Legislating the Net

The new digital medium has posed a multitude of legal and ethical problems since its inception. Though many may joke about the inane, pornographic, or just plain ridiculous nature of some online content, the fact that just about anyone with a connection and a little know-how can put any type of content up on the Internet has posed a number of legal issues. Can government regulation ensure that the Internet is not misused as a medium of communication? Can the Internet function as a vehicle for democratic empowerment? What sort of filtering devices can be implemented without violating first amendment rights?

Jack M. Balkin, Knight professor of Constitutional Law and the First Amendment at Yale Law School, has tackled these issues in his capacity as a specialist in law and technology. In the summer of 1997, he founded the Information Society Project, a unique undertaking which addresses the issue of democracy and law on the Internet.

Balkin saw a void in Yale Law School's investigation of legal issues: the legal complications accompanying the Internet. "I started the Information Society Project because I felt that the Law School needed to have more of a presence in the field of law and technology," he said.

Currently, the project has a staff of six—Professor Balkin and five other law students. In addition, there are a number of graduate students and law school fellows working on various aspects of the Information Society Problem. The Society sponsors speaker series, lectures, and roundtables. Balkin also teaches a number of classes that feed off the work of the Information Society—such as "Telecommunications and Free Speech" and "Free Speech, Telecommunications, and Cyberspace."

The modern town forum

At present, the Information Society has two main projects, one of which is called Civic Exchange. This project focuses on creating an online site that "encourages uses of the Internet that exploit in vital interactivity and potential for direct communication among citizens," the Information Society webpage explains. In Balkin's opinion, the architecture and format of the Internet provides huge potential for interactive discussion between users about vital issues of law and society. "Some said that the Internet was going to be a real source of democratic deliberation," Balkin said. "Many websites don't do very much," he added. "The Civic Exchange project...has to devise a web site that addresses this problem." The main problem with democratic discussion on the Internet, according to Balkin, is that corporations or political parties manufacture much of the "wired" political dialogue. The website explains that looking through a selection of political websites reveals that most sites rely on "passive browsing and uninformed push button browsing."

To arrive at this goal, Balkin hopes to create a "best practices model"—an outline of what a civic exchange website should ideally look like, as well as a description of how to create such a website.

"Private censorship/perfect choice"

The second "best practices model" that Balkin hopes to formulate will hopefully solve the problem of legislating free speech on the Internet by creating an efficient, private filtering system—one that would allow the private citizen to block out all objectionable material without infringing upon the rights of the content providers. The US government has already tried many approaches to the problem of regulating free speech on the Internet—the infamous Comunications Decency Act which was later struck down by the Supreme Court, and the concept of a V-chip for the Internet. The V-chip idea was first introduced as a way to allow parents to control what their children can see on home TV sets. President Clinton, LAW '73 has also suggested several times that something similar to the V-chip be used for the Internet.

Professor Balkin, however, feels that "the government will be ineffective in regulating online content." Many civil rights activists fear that the government will stifle the liberated nature of conversation on the Internet, but Balkin believes otherwise. "In the long run, the biggest danger for free speech...will come from the architecture of the Internet itself." Essentially, the large amount of content available on the 'net and the arbitrary organizational systems that govern that content make it extremely difficult to create an ideal filtering system. "It's a really, really hard thing," Balkin said.

However, Balkin feels that a solution can be reached—at the end of a conference scheduled for April, "Private censorship/perfect choice," sponsored by the Information Society. "Ask me in three months," he said. Balkin however predicted that the solution will not be a single piece of miracle software. "The best solution is not to have a convergance forward on a single filtering system, [but] to subject such filtering tools to market pressures." Another caveat is the control between a third party filtering system—for example, a national firm that rates Internet pages on their content—and a system where each web page rates itself. "[We] have to think of the leverage that people who will have third party filtering will get." To add more variables to the system, an ideal filtering system, unlike many that are out in the market today, must be able to distinguish between a site that, say, only has one or two pages on controversial subjects like abortion, and an entire pornographic site.

Print or broadcast?

With all the confusion surrounding the Internet over filters and democratic freedoms, it's very hard to formulate a viable model for how the law should deal with the Internet. But, as always, Balkin provides a "best practices" answer for that problem as well. "The Internet takes us back to a more traditional print medium in most respects," Balkin said. An internet content provider, like traditional print media, does not need a license for his online "broadcast"—but a TV or radio producer does. In addition, the Internet is still mainly text, interspersed with graphics and "postage stamp streaming video." Thus, much of Balkin's ideas on private censorship—where the user sees, or reads, what he wants to read, and ignores the rest—is much closer to a print model of private censorship, rather than the wholesale, bureaucracy-controled rating systems for broadcast media.

As Balkin thinks of these pressing legal issues and the role the law will play in the new technology, his Information Society Project continues to grow and tackle new issues.

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