| |
June 23, 1996
Like Smut, Terrorism Prompts Calls
For Limiting Expression on the Net
CYBERLAW / By KEVIN GORI
Illustration: Christine Thompson resident Clinton recently expressed fear that the Internet was making it too easy for terrorists to find potentially dangerous information on line. During an April 17 news conference while visiting Japan, the President questioned whether the proliferation in cyberspace of instructions for making dangerous chemical and explosive weapons would lead to attacks in the United States like the sarin gas attack that killed 11 and injured scores of people in the Tokyo subway.
Clinton reminded reporters that the United States had already suffered the consequences of malcontents armed with cheap, highly effective weapons.
"Isn't it a concern," the President asked, "that anyone anywhere in the world can pull down off the Internet the information about how to build a bomb like the bomb that blew up the Federal Building in Oklahoma City?".
Civil libertarians, already concerned by the signing of the Communications Decency Act in February, wondered whether the President's allusion to the Oklahoma City bombing and the Tokyo gas attack marked the beginning of another effort on the part of the Administration to limit free expression on the Internet.
Some Congressional foundations had already been laid. For example, last June Senator Dianne Feinstein, Democrat of California, proposed as an amendment to counterterrorism legislation then being considered by the Senate language that would have made it illegal to teach or demonstrate "the making of explosive materials or to distribute by any means information pertaining to . . . the manufacture of explosive materials if the person intends or knows that such explosive materials or information will be used for, or in furtherance of, an activity that constitutes a Federal criminal offense".
The amendment had obvious implications for users of the World Wide Web and Usenet newsgroups. The proposed legislation carried penalties of up to 20 years in prison, a fine of $250,000, or both.
Potentially dangerous information in cyberspace is often accompanied by hate speech and bigotry. Feinstein is not alone in her concern about the widespread dissemination of potentially dangerous information in cyberspace, especially since such information is often accompanied by expressions of hatred and bigotry.
In a recent interview, Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center in Los Angeles, expressed alarm that many radical groups were using the Internet to spread their message.
"If you want to know what's going on in the militia, hate, extremist and mayhem segments of our society," Cooper said, "you have to get on line. You have no choice." The Wiesenthal Center, which attempts to apply the lessons of the Holocaust to modern issues, monitors more than 150 Web sites and scores of newsgroups. The center has been criticized by many civil libertarians for proposing that hate speech on the Internet be regulated.
Feinstein lobbied for her legislation at a meeting in Los Angeles with top law enforcement officials, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco and Firearms and local bomb squad officers. "The proliferation of bomb-making information -- clearly for malicious purposes -- has reached absurd and sickening levels," she said. "Under the guise of free speech, some depraved individuals have even peddled detailed instructions on how to make a bomb from a baby food jar."
As for the constitutionality of her amendment, the Senator insisted: "Enough is enough. I do not believe the First Amendment gives anyone the right to teach someone how to kill other people or provide certain information that will be used to commit a crime. Even our most precious rights must pass the test of common sense."
Aside from the Decency Act decision, there is little case law on censorship in cyberspace. Even so, her legislation, should it become law, would face serious constitutional challenges. The only other Federal law to attempt to control or censor information available over the Internet is the Communications Decency Act, which makes it illegal to post indecent material anywhere on the Internet where a child might have access to it. On June 11, a three-judge panel in Philadelphia declared the act an unconstitutional abridgment of free speech. A second three-judge panel in New York is expected to rule shortly on whether it is also an abridgment of freedom of the press.
"This essentially subjects everything to scrutiny," said Shari Steele, a staff attorney at the Electronic Frontier Foundation in San Francisco, a group founded to defend civil rights in cyberspace.
Aside from the Decency Act case, there is little legal precedent, Steele said, since the Internet is too young to have accumulated its own case law on censorship issues.
Since the time of the Constitution's signing, the Federal judiciary has been very protective of the rights guaranteed by the First Amendment. However, some exceptions to the general rule have been created.
Mike Godwin, another lawyer for the Electronic Frontier Foundation and a First Amendment specialist, said that the most likely argument that proponents of Internet censorship would rely on would be national security. But that has not been a popular argument with courts in the past.
For example, Godwin noted that in United States v. Nixon, President Nixon cited national security as a justification for refusing to hand over subpoenaed tapes that had been demanded by the Watergate special prosecutor. The court denied the President's claims of privilege.
The new medium empowers individuals, which frightens the Government because of its difficulty to control.
Mike Godwin
Electronic Frontier FoundationAnother landmark case on point is The New York Times Co. v. United States. Here the Federal Government had sought to enjoin The New York Times and The Washington Post from publishing the Pentagon Papers. The Government asserted that the documents were military in nature and that their release would endanger lives. The Supreme Court refused to buy that argument.
Godwin said it would be difficult for censorship proponents to meet judicial scrutiny in these areas. Referring to President Clinton's comments in Japan, he said that the statements were "regrettable in that they don't recognize the First Amendment's significance in this new medium."
"They are also predictable," Godwin said. " The Internet is a new technology and not everyone is comfortable with it. The new medium empowers individuals, which frightens the Government because of its difficulty to control."
Others are frightened by the sheer volume of dangerous information making its way into personal computers the world over via the Net.
"Just three days after the Tokyo subway gas bomb exploded, someone posted the formula for sarin gas creation on the Internet," the Wiesenthal Center's Cooper said.
In February, three junior high school students from the Syracuse, N.Y. were charged with plotting to set off a homemade bomb in their school, based on plans they had found on the Internet.
Even the President is not immune from the threat of on-line terrorism. Last January, an unidentified person sent Clinton an e-mail message from a Taiwan university threatening, "President Clinton, when you are here for a visit, we will assassinate you." Neither the Taiwan nor American Government has succeeded in tracking down the source of the threat.
Angela Lowry, an analyst with Klanwatch, a division of the Southern Poverty Law Center in Alabama, said that the on-line presence of racist, militia and hate groups had more than tripled in the previous 12 months. "About a year ago, we kept track of between 70 and100 different Web sites on the Internet that are run by these groups," she said. "Today there are over 300, and they are becoming more sophisticated."
Lori Fena
Electronic Frontier FoundationWhile many civil libertarians agree about the potential for dangerous abuses of the Internet by terrorist groups, they differ with Feinstein about how to counter the growing threat.
"The solution is not to dummy down the Internet," said Lori Fena, executive director of the Electronic Frontier Foundation. "Such information is already available in bookstores. The difference here is that now potential terrorists won't have to drive five miles to the library to get it ."
Fena continued: "More speech is better than inhibiting speech. If someone is searching for dangerous information on line, in an open system they will also encounter related, balancing information that shows the issues in context."
The Wiesenthal Center, Cooper said, takes the position that "the on-line world should regulate itself."
"Internet Service Providers and on-line services are not required to accept checks from bigots," Cooper said. "It would be a tragedy for the Government to come in and regulate content on the Internet. If necessary, they do have the right, but the on-line world should police itself before more tragedies occur which move the Government to take such actions. Show this leadership or else the industry will find itself regulated."
Feinstein's amendment was passed unanimously by the Senate but was not introduced in the House.
More recently, Vice President Al Gore, who has been at the forefront of cyberspace citizenship issues, announced his opposition to censoring the Internet. In a commencement address at the Massachusetts Institute of Technology this month, Gore said society should not resort to "unwarranted censorship" on the Internet.
The Vice President's comments were straightforward, unqualified and seemed to contradict both Clinton's earlier statements and the position the Justice Department has taken in defending the Communications Decency Act.
"My clear and unequivocal view," Gore said, is "that a fear of chaos cannot justify unwarranted censorship of free speech, whether that speech occurs in newspapers, on the broadcast airwaves or over the Internet. Our best reaction to the speech we loathe is to speak out, to reject, to respond, even with emotion and fervor. But to censor -- no. That has not been our way for 200 years, and it must not become our way now".