Newberry Library Symposium

Government regulation and censorship of the information superhighway

The speakers

Michael Rosenthal, Instructor in Philosophy, Grinnell College.

John Stone, Lecturer in Computer Science and Philosophy and Manager of the Mathematics Local-Area Network, Grinnell College.

References

The effect of this statute [the Communications Decency Act], if implemented, would be to reduce adults to obtaining access by computer to only that information that is fit for children.

In a more perfect world, we'd be wise to declare a moratorium on litigation, legislation, and international treaties in this area until we had a clearer sense of the terms and conditions of enterprise in cyberspace. Ideally, laws ratify already developed social consensus. They are less the Social Contract itself than a series of memoranda expressing a collective intent that has emerged out of many millions of human interactions. ...

The protections that we will develop will rely far more on ethics and technology than on law.

Entirely independently of the question of whether matter of serious value is chilled by the CDA, the statute constitutes an overly broad restraint on protected communication between and among adults. Of course, the statute would be even more constitutionally defective if it encompassed work of serious value that the government has no compelling interest in regulating. In light of our finding on the plaintiff's second overbreadth claim, however, it is unnecessary to resolve the question of whether he has demonstrated a likelihood of success on his claim that the CDA would proscribe a substantial body of work that is of serious value but that is not harmful to minors and therefore not in the government's compelling interest to regulate.

(a) Whoever--(1) in interstate or foreign communications--(A) by means of a telecommunications device knowingly--(i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; [or] (B) by means of a telecommunications device knowingly--(i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; ... shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. ...

(d) Whoever--(1) in interstate or foreign communications knowingly--(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

Singapore government to censor all Internet access in Singapore. Ministry of Information and the Arts announces plan to filter all national Net use through government proxies to prevent access to posts critical of Singapore's government, ``misleading'' news, content that promotes ``religious deviations'', ``dangerous'' material, ``hate speech'', pornography, info about homosexuality, and ``exploitation'' of violence or ``horror''.

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

``The Net treats censorship as damage and routes around it.'' I have never found where I first said this. But everyone believes it was me, as do I. If you find an appearance of this quote from before March '94, please let me know.

PGP is used all over the world by human rights groups, human rights activists who are documenting the atrocities of death squads, interviewing witnesses and using that to keep track of human rights abuses, and they encrypt that stuff with PGP, and they tell me that if the government there could get their hands on it they would round up all the witnesses and kill them, after torturing them first.

That's in Central America, and I talked to somebody working down there on it. The resistance groups in Burma are using it. Burma has a really horrible government, and there's resistance groups using PGP in jungle training camps. They're being trained to use it on portable computers. Then they are taking them to other jungle training camps and teaching them.

They've said that it's helped morale there because before PGP was introduced there, captured documents would lead to the arrest, torture, and execution of entire families. The government in exile in Tibet uses PGP. There's several other examples of third world countries where brutal dictatorships are, where human rights activists are using PGP.

Authoritarian regimes are attempting to reconcile their eagerness to reap the economic benefits of Internet access with maintaining control over the flow of information inside their borders. Censorship efforts in the U.S. and Germany lend support to those in China, Singapore, and Iran, where censors target not only sexually explicit material and hate speech but also pro-democracy discussions and human rights education. Proposals to censor the Internet wherever they originate violate the free speech guarantees enshrined in democratic constitutions and international law. In the attempt to enforce them, open societies will become increasingly repressive and closed societies will find new opportunity to chill political expression.

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.

Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any object is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.

Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

The law's vagueness, one of its most troubling aspects, would make any attempt to comply with the law very difficult. Depending upon how one construes the law's requirements and defenses, compliance may require that we:

• Prevent access by minor students to any University controlled computers connected to the Internet (because we know that there are those persons using the Internet who display material prohibited by the Act, thus making us knowing access providers).
• Evaluate the content placed on University controlled computers connected to the Internet and:
  • if any of it deals with sexual or excretory activities or organs and it might be patently offensive as measured by contemporary community standards (what community?);
  • if any of it might be indecent, a term which is not defined by the Act but which is defined in broadcast media cases the same as the patently offensive definition above;
  remove it because we know that minors are out there and they might access it.
• At a minimum, investigate any materials on our servers that are alleged to be patently offensive or indecent, as set forth above, and remove such as we determine might subject us to liability under the Act.

Indecent and patently offensive do not equate with obscenity: neither term takes into consideration whether the material has redeeming social value (for example, artistic, medical or literary value) nor does evaluation under these terms require that the material appeal to the prurient interest, as obscenity must under Miller v. California. Thus, the Act could require us to remove materials that are protected by the First Amendment.

... [T]he Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the ``democratizing'' effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.

Indeed, the Government's asserted ``failure'' of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles.

My examination of the special characteristics of Internet communication, and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. [-- Dalzell]

What if everyone believed that law-abiding citizens should use postcards for their mail? If some brave soul tried to assert his privacy by using an envelope for his mail, it would draw suspicion. Perhaps the authorities would open his mail to see what he's hiding. Fortunately, we don't live in that kind of world, because everyone protects most of their mail with envelopes. So no one draws suspicion by asserting their privacy with an envelope. There's safety in numbers. Analogously, it would be nice if everyone routinely used encryption for all their E-mail, innocent or not, so that no one drew suspicion by asserting their E-mail privacy with encryption. Think of it as a form of solidarity.

John David Stone (stone@math.grin.edu)