Opinion

Congress and the Internet: Silence As a Policy Choice

Twenty years ago today, President Clinton signed the Telecommunications Act of 1996 into law. Yet with little sense of history, there is a continuing misperception that the law was incomplete, since little was known back then about the internet. As a result, this line of reasoning goes, Congress acted with imperfect information about the emerging digital domain that was about to flower, and needs to go back to the legislative drawing board.

This view, however, should be added to the urban legend file. A critical aspect that enabled the passage of that law was a provision known as the Communications Decency Act, which prohibited explicit content from being sent online to minors. Within days of the President symbolically signing the law with an electronic pen, it was challenged by civil libertarians as a violation of the First Amendment’s free speech clause.

That case was decided by the U.S. Supreme Court only four months later—an unusual speed record that underscored how important the shaping of Internet policy was considered to be even way back when.  It led to a clear declaration that the Internet required the highest level of constitutional scrutiny. Under this high standard, the court could not let the Communications Decency Act survive. Extending this principle, this means that there was little role for government in regulating the Internet—then or now.

In retrospect, that opinion captured a timeless view of the Internet with continuing relevance for government policymakers who continue to search for an appropriate regulatory role.

The words of Justice John Paul Stevens, who wrote for the majority, demonstrate that although technology has continued to leap forward, the basic framework for the Internet already was in place in 1996. Congress could have been more expansive regarding the internet had it chose to do so. Here’s what it knew, in the words of Justice Stevens:

“The Internet is an international network of interconnected computers.”

“Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access.”

“Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods… Taken together, these tools constitute a unique medium…located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”

“Navigating the Web is relatively straightforward…Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider. The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.”

These descriptions ring true today; the wider availability of broadband apps and content, devices and networks has affected choice, speed and pricing, but the fundamentals have remained relatively constant over two decades.

Those who advocate new legislation that increases federal control over the internet need to listen closely to the silence that was conveyed when the Telecommunications Act of 1996 became law.

 

Stuart N. Brotman is the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Communication and Information at the University of Tennessee, Knoxville.

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