range or subject area that they want to subscribe to. Within this range, a person can receive any of the information available without actively asking for any particular material. Similar to instant messaging systems, it is possible for the broadcaster to publish anything to an individual's screen. A person under eighteen could very easily be watching the "program" when an erotic add came on the screen. Therefore, the inherent nature of push technologies is that of a broadcast media, and both obscene and indecent material should not be available using this media.

A third new technology that is quickly developing is that of the Internet Phone. Although it seems rather simple that this should be treated as a regular phone, many activists are still lumping this application into the same category as the web and Usenet. Internet phone should be regulated identically to the regular phone. While obscene material should still not be allowed over the Internet Phone, erotic services should be allowed to exist. In order to access these services, however, a person should be forced to prove that they are at least 18 years of age.

When regulating and censoring the Internet, the government should look at each individual aspect of the Internet application rather than tying it all together. Although this seems more complicated, it will result in a statute that is both technologically sound and one that will hold up better than the CDA in the Supreme Court of the United States. As each new Internet application is developed, the federal government should look at the true nature of the element and see whether it is more similar to a print media, a broadcast media, the telephone, or even the US mail service. All of the existing applications can already easily be categorized into each of these sub categories. The nature of each application can quickly and easily be determined by figuring out whether the application requires the user to actively retrieve the material using the application or whether the material appears on the screen without prompting. Only though this flexible, mobile environment can the Internet be truly and fairly regulated.

Conclusion

Congress and the media do not understand the true nature of the Internet. Instead of realizing that the Internet is made up of many distinct and different applications, Congress thinks of the Internet as one medium. Congress hoped to regulate and censor the Internet through the Communication Decency Act of 1996, but this law failed because it treated the Internet as one entity instead of treating each application separately. Other people have tried to compare the Internet to both broadcast and print media and have failed because of the diverse nature of the Internet. Some applications on the Internet (such as the web, Usenet, and ftp) behave similarly to a print media and should be regulated as such. These applications should censor obscene but not indecent speech and pictures. Other applications (such as push technologies and instant messaging systems) are inherently intrusive and should be regulated similarly to broadcast media. Neither obscene nor indecent material should be transmitted with these applications. Still other applications (such as telnet, Internet phone, and email) should be regulated with their real world counterparts, either the telephone or mail system. Because of the rapidly changing nature of the Internet, only with an adaptable classification method can the federal government effectively regulate this new medium.