Infinity Broadcasting has racked up hundreds of thousands of dollars in fines from the Federal Communications Commission because Howard Stern has used "indecent" language on his radio show. But Stern's also a popular author. At press time, his Miss America had been on The New York Times best-seller list 15 weeks. And Stern certainly doesn't tone down his act in print. You can barely turn a page without finding language many adults might find offensive.
Thanks to the Communications Decency Act, a section of the new telecommunications law, the government could send people to prison for merely talking about Stern's book–as long as the conversation takes place in cyberspace. The act sets $250,000 fines and jail terms of up to six years for anyone who uses interactive computer networks to make "indecent" language or pictures–the same material that makes Howard Stern an FCC target–available to minors.
So while any 12-year-old can legally plunk down $20 to buy Miss America, if that same youngster reads a profanity-laced quote from the book on the Internet–say, one from Nick Gillespie's March review of the book on REASON's World Wide Web page–Nick (or Editor Virginia Postrel) could go to the slammer.
Defenders of the new law claim that it is not designed to stifle the transmission of serious literature; it's meant to keep Junior from finding the alt.sex.bestiality newsgroup with the family Macintosh. In a widely published op-ed column, Cathy Cleaver, director of legal studies at the Family Research Council, claims that the law's restrictions "will not criminalize Shakespeare or Joyce….Outside the courtroom, common sense helps us discern great literature from gratuitous sex."
"Great literature" may be indeed protected, since few prosecutors want to take on the Bard. But there's a large range between Shakespeare and the pedophilia materials pro-censorship forces keep waving in press conferences–including large sections of the best-seller lists. Anti-obscenity laws already cover both books and cyberspace. Indecency is a much broader standard, one based on the notion that new media don't enjoy full First Amendment protection. All the new law does is give to the easily offended nearly unlimited means to silence messages and throttle messengers they find distasteful.
By criminalizing messages in cyberspace that would, in print, never attract a second look from prosecutors, Washington's language cops have ignored a tool that could empower people to protect themselves from materials they dislike: data encryption. Encryption, which scrambles messages so that they're unreadable to those who can't decode them, would let subscribers to the alt.sex.pictures.naughtybits electronic newsgroup peacefully coexist with those who frequent Toy Story chat rooms. It would allow individuals who are troubled by the cacophony of cyberspace to tailor their on-line communications to their own sense of propriety and taste.
For instance, encryption would let electronic newsgroups scramble their messages and give the "keys"–decoding instructions–only to subscribers. The newsgroup operators would be responsible for keeping minors off their subscriber lists. Similarly, encryption could let parents scramble any e-mail messages that arrive unsolicited or from unfamiliar addresses. Mom and Dad could decode the messages before letting their kids read them. Web sites could similarly encrypt racy messages and pictures. Encryption might also supplement or supplant the rather clumsy "blocking" software that can screen some off-color language and pictures from computer sites. And it could provide an extra layer of protection as blocking programs improve.
Tomorrow, encryption could be as commonly available as America Online signup disks. The Pretty Good Privacy encryption program has been published on the Internet. And Microsoft will bundle encryption programs with its business-oriented Windows NT operating system.
Unfortunately, encryption isn't as easy to use (or obtain) as it could be. And the government isn't helping. The Clinton administration uses Cold War-era regulations that targeted Soviet military codes to limit the sophistication of commonly available encryption programs. Current government standards dumb down encryption so much that a pedestrian computer hacker could crack the toughest codes allowed in a few hours. But encryption is computer language. It deserves the same First Amendment protections that this article enjoys on the printed page.
The rather anarchic nature of the Internet is much like the messy American tradition of natural liberty. Yet free people–even those on the Net–want to live by reasonable rules. Before Congress considered regulating the Internet, the denizens of cyberspace spontaneously developed tools to accommodate the wishes of parents, and others who appreciate civil discourse, without infringing on those who enjoy tougher talk. Most blocking programs are available for free on the Internet. And the embryonic KidCode initiative is an attempt to voluntarily "rate" the World Wide Web so that publishers can indicate whether their pages contain materials inappropriate for children.
The cultural conservatives (both Democrat and Republican) who have criminalized words and images because they're distributed by computer have used the law to impose their own tastes on a medium that defies top-down regulation. Encryption offers a compromise: a way for Howard Stern and Phyllis Schlafly to comfortably share the same stage.