Technologies force legal change

This week's Supreme Court hearing of the Communications Decency Act has been portrayed as the beginning of the end of the debate over free speech on the Net. In fact, it is the end of the beginning.

New legislation expected go to story   Technologies force change

CDA argued in high court
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go to story The perpetually changing nature of the technologies developed to send information online will force the courts to react more often and more quickly than it has on any other issue in First Amendment and mass communications law.

As they have done many times before, proponents of the CDA argued before the Supreme Court yesterday that the Internet is a mass medium that should be regulated. Opponents repeated their counterpoint that viewers use the Net differently--requesting information rather than passively receiving it--with technology that is nothing like TV.

But the commercialization of the Internet has created a demand to make computer hardware and software look and act more like television. So what happens to Internet regulation when this long-awaited "convergence" takes place? Will studios be allowed more freedom on the Net for the same content they broadcast on networks and cable?

"The more [the Net] starts to look like TV or cable, the easier it is going to be for courts to draw an analogy between them," said David Sobel, legal counsel for the Electronic Privacy Information Center, which supports free speech on the Internet. "You are going to find the more regulated media complaining about the regulating regime. They will say there is not a big difference between what is on the Net and what is sent over cable and the airwaves."

If the marriage of TV and Internet technologies is not quite complete, the courtship is in full bloom. And this convergence has already produced new ways of channeling information that present challenges to those who want to filter objectionable material away from children.

"Push" technology may do just that. This technology is named so because it can send material from the Internet, including real-time video, onto your computer screen--and not necessarily filter it first. If push technology becomes widely used, it could force the courts to readdress the issue of what is permissible online.

Beginning next Monday, for example, CNNfn plans to stream live video of two of its popular financial programs onto the Net only slightly after they air on TV, with simultaneous broadcasting due later this year. Fox News and MSNBC may not be far behind. And Excite announced this week that it will organize its search engine around "channels" to create a Web experience that mimics TV.

The technologies are also being used by more controversial media companies. Hustler magazine, for example, already provides a "program" called Passport to Pleasure, which promises users who download free software the option of living out erotic fantasies with "real live women."

Howard Pfeffer, vice president of software technologies at the Excalibur Group, a Time Warner subsidiary that overseas the Road Runner online service, says that the technology for features such as live video streaming is already widely available, as is the requisite bandwidth, so long as customers use cable modems that can carry large amounts of electronic data.

"The technology is really already available today, but the client-side machines are behind," he said. "In the next year, you'll see large enough penetration [of higher-end PCs] that technologies such as live video streaming will become commonplace."

"helvetica"="" size="-1" color="#666666">FCC's Reed Hundt on why the Net is unique 989K

That, in turn, raises concerns about the viability of filtering software now so highly touted by CDA opponents as the preferred alternative to government regulation. As new technologies continue to emerge, programs such as SurfWatch, Cybersitter, and Net Nanny will constantly be playing catch-up.

"Nothing can be 100 percent effective," said Sami Bray, a marketing associate at Spyglass, which produces SurfWatch. "With Internet technology, it is difficult not to be in a chasing position."

This means that, sooner or later, the courts and the Federal Communications Commission will have to revisit the regulatory issue. In a recent NEWS.COM interview, FCC chairman Reed Hundt skirted the question of whether his agency will begin regulating content, again citing the argument that the Net is different from television.

"Fundamentally, you never know what's going to hit you with television. This is not the same as the Internet, where you do have the power of choice and the power of selection," he said.

But Kevin Werbach, FCC counsel for new technology policy, acknowledged that as the Net converges with other technologies, it will force the FCC to reexamine the issue of Net regulation. "The FCC has never tried to apply any of the existing broadcast rules to any of the things on the Net, but this will increasingly be an issue," he said. "No one today is arguing that real video means competition for TV, but it may be someday, and then rules may have to be applied to the Net or taken away from broadcast."

Others argue that, regardless of what new kinds of technologies are used on the Net, it will remain a unique medium.

The Information Technology Association of America, a trade association representing 11,000 companies and affiliates across the United States, maintains that these technologies will not necessarily be used throughout the entire Internet.

"We are unhappy with the term 'convergence,'" said Jon Englund, vice president of the trade association. "We don't think the Internet recycles old media. We don't believe [the Net] will wipe out the media that exists today...Even when it involves media that exist today, it is unique."

Still, even Englund agrees that Netizens have not seen the last of Internet decency legislation. "Whether we like it or not," he conceded, "the issue of the CDA will rear its head in Congress this year and in courts around the country."