Vol. 23, No. 2 Spring 1996
Top Ten Threats to Civil Liberties in Cyberspace
By Ann BeesonCyberspace is probably the richest source of creative, diverse, empowering and democratizing communication ever to connect people across the globe. It is perhaps the world's first true "mass media" because it allows anyone with a few simple tools to communicate ideas to thousands of persons at once. It inspires tolerance and promotes mutual understanding by connecting people of all ilk around the world. It is a tool for community organizing and citizen involvement.
But all the innovation and citizen empowerment inspired by online communications will be lost if your free speech and privacy rights don't apply in cyberspace.
An unprecedented wave of censorship and overzealous law enforcement is sweeping through the online world. State and federal legislators have proposed and passed legislation to criminalize online speech. Police have raided community bulletin boards and seized entire systems--with evidence that a minuscule portion of the files might be legally obscene. And the privacy rights of online users have been threatened by indiscriminate snooping and interference by government and industry in private E-mail.
The following list documents the top ten threats to civil liberties in cyberspace. Citizens across the globe must remain vigilant to curb these threats and to realize the potential of the information age.
- The Communications Decency Act of 1995
- Online Censorship Bills from the States Last year, while online activists were giving their all to fight the still pending Communications Decency Act, many state legislatures were carelessly crafting online censorship bills at home. Nearly 20 states have considered legislation to censor the Internet. While the ACLU and other civil liberties groups were successful in stopping a few of these bills, at least eight states have already passed legislation to censor the Internet (Connecticut, Georgia, Illinois, Kansas, Maryland, Montana, Oklahoma, and Virginia).
- They subject online users everywhere to a multitude of
different censorship laws and effectively reduce online content
to the standards of the most conservative state.
- They restrict vague categories of material deemed
"indecent" or "harmful to minors" in ways that are certain to
chill constitutionally protected speech.
- They are overbroad and put service providers and
telecommunications carriers at risk of criminal prosecution for
the content posted by others through their systems.
- While claiming to protect children, they unconstitutionally infringe on the rights of adults to communicate freely online, and they keep important educational material from children that could literally save their lives.
- Online Censorship of Hate Groups and Other Unpopular Speech
- Failure of Universities to Respect Student Computer Use Rights
- After a year-long battle that made national news, Carnegie
Mellon University has approved a policy to censor certain online
discussion groups on Andrew, its flagship computing system. The
decision to censor is based on fear that the university could be
held criminally liable under state obscenity and harmful-to-
minors laws for providing access to discussion groups that "might
be" obscene.
The administration refused to accept the suggestion of both the CMU Faculty Senate and the ACLU that the computer network be categorized as a library, which would entitle the network to an exemption from the state obscenity statute.
- The University of Minnesota will not allow students to
have "offensive" content on their web sites, or even to create
links to "offensive" content elsewhere on the Internet. They have
also adopted the double standard of commercial services like
America Online and Prodigy--despite U of Minn's explicit content
control, student web pages must include a disclaimer that the
university takes "no responsibility" for anything on the pages.
- At George Mason University, the "Responsible Use of
Computing" policy begins with the following statement: "The
following rules are not complete; just because an action is not
explicitly proscribed does not necessarily mean that it is
acceptable." (One could hardly imagine a better example of
ambiguity with the potential to chill protected speech.)
The policy creates a Security Review Panel that investigates reports of "offensive" computer behavior. As could be predicted, the backlog of cases before this panel is already quite long.
On the bright side, students and faculty groups continue to hotly oppose these policies when they arise, and have been instrumental in shaping Internet usage policies to be less inhibitive of free speech and privacy rights.
- Censorship by Online Service Providers
- America Online, which has long had a policy of screening
certain "dirty words" from its public bulletin boards and chat
groups, banned the word "breast" for a short period in December
1995. The company agreed to reverse the policy after several days
of online protests by irate breast cancer patients.
- Last fall, America Online accepted ATKOL Video, a gay
video catalog, as an advertiser on its "Downtown AOL" service,
and then, after running the catalog for several weeks, required
the advertiser either to remove certain titles from the catalog
or to terminate the contract. AOL sent the advertiser a print
copy of the catalog with the "offending" titles highlighted. The
result is a hilarious but frightening example of arbitrary
censorship.
The following illustrates AOL's arbitrary rating system as applied to the ATKOL Video catalog. (And remember, these are titles only!!--no pictures, no cover art, no narrative -- just words on the screen.)
These titles were censored:
Advanced Disrobics
All About Sex
All the Right Stuff
As the Bed Turns
Bedroom Eyes
The Big Nasty
Bigger Than Huge
Black Dudes
The Boy Next Door
Gayracula
Men in Shorts
'Rican Christmas
Spring Semester
These titles were not censored:Lockerroom Fever
ABC's of Sex
All Men Do It!
Bed Tales
Bedroom Lies
The Big Drill
Bigger Than Life
Blond Lovers
Boys from New Jersey
Gay Tarzan
Men with Tools
Latino Nights
Spring Break - Under pressure from German prosecutors, in December 1995
CompuServe banned access by its 4.3 million subscribers worldwide
to 200 sex-related online discussion groups. To its credit,
CompuServe recently restored access to the sites and instead
provided users with the option of using filtering technology to
screen out unwanted sexual material.
These examples prove that censorship rules are by nature arbitrary and unfair--whether imposed by the government or by private industry. Online service providers are private entities, so there is no constitutional remedy against these kinds of censorship actions.
- Restrictions on the Right to Send and Receive Online Information Anonymously
- Limitations on Use of Strong Encryption
- Infringement of Electronic Privacy Rights
- Search warrants in criminal cases involving computers are
often overbroad. Entire computer systems are seized by law
enforcement investigating only a fraction of possibly illegal
files. Such seizures often include E-mail, and thus violate the
privacy rights of many online users who are not even the target
of the investigation. See Steve Jackson Games v. United States
Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff d 36 F.3d
457 (5th Cir. 1994).
A computer bulletin board in Cincinnati, Ohio, has filed a civil rights action against local law enforcement who seized the entire system in an effort to find obscene files.
- Transactional records, that is, information about the
habits of particular online users, are routinely maintained by
online service providers. Online users need to push for
protective legislation that keeps law enforcement from obtaining
access to such records without a warrant and that forbids service
providers from distributing transactional records without the
prior consent of the online user.
- Several incidents over the past year have indicated the need for policies to govern cooperation between online service providers and the government in criminal investigations. America Online's cooperation with FBI and local law enforcement has left many questions unanswered.
- Universal Access and Electronic Redlining
- Complacency
Civil libertarians, online activists, and other concerned citizens fought long and hard last year to stem the tide of cyber-porn hysteria born of Senator Exon's "Communications Decency Act" (CDA). The CDA makes it a crime to send, display, or view any material online that is "indecent" or "patently offensive." The CDA's sponsor claimed to target online obscenity and child pornography, but those categories of speech are already illegal under existing federal law. Instead, the CDA bans a wide range of socially valuable and constitutionally protected speech about sexuality, reproduction, human rights, and civil liberties.
Despite efforts to stop the bill, President Clinton signed the CDA into law on February 7, 1996, as part of a massive overhaul of the nation's telecommunications laws. Within minutes, the ACLU filed a lawsuit on behalf of 20 organizations to challenge the constitutionality of the CDA and to obtain an immediate injunction against its enforcement.
The 20 plaintiffs in ACLU v. Reno (E.D.Pa. No. 96-0963) are all providers and users of online communications with significant educational, political, medical, artistic, literary, and social value that could be considered "indecent" or "patently offensive" under the CDA. Some, like Critical Path AIDS Project, AIDS Education Global Information Service, Planned Parenthood, and the Safer Sex Web Page, communicate important health-related information about safer sex.
Others, like the ACLU, Human Rights Watch, the Electronic Privacy Information Center, Justice on Campus, and ClariNet Communications, communicate important news and educational information about human rights and civil liberties.
Another plaintiff, the Journalism Education Association, is uniquely at risk because they teach high school journalism students how to conduct online research about issues like systematic rape in Bosnia, discrimination against gays and lesbians, and teenage sexuality. Notwithstanding the social value of the plaintiffs' speech for both minors and adults, these individuals and organizations are all at risk of criminal prosecution--up to two years in prison and $500,000 in fines-- under the CDA.
The CDA's ban of "indecent" and "patently offensive" material is an unconstitutional restriction on protected speech, is vague and overbroad, and is not the least restrictive means for controlling minors' access to inappropriate material. Government censorship is unnecessary because there are many screening and filtering technologies currently available for parents who wish to shield their children from online communications they deem inappropriate.
The CDA also violates the right to privacy because it criminalizes certain private E-mail correspondence between individuals, and the right to send and receive information anonymously. For complete details about the constitutional challenge to the CDA, see http://www.aclu.org.
Even New York and Washington--traditionally strong protectors of First Amendment values and hot spots for the online and computer industries--have rushed to join the Luddites with drastic online censorship legislation. Bills are also actively pending in California, North Carolina, and Pennsylvania.
These state laws are just as dangerous as the federal Communications Decency Act:
While there is preemption language in the federal Communications Decency Act that may prevent enforcement of some state censorship laws, the preemption is limited at best: It does not prohibit states from enacting harsher laws to punish online users--it only protects commercial service and content providers, nonprofit libraries, and institutions of higher education from harsher state penalties.
Cyber-porn hysteria is still running rampant in the media and many politicians, who are mostly unfamiliar with the online world, are ready this year to gain political points by passing even more bills that falsely claim to stop online pedophiles.
Just in case pornography didn't scare online users into sacrificing their civil liberties, groups like the Simon Wiesenthal Center have raised another spectre to fear--the neo- Nazis and other undesirable hate mongers organizing through the Internet. The Center has been trying for more than two years to rid the Internet of hate speech, and one of their techniques is commendable and appropriate--the use of more speech to expose and humiliate these intolerant groups. The Center has an excellent web page that tracks the online activities of hate groups and urges online users to post other accounts of online hate. See http://www.wiesenthal.org.
Unfortunately, rather than simply exercising its own First Amendment right to protest such groups, the Center has waged an all-out war to deny such groups of their equivalent free speech rights. They have turned files over to the Justice Department, fueled mainstream press hysteria about online organizing after the Oklahoma City bombing, and urged online service providers "to terminate service to any individual or group that exploits...services to promote an agenda of hate or violence."
Fortunately, the Department of Justice knows better than to pursue hate groups on the basis of their speech alone. DOJ itself has noted that the government must be careful not to "trade off the guarantees of the Bill of Rights in order to uphold our duty to ensure domestic tranquillity."
Censoring hate speech is a bad idea because any decision to censor inevitably encompasses much more speech than intended. In the words of Justice Brandeis, that's why "the remedy to be applied [should be] more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927).
In a knee-jerk reaction to the cyber-porn scare, many universities around the country have begun to enact policies to regulate student Internet use. University censorship of student Internet usage is inconsistent with the principles of academic freedom. In addition, state universities are required as state institutions to uphold the free speech guarantees of the First Amendment.
The Internet flourished for years as primarily an academic--and uncensored--domain. Yet colleges are suddenly caving in to the cyber-porn hysteria by enacting restrictive computer usage policies.
Here are a few examples of university computer usage policies that tread on cyber-liberties:
(Available at
gopher://fas-gopher.harvard.edu:70/00/.studorgs/.cluh/.computer_r
eport)
Some online service providers have screening policies to filter out "inappropriate" or "offensive" speech on their systems. These policies are often vague and have resulted in the arbitrary banning of speech that would undoubtedly be protected by the Constitution against a government ban.
The following are just a few examples of arbitrary censorship by private service providers:
One of the freedoms of the Net is the ability to send and receive information anonymously. This freedom allows online users to discuss and debate sensitive issues while maintaining their privacy, and to obtain controversial information without identifying themselves personally with that information.
Without anonymity, online users might fear retaliation if they send or receive material on issues such as sex education, gay rights, or pornography. Many users would forego or be inhibited from discussing issues and receiving information if they had to disclose their identities.
The U.S. Supreme Court has recently reaffirmed the right to engage in anonymous speech: "Anonymity exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-- and their ideas from suppression--at the hand of an intolerant society." McIntyre v. Ohio Elections Com'n, 115 S.Ct. 1511, 1524 (1995). Both sending and receiving information anonymously are protected by the First Amendment. See Lamont v. Postmaster General, 381 U.S. 301, 305, 307 (1965).
Thus, the government cannot require a written request to receive mail because such a requirement limits "the unfettered exercise of the addressee's First Amendment rights." Id. at 305. In addition, a law that compels disclosure of identity may unconstitutionally deter the exercise of First Amendment rights. Cyberspace represents a new frontier of communication that deserves the same rights to anonymous speech that have been traditionally accorded to print communications.
Currently, online users can easily remain anonymous by using pseudonyms to sign on to their online service. New laws may change that practice and threaten anonymous speech in the process. For example, in order to comply with the Communications Decency Act, online users may have to begin identifying themselves to prove that they are not minors before gaining access to web sites, chat rooms, discussion groups, or other online fora. Such an identification requirement would remove the current option of anonymity for both senders and receivers of information.
Cryptography, or encryption, is the technique of concealing the contents of a message by a code. It is a form of speech and is thus protected by the First Amendment. Encryption technology is an important means to protect speech and privacy, and industry has developed and embraced a variety of encryption programs which allow information to be sent through the online medium in a form that cannot be deciphered except by the intended recipient.
Citing an unproved need to protect citizens from "terrorists" that communicate through the online medium, the U.S. government has thwarted online privacy protection by imposing strict export controls on encryption technology. Although a variety of cryptographic products are sold overseas, companies in the U.S. are currently forbidden from exporting products with strong cryptography.
The U.S. government has also asked that it hold the descrambling key for any approved encryption scheme. (This is the much-publicized "Clipper Chip" and its progeny. In other words, online users would be allowed to secure their private communications against intrusion from anyone except the U.S. government--an offer that quickly invokes references to Big Brother.
Despite the government's promise of approving a "voluntary" encryption scheme, ongoing discussion between civil liberties advocates and the government have suggested that the only encryption rule that could begin to satisfy the government's law enforcement objectives would be an outright ban on the sale of encryption technologies other than those approved by the government and accessible by a descrambling key held by a government official.
E-mail is the equivalent of a private, personal correspondence sent through the U.S. mail, or private conversations by telephone or within the home. Such communications are protected against governmental invasion or censorship by the constitutional right to privacy found in the First, Fourth, and Ninth Amendments and the substantive due process clause of the Fifth Amendment.
In addition, Congress passed the Electronic Communications Privacy Act to protect against unauthorized access to E-mail. 18 U.S.C. 2710-2711. Unfortunately, despite these protections, online users face many threats to their online privacy:
For example, does the service provider have a policy that defines the circumstances under which it will challenge a subpoena or court order for its subscribers' files as overbroad? Will it notify a user that he/she is the subject of an investigation? Will the provider turn over all E-mail for the subscriber, or only E-mail relevant to the case? Will it disclose the names and E-mail addresses of those who have exchanged E-mail with the investigated user? Would the provider set up special accounts to allow law enforcement to participate undercover in public chat rooms? How long does the provider maintain transactional information for each subscriber? Does the provider keep files that include the contents of the subscribers' messages?
Online users have a right to know the answers to these questions before they enter into service agreements with online providers.
If the online medium is to be a tool for democracy, access to the medium must not be limited only to a chosen few, thereby creating a society of information have's and have-not's. The concept of "universal service" as applied to the telephone must be extended to the online medium. Every community should have affordable access to online communications and to the hardware and software necessary to use the medium.
Currently, while 26.9 percent of white adults have computers at home, only 13.9 percent of black adults and 12.9 percent of Hispanic adults have home computers.
A related issue is electronic redlining, a process that results when business decisions by the telecommunications industry have a discriminatory effect on certain areas or populations. There has already been some evidence of redlining by the Baby Bells in plans for video dialtone services, i.e., sending video over phone lines. The industry denied redlining but admitted that certain areas would be provided with the new technology before others.
By far the biggest threat to civil liberties in cyberspace, indeed, the biggest threat to civil liberties in general, is apathy and complacency. If ever there were a time for citizens to act to defend their rights, it is now, when fundamental liberties are being attacked on every front. Citizens simply cannot stand by and hope to keep the cherished freedoms of the Bill of Rights.
Thus, the online community must continue to speak out against enforcement of the federal Communications Decency Act. Netizens must continue to educate state legislators and fight against state laws that may regulate the Internet out of existence. College students, who are the first generation of the information age, must continue to work with their faculty and administration to develop student computer use policies that respect civil liberties.
Online users must insist upon contracts with private online service providers that respect rights and that do not give vague censorship powers to the provider. And online users must continue to educate lawmakers and policy makers about the important of anonymous speech and privacy rights in the online medium.
While the threats to civil liberties in cyberspace are severe, concerted citizen action can and will curb them. In cyberspace as elsewhere, eternal vigilance is the price of liberty.