Lessons from Reno vs ACLU — The bigger picture

First, because they will become rather central as soon as the Broadcasting Bill becomes law. Second, because in working out later amendments, parliamentarians and jurists are bound to be influenced by the US ruling, which struck down the Communications Decency Act of 1996.

In their deliberations, lawmakers, anywhere in the world, tend to be influenced by the most comprehensive legislation on the subject, which become de facto models. When dealing with free speech issues, for instance, the First Amendment to the US Constitution is the automatic referent.

British law has been seized of the problem at least since the time of Cromwell, when the pamphleteers of London needed all the protection they could get. The basic idea of free expression is incorporated even in King John’s Magna Carta, which was proclaimed almost 800 years ago. Yet, whenever a legislator, almost anywhere in the world, thinks of free speech rights, he ends up taking a position on the First Amendment. It’s just that it has a wider canvas than any comparable legislation and therefore, is the best template.

The ruling on Reno vs. ACLU enjoys an even wider ambit. Not only is it a detailed interpretation, it also applies it to the hypermedia of the Internet. Until recently, the Internet offered a relatively small suite of options. There was the Web, which gave access to `pages’ of information.

Email was for person-to-person communication, though its abilities could be enhanced through `list exploders’, which send a single mail to hundreds of recipients around the world. There were `dumber’ applications like Telnet and the File Transfer Protocol for sending and receiving large media, and slightly arcane services like Gopher, Archie, Veronica and Jughead to find one’s way around the Net. At first sight, this little clutch of tools doesn’t look half as interesting or powerful as cable TV.

However, the fact remains that every one of them was capable of carrying text, sound and images all the elements of modern communications. More recently, with the advent of audio and video streaming software, the Net has become capable of all of the functions of traditional media, television included, with the added advantage that it is able to transmit to any point in the world, regardless of satellite footprints, sunspot activity, the curvature of the earth, legal oddities in the receiving country and other problems that plague traditional broadcast media.

Over the last two years, the entertainment industry has shown increasing concern about intellectual property rights on the Net, and is now protected by a new agreement. At the same time, a growing number of computer firms like Microsoft are taking over the functions of the traditional media, and media and entertainment conglomerates like Time Warner and Sony are buying into the Net. Taken together, these trends indicate the possibility that new industry standards will emerge, bringing the Internet and traditional media onto the same platform. Web and TV will enter your home though the same cable.

The number of Internet servers has grown from a mere 300 in 1981 to 9,400,000 last year, and there are 40 million people on the Net. By the turn of the century, there are expected to be 200 million. All of them will get their media feed through the Net. They’ll be watching the world according to Murdoch on their computer monitors.

So any comprehensive ruling on what media ought to do, and where it should get off, has to start with the Net, evolve the basic rules, then apply them to subsets like TV, radio, text and old-fashioned Net functions. It cannot start with TV or FM and then work its way up to the level of hypermedia.Yet this is precisely what is happening with the long-deferred Broadcast Bill, as even a cursory glance will reveal. For instance, it imposes cross-holding restrictions to prevent the emergence of monopolies. It also bans ownership of TV channels by political or religious bodies in order to keep discourse balanced. Yet there is nothing to prevent print media owners or political parties from putting video programming on the Net, where it will be accessible by the whole world. It would be salutary to remember that at least one national party has managed to get enormous support backed by funds from Indians overseas. It could do so much more, with a TV station on the Net. The US Communications Decency Act fell though because of overkill. It was so broad-spectrum that it set out to hold the people who run the Internet responsible for its indecent content. Our Broadcast Bill suffers the opposite defect it’s plain inadequate. Yet, our legislators would do well to study the deliberations of the US Supreme Court because the two laws spring from strikingly similar concerns. The idea of a CDA was born in 1994, when NBC TV aired a report on online paedophiles. On its basis, Senator James Exon of Nebraska launched a movement asking for censorship of the Internet. It didn’t quite take off, but Senator Larry Pressler incorporated its concerns as the CDA in his Telecommunications Bill. Soon after, a Family Empowerment Amendment was incorporated, to save the American family from indecency. And then indecency, Senator Exon’s focus, was replaced by a more politically correct concern for children. And the Bill fell through because the court stated that by reducing communications to the level of the child, the law infringed the rights of adults.

Replace indecency and concern for children by the larger idea of the national interest, and you have the motivation of the Indian Broadcasting Bill. In terms of agenda, it has the widest possible canvas, far wider than the US legislation. But in terms of enterprise, it has an incredibly narrow perspective. It will fail not at the level of ideology, as in the American instance, but at the level of nuts and bolts and boilerplate, simply because the people who drafted it have no idea of the communications power and access options that people have at their disposal today. The Bill may have worked in the days when people who had a radio and a 12-channel TV set considered themselves well-connected. In today’s wired world, it is unlikely to work, and will be an abject failure in tomorrow’s.