Jonathan Lindsay

The Internet has developed in an environment that has proved both explosive and essentially unregulated. Its explosive expansion can be tied, on a fundamental level, to the fact that the Internet enables us to perform many activities at a fraction of the cost and in a fraction of the time required during pre-Internet times. As a result, the Internet’s inherent structure creates huge incentives, or pressure, for people to educate themselves and to take advantage of the substantial benefits available online. This technology-forcing or education-forcing feature, already inherent in the Internet’s structure, has only been reinforced by the courts and Congress through their actions, or lack thereof, in the areas of harmful-speech, online privacy, and to a lesser extent Internet Commerce. ¹ This paper will attempt to show that, by siding with those in favor of Internet self-regulation, the courts and Congress are reinforcing a dangerous trend that could lead to a socially harmful dichotomy between the Knows and Know-nots. ² As such, the education-forcing feature of the Internet should be a central issue in the debate over regulation, and this debate should be informed by, not only traditional issues, but also the possible resulting power-shift in favor of the Internet-aware.

Section I of this essay will expand on the idea of there being structural pressures towards Internet-awareness. Section II will then provide a rough outline of the macro-debate between the Regulators and the Self-regulators. Sections III will discuss the applied pressures generated by the actions and inactions of Congress and the courts in three substantive areas. In particular, the three substantive areas discussed will be those of harmful-speech on the Internet, online privacy, and e-commerce. The section on e-commerce will also be used to illustrate how the Internet’s inherent structure already creates huge incentives towards education. Section VI will in turn discuss how exactly it is that the described pressures towards Internet-awareness result in a socially damaging environment. And finally, Section VII will provide a conclusion and recommendation on how the debates should proceed.

As mentioned above, one structural feature that is most likely at fault for the education-forcing nature of the Internet is the fact that the Internet facilitates the transfer of information in a much more efficient manner. With savings in both time and cost, the Internet offers a competitive advantage for those who employ it. Another factor, however, is the broad applicability of the Internet. That is to say, efficient transfer of information is not limited to the commercial arena. We are now able to accomplish many of the day-to-day tasks in just a fraction of the time and cost. For example, going to the bank no longer requires the expenditure of gasoline, driving time, or waiting in line. Or instead of paging through the morning newspaper, you read your own customized paper online, drawing only from the news sources which most closely match your interests. Such savings have been realized nearly across the board through the advents of online product purchases, education, and even online entertainment-related activities.

Coupling these savings with the phenomena of cyber-communities ⁴ , and the result is a tremendous pressure to ‘evolve’, along with the rest of society, towards a state of Internet-awareness. ⁵ Those who refuse to ‘evolve’ are either left behind, both financially and socially, or are relegated to interacting with a rapidly decreasing percentage of the population. ⁶ This situation has only been exacerbated by the fact that actual injury can result through a lack of cyber-education with little chance of recourse against the wrong-doer. ⁷ Thus, it is important to keep in mind that Internet-awareness is not simply the ability to logon to the World Wide Web or to log into a chat room. Rather, it is the conversion of routine tasks into Internet-executable form, it is streamlining the path between yourself and the information you need before you know you need it, and it is the ability to reach and exchange information with others who share your own specialized interests. Moreover, keeping in mind that new uses for the Internet are being discovered, Internet-awareness is not merely learning what you can do today, it is developing a frame of mind or comfort level such that new uses are easily integrateable into your life.

 II. THE DEBATE – TO REGULATE OR NOT

Over the past few years there has been no shortage of debate over how the Internet should be regulated. One of the results of this debate is the creation of a sharp division between those in favor of Internet self-regulation (the "Self-regulators") and those in favor of government intervention (the "Regulators"). Each side buttresses their position by claiming that the interests of commerce, culture, and safety are best served by adopting each of their respective approaches.

On the one hand, the self-regulators claim that we would be best served by allowing the Internet to do what it has been doing so well. Self-regulators are convinced that any form of legislative intervention would stymie growth and chill e-commerce.8 They advocate using private certification, filters, and basic market forces to ameliorate the issues they sometimes refer to as "Internet growing pains". On the other hand, the Regulators point to the lack of success the Internet industry has had thus far in regulating itself. They are convinced that the dangers to children as well as consumer privacy fears can only be dealt with through some form of governmental regulation. ⁹ Each side makes convincing arguments and provides anecdotal evidence in support. However, the debate is comprised mostly of issues like Internet commerce and socially-equalizing platforms, with arguably the most dramatic effect the Internet has had on our society being left out —namely, the incredible pressure towards Internet-awareness.

The battle over controlling harmful speech on the Internet intensified with the passage of the Communications Decency Act of 1996 ¹⁰ and its subsequent nullification by the Supreme Court in Reno v. ACLU. ¹¹ The Court found that the CDA was overbroad and that it would have the effect of limiting adults' access to speech that they have a Constitutional right to receive. Roughly speaking then, the debate centers on First Amendment rights versus the need to protect children from indecent material available over the Internet. However, absent from the debate over the CDA is the broader ramification of either widening or narrowing the gap between the Knows and Know-nots. And by striking down the CDA, the court has taken a big step towards widening it.

Harmful speech can assume at least two forms. The form of speech most often invoked as evidence of the need for regulation is that of indecent material, such as pornography, available on the Internet. The fear here is that such material is readily accessible to children often under circumstances that are very difficult for parents to control. The other relevant form of speech consists of material placed on the Internet that has the effect of harming someone due to its false or inflammatory nature.

As to the former type of harmful speech, both sides of the debate over regulation agree that the availability of indecent material on the Internet is of concern. The difference comes by way of how to solve the problem. Regulators, to no surprise, insist that the only way to protect children is to regulate the material. Self-regulators, however, are concerned that legislative solutions will cast too wide a net and stifle otherwise protected speech. ¹² They have also voiced concerns about legislation that creates a national definition of "harmful to minors". ¹³

One solution that would, on its face, seem to appease both sides is the use of content filters. However, the Regulators are unsatisfied with the technology as it presently exists. They claim that too much indecent material would leak through the filters and into the hands of children. ¹⁴ Self-regulators have also rejected the use of filters, although for very different reasons. They claim that filters actually block out more than just indecent material, thus infringing on speech protected under the First Amendment. ¹⁵

Self-regulators got a boost from the Supreme Court when they struck down the Communications Decency Act in Reno v. UCLA. ¹⁶ The direct effect that the Reno decision will have is debatable, however, the education-forcing nature of the decision is unquestionable. By striking down the CDA the court has placed the duty of protecting children in the hands of parents and technology. ¹⁷ The result is to apply more pressure towards becoming a more informed and Internet-aware society.

The second category of harmful speech takes the form of harassing or otherwise injurious material placed on the Internet. The consensus is that common law tort doctrine is available against those who post such material personally. The debate, however, centers on where or not Internet Service Providers (ISPs) such as America Online should also be liable for material posted through their servers. Here again, the courts have come down on the side of the Self-regulators. In Zeran v. AOL, the court found that liability for harmful speech posted on a web site should not extend to the ISPs that maintain the site. ¹⁸ This is significant because of the severe difficulty often involved in reaching the sources of such material. For example, the individuals responsible for posting such material may be difficult to track down, they may be out of the courts’ jurisdiction, or they may be judgement proof. ¹⁹

With the courts now protecting ISPs, individuals must be more aware of the how the Internet can be used as a weapon. To counter the negative actions of an otherwise elusive perpetrator, individuals may have to employ technological means. Such technological solutions may include, for example, maintaining your own web site to counter false and/or harmful postings. ²⁰ The point being, however, is that through the Zeran decision, the courts continue to reinforce the already pronounced pressure the Internet applies towards advancing the Internet-awareness of our society.

The macro-debate over privacy on the Internet is in itself a complex web of issues and underlying motivations. As one might imagine, the Self-regulators fear that legislation aimed at protecting privacy on the Internet will also have the effect of chilling the otherwise vibrant exchange of ideas and commerce-related activity which currently exists. There is even some doubt that legislative regulation will be effective if implemented. As Public Policy Director for Interactive Services Association (ISA), Brian O'Shaughnessy, points out,

Regulators, on the other hand, assert that it would be the lack of formal regulation that would lead to the Internet’s falling short of its full potential. Susan Scott, Executive Director of TRUSTe (an organization founded by the Electronic Frontier Foundation and the CommerceNet consortium) points to a recent study her organization conducted which highlights the privacy fears consumers have about the Internet. ²² Even TRUSTe, a generally moderate group, advocates some type of Internet privacy regulation.

As an example, Regulators point to the increasing use of data mining as a practice among companies who do business on the Internet. ²³ Data mining represents the ability to capitalize on the synergistic effect of combining information. However, there is a corresponding fear of the increased opportunities for abuse, resulting in the undermining of confidence and security on the Net. As this practice grows, consumers and anyone divulging information online will need to be aware of the dangers involved with the abuse of, or synergistic effect of combining such information.

Thus far, Congress has been either unable or unwilling to pass any substantial piece of legislation on point. As a result of this lack of regulation, few would argue that at least some consumers are more wary of transacting (and hence divulging information) over the Internet and, as such, have steered clear of doing so.

This is not just an issue of choosing between privacy and online transacting, however. Many small startup companies are offering products only over the Internet. Also, some business’, such as online travel agencies, are offering discounts to those who purchase over the Internet. The result is that, if you chose to protect your privacy by not using the Internet, you are increasingly closing yourself off from opportunities and even entire business sectors. The only other option, thanks to Congress, is to learn about online dangers yourself and how to protect against them. Thus, Congress’ inaction is applying yet more pressure towards Internet-awareness.

As discussed in the Introduction, the Internet’s inherent structure and features makes it a powerful tool for those willing and able to master it. This fact is most readily appreciated in the e-commerce context. Few would argue with the assertion that the Internet’s impact on the business world has been nothing short of monumental. A recent survey by InternetWeek found that 77 percent of the companies polled "say Internet technologies enable more seamless relationships with their business customers [and c]onsumer relationships are seen as improved in 67 percent of the cases." ²⁴ In addition, "47 percent say the Internet is a significant component in their marketing arsenal, with 45 percent saying that Web technology has translated into a competitive edge for their companies." ²⁵ Internet savvy companies have reported across the board savings and, in many cases, increased market shares over their Internet-illiterate competitors. ²⁶ The explosion of Internet-driven commerce has also created tremendous opportunity for skilled workers. There is currently a shortage of people with the skills needed to run the expanding e-commerce industry ²⁷ , resulting in tremendous opportunities for the Internet savvy.

Between the competitive advantages available to industry and the job opportunities created therefrom, the Internet has created a decided market pressure towards education. Those unwilling to equip themselves with the necessary information and skills will find less in the way of job opportunities and business advantages as we continue to convert to a cyber-society. ²⁸

Aside from the structural pressures created by the Internet itself, Congress has done nothing to counter the trend. Thus, in this case, Congress’ contribution to the problem comes in the form of inaction. The debate between the Regulators and Self-regulators, although apparently less pronounced in the Internet-commerce context, is very much alive over the issue of taxation –with the Regulators calling for the extension of a tax system to e-commerce. By imposing a tax structure on Internet commerce, Congress would begin the process of leveling the playing field between traditional companies and those utilizing the Internet. However, as with harmful speech and privacy, Congress has thus far elected to side with the Self-regulators and not tax e-commerce, continuing the advantage Internet sales enjoy over conventional sales. ²⁹

One should also note the commerce-theme that underscores some of the peripheral debates this essay has touched on, particularly those of the online privacy and harmful speech. The reason these issues are so intertwined with one another was noted by Brian O'Shaughnessy, Public Policy Director for ISA, when he asserted that any regulation of the Internet would have a regulation flood-gate effect. ³⁰ Thus, those with strong commercial interests may sometimes seek to shroud their otherwise unsympathetic plite in sensitive issues like First Amendment protection. Although, there are legitimate overlaps between the substantive areas, ³¹ the debate may not look so noble if viewed against a backdrop of commercial interests.

As we have seen, there exists both structural and applied pressure towards a more Internet-aware society. To a legal economist this may sound like a prophecy come true. However, as mentioned in the Introduction, I believe that this will create a division between the Knows and the Know-nots that would be harmful to any compassionate society. With that said, if someone is disadvantaged through their own choice to be a Know-not, few would argue that society has been damaged somehow. However, there are at least two reasons that would make the bestowing of those disadvantages on someone morally repugnant.

The first reason would be if they are simply unable to make a meaningful choice as to being a Know-not. Members of this group would include, for example, the elderly, or more precisely, the soon-to-be-elderly who are too advanced in years to have any appreciable expectation of achieving any semblance of Internet-awareness. Also, anyone with extraordinary time constraints would be in this group. Thus, members would include single working mothers, for example.

The second reason why our society would be harmed is not by the outright inability of some one to achieve Internet-awareness, rather it is through the reinforcement of traditional class-selection. More specifically, although Internet-awareness isn’t necessarily out of one’s grasp, as was the case with the first reason, it would nonetheless be more difficult for a poorer person, or even a slower learner to achieve. Achieving Internet-awareness for these individuals is a task that will consume a greater percentage of their scarce resources than would be the case of an individual with less onerous resource restrictions. In this fashion we are placing a disproportionate amount of the learning burden on the shoulders of those least able to carry it. ³² However, not wanting to fall behind the technological curve, or lose out on the substantial benefits of utilizing the Internet, these members of society will end up exerting more effort and using more of their already depleted resources to receive the same benefits the more fortunate readily have access to. This is the true tragedy of the education-forcing feature of the Internet and its subsequent reinforcement by Congress and the courts.

The Internet has evolved such that its inherent structure confers dramatic benefits on those who master its secrets. Its broad applications and newly developing uses only serve to increase its value as a tool in performing many of the day’s routine tasks. These benefits, however, come at a price. Namely, the resources in the form of time and energy required to learn and to continually maintain one’s knowledge and skill level. This burden is not uniformly distributed, however. Those with heightened resource constraints will find themselves fighting a tougher battle than those without such obstacles. Moreover, those with heightened resource constraints tend to be the traditionally disadvantaged segments of society. Further, Congress and the courts have only served to exacerbate the disproportionate burden placed on this segment of society by reinforcing the advantages conferred on the Internet-aware. In particular, their actions and inactions in the contexts of harmful internet speech, online privacy, and e-commerce have only enhanced the burden to be borne by the less fortunate members of society. At a very minimum, the tragedy of achieving Internet-awareness should be on the debate table of the issue de jure. Along with First Amendment rights, privacy, and protection of our children, the implications of self-regulation on the resource-deficit members of our society should be considered and weighed accordingly.

FOOTNOTES

8. See generally Solveig Singleton, PRIVACY AS CENSORSHIP: A Skeptical View of Proposals to Regulate Privacy in the Private Sector (visited December 19, 1998) <http://cato.org/pubs/pas/pa-295.html> (discussing the dangers of creating privacy rights through legislative action); Thomas W. Hazlett and David W. Sosa, CHILLING THE INTERNET? Lessons from FCC Regulation of Radio Broadcasting (visited December 19, 1998) <http://www.cato.org/pubs/pas/pa-270es.html> (discussing the likely chilling effect regulation will have on the Internet by analogizing to the Radio Broadcasting industry).

12. See Testimony of Jerry Berman, Executive Director Center for Democracy and Technology, Before the Subcommittee on Telecommunications, Trade and Consumer Protection (September 11, 1998) (visited December 19, 1998) <http://www.cdt.org/speech/testimony/jbermantest.html>.

15. See Faulty Filters: How Content Filters Block Access to Kid-Friendly Information on the Internet (December 1997), Electronic Privacy Information Center, Washington, DC (visited December 19, 1998) <http://www2.epic.org/reports/filter-report.html> (setting forth the results of a survey that shows defects in filtration).

19. Yet another critique of legislative solutions for online harmful speech is that much of the harmful material is actually generated from overseas. This is particularly true in the case of indecent material, but applies equally to any type of harmful speech. The CDT, in particular, notes the futility of crafting legislation that is unenforceable against the majority of perpetrators. See CDT Policy Post, Volume 4, Number 26 (October 15, 1998) (visited December 19, 1998) <http://www.cdt.org/publications/pp_4.26.html>.

21. Connie Guglielmo and Will Rodger, Can Net Privacy Coexist with E-commerce? (December 17, 1997) (visited December 19, 1998) <http://www.zdnet.com/intweek/printhigh/121597/cov1215.html>.

31. See generally Solveig Singleton, PRIVACY AS CENSORSHIP: A Skeptical View of Proposals to Regulate Privacy in the Private Sector (visited December 19, 1998) <http://cato.org/pubs/pas/pa-295.html> (noting that no matter how privacy is defined, it necessarily involves the withholding or concealment of information, which, in turn, implicates the freedom of speech).