The censorship case against fiber

BY STEPHEN N. BROWN

Services and technologies are not the same thing, but sometimes technologies are judged to be "good" or "bad" according to the service or behavior they enable. In the presidential election campaign George W. Bush and Al Gore derided movies, television, and the music business for supposedly offering too much violence and other content not consonant with "American values," and the public seemed to agree. Thus, a door-to-door fiber-optic network allowing video communications to deliver questionable services may one day be seen as a negative influence on society.

Here's the theme of one popular movie, "The Devil's Advocate," shown throughout the United States and Canada last year. Al Pacino plays the devil disguised as a law firm's senior partner, educating his naive recruit about the finer aspects of manipulating personality and how telecommunications helps achieve that goal: "You sharpen the human appetite to the point where it can split atoms with its desire, build egos the size of cathedrals, fiber optically connect the world to every eager impulse, grease even the dullest dreams with these dollar-green, gold-plated fantasies until every human becomes his own god, an aspiring emperor, and where can you go from there?"

The "Devil's Advocate" view of telecommunications might scare everyone into believing they need their own V-chip. Video communications is now the preferred way to deliver a message to an audience, to influence it with colors and sound and not necessarily with the message's substance, much of which may be illogical or untrue. The Internet's physical appeal to the human senses is probably similar to the physical appeal of a big-screen movie-each medium conveys its message through sight and sound.

Despite its power, telecommunications does not have a life of its own, because touch, taste, and smell-the other three human senses that make us what we are in the physical world-cannot be reproduced electronically. Without the other three senses, video and audio communications are nothing more than tools and objects. Fascination with the Internet may cause some people to live half a life, but it is a driving force in the economy and raises the demand for bandwidth.

However, the fascination vaporizes such things as "community standards," the principle used in the past to determine what content is "acceptable." With community standards set aside as ineffective, Congress has stepped in with national laws governing the transport and display of such material over cable TV and direct broadcast by satellite. But the technologies that deliver the service are only one part of the picture: For Congress to be comprehensive, it will have to consider the content-hosting industry, companies such as Exodus and Verio, which "host" or rent server-to-house content owned and created by someone else. The hosting industry has the potential to treat content in several different ways. For example, in the United States, Qwest Communications offers a product to its customers that allows them to build their own Websites. But Qwest also has a legal notice: "Anyone using this server agrees that Qwest may monitor the server contents periodically...Qwest reserves the right to modify, reject, or eliminate any material residing on or transmitted to its server that it, in its sole discretion, believes is unacceptable or in violation of the law or these terms and conditions." In this case, arbitrary "corporate standards" have replaced arbitrary community standards.

Opposing standards are articulated by an enterprise in Britain, the FreeNet Project, which describes itself as "implement[ing] free speech, nothing more" and whose "aim is to provide a means by which information can be shared without fear of censorship of any kind." Apparently, FreeNet is developing a system where content is mobile, on the move from one group of host servers to others, wiping out its trail and not indicating its next move. Backbone providers might have problems with sudden shifts in traffic direction and volume if content rotated unpredictably between server farms. But if it did, the result would be that content "is not stored at fixed locations or subject to...centralized control...[rather] a single worldwide [system]...stores, caches, and distributes...based on demand...[content is accessed] without fear of censorship...individual documents cannot be traced to their source or...to where they are physically stored...authors and readers...on this system may remain anonymous if they wish."

The Qwest/FreeNet approaches intertwine the ideas of censorship, free speech, and privacy. The United States is already struggling to establish policy that properly balances privacy with speech protected by the First Amendment and with speech that is not protected. In 1999, the 10th Circuit of the U.S. Court of Appeals heard a case involving CPNI, an acronym for "customer proprietary network information," and established a milestone in the policy-making process. CPNI gives telecom and Internet service providers a detailed log of which services and Websites are used, when they are used and how often-excellent information for marketing new products or for passing onto other marketers or government agencies.

The case stemmed from the FCC's rules implementing the Telecommunications Act of 1996, Section 222, the "Privacy of Customer Information," which supposedly directed carriers to protect customer privacy. The FCC interpreted Section 222 to mean that carriers could use CPNI only with the customer's explicit consent. The rules were challenged by US West (now owned by Qwest). The company claimed the rules restricted the company's First Amendment right to engage in free and commercial speech with customers. The court agreed with the company and wrote in its order: "The concept of privacy...is multifaceted...privacy may only constitute a substantial state interest if the government specifically articulates and properly justifies it." The court vacated the rules because the company was engaged in legal, permissible activity and the FCC failed to show the harm that would ensue if the carrier had free reign over a CPNI database. Thus, commercial interests captured a ready tool for customer profiling across every kind of telecom network, including a door-to-door fiber network.

Stephen N. Brown writes on public policy in telecommunications. He can be contacted by e-mail at [email protected] or telephone: (615) 399-1239.