On the television every night, people watch other people shooting at yet other people and those people fall down and ooze blood and often never get up again.
A couple making slow gentle love by candlelight is an x-rated movie, condemned by all and sundry, and yet we see more and more people being killed and wounded and hurt on the tv with little moral condemnation.
Our world is messed up, and Internet providers are affected, oh yes we are. And it all begins with one disturbing fact: People get on the Internet because they want to take a peek at the dirty pictures, because they want to read about Tammy, the 14 year old horny teenage slut, because they want to express their sexual fantasies and read those of others.
So we start with a big gain: All those great Internet services, all the access we make available to museums and research facilities, all that great hobby information and social chatting and Kibology and what-not is subsidized by the legions of people who do nothing more enlightening or inspirational than downloading dirty pictures.
The same forces that make the Net useful for getting sexual materials are the same ones that make people fear the net. Normally, you'll get sex stuff by visiting your local porno shop, a place filled with high prices and rather dubious looking people. You wouldn't want your best friend to catch you there, would you? With alt.binaries.pictures.erotica and similar groups, you can see those same pictures in the comfort of your own home, without paying a frightful lot of money, and without much chance of embarassment. In this way, pornography is destigmatized in a way that dramatically increases its consumption.
So people flock to their Internet provider because it provides the fun stuff they want, in the most uncensored way. They're having their fun, and we're taking their money, and you'd think it was just another example of good ol' American ingenuity at work, eh?
Perhaps not. For one thing, the transmission of obscene material across state lines is illegal in the US, and much of USENET and FTP site material and WWW sites qualifies easily as that. There have been some truly ugly cases. For example, a California BBS operator was sentenced to jail for accepting a subscription for his adult BBS from a Southern state, and thereby allowing the subscriber to download an adult image judged illegal in that state.
The situation of alt.binaries.pictures.erotica and other USENET newsgroups dealing with porn is rather different and very unusual. The California BBS operator's system was dedicated exclusively to the distribution of adult images. An Internet provider offers so much material that the intent is much less clear. The provider can use what is called the Common Carrier defence - meaning that he just distributes stuff without looking at it, and so he is not responsible for the material.
The common carrier defense is used by the phone company and post office; they say that, since they don't listen in to your phone conversations or read your mail, they cannot be responsible for any material you send via phone or mail, even if they're making money off it. (900 numbers are a primary example of this). This could be logically extended to USENET news; nobody has enough time to monitor every news article written or every e-mail message sent.
In the case of the net, though, there have been no court tests of this argument. It might come to pass that we're not responsible , or it might not. In the case of alt.binaries.pictures.erotica, after all, we make a decision to carry it as part of our newsfeed, and we certainly have a reasonable idea of what it contains. I certainly know perfectly well that I am carrying this material on my system, and that it is of an adult nature. I especially know that people sign on to my system for the purpose of reading it!
Matthew B Landry
Some people have considered all this and put forth the argument that
the safest course of action is not to carry the adult material at all.
Remove all alt.sex.*; remove all alt.binaries.pictures.*; read through
the active file and eliminate anything even vaguely resembling sex.
Others note that this violates the classic big company principle of
denying responsibility. If you remove alt.sex and its friends from
your feed, you are effectively accepting responsibility for what
remains; you are saying that you are not a common carrier who just
distributes everything received regardless of content. This could be
a very dangerous thing to do, because lawsuits will seek the easiest
targets, those systems for which this does not apply. So if you
remove alt.sex but don't remove news.answers, and if an obscene
message (such as the alt.sex FAQ!) appears on the latter, you might
get in trouble for it.
The worst thing to do is to remove the sex stuff and announce that you
have a "child proof" system. Inventive children are rather
frightfully good at finding ways around it, especially when USENET is
on their side, not yours. (There is a document called "The Reading
Banned Newsgroups FAQ", which explicitly lists the ways this can be
done).
Most people who run USENET sites are very much against censorship of
ANY material, whether adult or not. We aren't going to remove
alt.binaries.pictures.erotica unless we're forced to do so. It has to
be said that this is a fight about money, as well as principle; a
large number of our subscribers would quit if they didn't have the
binaries and the sex.stories to play around with. For once, principle
and making money stand together, on the same side.
The Christian Right, unfortunately, are rather unhappy at this state
of affairs. Certainly it's a very tough problem from their point of
view. They believe sexual material to be abnormal, perverted and just
plain wrong. Just as many of us believe in free speech as an
absolute, they believe in respect for God and his anti-porn will.
And, thanks to the Republican takeover of Congress (which I otherwise
support), they have a good chance of winning some kind of tough
penalties for the distribution of pornography on the Internet.
There has been a lot of fear and loathing surrounding Senator Exon's
new bill, S.314. I was able to get a copy of the actual bill itself,
together with reviews of the bill from various sources.
A superficial look at the bill's contents might make one wonder what
the fuss is all about. The bill's actual content takes existing law
on telephone harassment as its base, strikes out the word "telephone"
and substitutes the words "telecommunications device". In short, it
seems to bring laws on telephone harassment into the
telecommunications era. If you are a woman, and I call you and
terrorize you with obnoxious sexual expressions, that's against the
law. If you are a woman, and I email you with similar expressions, it's
not presently against the law. Senator Exon's bill changes that so
that use of a computer is basically equivalent to use of a telephone.
He also increases the penalties for such violations substantially,
from $ 10k to $ 100k.
So far, this sounds pretty darn non-controversial. (Well, maybe the
new penalties are a shade over-the-top, depending on the exact nature
of the communication, but the goal of the bill is surely not
unreasonable).
The most important question is the definition of "obscene or harassing
communications". Does this refer to electronic mail, sent to a single
party without her or his consent, or does it refer to someone reading
messages on a random newsgroup? Certainly it would be quite easy to
think of the contents of some newsgroups as obscene; indeed, they were
meant to be that way. Does this group refer to them, or only to
communications directed towards a single individual? Certainly the
name of the bill, the "Communications Decency Act of 1995", does not
inspire confidence on the part of the civil libertarian; it seems to
imply that it's cleaning up a lot more than the online equivalent of
harassing phone calls.
Some people have felt that this bill requires the operator to take a
pro-active stance against harassment. This doesn't sound right to me.
The full text of the bill does not mention telephone companies or
on-line service providers even once; its provisions are aimed at those who
initiate the communications. So one of your users might become liable
under its provisions, but you as the service provider would not be.
Indeed, since the bill equates telephones and "telecommunications
devices" by subjecting them to the same laws, it might be a good
piece of evidence for the "common carrier" defense mentioned above.
I would suspect that the obligations of the service provider would be
similar to the obligations of the phone company in a similar matter;
you would have to identify the perpetrator by checking your records,
or cooperating with another site in doing so. This is something sites
already do on a volentary basis, so I doubt that it would mark much of
a change.
Walter Vose Jeffries
However, a vital point is that the bill is completely silent on the
question of precisely what an online service provider's duties are in
this regard. In theory, they could extend to anything, as little as
nothing, and as much as putting together a whole bureaucracy to
monitor e-mail. Its job is merely to say that there are substantial
penalties to the originators of obscene messages; it says nothing
else, including whether it includes public messages as well as
private.
One of the major questions here is what would happen to the operators
of systems running anonymous remailers. They might be required to
disclose the identity of people who used their service in good faith
to broadcast controversial views. How can the rights of those people
be reconciled with those of the victims on the other end? This is
particulary interesting in view of the recent Church of Scientology
case, where they are trying to prevent anonymous remailers from
re-broadcasting CoS material.
S.314 is likely to be strongly opposed by the cable industry, since it
requires the re-working of set-top boxes to fully scramble the audio
(as well as the video) portions of pornographic material sent through
cable systems. This is certainly its most clearly understandable
provision.
If the bill is construed to apply to public as well as private
communications, it may face significant hurdles in the courts.
Traditionally, the courts have treated issues of nudity, indecency and
obscenity separately; this bill attempts to combine them in a way that
may fall foul of the First Amendment. The issues of Community
Standards, at the heart of US law on pornography, are definitely
thorny when applied to the Internet, which has global reach. What is
legal in Los Angeles, California is not legal in Fargo, North Dakota;
what standard can be used for a worldwide communications medium? At
present, there are no guidelines, only guesses.
This bill has some valid ideas; surely we can all agree that people
who harass others via email should be subject to the same penalties as
those who harass by telephone. However, its provisions on electronic
communications are murky to say the least. On the whole, it seems
like a bill well worth opposing despite its innocuous surface.
However, the industry might be able to support a bill that was less
vaguely worded.
To check out a copy of the bill itself, visit the URL
http://thomas.loc.gov/home/c104query.htmland ask for bill S 314 by
number. This is a very nice search system and is an excellent way to
get copies of any legislation that might affect you.
For another analysis of the bill, check out
gopher://gopher.panix.com/vtw/exon. This analysis echoes most of the
my concerns, but has a somewhat more unfriendly view of the proposed
legislation. You can also obtain additional information by sending a
message to s314-info@cdt.org.
I think you can tell that this is an amazingly controversial issue,
with opinions literally all over the map. Some people think your
safest course is to give everyone complete access to everything;
others think a good faith effort to prevent minors from accessing porn
is needed, and still others think porn is horribly immoral and should
be removed from the net entirely. I think most Internet providers
believe in their heart of hearts that "information should be free";
most of them would also rather not have their equipment seized by a
rapacious Federal government.
I suspect the bottom line is something like this:
- Someone's going to become a test case on this. Unless you're a big
system, worthy of an expensive lawsuit, it probably won't be you.
Once the test case has been fought and won (or lost), everyone will no
doubt change their system (or not change it) to conform to the
result.
- The safest and most probable course is probably to do whatever other
providers in your area are doing. In my experience, most of them
offer a full newsfeed, including the sexual stuff, and require
potential users to sign a paper saying they're of legal age or have
permission of their parent or guardian to sign on. If you do the
same, it's pretty unlikely you'll become a test case. There are
juicier targets.
- Watch out if you promote your service heavily as having these
pictures or stories. People who want them will ask or root around the
system until they find them. If you promote your system or make it
clear that the binaries groups are a major reason for its existance,
I'd anticipate a legal problems, on either the obscenity or the
copyright issue (see below for more on that). . As another example,
you probably want to make UUDECODE available in your libraries, and
make sure people know how to get to the FAQ, but it's not recommended
to do the decoding for the customer; that would give you a higher
level of responsibility for the images. (As long as you offer
UUDECODE and carry image groups other than the sexual ones, you can
say with reasonable legitimacy that this is a service to help people
decode all pictures, not just pornographic ones).
- Stories are safer than pictures; verbal representations of things
don't seem to scare off the morality police in the way pictures do.
There seems to be a legal presumption that favors printed text as
protected speech, even if the text is about things that would be
distinctly illegal if done and photographed. So kiddie porn stories
are OK (which is good, since alt.sex.stories is filled with them), but
kiddie porn photographs are most definitely NOT OK at all.
More information on this would be appreciated from the legal folks on
the list and elsewhere.
If the issues above sounded too confusing to you, you're not going to
like this next section, either.
You may have wondered where the images on
alt.binaries.pictures.erotica come from. "Surely," you must have
thought, "there aren't too many teenage nymphomaniacs begging to show
off their hot bodies on the net for free, when they could pose for
Penthouse and make big bucks.""
Sadly, you are right. Most of the images showcased in the binaries
group are scanned from commercial adult publications, or uploaded from
adult CD ROMs, many of which are copyrighted.
As a result, virtually every post on alt.binaries.pictures.erotica is
a copyright violation.
Karl Denninger
Counter-arguments bring up the common carrier defence, as well as a
few other interesting facts.
(1) By removing alt.binaries.etc as copywrited material, you are
risking that people will see other copyright violations on your system
and be more inclined to think you took responsibility for them.
Copyright violations occur every day in news, with people posting
things such as Canter & Seigel articles in news.admin.misc.
(2) No copyright holder has yet come forward and attempted to enforce
their rights to a USENET poster or site. In one particulary
fascinating example, a user of CRL posted a scanned image from a
Playboy video to the net. Despite his admission of having done the
dirty deed, and his willingness to act as a test case, I don't believe
he was ever prosecuted. Megabytes of discussion were created, of
course, but hey, that's USENET for you.
In theory, the First Amendment should support our right to read porn.
However, in the copyright issue, I don't think the law is on our side.
Practicality may be, however; as long as it is basically the
responsibility of individual posters to stay within copyright law,
it's unlikely it would be worth Playboy's time to go after them. In
the widely cited court cases involving Playboy and BBSs, the BBS had
an active role in the creation of the site, in particular doing the
actual scans of the images. However, if Playboy could somehow find an
Internet provider liable, they'd probably do it.
Summary: Although the alt.binaries.etc groups are blatant copyright
violations, it's quite unlikely that they'd choose your own site as a
test case. As a result, I think it's fairly safe from a legal point
of view to carry alt.binaries.pictures etc. The moral issue is rather
more interesting.
With all the spicy stuff on TV, in movies and in books, all of which can
be easily accessed by minors, it rather surprises me that there's so much
fuss about a few pictures. But there is.
The answer appears to be, "Only if they have a note from their parents."
But I'd like to hear all views on this issue.
Note that this is not confined to picture files; newsgroups like
alt.sex and alt.sex.stories also contain questionable material. Even
such a tame sounding group as news.answers is a time bomb; eventually
that alt.sex.bondage FAQ is going to find its way in there.
You can certainly restrict a lot of it, but I doubt that you'll get it all.
In particular, news.answers contains some sexual material. It would be
possible to put together an automated kill-file mechanism that would put
any group with the name 'sex' in its title, and hide messages with the
name 'sex' in their subject lines.
My BBS-like software has an interface that gives another possible answer to
this question. With my system, you can effectively lock people in to a
specific list of newsgroups selected by the operator. Since there's no
shell account, there's no way to fool with the active file or read the
groups from the news spool.
A normal newsreader has so many security holes that it's not going to
prevent the determined 13-year old from getting the access s/he wants.
I am very much afraid that protecting minors from sexual material on
the net is just as hard as protecting them from sexual material in
real life. That is to say, impossible. Even with my BBS-like
software, they could still telnet to a site that has those groups. It
is a great pity this opens up so many potential legal problems.
Next section: Legal Issues
15.2 S.314, Senator Exon's bill
15.3 Porn and you: The bottom line
15.4 Copyright Issues
15.5 Can minors be allowed to use unrestricted accounts?
15.6 How can I prevent minors from seeing the sex stuff?