October 7, 1997


by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—Cross-border information control got its start in late 1995 and 1996, when France and Germany tried to ban illegal material from the Internet and discovered that the offending documents came from outside their countries. Since then, France, Germany, Great Britain, Austria, and Belgium have all considered various ways to shut out foreign electronic content. Their tools range from the mandatory use of filtering software to threats, raids, and shutdowns.

Filters are unsatisfactory because they cannot stave the flood of new material pouring out from newsgroups and Web sites around the world. New material can be published and moved around the Internet at almost lightning speed. The rating systems used for filtering are crude and expensive to develop, and no single system is always inappropriate to all groups of users. In fact, filters were conceived as optional software that individual households install; they simply are not meant to function as mandatory restrictions on a national scale.

Governments are still hoping that an effective filtering system will come into being. They have widely endorsed the PICS rating system (which covers only the Web, not other Internet technologies such as newsgroups). But once it is accepted that filtering doesn’t work—that is, that one country cannot keep out material that is permitted in some other country—governments will then resort to international police efforts. So it is disturbing, but not surprising, that European governments have uttered statements about moving toward international standards for content.

Such initiatives should raise alarms in anyone knowledgeable about the history of free expression. D.H. Lawrence, James Joyce, and Henry Miller are just the best known examples of 20th-century artists who were censored in their own countries and whose major works depended on publication in foreign countries to reach their public. During the fascist dictatorship in Spain, opposition groups depended on bases in more democratic countries from which they smuggled their critiques into their native land.

Reassuring generalities about freedom of expression can be found in the European Union’s official statements. For instance, a March 1997 report from the European Commission concerning “illegal and harmful content on the Internet” declares that “worrying phenomena observed on the Internet, which have to be addressed, should not prevail over the actual and potential cultural revolution made possible by the Internet.” A document from the Organization for Economic Co-operation and Development suggests, “When governments consider how far they are willing to go to eliminate undesirable aspects of the Internet, it might be useful to weigh it against the benefits enjoyed by the desirable aspects.”

Similarly, the Ministerial Declaration from a July 1997 Bonn conference states that “network operators and access providers should, in general, not be responsible for content.” The European Union has shown strong principles in refusing to proclaim a universal definition of child pornography. Even so, recent national laws and proposed blocking systems insidiously encroach on their role as free-flowing channels, or what in the United States would be called common carriers.

The search for a baseline set of rules derives its theoretical justification from an old concept called “jus cogens,” a Latin phrase roughly translated as “recognized law.” Under this comforting notion, certain activities would be universally recognized as illegal by all nations.

But a look around the world reveals jus cogens to be a Eurocentric intellectual conceit. For instance, child abuse—and the pornography that depends on it—is generally cited as the supreme example of a universally abhorrent practice. But there are places in this world where poor families sell their children into prostitution. Even more widespread than sexual abuse is the use of children to work 12 or 16 hours a day making consumer goods. If the European Union wants to set international standards, let it address these horrors and leave alone the people who just look at pictures!

Analysis suggests that child pornography stands in a position by itself. It can’t be defended on free speech grounds because it is usually generated by forcing children to engage in sex acts (although not always—pictures and movies can also be simulated or digitally produced). Yet the job of law enforcement agencies is to find and prosecute those creating the content. Failure to do so should not be an excuse for imposing controls on the free flow of information and turning access providers into police agents.

Questions can also be raised about whether skinhead violence can be traced to right-wing position papers, or rape to pornography. We will quickly give up all claim to free speech if we assent to international “standards” in content. Before the international community is finished, Singapore will tell the U.S. which political positions are allowed on Web sites.

Why stop at country borders? Why not let each community, each neighborhood, set policies for acceptable content? In addition to violating the rights of all people to information, jurisdictional content restrictions could force a complete technical reorganization of the Internet so that servers can recognize where users are coming from.

And even then, such a scheme could be defeated by such tricks as forwarding requests for information through a friendly server in another country (a practice which would then have to be criminalized, leading to more surveillance, etc., etc.) Better to let people have their fun, while educating them so that they reject truly nasty materials like racist propaganda by choice.

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