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Net effect of CDA unclear worldwide

Rather than clarify cyberspace law, the Communications Decency Act could end up creating even more confusion by making more rules for other countries to dispute.

Like all online entrepreneurs, Sebastien Socchard knew there would be risks in starting his business. But he hadn't counted on serving time in jail.

"We're just the operators, like France Telecom, which puts its telephone lines in the hands of its clients," the manager of World-Net, an Internet access provider based in Paris, said in an interview with conservative newspaper Le Figaro after his arrest on charges of allowing child pornography to be distributed over his network.

Socchard, it is now clear, was in the wrong place at the wrong time. If he had only been in business about 250 kilometers to the east, for example, he might not have been arrested at all.

Such is the fickle nature of law in cyberspace, where a citizen of reputedly libidinous France might stand a better chance of avoiding pornography charges under newly revised policies in Germany, its more conservative neighbor. And his odds in the United States would be even more of a question mark, depending on the outcome of the current challenge to the Communications Decency Act (CDA) in federal court in Philadelphia.

In classic U.S.-centric fashion, many Americans are under the impression that the verdict in that trial will draw the legal Internet parameters for the rest of the world. But the resulting law could serve only to create even more confusion in the international legal arena by spawning more rules for other countries to dispute.

"There's no way that's clear. That's the big story," said William Giles, a spokesman for CompuServe, the second-largest online service and veteran of international disputes. "It's a huge task just in the United States, much less when you go outside U.S. boundaries. This is a very diverse planet with very different cultures and different legal systems."

Industry analysts, Silicon Valley executives, cyberspace libertarians, and international diplomats all agree that conflicts among countries over online regulation will inevitably arise as Internet usage continues to boom. An estimated 36 percent of all Web sites are created outside the United States.

What no one knows, however, is how these disputes will be resolved--or if they can be at all.

The logical destination for these conflicts would be the United Nations. There, diplomatic officials say, Internet regulation could be handled as any other international issue, such as human rights, environmental abuse, or maritime law. A common standard could be negotiated through arbitration, tribunals, formal treaties, or other U.N.-sanctioned mechanisms.

"This would have to be done in the form of a convention: countries of the world getting together and agreeing on a treaty," said Palitha Kohona, chief of the U.N. Treaty Section, which handles all legal issues for the international body. "It would be the same as is done in cases such as climate change, various human rights conventions. The United Nations sets the process in motion."

Kohona stressed that the global organization takes no stand on the issue and that no member nations have requested a forum. But some are getting close.

Steve Ronaghan, a consultant to the U.N. Division of Public Administration and Development, said that a number of Internet-related legal issues have been raised at various meetings and that policy papers are being prepared for draft resolutions that will eventually go before the General Assembly for a vote, he added.

Regardless of what they pronounce, such resolutions would be non-binding and therefore not subject to enforcement. But Ronaghan said they shouldn't be dismissed, for they at least allow "some of these issues to then come into play."

Because the Internet is largely a U.S. phenomenon, it is understandable that much of the politics among Netizens is rooted in basic American principles of free speech. "It allows people to draw together as birds of a feather, not by geographic boundaries," said Lori Fena, executive director of the Electronic Frontier Foundation, one of the many civil rights groups challenging the CDA. "We've seen that, if anything, it's given us windows on each other's worlds and cultures. The first thing is to understand, not to push your own beliefs."

Yet some would say that Fena's position is itself an imposition of cultural values. Not all societies value free speech in the same way as the United States, and some see this assumption as yet another form of Western imperialism.

As a case in point, one U.S. government official looks to Singapore, "the most aggressive and articulate proponent of 'Asian values'--the rejection of traditional Western freedoms." The island nation is planning to register all online content providers with a national agency to ensure that discussion "does not undermine moral values, political stability or religious harmony."

While skeptical about the city-state's motives behind its Internet regulations this official concedes that there is a legitimate argument to be made on that government's behalf.

"You do not see in Singapore any of the social ills in the United States and other Western countries. Unemployment is well under 3 percent, violent street crime for all practical purposes does not exist, the divorce rate is 1 percent or 2 percent, drug abuse is non-existent," the official noted. "Whether this is a function of Asian values, I don't know. But Singapore can be forgiven for some of its policies."

Kohona believes that any substantial effort to regulate the Internet must begin with clear policies at the national level. That is no easy task, even in countries where the government holds a firm grip on societal mores.

China, for instance, is attempting to clear all online communications through one giant, state-run Internet service provider called China Internet--a monumental feat that many security experts doubt can be pulled off in a country of 1 billion people and growing PC usage.

So far, the only case about online freedoms that has actually led to international jurisdictional conflict occurred last December in Germany, when a prosecutor in Munich warned CompuServe that it could be in violation of German law because of pornographic material posted to its newsgroups. CompuServe responded by shutting down access to some 200 newsgroups worldwide because it was not technologically feasible to block them out in only one country or any other geographical designation. The company later lifted the blackout after providing its members with filtering software.

Even the strongest advocates of the CDA understand that the scope of the law is severely limited beyond U.S. borders. In a parallel challenge to the CDA now under way in Manhattan, U.S. District Judge Dennise L. Cote questioned the effectiveness of a proposed rating on Web sites maintained in foreign countries and, therefore, not subject to American law.

"What assurance is there that they would choose to label themselves?" Cote asked Dan Olsen, a computer science professor at Brigham Young University who also testified on behalf of the government in the American Civil Liberties Union vs. Janet Reno trial in Philadelphia.

"You are correct that U.S. law would not extend to foreign sites," Olsen replied. "And the CDA would give you no assurance about foreign sites."

Moreover, widely used filtering applications such as SurfWatch and Cyber Patrol are not absolute. And an estimated 30 percent of all sites blocked by SurfWatch are based in nations other than the United States.

Still, the libertarian convictions of cybercitizenry run deep, and the talk in some countries is inspired by a type of passion reminiscent of previous generations engaged in revolution.

"Hopefully, this strike will make a difference," Alexandre Gerard told one reporter, referring to an online protest that shut down all French-based newsgroups for five days, during an interview at his Internet Cafe in Paris. "This is a problem for the entire world, not just for France."

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