Taking Cyberspace Seriously: Dealing with Obnoxious Messages on the Net By: David R. Johnson Controversy abounds regarding obnoxious messages found on the internet -- obscenity, threats, intrusive advertising. The cops arrest a college student who writes an appalling story and posts it to an internet newsgroup labeled "alt.sex.stories". They regularly bust "sysops" whose hard disks reflect the darker side of human nature. Vigilante users flame or, with their special command of the new technology, delete messages from those who "spam the net" with ads. Senators introduce legislation to outlaw online "indecency". One key reason why this debate seems unsatisfying, even as it grows more shrill, is that the proponents of content regulation are attempting to apply laws and concepts designed to regulate the sending of messages from one party to another-- the unilateral imposition of unwelcome content on an unwilling victim -- whereas those who object to such regulation are generally trying to defend the right to assemble a like-minded group -- a phenomenon that simply doesn't fit the "obscene phone call" paradigm. The parties to the debate are talking past each other. The defenders of free speech on the net have a point when they note that most online conversations are not like hard-sell pitches delivered over the phone at the dinner hour, much less like unsought hard-breathing into the phone at midnight. In order to be exposed to an obnoxious message uploaded to an electronic discussion group, an online user must generally go past a password and a warning label that will effectively keep away most people who want to avoid such materials. Have you ever accidentally logged on to a sexually-oriented bulletin board? Inadvertently accessed the "alt.sex.stories" newsgroup? (Keeping kids out is a different matter. More on that later.) Those who favor regulation of unwelcome messages also have a point when they object to e-mail boxes filled to the brim with irrelevant trivia they did not seek. There is no question that the net provides those who want to harass or intimidate a victim with new tools -- and that some combination of traditional law and new self-regulatory mechanisms on the net itself must deal with these new crimes. The controversy over content control on the net grows intense not only because the parties are mixing inapposite categories but also because there is no clarity regarding who is going to set the rules for this new medium. Territorially-based laws fail us when we confront new phenomena involving participants whose geographical locations span legal jurisdictions and have little relationship to the locus of the harms they might inflict.{Moreover, the new "netizens" would prefer to regulate their own affairs -- and resent intrusions by regulators who don't fully understand or share their enthusiasm for this new medium."} I think we can reduce the intensity of the debate, and find some real solutions to the new quandaries posed by complaints about obnoxious content on the net, if we take seriously the idea that cyberspace is a separate place. We should stop thinking about most of these issues as if they involve the sending of a message from party A to party B (or to parties C through Z), and instead fully absorb the fact that most communications on the net amount to the joint creation of a new shared space allowing the assembly of like-minded individuals. (Even opening an e-mail is a consensual entry into a space created by the author, if the nature of the message and the identity of the sender, or lack thereof, is fully disclosed.) In short, if we think of the reader of electronic messages as less of a passive "recipient" and more as an active "traveler," to a new shared space, much will immediately become clear. The net is a world scale barn-raising, or really community-building, involving the efforts of diverse groups to create new venues to hold the products of their collective intellectual and social endeavor. Any effort by geographically-based authority to regulate access to this new territory can be seen as an impingement not only on the right to "speech" but also on the right to assemble -- almost on the right to explore a new world. At the same time, any failure accurately to label a discussion group, or any effort to inflict it by surprise on unwilling participants, can best be understood as the moral equivalent of kidnapping. With this new perspective that the "space" in cyberspace is to be taken seriously, as a means of deciding how to deal with the regulation of content of which we disapprove, we understand at once why the citizens of the net condemned two lawyers for sending out ads into discussion groups specifically labeled for other purposes, but don't object to the growing practice of law firm's listing their expertise on "world wide web" pages that can be accessed by willing readers. Claims to "free speech" rights don't have force when the speaker is intruding into someone else's dinner party. But the net is tolerant of what you do in your own, well-labeled, virtual living room. With this perspective, we understand clearly why it was inappropriate for federal law enforcement officials to charge a California couple with distribution of obscene materials to Tennessee solely on the grounds that a law enforcement official could go to Tennessee and, using a modem, sign into a clearly-labeled and password-controlled bulletin board and download materials, basing the conviction on Memphis "local community standards" rather than the standards of the group that had gone past those barriers to join the bulletin board in question. The right of a local territorial jurisdiction to regulate what goes on in public there simply doesn't translate into a mandate to prevent local citizens from traveling from the privacy of their own homes to more exotic locales. Since no one has to go to any particular area of cyberspace, we simply shouldn't regulate those who upload obnoxious content as if they were sending unwelcome messages that cannot be avoided. But we do need to protect the limited-access and special purpose spaces there against unwelcome (and not easily disregarded) intrusions. (The net has devised it's own "neighborhood watch" approach to such threats -- as shown by the use of flaming and "cancelbots" to delete inappropriate postings. And there are territorially based laws against unauthorized access to computer systems.) In addition, we need to provide the means for parents to at least attempt to control where their kids may wander. Once we have done that, we should in general let online discussions develop as they will. Those who seek to regulate content on the net will object that even private discussions online can create serious harms to third parties -- ruining reputations, creating fear among those not party to the conversation, inciting or facilitating crime --so that there should be some constraints on the kinds of online "places" those who frequent the net should be allowed to build. Taking seriously the notion that online discussions happen in a distinct "place," albeit a place with global dimensions, helps to put into focus the question who should govern that space. Who should have the final say as to whether particular types of spaces should be permitted to exist at all? If we give Tennessee the last word on whether there should be a place for dirty pictures, how can we avoid giving some other country (Singapore?) the right to say that there should be no place for uncensored political discussions? If we prosecute any discussion that others find "threatening," then conversations that used to be permissible (if not admirable) in private settings in the "real" world will not be possible in our new, collective, electronic living room. If we treat the posting of a message as an "action" sufficient to convert "mere speech" into "conspiracy," we will criminalize what we previously ignored as "idle chatter." Because properly labeled online messages involve the right of participants to assemble for discussions that no one is forced to join, we should carefully regulate anyone who sets themselves up as a regulator of such meeting places. The market will probably keep sysops from exercising too much power--someone who doesn't like the restrictions imposed by a local discussion group "moderator" can move somewhere else or start their own forum. But blanket governmental pronouncements that certain messages are illegal should be much more suspect, especially given the voluntary nature of online exchanges. The hardest cases are posed by online discussions that (1) offend privacy and dignity values, where no response can remedy the harm, or (2) the existence of which may allow children to access materials their parents would find unsuitable. If you know a group of any size is talking about you (or your group) in unflattering terms, there can be little consolation short of prohibiting the entire discussion. Even if online discussions are properly labeled and protected by passwords and other reasonable steps to help prevent access by minors, some kids will wander down the online streets to the red light district. Yet preservation of the right of adults of differing persuasions to travel in a cyberspace of their own creation necessarily carries with it the price of allowing anyone to build an online place the very existence of which may deeply offend someone else and which kids, perhaps posing as adults, may reach.) Passwords and labels and headers create useful boundaries that give the internet astonishing diversity. If you view that diversity as forcing its way into every home, unbidden, then you might want local governments to be entitled to keep it out. But if you consider that any participant has to go out of the local neighborhood, through barriers and passwords, to get to the content that would offend geographically-proximate neighbors, you would view efforts to prohibit access to certain content on the net as the equivalent of prohibiting travel. If we collectively insist that online discussions be adequately labeled, then those who gain access to them must be seen as engaged in an act of voluntary assembly. If the market provides online systems that contain only material suitable for children, generated by a combination of technical screens, editorial selection and "neighborhood watch committees", we will have provided adequate means to allow parents to control where their children go. No territorial sovereign can for long effectively prohibit either electronic travel or online assembly. Those made uncomfortable by the existence of foreign places, even those where people condemn and ridicule all that we hold dear, have had to get used to the diversity of the world -- and have gradually gotten to know their enemies and themselves better by means of a gradual exchange of information across boundaries. Ultimately, those who raise concerns about obnoxious content on the net, and those who instinctively seek to protect free speech, can find common cause in allowing the online world to achieve a greater degree of complexity: with semi-permeable boundaries that assure those who want to say something get to do so -- to those who want to hear it - and {that assure that} those who want to travel can do so, while others stay at home.