Don’t Tread On Me

Accountability and Self-Regulation in CyberSpace

Much hype and misinformation has been churned out about cyberspace and the information highway. While the mass media’s coverage of this new medium does not rival that of the O.J. trial, attention being paid to users and providers of computer networks and online services has grown intense during the past two years. Culminating this misinformation glut is legislation in Washington, D.C.: Senator Exon’s Decency Act of 1995. 

The Exon Bill represents leadership that is uninformed of the citizenry it is attempting to rule over, reminiscent of the British style of “taxation without representation” legislation during America’s frontier days. Despite the stories of security problems and the wilderness of data, the electronic communities that comprise the Net are in most cases stable and self-regulating as their citizens hold each other and their system administrator accountable for their online content and conduct. 

In an era when government is trying to downsize so that it may live within its means, an attempt at regulating a medium residing within and beyond the jurisdiction of the terrestrial courts and agencies of the U.S. is shortsighted and embarrassing. Specifically, many electronic communities whose computer and databases reside physically in the U.S. have users (i.e., online citizens) who reside in the U.S. and in other countries. Despite differences in culture and legal standards, individuals meet and share information on a regular basis. 

Such users can meet peaceably because they adhere to what is generally known as an acceptable use policy (AUP), or netiquette, or terms of service. Ranging from an informal understanding of what is proper to a structured code and signed contracts, users agree with an electronic community’s system administrator to abide by rules in order to participate in that particular community. By letting their contracts be their conscience, users have much liberty and responsibility as they act and speak in cyberspace. While there are rogue and raucous electronic communities out there, there are thousands of communities that have gotten along fine over the years because their users care about what goes on while online. Users turn misusers in to system administrators (a.k.a., “sysops”) and in cases where the violative conduct touches upon a terrestrial law, the sysop turns the offender over to the appropriate authorities (e.g., the recent incident of child pornographers being turned in by America Online’s chief sysop and CEO Steve Case). 

While Senator Exon’s Bill is well intentioned — laws that argue to protect children will always be deemed to be a “good thing” — it is unnecessary for the most part. If, however, there needs to be regulation of the Internet, then such rule making should come from an authority other than an elected representative who is not even a user of e-mail. Instead, a more appropriate body for the consideration and recommendation of laws for the online world is one that does not yet exist formally but one whose time has come: an “Internet Law Task Force” or ILTF. Analogous to the Internet Engineering Task Force or IETF, a volunteer body that meets regularly to discuss and determine what technical standards should be agreed upon in furtherance of the interoperability of the various networks that make up the Internet, an ILTF could be a body of lawyers and technical experts from the U.S. and other countries whose mission would be to support the positive use of the Net. Already, many individual professionals here and abroad work together on issues of mutual interest because they enjoy it and because they deem it as a necessity. 

An ILTF could be called upon by elected representatives in Washington, D.C., and elsewhere for expert testimony and for fact finding missions. However, an ILTF would be in the best position to hear and understand the interests of online citizens and sysops. Also, an autonomous and volunteer ILTF would appreciate the fact that users and sysops of individual electronic communities do not wish to have their rules subverted by an outsider. 

In the absence of an ILTF, legislation like Senator Exon’s will most likely result in the Balkanization of cyberspace, chilling participation and openness, increasing costs through heightened liability (thus decreasing access for the poor), and dividing the medium on jurisdictional boundaries — dividing lines wholly inconsistent and incompatible with the meaning and working mechanism of the fluid and global medium that is the Net. Data will be driven offshore to computer networks in other countries, connectivity will be cut short, and electronic commerce will blossom elsewhere. 

Even if content providers on the Net were to voluntarily submit to a government requirement for a rating system similar to the motion picture industry (re: How About X Ratings On the Internet? by G. Griggs, 29 March 1995, The New York Times, A14), implementation of adequate software in support of such online notification symbols and protocols would take years. Also, and perhaps more importantly, such a measure ignores the same fact that the Exon Bill does: the Net is a global phenomenon. Attempts to control information here will simply mean that such information will be stored elsewhere and accessible remotely from the U.S.. The interconnected nature of the Net permits users to route around barriers and get to the information they want. 

Recently in these Op-Ed pages it was written that :”The successful marketspace will be one that makes shopping a transaction not just involving goods and services but also experience. It will not forsake community for commerce.” (Steven Alburty, It’s a Buyer’s Marketspace, The New York Times, A15, 20 March 1995.) Similarly, successful governance should not forsake communities and their rules falsely in the name of children. 

Note: This version is a revised submission to the Op-Ed Page of The New York Times