Infotech Must Influence the High Court

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Infotech Must Influence the High Court

While the usual hearings and horse trading are under way on Capitol Hill and the fund-raising brouhaha envelops the White House, nine individuals are quietly preparing to more fundamentally alter the landscape of the information technology industry.

Other vital issues will be taken up by the high court during the next several years, including the rights of states and localities to tax online commerce; the extent to which people can freely use online content without infringing intellectual property rights; how far the constitution's curbs on state-level regulation of interstate commerce apply to online commerce; and how existing antitrust law can be replicated in cyberspace.

There's no telling how the judges will vote on CDA or any of the other issues. They could reject the CDA flatly, accept it wholeheartedly, rewrite it to fit their view of the Constitution or even delay a decision until the technology and the marketplace offer cheap and less intrusive ways to verify the age of World Wide Web users.

Nor is there any way to tell how the members of the court will respond to the many questions coming their way - especially because those questions have yet to be reduced into particular lawsuits.

Nonetheless, industry can make a good business case to itself for spending much money and effort to influence the legal landscape. For example, executives fear that the CDA - if approved by the court - will embroil them in numerous lawsuits as parents, civil libertarians and risqué content providers all start suing one another and the communications companies for the right to block or disseminate particular material.

Industry is already trying to shape the judges' future decisions.

With backing from civil libertarians at the American Civil Liberties Union and the Washington-based Center for Democracy and Technology, industry can use its enormous cash to pick and choose favorable cases that advance its libertarian, anti-regulatory goal - each legal victory a foundation for the next.

Industry can also match those cases to receptive judges, as the complainants in the CDA case did with the Pittsburgh panel that first struck down the CDA.

Industry can also use its money and technology to educate the judiciary about the wonders of the infotech economy, and also to take the edge off its opponent's cases. Thus, online porn filters, say industry executives, can help parents do the arduous and never-ending task of keeping porn and other undesirable stuff away from the kids, while leaving industry less worried about lawsuits. Left unsaid is that fact that the porn filters were developed only after the CDA won support on Capitol Hill.

Industry can help elect politicians who will slowly nudge the judiciary toward its views. It matters little whether those politicians are Democrat or Republican, as long as they are willing to build an open legal and regulatory environment where industry has the freedom it wants to build and sell its products.

The infotech industry can shape the atmosphere in which all these legal and political decisions are being made.

By providing well-paying jobs and cutting-edge technology, restraining its more ruthless urges and burnishing the industry's glamorous aura, the nation's infotech executives will be in a better position to say to the judges:

"Leave us alone, and any discomfort caused by technology-driven changes will be more than compensated for by higher living standards for American workers."

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