Too Little, Too Late

The Internet's outrage over the passing of the Communications Decency Act should have been communicated while the bill was being created.

by Joel Snyder

In January, the Telecommunications Act of 1996 was signed into law. The next day the Internet had a temper tantrum. In case you hadn't heard, Congress has been working on a sweeping reform of the way in which telecommunications are regulated in this country. Years after the Bell system was broken up, our legislators have decided that continued tweaking of telecommunications regulations is necessary.

The Telecommunications Act of 1996 is a long bill. About 5,200 lines--some 90 percent of the bill--have to do with things like competition in local and long-distance services, who can own television and cable stations, and the privacy of phone bills.

The remaining 10 percent of the bill has a rather curious heritage. Known as the Communications Decency Act of 1996, it started life as a separate bill introduced in February 1995. The Communications Decency Act makes illegal transmitting of "indecent" material over the Internet. I am no legal scholar, so I leave an in-depth analysis of the Act to my fellow columnist Mike Godwin. But many people believe the Communications Decency Act dictates unconstitutional regulation of speech. In essence, the Internet is being treated as if it were a radio or television station and not as a book or newspaper publisher. The standards for the two are quite different.

In March 1995, the Communications Decency Act was first linked to the earlier versions of the Telecommunications Act. For the next nine months, the two were alternately combined, separated, and modified--until December 7, 1995. There emerged two separate bills, one in the House and one in the Senate, with the House's regulation of the Internet less stringent than the Senate's. What happened at this point is fairly standard procedure: A "conference committee" was created to resolve the differences between the House and Senate versions. Conferees were brought in from each house to create a single, agreeable piece of legislation.

At the conference committee meeting on December 7th, the conferees voted to attach the Senate's original Communications Decency Act to the Telecommunications Act. This was, for all intents and purposes, the last word on the topic. If the legislators wanted to pass the Telecommunications Act, they were going to also pass a small piece of it called the Communications Decency Act.

The December conference committee meetings were really the last scene in the first act of this larger drama. Everything that happened after that meeting was anticlimactic. The House and Senate had already agreed that they wanted to pass this bill; they just hadn't agreed on the wording. The conference committee came up with new wording that the House and Senate found agreeable enough to pass the bill. A few days later the President signed the bill, making it Public Law 104-104.

Temper Tantrums

And now comes the hue and cry--such gnashing of teeth as one has never seen. One group, the Voters Telecomm Watch, urged people to turn the backgrounds on their Web pages black, while the Electronic Frontier Foundation asked sites to slap blue ribbons on their Web pages.

Usenet News was filled with thousands of posts from people discussing the new law. A lamentably large number of misguided zealots decided that because it was now technically illegal to distribute indecent information, they'd fill newsgroups--even ones in which children participated extensively--with gutter language to flaunt the new law.

A record number of people wrote president@whitehouse.gov expressing their dissatisfaction with Clinton's failure to veto this major legislation because of a small section on indecency. Actually, some organizations, such as the Computer Professionals for Social Responsibility and the American Civil Liberties Union have suggested that the entire Act be vetoed because of the effect of the other sections of the Telecommunications Act, but this distinction has been largely lost in the Internet discussions.

This is the electronic equivalent of shutting the barn door after the livestock has fled. It's too late. The law has been passed. Complaining to the President is useless. Complaining to your representatives is almost useless, but might serve to let them know that you care about their stance on future issues.

These black and blue bruises all over the Net do send a message. But it would have been better to send the message to where it could have done the most good while there was still a chance of affecting the outcome. Wearing a black armband is not without symbolic meaning, but such signs of grief are best accompanied by real action. Having record numbers of people send e-mail after the Act was signed into law doesn't do nearly as much good as would the same people sending real mail before the bill went to the conference committee.

Chance of Reversal

There are two normal ways for the Communications Decency Act provisions to get changed. One would be for the legislature to pass a second bill repealing the Communications Decency Act. Two days after the bill was signed, Senators Patrick Leahy (D-Vt.) and Russell Feingold (D-Wis.) started down that path, although that's largely a matter of grandstanding, since the two houses already agreed to the content of the original bill only a week before.

The second way would be for the courts to find such a law unconstitutional. This path also is already in action. The authors of the Telecommunications Act predicted that there would be some opposition and built in a mechanism to expedite this. A civil suit alleging that any part of the Act is unconstitutional gets elevated to a federal district court immediately for resolution. And, as you might expect, the ACLU (and 18 other parties) filed that suit known as ACLU vs. Reno (because Janet Reno is the Attorney General of the United States). A federal judge has ordered the justice department not to begin prosecuting under the law until its constitutionality is determined. His initial ruling found the word "indecency" in the bill to be too vague.

Now that you know the background behind this issue, it's time to get on to the Joel Snyder Rant of the Month. Of course, you probably have an idea of what I'm so upset about. Not about the Act: My opinion on that doesn't matter. It's about the way the Internet community (if we have a community) acted in trying to get its views on the Telecommunications Act out to the people who mattered: the senators and representatives.

Quick sanity check: How many of you think your elected representatives surf the Web and notice all the blue ribbons? How many representatives do you think heard about the juvenile pranksters who sent electronic-mail storms and bombs to government systems? Do you think they heard about the people who repeated George Carlin's famous seven words on the Web and in Usenet news merely for effect? Remember that every prank erases the effect of a thousand e-mail messages, but doesn't change the value of a phone call or letter.

When the legislation was in its formative stages from February to December 1995, there were lots of ways people who cared about the issue could have made an impact. They could have called their representative on the phone. They could have written letters. They could have contributed money to one of the many lobbying organizations who had announced opposition to the bill. Or they could have written e-mail. But how effective do you think e-mail is? Well, admittedly, it's better than nothing. But it really doesn't shout "concerned citizen." It doesn't say you care and are willing to spend time and even money to let your elected representatives know what you think.

The Internet Lobby

The Internet is great at throwing post-factum temper tantrums, but it's still in its childhood as a political entity. The Net has no effective way of mobilizing opinion and turning that into lobbying power. Look at the Web pages put up by VTW and EFF about the Telecommunications Act. They're full of alerts and bits and pieces, as well as the same advice: Call or write your congressman.

They're also incomplete and out of date. The Internet has speedy mechanisms for spreading information and misinformation about things like the Telecommunications Act, but it doesn't have a staff dedicated to watching legislation, keeping people updated, getting the information out, and motivating people to action.

The Christian Coalition does. More importantly, groups like the Christian Coalition can get the ear of their representatives because they worked long and hard to put them into Congress in the first place. If you want to get down and dirty, the bottom line is that "The Internet" didn't get anyone elected. A bunch of techno-geeks sending e-mail messages and turning Web pages black doesn't count very much compared with people playing the game by the rules that have been in place for 100 years.

Some parts of the Internet are well organized. The Commercial Internet Exchange (CIX) knew what it needed out of the new Telecommunications Act: a release from liability of Internet Service Providers (ISPs) for things completely out of their control, such as obscene information on a Web site on the other side of the Internet. But CIX is an association of ISPs and didn't have a mandate from members to oppose the entire Communications Decency Act. So it did what it could to influence the legislation in ways that worked for ISPs.

You might ask whether it was even possible for the Communications Decency Act to be omitted entirely. I don't know; I'm not a power player myself. Perhaps the Act was put in to make its supporters happy, while the legislators thought that a constitutional challenge would strike it down. Or perhaps the legislators were responding to the mandate of the people they thought they represented. Or perhaps those loud voices on the Internet who have come out against the Communications Decency Act are really a minority. I don't know.

I do know that the Internet's vision of how to influence legislation looks more like a small child who didn't get a treat than serious lobbyists who know how to play the power game. On the Internet, we're making new rules about how to work, how to act, and how to interact. But the Internet is only a small part of the larger world, and you can't ignore that fact. Just as the Net uses common standardized protocols to let dissimilar systems interact, it has to adapt to the protocols of Washington to be effective. *IW*

Joel Snyder is a senior partner at Opus One in Tucson, Ariz.
Reprinted from Internet World magazine Vol. 7 No. 5, (c) 1996 Mecklermedia Corporation. All rights reserved.