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1012   15 June 2004     Mike Davis continues the debate...

NB Mike Davis reports that he has had tussles with AOL - he's left them and is now to be contacted on davis949@iprimus.com.au

Dear Roger, Dear Katharine

This whole issue of “Internet Freedom” is a huge subject, and can take books to deal with. However, laws which cannot be really enforced are useless, indeed worse than useless.  The failure to enforce laws successfully brings the ‘rule of law’ into disrepute. It is no good prosecuting Mr. X for Internet child porn if the Court does not convict him – and that’s what often happens now.  

So what are we to do?   The answer is to simplify the matter.   Public control of objectionable activities can be either by way of criminal law, or by way of taxation.  What would happen if the British Government said that the ‘Man on the Clapham Omnibus’ were free to import any amount of child porn – but that tax on this was (say) 1000 Euros per CD or video. Or 2000. or 10,000.  If people started paying the tax, raise it to a million Euros.  Failure to pay would attract prison sentences.   

Roger WE:  Hold on Mike!  This technique is already used in the case of tobacco, and it attracts great resentment.  Instead of making tobacco illegal (like cannabis), it is heavily taxed – and then the Government spends £-millions trying to stop people using it.  This generates grave moral ambiguity in the law, which brings it into disrepute: in Europe, there is a huge volume of tobacco trafficking, just to avoid the high duties in many EU countries.  Even in this mild example, great public resentment is generated.  You could not possibly use the same technique for the repulsive trade of child porn.  The US Government tried to do the same thing to “narcotics” in 1914: they introduced astronomical taxes – so high that, when the Supreme Court got to consider the legislation, they ruled that it was tantamount to a “prohibition”…

Mike Davis responds: Please do not misunderstand my position. I find child porn repulsive and the offenders are deserving of the most severe exclusion from the community for extremely long periods.  Like everyone you know, the mere thought of this sort of thing happening to one of mine, turns my blood to ice. However, the Internet is a very slippery medium and the usual methods of law enforcement do not seem to work as well as we would all want.  My tax suggestion was simply to ADD to the list of weapons available to convict and goal these people, both buyers and sellers.

This ‘tax permit’ system could be applied to everything you wanted (or rather, didn’t want).  Thus the offence is not the act itself (that is, possessing child porn or whatever) but the failure to pay the tax.  Courts have a jurisdiction to imprison a fine-defaulter, and they can adjust the length of imprisonment.  The end-result is the same - the malefactor goes into the ‘Scrubs’. 

Roger WE:  I cannot let you get away with this, Mike.  In matters of social control, the method is as important as the end-result.  And if the proceedings are merely tax proceedings, they can be settled by mere payment of the tax, and the slate wiped clean.  That would fill most people with moral repulsion, and your system would not survive the backlash of public opinion.  And Police/Customs powers of search and investigation could not be as strong, for a mere tax offence, as for mainstream criminal activities.

Mike Davis responds:  You are clearly right about "moral repulsion". We would all want an ’abject moral horror’ to be convicted for the horrible offences committed.  This satisfies our sense of decency and strengthens the moral order, and I am a strong supporter of both these crucial elements of civilization. My suggestion was merely that if we could not convict the ‘abject moral horror’ on the grounds of his/her crimes, perhaps we can get him/her on something else. If the police had known about Myra Hindley before they were able to nab her with evidence that would stand in court, should they have used any and other means to incarcerate her, thus saving the lives of some of her victims?  Apply the same question to Dr. Shipley or the Belgian monster Dutroux or any of the ‘abject moral horrors’ involved in child exploitation.

As for defamatory remarks on the Internet…well, in real practical terms, what can be effectively done?   Nothing, I fear.  Except fight back in the same way.  By way of example, I am a student of anti-semitic websites – I find ceaseless and disgraceful attacks on the Jews that would make Hitler proud.  I am immune to this sort of stuff (having lived in Israel for 8 years) - but I can see how it might affect others.   But I do not think there is anything, in practice, that we can do about it. 

Roger WE:  Mike, you are mixing up civil wrongs and crimes here.  Katharine is arguing merely for the evolution of a “policed” environment, under new conventions for the prosecution of crime – incitement to racial hatred, child seduction.   But “defamation” is merely a civil wrong, or a “tort”, attracting compensation by “damages”: I am inclined to agree with you about that.  But I also agree with Katharine that the Internet must, like the rest of life, aspire to being a “policed” environment, in which crimes are prohibited, pursued, prosecuted and punished.

What can be done?  Lots of what is said is “fair comment”.  It is fair comment to take a pro-Palestinian position: lots of things in Israel (as in Australia and Wales) are rightly criticized.  Yet these observations are mixed up with psychotic and murderous remarks about Jews. How can the defamations be untangled from the ‘fair comments’?   In practical terms, Katharine, they cannot be. 

Roger WE:  I disagree.  In many race incitement or race hatred cases, speeches or pamphlets contain a wide range of statements, some matters of fair comment, others going “over the top” into the promotion of racial hatred or violence.  The Courts have to make that kind of distinction all the time.

The Internet is a super tool, valuable for all people and groups. Capitalists and anarchists all now live on the Internet.  Restricting it for the 95% of goodies like us, because of the 5% of baddies like them, will not actually happen.  Lots and lots more smart and ‘outside the Box’ thinking will be needed to get on top of the problems which are real and must be solved.  Thinking caps on please, boys and girls. 

Regards 

Mike Davis

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1013  15 June 2004  

Further letter from Mike Davis, now to be contacted on davis949@iprimus.com.au

Roger 

Your excellent site gave me the bad news about the end of ‘ius soli’.  Such foolishness.  The 21st century will be a time of great movements of peoples. Europe has had them in the past. They are unavoidable and attempts to define people by their parents and grandparents is merely a pathetic attempt to say that the last generation and its glories is our guide, and we will pretend that we can ignore the next one and its problems.

The most obvious result will be the rapid rise of non-citizens in the country. Germany is the prize idiot in these stakes: third-generation ‘Turks’ have been born in Germany, educated and speaking German, yet are not German citizens. This idiocy has resulted in a two-class situation.  

In the USA since 1892, anyone born in that great Republic or its territories, has been an American citizen - by virtue of that fact alone – ius soli. Unless every country adopts a ‘citizenship by place-of-birth’ rule, the 21st  century will see a steady rise in world wide statelessness (currently about 22 million - not to be confused with refugees, about 27 million).  

As very few refugees actually do ever return ‘home’ the real impact of the abolition of the ‘ius soli’ will be to fill up Western countries with millions of non-citizen helots. Men and women born in the country but not belonging. How can such people have any loyalty to a country that excludes them - merely because Grandad was born in Moldova, although they were born in Manchester, speak English and drive a mini cab in the West End?

In Australia, we also have this crazy idea that you can be born here but not be an Aussie.  We do so to ‘crawl and grovel’ to our betters in London and not show them up.  However, at a later stage our common sense prevails: anyone born here and who lives here until age 10 automatically becomes an Australian citizen.  No application needed.  It happens automatically on the child’s 10th birthday, even if the parents remain illegal.

  • Thus Australia is not contributing to the growth of statelessness in the world.  I would prefer the American system, but can live with this typical Australian compromise. 

Regards,  Mike Davis

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