Tangled Webs

    The Freedom to Link
Issue 5.4
July 8, 2000

Being in favor of free speech is much like being pro-peace. Mouthing the words is a matter of necessity. Lawmakers and demagogues who lead their counties into war always do so with the assertion that war is needed to achieve a lasting peace. Likewise, those who seek to place additional restrictions on the right to expression always seem to do so in the name of protecting the rights of other citizens.

Legal moves to restrict Internet content are inevitable and, to some extent, necessary. However, lawmakers both here and in America have been going far over the line recently; trying to legislate not only what content is acceptable, but what opinions are acceptable. In both cases, this is being done by making web users legally responsible for the contents of the sites to which they link.

Links in Japan

On March 30, the Osaka District Court ruled that an individual who links to a web site found to be illegal may be subject to legal prosecution. The case in question involved links to pornographic sites that ran afoul of Japan's anti-obscenity laws. Judge Masayuki Kawai ruled that since the defendant's links had made it easier for people to view the pornography, he was guilty of aiding and abetting the crime.

Although this defendant was clearly aware of the nature of the sites to which he linked, the court stated that a web user would be legally liable even if they were unaware that the contents of a linked site were illegal. Although this particular case involved pornography, the ruling would also apply to links to pages that violate intellectual property or copyright laws.

I grant that intellectual property theft on the Internet is something that needs to be addressed, the implications of Judge Kawai's ruling seems at odds with the basic tenets of free society. It seems plain that no one should be held liable for the contents of a web site -- or any other document -- over which they have no control.

Equating a hyperlink to aiding and abetting strikes me as absurd. While I cannot deny judge Kawai's statement that such links do, in some way, ease access to illegal content, I cannot agree that such activity is itself illegal. After all, a taxi driver who drops a fare off in front of a massage parlor is not breaking the law, nor is the pedestrian who gives directions to a book store that has a few titles that cross the line of legality. In fact, in light of this ruling, it would seem that every major search engine in Japan is in violation of the law.

Links in America

The US court system has shown a more liberal view towards free speech, but the US Congress continues to be positively draconian when it comes to the Internet. The recent Methamphetamine Anti-Proliferation Act would make it a federal crime to maintain a site or even link to a site that contains information on illegal drugs, drug use, drug paraphernalia, or that promotes illegal drug use.

Those suspected of having links to such sites would be subject to secret searches and seizures. Unlike those accused of using drugs, those accused of talking about them would not have to be informed their houses were entered and their computer files copied. A similar bill already passed by the Senate goes even farther. Internet service providers would be required to remove any sites deemed objectionable under the law within 48 hours of being notified by a government official. No court order would be required, and the owner of the site in question would not need to be notified.

Opponents point out that unless worded very carefully, even criticism of the government's drug policies would likely violate the proposed law. The bills proponents, of course, say this is all necessary to protect the rights of all Americans and that "regular" citizens have nothing to fear. But one has to wonder why the US Congress feels that those who talk about drugs deserve far fewer legal protections than those who actually use them.

Links for All

Just as reading murder mysteries is not the same as murder, discussing drugs is not the same as using them and linking to a pornographic site is not the same as possessing pornography. "Providing information" about an illegal activity should not in itself be illegal nor should telling another person where to find such information. Historically, such activities have taken place out of sight, and no one has been particularly bothered by them. The Web, however, is the most public of all media. Things happen not only in plain sight, but 24 hours a day, seven days a week, and this bothers a great many people.

Actually, I think that one of the most fascinating and educational things about the Net is that it shows humanity as we are. From sites like Thomas that brings government closer to the people, to conspiratorial pages that advocate revolution; from the wheeling and dealing of eBay and eTrade to the eternal flame wars on Usenet; from pre-teens creating shrines to their favorite bands to senior citizens posting pictures of their grand children; from organizations fighting world hunger to those catering to the basest of sexual predilections; from sites seeped in bigotry and hate to those calling for universal brotherhood. Like no other medium, the Internet tells the brutal truth about who we are.

Perhaps recent moves to attach legal liability links are simply our legislators striking back at those who force them to realize that humanity and society is not as they wish it to be. Blaming the messenger is an all-to-human reaction. That being the case, however, attempts to legislate unpopular speech back into hiding are destined to fail. For better our worse, the web is ours. The web is us.

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© Copyright 2000, Tim Romero, t3@t3.org
This article fist appeared in the June 28th edition of The Japan Times.
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