March 19, 1997 11:00 AM ET
Struggle to codify cyberspace by courts, Congress begins in earnest
By Sean Silverthorne

  Today's Supreme Court hearing marks a milestone in attempts to impose the rule of law on the digital frontier. But it also raises a deeper question: Are the nation's law-shaping institutions cyber-savvy enough to find the fulcrum point between freedom's dynamism and its dangers?

Today cyberspace meets the U.S. Supreme Court--a historic confrontation that marks just the start of attempts by government policy makers, regulators and jurists to impose law and order on the wild, wild Web.

But the court's consideration of the Communications Decency Act--oral arguments are scheduled to be heard today--is but one of the government's growing attempts to control cyberspace. Also today, the Senate Commerce Committee resumes hearings on restricting sales of encryption technology abroad. And just one week ago, a bill was introduced in the House that would create a national moratorium on state and local taxes on the Internet while policy issues are hashed out.

For better or for worse, government has caught up to the Internet. The reason is simple. The Web has seeped to the forefront of the body politic's consciousness. Once caught up by such constituent-sensitive issues as telephone deregulation and cable TV fees, Congress now sees the Internet as one of the electorate's next heat-generating concerns.

Clearly, what happens during the next few years in Washington will determine the look and feel of the Web. "The issues of privacy and content regulation are going to be very high profile in this Congress and into the future," says Jonah Seiger, communications director for the Center for Democracy and Technology, an advocacy group. Other tech issues likely to be hot buttons include consumer protection and privacy, rules around putting medical records online, copyright protection, and the telephone companies' request for Internet access fees.

So it's a given that public policy leaders will affect life online. But is government up to the task? Do lawmakers and the courts understand enough about the Web to decide its future?

Maybe not. Consider: The Supreme Court will hear oral arguments on the CDA in proceedings that could just as easily have occurred in the time of Thomas Jefferson as William Jefferson Clinton. The debate will not be recorded, televised or photographed. No RealAudio broadcast will stream across the plain. Unlike almost every other major government organization, the Supreme Court does not have its own Web page. You can't send E-mail to any of the nine justices.

Then again, maybe. The Congressional Internet Caucus now has 91 members, who have pledged to mount Web pages, maintain E-mail addresses and keep Netizens in the loop on cyber-issues. On the first day of the 105th Congress, representatives passed a rule directing committees to make documents available on the Internet.

Web-savvy or not, the three branches of government are about to step in and impose the rule of law where it did not exist before. And their activities will take place in the face of two equally compelling--and opposing--imperatives. Minus codification, the chaos of the Web could claim many victims--the child who stumbles across an adult entertainment site, the investor duped by an E-mail pitch. Too many rules could be even more damaging to a technology that thrived precisely because it was unbounded and unrestrained. The Net might become a safer place, but a far less dynamic one-clipped of its vistas and robbed of its ultimate potential.

A balance must somehow be struck. If anything, today marks a milestone in what will surely be a protracted effort to find an acceptable fulcrum point.

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