A Government Behind the Curve on Internet : The problematic regulation of decency in the computer age

Today it’s computer online services and the Internet, but it wasn’t much different in the early 1920s.

Then, as now, an interesting, unprecedented and dramatically underutilized tool of mass communication, the radio, exploded onto the national and international scene. Then, as now, there wasn’t a single level of government--local, state or federal--that had seen the wave build.

Then, as now, the one piece of relevant national legislation that had been passed by Congress (the Radio Act of 1912) was outdated and unequal to the task of reasonable regulation. Then, as now, a relative few savvy members took notice of the movement.

Essentially, radio broadcast licenses were as easy to obtain as car registrations. Virtually anyone with the hardware and the desire to run a shoestring radio station could get a license and become a microbroadcaster. It’s not unlike the ease with which anyone with the right hardware and software today can have a home page on the World Wide Web. And many said just about anything they wanted on those radio broadcasts, just as they do now.

Suddenly alarmed, the 1920s federal government rushed in unprepared and didn’t do its homework. That certainly sounds familiar, too. It shoved a future president, Herbert Hoover, into that “sudden” jungle. He was unarmed.

As commerce secretary pondering the role of radio, Hoover heard all manner of warnings about fairness, censorship, constitutionality, equity and making law by administrative fiat. The methods Hoover used to regulate the industry in terms of broadcast signal power, scheduling, content and time-sharing were duly challenged in the courts. The federal government lost, and all sense of order on the airwaves went out with the decisions.

Congress took another five years to come up with a solution, one which pushed the federal government into nearly every aspect of radio. Many of the broadcasters shoved off the air in the process had much to offer to the public. They included several hundred educational stations run by colleges and universities.

Now Congress is attempting to regulate decency in the computer age. The Communications Decency Act of 1995, contained in a sweeping telecommunications bill, would make it a crime to create and transmit “obscene, lewd, lascivious, filthy or indecent” materials on commercial online networks or the Internet.

It’s not clear whether the measure would be enforceable or constitutional, or whether computer online services could be punished for the access they provide to certain sites.

It is not unreasonable to insist that Congress comes up with ideas that meet constitutional requirements. Among the things to consider is that the Internet is far more wide-reaching and complicated than radio ever was. We need to consider the implications of the recent case in which Germany, by objecting to what it considered indecent material, spurred Compuserve, an American online company, to shut down certain sites worldwide.

We need to know far more from the relatively tight-lipped online computer industry about its real technological abilities to self-police and effectively limit children’s access to prurient web sites.

And as some international criticism of U.S. congressional moves suggests, the limits of existing indecency statutes and related criminal laws have not been tested sufficiently.

In order for America to proceed confidently, in less piecemeal fashion, there is much more we need to know.