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When it comes to repressive firepower, what corporations can do pales before the capability of states. And among states, the US is, for now, first-amidst-equals in laying down the law on the internet.

Recent developments show the US angling to change the rules-- in criminalizing fiction, logging internet users' every move, and using the net to extend US snooping power and repressive laws-- together with other countries'-- around the world.

Far from sugar & spice

On September 26th, federal prosecutors in Pittsburgh indicted 54-year-old Karen Fletcher on six obscenity counts for writings that appeared on her now-defunct SM story website, Red-rose-stories.com, whose servers were seized in an FBI raid on her home in August 2005. Among others on her site were stories describing sex, kidnap, and rape of children, and sometimes murder. Fletcher faces up to 30 years in prison-- five for each story-- with the federal sentencing guidelines for obscenity imposing "enhanced"penalties for sadomasochistic material.

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Some in the porno and SM blogospeheres have applauded Fletcher's arrest. Indeed, her stories linger over unpleasant topics, but SM fantasies-- which might take an imaginary excursion to a prison, slave plantation, or a gallows-- often do. Even Fletcher's most extreme writings touch on a theme with notable precedent. The literary killing-off of child characters-- if only for the pathos-- is a staple of legend and novel-- from Goethe to Dickens, Gorey to Burroughs. As well, the subject endlessly fascinates the tabloid media. And if descriptions of underage sex are verboten in the US, then Nabokov's Lolita or the next memoir recounting childhood abuse could be targeted.

The idea that imaginative writing is beyond the reach of obscenity law has become almost sacrosanct in the US. Up until the early 60s that was not the case, and such classics as Ulysses and Lady Chatterly's Lover faced official censor. As if in recoil from such prudishness, in 1973 the US Supreme Court established the three-pronged "Miller" test. To fail it-- and so be judged obscene-- a work has to 1) lack-- as a whole-- serious literary, artistic, political, or scientific value 2) be "patently offensive" and 3) violate "community standards." Fletcher's stories will need to be pierced on all three prongs to sustain a conviction.

Under the reign of "Miller," most hardcore porn became legal, and text disappeared off the map of prosecutorial concern. If Fletcher is convicted, all that changes, and erotic writings on the internet will be cast under a cloud.

Keeping a list

If US Attorney General Alberto Gonzales gets his way, in the near future he'll be able to do something he can't do now: request a list of everyone who-- out of lust, curiosity, or because they were in search of garden tips-- ever visited Red-rose-stories.com.

Gonzales appeared before Congress in September pushing for legislation that would require ISPs to record and save-- on some proposals for two years-- log files of everything users do online: every website visited, every Google search, every e-mail and instant message sent. The logs would be available for state inspection, data-mining, and profiling.

At present ISPs are not obliged to keep detailed records, and logs of users' internet activities are typically deleted or overwritten after a few months.

The Foley scandal, centered on instant-messages between the ex-congressman and pages, has increased calls for data-retention. And with the Bush administration and law-enforcement solidly behind the idea, some version of it is likely to pass Congress this year or next.

"Before too long, you have a serious surveillance system operating on all of us," said Jim Harper of the libertarian Cato Institute at a Congressional panel in October. "The data obtained by the data-retention mandate will be used for all kinds of investigation. Law enforcement will switch from pursuing criminals... to pursuing people."

The treaty's a crime

Pursuing people across borders is the theme of the International Convention on Cybercrime, drafted in 2001 and ratified by the US Senate on August 4th. The treaty, dubbed "the world's worst internet law" by the Electronic Frontier Foundation, mandates signatory nations to synchronize laws on pornography, hacking, and fraud. As well, it requires criminalization of copyright infringement-- even when no profit motive is involved.

But in important ways, the Convention on Cybercrime establishes that what laws a country decides for itself doesn't matter. The treaty rides roughshod over democratic national sovereignty-- obliging countries to deploy their law-enforcement to identify, conduct surveillance, preserve evidence, and extradite suspects at the behest of fellow signatories-- even when the activity in question isn't a crime where it was committed.

Under the treaty, the US would be required, at the behest of, say, France (where such acts are illegal), to put its police and ISPs in the service of catching US-based sellers of Nazi memorabilia who had perhaps shipped to a client in Lyon. Or Canada-- where pornographic fiction describing a 17-year-old fucking an 18-year-old is a high crime-- could require Britain, where it is not, to track down and extradite a writer whose book with such a scene got downloaded in Vancouver.

The Cybercrimes Convention was conceived under US pressure by the Council of Europe, as a means of quickly imposing Western-standards of internet governance on fledgling post-Soviet states. Ratification was stalled in the US Senate for years until the Bush administration gave worried senators assurances that the convention's provisions wouldn't be used against political opponents of repressive regimes-- assurances that are legally meaningless.

A tool for whom?

The net empowers individuals-- but it also empowers governments to surveil and repress. One way for states to weed out dissent is to let it bloom, and so reveal itself, and then mow down the flowers that stick out. Time will tell whether the days of relative freedom and openness on the internet-- now quickly coming to a close-- were a false springtime.

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com