InterKnot

Art, Decency and Big Brother on the World Wide Web

by Stephen L. Near

People in power don't want to get on-line because it conveys a sense of helplessness and powerlessness. It gives them a sense of historical ineptitude. They are now immigrants in a country where everything they know is wrong. Its hard to get a fifty-five year old guy with a lot of power to dig that!

John Perry Barlow, Founder, Electronic Frontier Foundation (EFF)

An often been heralded idealised slogan for the Digital Age is that "information wants to be free". The emergence of the Net as a profound and revolutionary new paradigm seems only to strengthen this ideal. But it seems every revolution must emerge out of a baptism of conflict and opposition from older, established societal power structures. As a new technological and cultural medium, the Internet challenges traditional values of knowledge and awareness. As such, it has inevitably been targeted by those who view it as a threat to society at large.

Consider the Communications Decency Act (CDA) as spearheaded by U.S. Republican Senator Exon, which was recently passed into legislation by the U.S. Congress as a provision of the 1996 Telecommunications Act. The Act itself is important because of its hard-line stance on "indecent" and "patently offensive" material found or distributed on the Net. Users who are charged under these provisions may face criminal prosecution and large monetary fines as would their Internet Service Providers. Although censorship is always controversial, the CDA in particular reaches beyond these issues, raising serious concerns about freedom of speech and artistic expression within the global information community.

In principle, the Act was created out of the belief it could "get rid of smut" and "protect children." No one can argue the validity of these concerns, especially when Congress was presented with what EFF Founder John Perry Barlow described as the "rawest, nastiest and most offensive porn on the Internet." The issue at that time was not freedom of speech nor the right to impose legislative will on cyberspace, but rather, "whether you thought it was okay to have pictures of large animals having sex with small children."

But the inherent danger of the CDA lies in its definition -- or rather lack thereof -- of what is considered "illegal" on the Net. Terms like "indecency" and "patently offensive" have never been positively defined in the legal sense. This, along with the fact that they already have all the legal authority they need to prosecute obscenity, child pornography and sexual harassment, on-line or off, resulted in the U.S. Justice Department opposing the Act. And although some people may find "indecent" material offensive, the right to free speech is nevertheless protected by the First Amendment of the U.S. Constitution, and thus stands as an essential ingredient in their democracy. However, Barlow surmises that with the Digital Revolution, America has found itself in a "democracy working too well" with a "hallucinating mob" as government. "Things have pretty much left the rails," he says. "I don't think I have ever before witnessed such large numbers of Congress or the President willing to pass legislation that they knew was unconstitutional and were willing to admit was unconstitutional."

Although Canada thus far has not endorsed any bill of this nature, on-line artists in this country and all over the world can expect serious repercussions from the CDA's Congressional approval, and it has everything to do with the whole nature of cyberspace.

The Net is unlike any environment encountered before. It is the first and only human-made medium which exists in a constant state of change and is regulated through the consensual approval of its users. But the CDA is forcing many on-line users to ask whether or not the Net is indeed consensual public space and if so, what are the parameters for privacy within such a space? As internationally recognized Canadian electronic artist David Rokeby points out, there is a stark difference between between public and private information which marks the difference between realspace and cyberspace."Private communities can have any number of special interest groups with every right to discuss and distribute whatever material they want, as long as they remain within their own walls. But when it comes to the Internet, property and one's rights within property become nebulous, precisely because the Internet is a community without walls." If the CDA is intended to fight indecency for the good of the community, we are left to ask what is considered common decency within an information- saturated community without walls? Indeed, what is community within the Net? In light of this, the CDA can be seen for what it really is -- an attempt to define cyberspace under the paradigm of the governing elite.

Using indecency as the straight-edge by which all artistic works in cyberspace shall be measured is dangerous because it doesn't take into account literary, artistic or scientific value while simultaneously aligning massive legal authority to the intrinsically subjective nature of artistic works. In this sense, Internet users may find themselves breaking laws without actually knowing it. When on-line, the artist's creative process requiring freedom to experiment and explore may in fact expose them to a new realm of "access crime", in which their material on the web will be equated with posting and transmitting obscene material directly to minors. This would not only harm the online service industry, but sterilise the fundamental quality of the Net as a fertile creation-space. The Net itself is just in its infancy, and the passing of this bill sends a chilling restriction for the free publication of information.

There is the argument that cyberspace cannot be defined and controlled by legislation, especially by a single country. As John Perry Barlow notes, a community without walls is a community without borders, so the whole question could be pointless. "The tighter we close our borders to physical bodies passing through, the more porous they become to virtual minds passing through." But Rokeby is less convinced, citing recent American/Cuba relations as an example of how the American government can, "utilize legislative pressure to force their collective attitude on other countries, effectively imposing a border." Barlow admits it might be fairly easy for the U.S. to get agreements from Canada to "bar the door", even in cyberspace.

However, one area the CDA is sure to affect is the regulatory actions of Internet service providers. Telecommunications companies will be subjected to legal mayhem, as local regulations begin to clash with those from other providers in other jurisdictions. Initially, companies like CompuServe and America On-line were not responsible for the nature of online content over which they had no creative control. However, in the face of pressure from federal agencies, these organizations will be forced not only to restrict user access to "selected sites", but will be forced to weaken the privacy of all Internet users by turning their own system operators into government snoops. If this sounds too much like George Orwell's 1984, consider that this is precisely what CompuServe was forced to do following an incident with the German authorities, whi insisted that Compuserve ban German citizens' access to certain newsgroups. This forced the service provider to shut down access to all its users all over the world because there was no system in place to restrict access users of specific geographical locations. Compuserve has since lifted the ban upon implimentation of new online filters.

Is there a solution? Canadian new media artist Graham Smith thinks it is merely a matter of users going elsewhere to rent space on international service providers like in Switzerland. "What does it matter if it's not in the U.S.? It's irrelevant. Its cyberspace." This is a sentiment shared by Barlow who thinks that Australia and Holland as well might become "very fat with fibre-optic communications" for the rest of the world because "they've got the web-ware." Smith also notes that third world nations like India could create the economic muscle for the next century once fibre-optic infrastructures were in place. Barlow agrees, adding, "My belief is that all those parts of the planet that have actually had their asses kicked over the period of the industrial age are going to come back strong, because they've got things that are now very valuable: intelligence and culture. And an information economy is just that."

Another artist response to the CDA might be through the use of encryption programs and codes. Rokeby surmises that when in restrictive Netspace, users might find more uses for encryption protocols such as Stego, a sophisticated yet cheap program which disguises messages and images within other media. "In this scenario, on-line artists would turn into cypherpunks corresponding, potentially incriminating work between one another like something from a dystopic Gibson novel. The downside to encryption, of course, lies in the same attitudes that passed the CDA -- frontier America scared of subversion. Thus, as it may be easy to obtain and use encryption codes, provisional laws are now in place that would dramatically increase the penalty for any crime that was committed using encryption."

In the long run, artists like Smith believe that censorship legislation will always exist, an inevitable casualty of today's information war, and that artists will always find ways of bypassing them. However, Rokeby believes that the answer lies in creating a social contract for the Net. Due to the unique qualities of cyberspace as an environment, it is necessary that the users and regulators alike set down a covenant which defines cyberspace, taking into account the qualities that make it different from other media. Unlike print and television, users navigate through cyberspace using complex lists and links to create a textured world of information access. In this way, Rokeby believes softer walls are created and knowledge cannot be simply isolated and locked out. This system is already in place within the guidelines of the Canadian Broadcasting Act which states: "[The] system should be regulated and supervised in a flexible manner that is readily adaptable to scientific and technological change" and furthermore "does not inhibit the development of information technologies and their services to Canadians."

Barlow addresses this point with perhaps the most profound and radical solution of all: getting as many people on-line as quickly as possible. "There is something culturally mutagenic about [cyberspace] that tends to make you much more libertarian in your views, more distrustful of structural authority, and much more willing to trust other people's views." In the end, he is probably right. Many people who are not online, it seems, possess a certain amount of technophobia stemming from a gut-level fear of what the Net represents. Hearing words like hackers, and alt.sex.bondage, they immediately assume that cyberspace is a breeding ground for virtual perverts and cyberphreaks bent on corrupting society. This perception is ignorance ignited by Time Magazine and fanned by pop culture fantasy and mainstream media. It was this ignorance and the assumption that the Net can be regulated just like television that created the CDA in the first place. And it is this ignorance which can be eradicated only by letting people experience cyberspace for themselves. Indeed, if the Net lives up to its ideal as a global conversation space where anybody anywhere can say what they think and nobody can stop them, it is inevitable.

Stephen L. Near is a Toronto based director and writer. Illustrations by Alun Hollyman and Viz Saraby.

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