Warez Noam?

The listservs are humming this week. Between the automatic e-mail from Shabbir J. Safdar of Voter's Telecommunication Watch, the "fight-censorship" Usenet discussions available by e-mail subscription, and reliable dispatches from Net pundit David Cassel - the best source of America Online dirt a journalist could ask for - it's almost impossible to find brain room, let alone disk space, for the entire debate about Net censorship. The impending court decision regarding the constitutionality of the Communications Decency Act (CDA) dominates one part of the controversy; AOL's iron-fisted antics are the subject of another. Taken together, the two issues do more than generate a lot of e-mail: they reveal a strange paradox in the terms of debate over free speech.

The CDA is a segment of the Telecommunications Act of 1996, which was passed into law last February. Its specific provisions are currently the subject of a lawsuit brought by the Citizens Internet Empowerment Coalition (CIEC). AOL, the online service to the unwashed masses has been censoring its subscribers and canceling accounts with a fury that's unusual even for the service that nearly forced breast-cancer survivors to describe themselves as having "oncologically impaired mammaries." Nevertheless, AOL is among the plaintiff members of the CIEC.

The problem, perhaps, lies in our differing notions of what falls under the heading of free expression. AOL's latest caper concerns a chat room called WAREZ, a member-created environment where hackers engage in the illegal but long-standing tradition of swapping proprietary software. In the past week or so, it seems that simply looking into the room is grounds for termination - even if you swear you didn't know warez was a hacker term for stolen software and don't trade any yourself. Add that to the AOL's Terms of Service habit of censoring any discussion regarding body parts or sex, and the company hardly looks like a staunch proponent of the Constitution.

The Communications Decency Act, on the other hand, has generated a protest that seems unequal to its dangers. The "Turn the Web Black" campaign that followed its passage was a somber affair that made strange allies of some major U.S. corporations, libertarian freedom fighters and college students protecting their right to use four-letter words in online poetry. Yet nobody except Ralph Nader and former FCC commissioner Nicholas Johnson cared much that the bill to which the CDA belongs clears the way for a single corporate entity to own precisely half the information sources in a small market (it's an act of "greed and corruption," claimed Johnson at the time). It's as if the only speech worth protecting is obscenity, and the censoring body we have to fear is the U.S. government.

In actual fact, the CDA is a redundant little bone of legislation, thrown to the electorate lest we think our men in Washington don't give a damn about how the Internet corrupts children. It stipulates how one must conduct oneself in online transmission, banning things like harassment, peddling pornography to minors and swearing at people who don't want to be sworn at. It extends previously agreed-upon rules of telecommunications to the Internet (Guess what? Obscene phone calls are illegal, too). At best, it's a pointless tangle of rhetoric. At worst, it's a smoke-screen issue with which Bill Gates can position himself as a new breed of socially conscious entrepreneur while he figures out which radio station will grant him the biggest market share.

Experts who pay attention to the Internet, some of whom are respectable enough on other issues, speak of the CDA's "chilling effect." But it's hard to find that effect in action; the Net is as full of worldly ills as it ever was. Those same experts would do well to examine more closely what has happened: Time Warner faces virtually no impediments in its $7.5-billion takeover of Turner Broadcasting System. A major local phone company, MFS Communications, paid $2 billion for the quietly powerful Uunet Technologies Inc., the firm that laid much of the Internet's groundwork. U.S. Sprint has aligned itself with three cable companies; Westinghouse has a secure hold on CBS and Capital Cities/ABC fits neatly in Disney's pocket. Microsoft and NBC have become friends for life.

Meanwhile, evidence of corporate-sponsored chilling effects abound. One prominent New York-based PR firm, Middleberg and Associates, has extended its services into intimidating "rogue" Web sites - sites that dare to unravel corporate spin campaigns - out of existence. The "Kmart Sucks" page ( became "Mart Sucks" when its creator, former Kmart geek Ron Fournier, received threatening letters from lawyers; the "I Hate Microsoft" page ( has been voted "Most Likely To Be Censored" by Ars Electronica. An AOL flack once threatened James Eglehof over his "AOL Sucks" site; he called their bluff and they backed down.

In response to the CDA, a number of nonprofit and corporate entities have launched what they call the "Blue Ribbon Campaign" to promote free speech on the Net. The CIEC lawsuit is part of that campaign, and the list of official plaintiffs in that suit tells a story of its own. The late Prodigy Inc., a service from which I was bumped in 1990 for suggesting (quite graphically) that the owner of a vicious German shepherd have the animal neutered, lingers on the list; Microsoft, no surprise, is there as well. The real jaw-dropper, of course, is that America Online Inc., too, counts itself among the CIEC's defenders of free speech. Where's Noam Chomsky when you need him?