Contrabandwidth (4-97)
Contrabandwidth  by Richard Greenfield

Net Commerce is coming, and it's arriving at a desktop, laptop, palmtop, even a WebTV near you.

Unstated and unexamined amidst all the hoopla and the dozens of companies pouring money into secure ways of transmitting credit card numbers and other financial data over the Net is that there is Net commerce that thrives in the light of day, and Net commerce that occurs in the shadows. And where and how those shadows fall is, right now, no more and no less an accident of geography.

Consider some examples: a calendar with pictures of Fabio, he of romance novel cover hunkdom. In the United States, Europe and most of Asia, the item is innocuous enough to be sold next to greeting cards. In Iran though, the calendar is contraband.

If that example seems too extreme, consider a suite of laws passed by the German Bundestag late last year. The laws deal not only with "hate speech," but also with obscenity and even with Internet commerce. In the hands of ambitious prosecutors, Playboy and Penthouse calendars could become contraband if offered on the Web, even though the same magazines are quite legally sold at almost every newsstand in Germany! That is not a farfetched example. For more than a year, German prosecutors have been looking into a group of sex-oriented newsgroups on Usenet, ostensibly because of child pornography. But child pornography is legal in Denmark and is, in print/photo form, quite widely available in Germany and other European countries.

Perhaps prohibited pictures seem too intangible to be called contraband. But consider switchblade knives, which are illegal in 49 out of 50 states in the United States (the exception is Oregon) unless you're in the military or work with a police force and can fill out a disclosure form. In that case, it might interest you to know that there are some very esteemed U.S. knife manufacturers making fine switchblade knives. The law against switchblade knives, often referred to as the "Sullivan Law," goes back to the 1920s and may seem very quaint in an era when schoolchildren are caught with Glocks and Uzis and Tec-9s. But it's still the law--in the United States. Germany has no such law, neither does Italy, nor the Netherlands. If you wander around the Web, you're likely to find several sites in other countries that offer switchblade knives (sometimes called "automatic knives") that don't require you to be serving in the police or the military in order to buy.

Of course, it's illegal to order a switchblade knife from overseas and have it shipped back to you in the United States, just as it is illegal to order or ship a Fabio calendar into Iran, and could be illegal to send Playboy calendars to Germany. In the global economy, even in cyberspace, one country's commerce is another country's contraband.

Switchblades are, in the scheme of things, not of major importance, although the ability to buy and sell other weapons online may be more significant. There are two rallying cries that are used by the foes of the free dissemination of information, in whatever form, online: pornography, particularly child pornography, and drugs, particularly illicit drugs.

It's beyond the scope of any one article to delve into all the various forms of adult-oriented entertainment, some of which would surely be seen as pornographic by proponents of the Communications Decency Act in the United States and the measures passed by the German Bundestag and all other attempts to regulate content.

Even the phrase "child pornography" carries a loaded emotional weight. Such acts, are, by definition, criminal in most countries--although, as mentioned before, the possession of images of the acts is not universally forbidden. That already places would-be censors in a thoroughly untenable position. Since one of the countries where such material is allowed is a staunch ally of the United States and a mainstream part of Europe, what is to be done if some entrepreneur sets up a server there (if someone has not done so already) to make images available for downloading? By current laws, absent the Communications Decency Act or any of its European cousin-in-laws, the mere possession of such images constitutes a felony. That is, not their further transmission within the United States (that's another felony), but their mere residence on John Q. Citizen's hard drive. This material has been treated as so evil, so offensive, that some of the very basis of the 4th Amendment, to say nothing of the idea of personal use, has been jettisoned in favor of blanket prohibition.

It gets worse. Assuming, for the sake of argument, that depictions of sex acts between children and adults are indeed so pernicious that exceptions to the Constitution must be made to eradicate them, the fact is that the definitions of child pornography are often extended to cover anyone who is under the age of consent. The problem, then, is that there is no uniform age of consent for sex or marriage in the 50 states of the United States, nor, for that matter, in the European Economic Community or in Asia.

All of this is not meant to suggest that there is not child pornography, whether of the prepubescent kind or featuring teenagers, available online. There are adult- oriented Web sites that proudly boast of pictures of teens, some in cheerleader uniforms doing several varieties of splits not generally seen at football games. Such sites usually carry a stipulation that all models seen within are at least 18 years old (and, in the interests of truth in advertising 18 and 19 are still teenage years). Other material is available on the newsgroups on Usenet and still more is available through certain restricted IRC channels. This writer once saw, while perusing a list of channels on the UnderNet portion of IRC, a channel whose slugline read as follows: "Nude Pictures of Teenage Girls Taken by Their Stepfathers." It's so offensive, it almost reads as a severe parody of censor-happy bureaucrats.

It may, however, not be a joke at all. And if it is not, it plays directly into the hands of those who wish to throttle the free exchange of information. It would be very hard, under even the most liberal interpretation of the First Amendment of the U.S. Constitution or the laws of free expression of any country to find a rationale to cover what such a channel purports to be doing, and very easy to find a multitude of laws that such a group could be charged with breaking.

And that is just the point: the tools are already in place. We do not need any new laws to cover them. It is the passing of new laws and their over-broad application by ambitious prosecutors that poses far more of a threat to any society than do the actions of a handful of sexual predators. Anyone who doubts this can review the recent case of Nicholas Bissell, the New Jersey prosecutor who was convicted of extortion and racketeering and went on the lam for a week before killing himself in a Nevada motel room. Right now, the attorney general of the state of New Jersey is reviewing every conviction obtained by Bissell because it's known that in several cases, he acted through or with associates to obtain forfeited property at extremely advantageous prices. And he was able to do so because he had a reputation as a tough "law and order" prosecutor and because New Jersey's forfeiture laws allowed it.

The Bissell case does not only highlight the danger of overzealous prosecution, but also the other rallying cry of those who oppose the free flow of Internet information: drugs. Drugs online. And lest anyone be unclear about this, there are drugs online. Check into the alt.drugs newsgroup, or rec.drugs.announce, rec.drugs.misc, rec.drugs.psychedelic and you will find questions and answers, recipes and occasional postings like one from a user in Amsterdam who offered to help anyone who wanted to obtain "products that it is difficult for you to obtain at home." It is safe to assume he did not mean Dutch chocolate. Whether anyone took him up on the offer is probably something that cannot be determined. But if they didn't the first time, someone will next time.

Within days after California and Arizona voted to decriminalize marijuana in last November's elections, a Web site went up in the Bay Area to promote the sale of, and to potentially take orders, for cannabis products. Assuming that both states prevail in the public battle with the federal authorities over the propositions, will other states arrest citizens for ordering from California or Arizona? Will Oregon and Nevada have drug-sniffing dogs at their borders? Will all outbound mail from California and Arizona be checked by postal workers in each of the other 48 states, to say nothing of all the other countries in the world where such restrictions are still in force? And will all Internet Service Providers, in the United States as well as throughout Europe and Asia (excluding Holland), be required to block or keep under surveillance all sites in those two states that would offer substances that would then be legal under their laws? Who would build and maintain such a Cyber Berlin Wall, and who on Earth would want to pay for it?

Perhaps this is also too extreme an example, for the court cases on these state propositions could well last into the next century. There are other, easier and just as current examples to explore. The United States is currently looking into banning GHB, normally sold as a supplement at health food stores, because it is allegedly the "new" date rape drug.

There are sites on the Web where GHB can be obtained from outside the United State, its possession not being completely illegal as yet. However, in the middle of last year, the United States made illegal the possession of Rophynol, a chemical cousin to Valium that is available in over 60 countries worldwide, including Mexico. This drug, a strong sedative, had never been licensed or approved for sale in the United States, though there are drugs as powerful that are available here. The immediately stated reason was that the drug was implicated in several alleged date rape cases in Texas and Florida. Reportedly, the drug was used as a kind of Mickey Finn, slipped to someone unwitting, after which they were sexually abused.

It may well have happened that way. But since a person is usually considered innocent until proven guilty, should not the same be true of a chemical? Does anyone believe that the United States can, or for that matter should, unilaterally declare substances to be criminal based on the evidence of local prosecutors? Those 60 other countries where Rophynol is legal didn't follow our lead and ban it, so all that has been achieved is the creation of a new black market for those with access. A pill that might cost 50 cents in Mexico can be sold for $10 or $15 by the time it hits the club scene in New York or San Francisco.

Is Rophynol available online as well? Check out the number of queries related to it in the various drug discussion groups.

There are an enormous number of countries whose laws on what is or is not available by prescription are entirely different than those of the United States (or, than each other's). Heroin is obtainable by prescription in Britain; paregoric (tincture of opium, used to treat dysentery) used to be an over-the-counter item in France. In most of Central and South America, as well as Asia with the exception of Japan, if you know what you want and can pay for it with cash, it's yours. And there is very little, at this point, to keep a pharmacy in Rio, or Tijuana, or Sofia from going online and offering to anyone who can pay the freight, as the Dutch gentleman said, "that which is difficult for you to obtain at home." Most major pharmaceuticals are made and distributed in more than one country, sometimes by the same company (in Tijuana, many of the drugs sold in pharmacies are manufactured in the United States, they just cost 1/5 as much) and sometimes by licensees.

The economic incentive is very real; the access to technology is very real; the increasing numbers of people without access to basic health care or medicine are very real. Internet sales of contraband may start with people who order so-called illicit drugs, but in a short time it will cross over to people ordering drugs just not approved here yet, or drugs which are simply too expensive in the developed countries. And there are not, will not, and cannot be enough postal and custom inspectors to stop them all. By comparison, cutting off the flow of cocaine from South America is an easy task, for this evolution, though it may start with those who self-medicate for pleasure, will quickly reach those who medicate to stay alive, and at that point it will be unstoppable by any government.

In the schemata of Internet economics, pornography counts as "information" and switchblade knives and drugs, count as durable goods. There are still others that are breaching walls; bootleg videos and CDs are a staple of Net commerce. So are guns. There are Web sites that have all manner of weapons for sale. And sellers that aren't listed on sites, which are mostly based in the United States and thus formally required to comply with U.S. laws relating to firearms purchases, are often discussed in the Usenet rec.guns group.

Again, it's economics at work. The end of the Cold War has left countries from Nicaragua to the Philippines with huge arsenals of weapons they no longer need. Tanks and armored personnel carriers can be bought by governments (although there was a recent news report that a representative of a Colombian cocaine cartel had attempted to purchase a surplus Russian Tango class submarine for cocaine smuggling. Leaving aside jokes about what a torpedo from that sub would be like, the carrying capacity of a Tango, stripped of armament, would be in the hundreds of tons). The small arms market is still here and still booming and there are enormous stockpiles of the stuff all over the globe. It might be hard to consummate a deal online, but under the right conditions, all the preliminary contacts could be made, including the posting of descriptions and pictures of weapons, ammunition, etc.

Would the United States Customs Service or the EEC Customs Services catch an anti-tank rocket being sent in to a citizen? Probably, but don't bet the ranch on it. Would they catch 10,000 automatic rifles, suitably disassembled and concealed in other merchandise, or 50,000 pistols? It is very doubtful. Perhaps they could get one in every four such shipments, which is exponentially higher than the one in every 10 they estimate they get in hard drugs (cocaine and heroin). That would still leave a lot of armament out there, as indeed there already is.

What is to be done? Information may want to be free, and even hard goods, pharmaceutical or explosive, may want to travel to where buyers have cash to procure them. Indeed, they travel that way now and enrich none but the coffers of multinational criminal cartels. By its very nature, the Internet can increase this traffic by orders of magnitude, far beyond the abilities of any government, or group of governments to control it, and it could force us into a war that would make the Cold War with all its billions wasted look like a kindergarten party. But there is another alternative. It is neither risk-free nor pain-free, but it is there.

Because the Internet is an international medium, governments will have to begin to think very seriously about what laws they mean to enforce, and how to go about it. If the United States does not intend to declare war on Denmark over the issue of child pornography, then a more sensible approach is required. If the United States and the rest of the EEC do not intend to declare war on the Netherlands over their attitudes toward decriminalizing soft drugs, then a more sensible attitude is required (this would have the additional benefit of saving millions of taxpayer dollars in suits against Arizona and California). No one country can any longer dictate what world policy should be; there are simply too many other voices and too many other interests to be heard. Certainly, the United States can say that it doesn't want Rophynol to be licensed and sold here--indeed, it wasn't, even before the ban--but, when the EEC countries, several years ago, took that same attitude toward Halcion, another chemical cousin of Valium, it was the United States that took umbrage at the actions of the European nations. A corollary of Newton's Law operates now in cyberspace with regard to international trade and censorship: stupid actions create equal and opposite stupid actions, and in digital time.

And what this means, in real-world terms, is that the various international organizations, from the United Nations to the International Court in The Hague are going to have to become arbiters, and arbiters with some powers of enforcement, if the Internet is to become a heavily traveled world infobahn. Without that happening, it will be as if a superhighway could be held up by every little corrupt sheriff who wanted to set up a speed trap on his little stretch of road.


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