With Congress and the White House holding their institutional breath for the Supreme Court's decision on the Communications Decency Act, the policy debate over free speech online took a dramatic turn early this week, one that forced the administration to clarify its position on content regulation and left a long-awaited working paper on the future of electronic commerce in jeopardy.
What happened is an illustration of Washington spin, the power of the media establishment, and the growing prominence of Net issues on the national political scene.
On Monday, The New York Times hit the stands with a front-page story asserting that the administration was backing off its support for the CDA and would instead work with industry leaders to find technological means to help parents restrict what their kids see on the Net. The Times said this dramatic departure from administration policy - after all, the Justice Department did defend the law before the court - was embodied in a White House working paper on electronic commerce that has been in progress since last fall.
The working paper - which tackles a broad range of issues from taxation to intellectual property, to privacy to security, to electronic payments - has for many months included provisions on content regulation. The paper says that the administration would seek alternatives to legislation, and would work with the industry to develop these tools - blocking software or other means - that would shield kids from online pornography. This is in keeping with the paper's hands-off approach to virtually every aspect of electronic commerce except encryption. (The administration is holding to its policy on data-security technology: strict limits on exports and key-recovery for US users of such software.)
In an interview with Wired News in February, and again at the Computers, Freedom and Privacy conference in March, task force leader Ira Magaziner stated unequivocally that the administration would seek market-based alternatives to regulating Net content. But as long as the CDA was on the books, he said, the administration would support it.
But the Times article saying President Clinton was backing off on his support of the CDA, and the heightened scrutiny on the administration's policy on Net "smut" as opposed to Net commerce (or even Net free speech, for that matter), has splashed some cold water on the Magaziner white paper. The date for Clinton to unveil and endorse the framework, though set for 1 July, could be pushed back. The Big Worry: If the paper does get the fanfare it deserves, will the American people see Clinton as soft on Net smut, as not protecting children from pornography?
And what about our cyber-veep, Al Gore, Candidate 2000? Will he endorse the paper if he thinks there's a chance that he would look like he's not doing enough to protect America's children from clicking on X-rated Web sites?
A Supreme Court ruling that the CDA is unconstitutional could allow the administration to move forward with Magaziner's market-friendly approach to electronic commerce and Net content.
But while Washington waits for word from the court - and the news vans were getting warmed up for a possible Thursday release of the decision - the Justice Department will continue to dismiss the Magaziner paper as a "work in progress," White House spokesman Mike McCurry will tell the press corps vaguely that the president is "trying to help parents," and the question of what the administration really thinks about free speech in cyberspace will remain unanswered.
