AVNONLINE COLUMN 200602 - IN MY HUMBLE OPINION - The Verification Rage: Are we experiencing the last spasms of a free Internet?

Comedian Jerry Seinfeld likes cars because you are inside and outside, stationary and moving, all at the same time. In that case, he should love the Internet: you are present and away, known and unknown, alone and with others, all at the same time. But the Internet has other cool dichotomies too: instant communication that is "corrupting" the English language, personal expression that is also a dynamic engine of commerce, online news that is killing the news biz, and people who are evidently becoming "addicted" to what is becoming an indispensable part of life. In short, we have incorporated an intoxicating device into the most intimate areas of our lives, and it is changing us slowly enough not to worry but fast enough to notice.

Another result is that we now live in the age of verification and the age of verification, all at the same time. The first refers to epoch, a measure of history, the latter to birth date, an accident of time, as well as to the eternal questions: "Who the hell and how old are you?" They are questions that have become synonymous with the anonymous Internet, and they are central to many of its more persistent issues:

* How to verify identity for financial transactions

* How to protect against identity theft

* How to protect children from predators pretending to be minors

* How to control unsolicited spam

* How to identify and track down terrorist activity

* How to deal with libel

* How to deal with copyright and patent issues

* How to deal with explicit sexual content on the Internet

These issues are not listed in order of importance, but for my money (and, yes, I have a young child and a wife) the least critical item is by far the last, not because it is unsuitable for discussion, which it is not, but because it causes far less quantifiable harm to individuals or society than any of the others, and because most solutions will cause greater harm. Those who seek to dictate morality in the name of protecting children do particular injury to my values, as do federal and state legislators who use the unsubstantiated allegations of "porn addiction" and "harmful matter" to introduce laws – such as the Lincoln Bill or the Pence Amendment – that impose grave restrictions on adult speech.

Confusing the picture is the tendency to combine the real with the virtual by projecting cityscape logic and laws into cyberspace. The Internet of course has no terrain, no source and no destination—even though our metaphors continue to assign it a nuance of both substance and space. In truth there is precious little the virtual and actual have in common, and what they do is hobbled by contradictions and unsustainable expectations that are undermined by the forces of autonomy.

But if governments were able to effectively control the Web through restrictive laws and regulations or by profoundly rewiring its architecture, should they? And if the answer is no, then why are there voices within the industry calling for a movement toward self-censorship? And if the answer is yes, the question still remains: Who gains from a government that is allowed to censor expression that is not already an actual depiction of a crime, like child pornography?

What about nongovernmental entities, corporate entities, or institutions utilizing otherwise innocuous – or even beneficial – technologies to protect their own interests, which could easily impose severe restrictions on the ability to push or pull certain content?

Getting a Grip

The regrettable fact remains that the virtual and actual have combined, with terrorists who are as adroit as pedophiles or teenagers at using the Internet for nefarious purposes. It does not matter that there is little agreement among (or within) countries about sexual issues, and quite apart from working together to track down sexual predators and child pornographers, there is scant consensus among governments about how such delicate decisions will be made. When global "solutions" are proffered – like dot-xxx – there is passionate disagreement among countries about who will call the shots, with much maneuvering made to increase foreign input into the decision-making process.

It should be clear by now that the U.S. is on a course to control the Internet for reasons that extend far beyond its responsibility to protect against terrorist threats. Sept. 11 and the resulting fear mongering that paved the way for the Patriot Act have also engulfed the Internet, and there is a palpable sense that measures once considered off-limits are now fair game. Not only Washington, D.C., but individual states also are now empowered in a way that seemed inconceivable a few years ago. Spurred on by religious conservatives who see a historic window of opportunity to control "indecent" speech, and tactically supported by corporate giants, the party line (from both political parties) is that once dependable free speech arguments no longer wash.

What we are witnessing may be what Lawrence Lessig, founder of the Center for Internet and Society at Stanford Law School, calls "the death of cyberspace," which refers to the lawyer-driven explosion of increased property rights that he argues is killing cyberspace as an incubator and last bastion of pure invention built on open-source sharing—a phenomenon that produce unprecedented growth and helped revitalize an entire economy. One necessary nail in the free speech coffin would be enhanced access control.

The truth then may very well be that we are experiencing the last spasms of a free Internet. Perhaps in the future scenario, adult and mainstream players have already integrated, and a blueprint for a final campaign to overcome the forces of chaos and unrestricted access on the Internet has been put into play. The biggest brands in adult look down the road and see heretofore unimagined riches, and a road once pockmarked with legal landmines now cleared, if they will just agree to play the corporate endgame by consolidating power and fixing the Internet playing field for generations to come. That decision is a no-brainer.

The Real Raw Deal

Even if survival of the biggest is driving the latest putsch for a self-imposed regime of age verification for the adult Internet industry, it is far from a foregone conclusion that something must be done. I have gone back and read the Child Online Protection Act Commission report, and while I disagree with its final conclusion regarding an ultimate dependence on filtering technology, what struck me most was the diligent concern by the report’s authors about First Amendment concerns over both speaker and listener-based age verification systems. Add original writers like Lessig and Marjorie Heins into the equation, along with many others, and you have an army of scholars and legal minds diligently working to avoid a future in which content is incarcerated. Their free speech concerns are more earnest than many in this industry, and an obvious question has to be asked: Why?

But the Internet may in fact be changing us faster and more profoundly than anyone has realized, and it is in many ways too soon to know exactly how we should respond. In an extensive series of surveys conducted in mid-December in a school district in Tampa, Fla., by the National Centers for Disease Control and Prevention (CDC), a startling picture of widespread sexual activity by middle and high school students emerged. The local article on the survey was titled, "Sex Survey ‘Eye-Opening’ for Local Parents."

The report indicated that nearly half of all high school students and one in five middle school students said they have had sexual intercourse, a higher percentage of high school boys than girls reported being physically hurt by their "significant others," and more than 9 percent of male and nearly 12 percent of female high school students said they were physically forced to have sex.

"I know that is happening, because my son constantly gets letters from girls who want to do sexual things to him," said Paula Thomas, mother of five children ages 9 to 16. "It starts in the sixth or seventh grade."

It is of course impossible to say that easy access to sexually explicit content on the Internet is solely, wholly, or even partly, responsible for this apparent sea change in sexual activity by very young people, and no conclusion as to long-term harm was suggested or can be presumed. But who can doubt that the Internet will be targeted as the "No. 1 culprit," before television, the movies, radio, and all other mass media, including advertising. The survey represents another potential nail in the coffin as far as sustainable arguments go, and yet another study that Alaska Sen. Ted Stevens can point to in his zeal to make sure that "something is done" about indecency in America. Never mind the fact that the Internet is global and that a lack of control and consensus will prevent any easy or sustainable global fix.


It is too soon to throw in the towel, no matter how much pressure is brought to bear on the industry. The consequences of decisions made now could be unintended and dire. More options need to be considered. How many people in the industry are aware that substantial arguments have been made against the widespread use of filtering technologies and for a limited framework of governmental regulation – CDA-lite, if you will – that might better protect free speech on the Internet, and in the long run prevent both government and industry from imposing ever-greater regulatory constraints? It may be, the argument goes, that the knee-jerk reactions that produce overreaching laws also produce overprotective reactions equally rooted in reasoning that does not readily apply to cyberspace reality. Proceed with extreme caution is sage advice at this moment in time.

Tom Hymes is the communications director for the Free Speech Coalition. He can be reached at [email protected].