In the years preceding Operation Iraqi Freedom, the debate over Internet censorship generally focused on balancing laudable efforts to shield children from pornography with freedom of speech considerations. By all accounts it is morally and ethically honorable to protect children from such exposure, but many wondered whether it wasn't best to let parents do the monitoring and leave the government out of it. After awhile that debate moved to the back burner and the heat was turned up on other Internet gray areas like file-sharing. But the war brought censorship to the forefront again, particularly when the faces of American prisoners of war were shown online.
The war raises questions about the very concept of what is newsworthy. This is the first severe conflict during which the world has had access to so much information in real time; the Internet brought the war into our living rooms for live, round-the-clock viewing. Because of the sheer volume of information providers—television, radio, print, or Web-based—the government's monitoring of what reaches the public has increased exponentially. This can leave ISPs in the tricky position of supervising what content makes it online.
"The problem is that we've never seen a media used so easily to publish so much garbage or questionable content," says Doug Wood, executive partner with the law firm Hall Dickler Kent Goldstein & Wood, "It's simply impossible for any legal regime to adequately police it and it's only getting worse. The solution has to come from technology. Anyone who really thinks that legal rules and regulations are going to stem the tide of objectionable content on the Internet are fooling themselves."
One hot example of potential war-time censorship centered on the Web site YellowTimes.org. YellowTimes ignored the Pentagon's request not to show footage of American POWs generated by the Al Jazeera network. YellowTimes.org was promptly shut down…by Florida-based Vortech, YellowTimes' Web hosting company. An email from Vortech in explanation has been quoted as reading: "We understand free press and all but we don't want someone's family member to see them on some site. It is disrespectful, tacky, and disgusting." This may very well be so, but is there any difference here between being arbiters of taste and being censors?
"Not at all," according Wood, "The shutting down of that site was pure censorship. Without doubt, the material would be protected under the First Amendment if the New York Times chose to publish it." Wood goes on to say that, "It was not a legal issue. It was a response to what someone felt was ‘the right thing to do.' Such an outcome begs the question on who is the proper party to determine what the right thing to do is."
The U.S. government currently employs methods of online censorship of which most people are aware—particularly in an attempt to protect children. The Children's Internet Protection Act mandates that high schools employ content filtering programs in order to receive federal funding. The most common system in use is N2H2's BESS, which runs in over 40% of American schools. Not only does BESS block any free hosting site such as geocities. com, but it also prevents users from viewing sites on teen health, sexuality, and counseling. But outside of the school environment, there are far fewer umbrella-type measures in place.
"For the most part, ISPs don't have any legal liability for what is posted on sites they traffic, no more than a telephone company is liable for what is said on their wires," explains Wood. "Given the deluge of controversial materials that appears on the Internet, however, legislators and regulators are trying to find ways to control it…Some authorities have proposed ISP liability, [but] holding them liable creates a huge burden financially and threatens a very chilling effect on competition and open communications."
At present, although ISPs g generally adopt a laissez-faire attitude toward the sites they host, they often reserve the right to remove content they disapprove of from their networks. This can open a Pandora's box, however, because ISPs that invoke such rights then waive the right to legal protection they are afforded so long as they do not wield any editorial power.
So who should be held responsible for monitoring the content available online? "Web site owners," says Wood. "They're the ones speaking; no one else. If an ISP allows truly illegal content to continue after repeated warnings, then I'd endorse liability at that level," he continues, "But the warnings would have to be repeated and the illegality clearly established. Otherwise, free speech should prevail."