Proponents of free speech and supporters of censorship have long clashed in this nation over the legality and morality of censorship of speech, press, and other forms of expression. Censorship activists believe they are acting in the best interests of society; that they work to protect others from damaging and hurtful material. Free speech supporters believe that the right to free expression should be unshackled by any law or regulation. They follow the belief of Voltaire, who said that "I disagree with what you say but I am ready to fight to the death to preserve your right to say it." Now this debate has found its way to the Internet, which offers widespread groups of people access to global communication and information. No blood has been spilled yet in the battle, but the fight is still young.
The increasing networking of the world and the emergence of the Internet as a viable and effective means of communication is having a profound effect on the development of the global society. The Universal Declaration of Human Rights, which was adopted in 1948, claimed that "Everyone has the right to seek, receive, and impart information and ideas through any media and regardless of frontiers." However, up until today, this statement was largely unrealized by a sizeable majority of the world's population. The right to information may have existed, but the means were far from the reach of a nomad in the Saharan desert or a shipworker in Gdansk. It is only with the emergence of the Internet and the posibility of a new Global Information Infrastructure (GII), that universal access to information can be realized. The human rights advocacy group Human Rights Watch, in a letter to United States Vice President Al Gore, outlined the potential of the GII to disseminate information freely. The potentials of the GII as outlined in that letter include:
Human Rights Watch sees that the further development of the Global Information Infrastructure can help to promote democracy and free thought in places where such ideas are currently foreign or expressly forbidden.
Not all individuals share this optimistic view of the GII. Many feel threatened and believe that the new unlimited and unscreened access to information may prove to be a destabilizing factor in their society. Dictatorial regimes do not want their citizens to receive news from the outside world that has not been screened by a government censor. Law enforcement authorities do not want criminal elements of society to be able to communicate freely with the protection of encryption. Some parents do not want their children to be exposed to pornography on the Internet. The new technology of the Internet gives people unlimited access to information, but some people would like to see limits on the ability of access. Society is currently debating whether an individual can best decide what is appropriate for himself or herself to view, or whether the government or other authorities can dictate what information is allowable to be seen.
The two sides leave little room for common ground. In the United States, the debate revolves around the freedoms of communication provided by the First Amendment to the United States Constitution. Some Americans believe that the First Amendment does not apply to the Internet, and that it can be freely censored. Others in this country see the Internet as the embodiment of democracy and antithetical to censorship. On the international level, some societies do not have the right to freedom of expression as outlined in the Bill of Rights, and live under more authoritarian regimes where expression is limited. Many have little say in what they have a right to see, as the government makes the choices for them. In this paper, I intend to examine cases of censorship of the Internet and examine the effectiveness of censorship. In addition, I hope to examine important issues relating to the censorship of the Internet. I believe that the Internet should be free from censorship, and that free speech should be allowed to create a debate on contentious issues, rather than moving the issues into the background with censorship. The Internet offers new possibilities of including the masses in public discourse, and it should remain unfettered from needless restrictions.
Pro-censorship activists like Paul Taylor have argued that governments are obligated by treaty, the Treaty of 1911, to cooperate and use international law to prosecute obscenity. It is obscenity and particularly pornography that proponents of censorship most often take aim at. It is a group of thought classified by Daniel Linz as the conservative-moralist/normative theory that "society has the right to protect itself form the disorder and moral disintegration that result from individuals unduly pursuing their sexual self-interests...the government has the right, therefore, to limit such forms of expression." The most vigorous attempts at censorship in this country have revolved around pornography, specifically child pornography, and obscenity. However, attempts have also been made to censor hate speech, political speech, indecent speech, and a variety of other types of communication.
One of the leading supporters of censorship of pornography, on the Internet and elsewhere, is University of Michigan Law School Professor and leading feminist Catharine MacKinnon. It is her belief that pornography of any kind should be banned because it causes violence against women. Her arguments stem from the belief that pornography can effect human behavior. The viewing of pornography by a man may incite him to aggressive action or even violence against women. In her 1993 publication Only Words, MacKinnon expounded upon her idea that pornography is the oppression of women. (Wallace and Mangan, p. 37) In reality, studies examining the relationship between pornography and violence against women have been inconclusive. However, her argument that pornography itself is an attack against women still stands.
Another proponent of censorship is Charles H. Keating, Jr., who was a member of the Federal Commission on Obscenity and Pornography in the Nixon administration. It should be noted that this is the same Charles Keating who is in jail due to scandals involving a failed Savings & Loan institution. Mr. Keating was a minority voice on the commission, as he argued for standards of common decency, while the majority of the commission favored extention of free expression. Mr. Keating believes that society must have laws against obscenity because obscenity is harmful and offensive to the public morality. (Hart, p. 93) Thus, it is in the interest of the greater good of the community as a whole that obscenity laws be enacted. For support, Keating uses the writings of Alexis de Toqueville, who said that "America is great because she is good - and if America ceases to be good, America will cease to be great." (Hart, p. 111)
Supporters of free speech in the United States turn first to the First Amendment to the United States Constitution, which states that Congress shall make no law abridging the freedom of speech, or of the press. They apply a literal translation, believing that the words "no law abridging" means just that. In addition to the First Amendment, free speech proponents argue that the best ideas will win in a marketplace of free ideas. Just as the best products survive in the economic sphere, so shall the best ideas prevail in the intellectual sphere. The marketplace of free ideas forces ideas to stand up to rigorous tests and challenges, ensuring that they are sound beliefs and arguments. Censorship would not allow faulty ideas to be challenged, and perceptions and beliefs would not be able to be changed. A common argument is that the solution to offensive speech is more speech. By engaging in debate with those holding offensive views, society can hope to show the fallacies in their arguments and prevent their further acceptance. The real problem can be debated, whether it is violence against women or the historical validity of the Holocaust. Censorship allows the issue at the root of the problem to be avoided. Instead of focusing on the real problem, the sides argue over the validity of censorship. The real issues could be addressed if an open and free discussion was allowed.
Supporters of free speech on the international level turn to the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights. The Human Rights Watch has strongly supported the view that these documents may be made to apply to the Internet. In their report "Silencing the Net," the Human Rights Watch specifically notes Article 19 of the Universal Declaration of Human Rights, which states: "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." In addition, they also cite the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which was adopted by experts in international law, national security, and human rights on October 1, 1995. This agreement states that governments may place restrictions on expression only when it is necessary to protect legitimate interests of national security in a democratic society.
Those who support unshackled freedom of speech see the Internet as a tool which will allow individuals with common interests to organize into forums to debate public policy issues. The Internet also increases the scope of information readily available to an individual, creating an informed populace. However, if the information made available is limited through censorship, people are being cheated out of the opportunity to get complete information, which is needed to make informed choices. Internet users can empower themselves more easily to the political process if they are aware of pressing issues, and can readily make their voice heard. Finally, the Internet may empower users to become active producers of information rather than passive consumers. Any attempt at regulating and restricting a global medium like the Internet will lead to nothing but competition between value systems, which may be diametrically opposed and leave no way for compromise. The Internet has the potential to extend democracy and greater freedom to groups of people who have never known such liberties. If censorship and regulation are practiced at this early stage of the Internet's development, its future potential and development may be hindered.
Perhaps it should not be a great surprise that the advent of a new and revolutionary form of communication is met with attempts by the government to censor it. Throughout history, regimes have fought to retain their position as gatekeeper to information. The gatekeeper has control over what information is allowed to flow through the "gate," and thus can control what the populace knows. New advances in technology that allow information to circumvent the gatekeeper are seen as dangerous, and those in power will make every attempt to bring the new technology under their control.
Such was the case of the Roman Catholic Church and the printing press. As is often the case, the Church grew from one that was persecuted into the persecutor. In the beginning of the Church, members were persecuted by the Roman censors. However, the Church grew in size and power, and soon extended its control over much of modern-day Europe. The Church, like many other hegemons, viewed new technology and the wider distribution of knowledge as a threat to its power. The advent of the Gutenberg printing press in 1450 was originally met with support from the Church. After all, the first book printed and widely disseminated was the Bible. However, the Church soon came to see that wide distribution of information was a challenge to its role as gatekeeper of information. It was because of this that an office of the censor was created in 1485 by Archbishop Berthold of Mainz, Gutenberg's home city. (Wallace and Mangan, p. 196) The first list of banned books was published in 1493 and by 1559 the Church had established the Librorum Prohibitorum, an index of banned books, which was binding upon Roman Catholics. (Smolla, p. 338)
Coming back to modern time, subsequent technological developments have found similar attempts at censorship by the government. The United States Congress' first attempt to regulate radio came in 1910, with passage of the Radio Act. The Radio Act was the first law to regulate domestic radio communications. Certain frequencies were set aside for government use, and the Department of Labor and Commerce (before it was divided into two separate departments) was put in charge of the licensing of wireless stations. (Congressional Quarterly, February 3, 1996, p. 292) Radio scared governments because it provided an opportunity for information to flow unchecked across borders. The telegraph had allowed for international communication, but the government remained as gatekeeper, because the message had to pass through a person acting as a switch. This gatekeeper translated the message, giving the government the potential access to what was being communicated. Governments were unable to block the flow of radio waves across their borders.
Motion pictures and telephony also fell under the control of the censor. The United States Supreme Court ruled in 1915 that movies are not entitled to protection under the First Amendment because they are not a form of "expression," but rather a "show and spectacle." (See speech by Jeffery Shallit) The Communications Act of 1934 forbid the telephoning of "any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent." (Wallace and Mangan, p. 210) That same language was excerpted by United States Senator James Exon of Nebraska for use in the Communications Decency Act, an attempt at regulating the Internet which will be discussed in detail later. It is clear that governments have shown a tendency to censor new and emerging forms of communication.
In the United States, the First Amendment provides citizens with a great degree of freedom of expression. However, U.S. courts have placed limits on what is defined as legally acceptable speech. The unacceptable and unprotected areas of speech are: clear and present danger, fighting words, defamation, obscenity & child pornography, and false and deceptive advertisements. (Cavazos and Morin, pp. 73-85) It is important to note that indecency is protected by the First Amendment. The area of speech defined as clear and present danger was codified in the Supreme Court case Brandenburg v. Ohio, in which the court ruled that a law may only forbid speech advocating illegal or violent actions if the speech is intended to incite or produce imminent lawless action and if the speech is likely to incite or produce such action. (Cavazos and Morin, p. 74) Fighting words are a continuation of the clear and present danger idea, and are defined as words which are so offensive and abusive that they are likely to "cause or incite immediate physical retaliation by the audience." (Cavazos and Morin, p. 76) Defamation in cyberspace is akin to libel in the printed media.
Obscenity is the most controversial and questioned aspect of unprotected speech. The court definition of obscenity stems from the decision in Miller v. California, in which the court created a three-part test they will use to rule what is obscene. The test asks: 1. would "the average person, applying contemporary community standards" find that the work, taken as a whole, appeals to the prurient interest?; 2. does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law?; 3. does the work, taken as a whole, lack serious literary, artistic, political, or scientific value? (Wallace and Mangan, pp. 17-18) The effect of the ruling puts the burden of proof upon the defense. The defense, not the prosecution, must prove that the work in question has some value. However, while community standards may be used to find that a work "appeals to the prurient interest," they may not be used to prove that the work has value. Thus, a work which is found to be obscene in a trial in Birmingham may be saved if the defense can prove that the work has legitimate value, even if the value is only in Los Angeles or Chicago. The intent of the justices in making this decision was to ensure that the most liberal jurisdictions in the country would not dictate standards to the most conservative jurisdictions. Chief Justice Warren Burger did not want cities like New York and Las Vegas to decide what was appropriate for Memphis or Tuscaloosa. (Godwin, p. 58)
How far does the Constitution go in protecting repugnant or defamatory speech on the Internet? One case on this issue has already been decided. University of Michigan undergraduate Jake Baker posted a violent narrative to alt.sex.stories about the rape and torture of a classmate of his. He was arrested by the FBI and charged with the federal crime of "transporting threatening material" across state lines. ("Law and Order Comes to Cyberspace") When the case got to trial, it was thrown out by the judge, who ruled that there was no cause for criminal indictment. The university had the right to discipline Baker for his actions, and civil action could still be brought against him, but the Constitution does guarantee freedom to repugnant thoughts.
When offensive expression is distributed on a computer network, who is accountable? To answer this question, one must examine the role of the ISP. If the ISP exercises some sort of editorial or screening rights, they can be held accountable for offensive expression. This principle was cemented in a suit brought by Stratton Oakmont, a brokerage firm, against Prodigy Online Services. An anonymous and angry user had posted messages through Prodigy which accused Stratton Oakmont of violations of SEC rules and also other criminal behavior. In the court case, Prodigy claimed that it is a passive carrier of information, like a telephone company, while Stratton Oakmont argued that Prodigy is a publisher. The court ruled against Prodigy, noting that it does exert a form of editorial control over content on its system. ("Law and Order Comes to Cyberspace") If this decision holds, system operators will be forced to monitor the use of networks much more closely. This increased monitoring means for time and work for the operators, and thus a higher cost for the consumer.
The level of protection afforded speech under the First Amendment depends upon both the content of the speech and the medium of communication. Because courts have applied the First Amendment differently depending upon medium of communication, a splintered regulatory structure has emerged. The amendment is applied differently to print, common carriage, and broadcasting. Print media is afforded the greatest amount of freedom, while electronic media is generally more constrained. The regulation system which has been applied to television and radio would be intolerable if it were to be applied to print media. In the past, two technology-based rationales used to regulate electronic media have been frequency scarcity and "pervasiveness." (See article in Harvard Law Review) However, the technology of the Internet may make these rationales useless and allow for greater free speech in electronic communications. Some free speech supporters believe that the Internet should be treated as a public forum, and thus be afforded full protection of speech. The advent of 500 or greater channel cable systems wired through the Internet will challenge the idea of spectrum scarcity. The pervasiveness of the electronic media is not as great a problem as has been made out. Signals are broadcast into homes without the tacit agreement of individuals, but individuals have the ability to turn the computer, television or radio off, or need not turn it on at all. I do not believe that the Internet should be treated as a broadcast medium. A broadcast medium pushes material and information towards a user. The Internet allows an individual to pull information to themselves. (Godwin, p. 57) An Internet user must undertake an action in order to have information appera on the screen; information does not freely appear.In the near future, the court will have to address these issues and decide whether the Internet is a broadcast or print medium.
Cases of Censorship
With a basic legal background of censorship issues in hand, the next issue to analyze is state practice of censorship. The Internet is no different than any other form of communication in regards to governmental attempts to censor it. Censorship of the Internet is widespread and can be found in closed societies such as Vietnam and China as well as in open societies like Canada and the U.S. However, the Internet offers the unique ability to easily get around attempts at censorship. This ability to work around roadblocks was a crucial part of its original makeup, since the purpose of the Internet was to allow for the military to communicate in the event of a nuclear war. The nature of the Internet makes it almost impossible to unilaterally censor information. John Gilmore, a leading supporter of the right to free speech, said that the Internet interprets censorship as damage and routes information around it. The following are a cases of censorship of the Internet which were sometimes successful, and other times not.
Canada has been the site of several attempts at Internet censorship. Perhaps the most famous case of censorship revolved around the murder trials of Karla Homolka and Paul Bernardo. In the summer of 1993, Homolka confessed the details of two murders and named her husband, Bernardo, as the instigator. As a result, both were to receive separate trials. The Ontario court where Karla Homolka's trial was held imposed a gag order on the media, in hopes of keeping details of the case from biasing potential jurors for her husband's trial. (Wiener, p. 826) Soon after Homolka's confession, a Usenet newsgroup was set up under the name alt.fan.karla-homolka. The newsgroup challenged the court-ordered gag rule by providing daily updates of the trials progress. Soon the Royal Canadian Mounted Police found their way into the newsgroup and told the members that they were in violation of the law and that they were going to jail. (Wiener, p. 826) The police claimed that they had recorded the names of people in the newsgroup and that they would be contacting the site administrators of the named people. The threats were never fulfilled, but many Internet providers in Canada blocked access to the bulletin board in an attempt to stay on the right side of the law. (Wiener, p. 826) A second newsgroup was soon created under the moniker of alt.pub-ban.homolkal, which was also soon shut down. When one newsgroup was shut down, another soon sprang up to take its place, making the Canadian attempt at censorship fruitless.
One oddity about the Homolka case is the uneven manner in which the censorship rules were applied. In an address at the May, 1996 conference The Internet: Beyond the Year 2000, Jeffery Shallit, a member of the Department of Computer Science at the University of Waterloo and also of the Electronic Frontier Canada, noted that the censorship of the Internet was harsher than for other forms of media. Mr. Shallit noted that McGill University blocked an entire newsgroup because it held the Homolka bulletin board, yet the university library had a copy of The Washington Post which had an article about the Homolka trial.
The Homolka incident has not prevented Canada from again attempting to censor the Internet. One case centers around Marc Lemire, a 20-year-old resident of Toronto, and his revisionist Holocaust Web site. (See article by Declan McCullagh) Lemire was forced to move his account to the British Columbia Internet Service Provider (ISP) FTCnet after his account with Pathway Communications was terminated on June 28, 1996. FTCnet quickly came under pressure from the local authorities and the Simon Wiesenthal Center to remove Lemire's "Freedom Site." The Simon Wiesenthal Center appealed in writing to FTCnet's owner, Bernard Klatt. The Center claimed that this was "regulation of hate propaganda," not "an issue of free speech." The authorities had the idea of seizing control of Cyberspace in British Columbia, a threat which could in no way be enforced. Klatt bravely stood his ground, and allowed Lemire's site to remain on FTCnet.
The other event this summer in Canada came when iSTAR Internet, Inc., the largest Canadian ISP, responded to complaints of customers by blocking access to sites on the Internet which it claims provide illegal content. The blocked sites included depictions and discussions of bestiality and child pornography. (Chianello and Ayed) The Ottowa-based company's actions, taken after consultations with the Royal Canadian Mounted Police, are not expected to influence other ISPs in Canada to follow their lead.
Germany is another country which has attempted at various times to censor material on the Internet, focusing their interest primarily on sexually explicit bulletin boards and neo-nazi propaganda. On January 27, 1996, T-Online, the state-owned German Internet provider, blocked its customers access to Web Communications of Santa Cruz, California, because Webcom's server held a Web page on Holocaust revisionism from a Canadian citizen, Ernst Zundel. (See article by Charles A. Gimon) The action of T-Online, a service of Deutsche Telekom, came after it received pressure from the German government to act against Zundel's Web page. However, T-Online had to block access to the entire webcom.com, preventing subscribers from reaching over 1,500 other sites located in that domain. (See paper by Allison J. Gordon) Internet free speech activists attempted to force the German government's hand by placing mirror sites of Zundel's Web page onto their own sites. Rich Graves, the network coordinator at Stanford, and Declan McCullagh of Carnegie Mellon each put up their own mirror sites for Zundel. Graves' page came with an addition to the address containing the line "Not_By_Me_Not_My_Views." (Gimon) The strategy was to put the Web page on the most popular sites on the Internet. Thus if the German government wanted to block access to the Web page, they would also be blocking access to other important sites on the Internet. If Germany was to continue to block access to Zundel's site, they would be slowly isolating their customers from greater and greater pieces of the Internet.
Overzealous German prosecutors had previously caused an uproar in the Internet community when they forcefully persuaded an Internet service provider, CompuServe, to block access to Internet news groups containing the words "sex," "erotica," or "gay" in the name, over 200 news groups in all. (Leahy, S1181) The only other country to support Germany in this action was China, one of the world's most restrictive regimes. The actions of the Munich prosecutors meant that, in addition to sites containing pornography, subscribers were also blocked from groups such as "gay-net.coming-out," which provides support for gay men and women who are dealing with making their sexual orientation public, and "clarinet.news.gays," an online newspaper dealing with gay issues. (Leahy, S1181)
CompuServe could not afford to provide access to newsgroups to some subscribers, namely those in the U.S., while blocking access to those subscribers in Germany, so the newsgroups were blocked to everyone. The plan was soon abandoned after a well-organized on-line protest provided overwhelming criticism of CompuServe's decision. In addition, the sites could still be accessed by subscribers to CompuServe through connections to other host computers which carried the forbidden newsgroups. An important issue raised by this case is one of jurisdiction. The action of the German prosecutors was, in effect, to limit the information which citizens of the U.S. can receive to that which is acceptable by German standards. The question is whether one government can impose its standards on a global medium and, if so, will the Internet of the future only be able to provide information which is acceptable to only the most restrictive societies?
Germany is not the only country in Europe which has attempted to censor Cyberspace. France has also made unsuccessful attempts at restricting information available to the public. The French attempt at censorship revolved around a book about the late President Francios Mitterand, Le Grand Secret, written by his personal physician, Dr. Claude Gubler. In his book, Dr. Gubler spoke openly of President Mitterand's long and secret battle with prostate cancer. The French government issued a ban on the book, but not before forty-thousand copies of the book were issued. (Gimon) Pascal Barbraud, the owner of a Paris Internet Cafe, came into possession of one of the copies and decided to scan the book and put those scanned images onto the Internet, allowing all French citizens access to the book. This upset the French government, and Barbraud was apprehended, though the government claimed it was for "unrelated charges." Three students carried on Barbraud's attempt to beat the French censorship. Stepane Etienne of the University of Glasgow wrote a script which allowed him to reassemble a copy of the book on his site in Glasgow, while Sebastien Blondeel and Declan McCullagh of Carnegie Mellon converted the book into ASCII text and made the book available through McCullagh's web page. Again, the attempt at censorship was easily circumvented.
The situation of censorship in Asia is much worse than in Europe. Many Asian governments are able to control the Internet through by censoring material made avaiable and also by limiting citizens' access to the Internet. By limiting availability, it is easier for governments to monitor electronic messages and curtail undesirable discussion groups. Thailand has moved to force self-policing of ISPs for material seen as sexually explicit. Subscribers and operators found to be dealing with indecent material will be subject to criminal prosecution. (See "Silencing the Net" by Human Rights Watch) In India, Internet use is governed by the Indian Telegraph Act of 1885. This century-old Act forces ISPs to screen the network so that no obscene or objectionable content is being carried by or into India. Malaysia, Pakistan, South Korea, Vietnam, and Hong Kong also censor the Internet in varying degrees.
China and Singapore are two of the most restrictive states not only in Asia, but in the world when dealing with the Internet. In 1996, China passed a law allowing citizens to use the Internet, but "harmful information," which includes political and sexual material, was not allowed, and all users must register themselves with the government. (Feingold, S12042) As a result, only 100 sites are available to the 120,000 Internet users, while sites operated by Amnesty International, Human Rights Watch, Cable News Network, the Washington Post, and the Wall Street Journal are blocked. (Feingold, S12042) Singapore regulates the Internet through the Singapore Broadcasting Authority (SBA), and has made less than half of Usenet newsgroups available to its subscribers. Singapore, like China, censors both sexual and political information. Singaporean ISPs are required to use filtering software to block hate literature, sexually explicit material, politics, and religion. (See draft of SBA agreement)
Censorship of the Internet is also prevalent in the Middle East, Africa, and Latin America. Bahrain, Jordan, Kuwait, Abu Dhabi, Iran, and Saudi Arabia all have strict censorship laws dealing with pornography. Limits in Africa and Latin America are largely due to lack of access, but as technology becomes more readily available to the masses, it is also expected that the governments will in some cases step in and limit the information available to citizens.
Even the United States, the most networked and arguably most free society, has had numerous cases of attempts to censor the Internet. This should be of little surprise, for despite the belief that the United States provides absolute freedom of speech, the writings of Walt Whitman, Theodore Dreiser, and Sigmund Freud have, in the past, been banned for being obscene, as has a Disney film documentary showing the birth of a buffalo, and a movie showing black and white children playing together. (Wallace and Mangan, p. 17) With this questionable history of censorship in mind, there should be little surprise that the Internet has also been a target of censorship in the United States. One of the more amusing cases of censorship does not stem from the government, but rather from Internet users themselves. Phoenix immigration lawyers Laurence Canter and Martha Siegel, a husband and wife team, decided to advertise their business on the Internet. But rather than doing it through the use of a Web page, the two sent messages to over 5,000 Usenet groups in an attempt to solicit clients needing assistance acquiring green cards. (Wiener, p. 828) Such unwaranted solicitation is a violation of the unwritten rules of "Netiquette," as widespread use of such tactics could overwhelm the system. In order to punish the lawyers for their breach of conduct, users flooded Canter's office with e-mail messages, causing the computer holding Canter's e-mail account to crash, and leading the ISP to disconnect Canter. (See speech by Parker Barss Donham) However, an unrepentant Canter threatened suit and regained access, and even said that he would use such advertising tactics again in the future because they were successful in bringing in new business. In order to prevent this from happening, a Norwegian hacker invented a "cancelbot" program which scans Usenet for messages from Canter and deletes them. (Donham) This is a humorous attempt to prevent Canter and Siegel from flooding Usenet with more messages, but a similar cancelbot program could be used to delete any information which it is programmed to search for. Rather than messages from Canter, it could be programmed to delete messages containing information on AIDS, Scientology, or human rights abuses. This is one case where the normally pro-free speech Internet community created a tool which can be used to hinder their speech in a dangerous and absolute method.
American universities, traditionally bastions of free speech, have also been drawn into the debate on censorship. Carnegie Mellon University blocked student access to certain Usenet newsgroups after an undergraduate, Martin Rimm, contacted the president of the university and made him aware of the existence of pornography. Rimm also falsely stated that now that the president knew, he must act to block access to the pornography or risk being in violation of the law. Carnegie Mellon acted hastily and without legal advice, and did block access to the Usenet newsgroups, though only for a short time.
However, the majority of censorship in the United States comes from the government. The state of Connecticut has passed a law criminalizing "online stalking," which they defined as contacting an unwilling subject over the Internet. Senator Dianne Feinstein of California has proposed a bill which would criminalize the posting of bomb-making information on the Internet. The Feinstein bill was presented in the period following the tragic bombing of the Murrah Federal Building in Oklahoma City and is, no doubt, well-intentioned. However, the information about building bombs that is available on the Internet is also freely available at bookstores in publications like The Anarchist's Cookbook. (Look at a FAQ on this book) Thus, censorship of the Internet would be only a superficial attempt to restrict access to the information. No one wants innocent people to be injured or killed by bombs, but censoring the material about bombs on the Internet really skirts the societal problems which would lead someone to create such a bomb. If the information is protected in one medium of communication, that protection should be transferred to all other forms of communication.
The most widely known attempt at censorship in the United States is the Communications Decency Act (CDA), authored by Senator James Exon of Nebraska, and contained in the Telecommunications Act of 1996. This controversial act represents the first major attempt at widespread censorship of the Internet at the federal level in the United States. Opposition to the CDA was provided by a coalition of civil liberty advocacy groups, including the Center for Democracy and Technology, People for the American Way, the Electronic Freedom Foundation, and the ACLU. This coalition is testing the constitutionality of the CDA in the court system and has, to date, been successful. The CDA was found to be unconstitutional by a Philadelphia court in June of 1996, and its legal status is currently unknown, as the Department of Justice appealed the case to the Supreme Court. The Supreme Court recently accepted the case and will be hearing arguments within the coming months. It is important to study the implications of the CDA, because even if the Supreme Court finds it to be unconstitutional, a similar bill is likely to be introduced in the 105th Congress.
Support for the CDA and for censorship of the Internet in general was fueled by a questionable study by Martin Rimm on pornography on the Internet, which was printed in the July, 1995 issue of the Georgetown Law Journal and was the main source for a front-page story on "cybersmut" in Time magazine. The Rimm Study, titled "Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces, and Territories," is significant because it was a major force behind passage of the CDA, despite significant evidence that the study was less than accurate. When the CDA was in danger of being defeated, Senator Exon brought his blue notebook to the Senate floor, which contained some of the most graphic pictures available off the Internet. Few senators could object in the televised debate to such raw imagery and not expect to be crucified in their home state. The pictures used by Senator Exon were the focus of the Carnegie Mellon/Rimm Study. Few would have expected that an undergraduate research project would generate such interest.
Marty Rimm was a 30 year-old undergraduate at Carnegie Mellon University when he undertook a research project which focused upon the availability of pornography on the Internet. In his study, Rimm surveyed 917,410 computer images on the Internet and found 83.5% of them to be pornographic. The study also found that alt.sex newgroups are some of the most popular and profitable outposts on the Internet. Rimm documented pictures depicting pedophilia, hebephilia, and what he calls paraphilia, a category including bondage, urination, defecation, bestiality, and sadomasochism. The study was presented in an exclusive Time expose by Philip Elmer DeWitt, complete with pictures of a naked man coupling with a computer and children being enticed into a computer screen. The message being sent was clearly that the Internet is a den of pornography and vice where people are lining up to take advantage of children. However, since the release of the Rimm report and its exposure to expert scrutiny, numerous questions have been raised as to its validity.
Since the release of the Rimm report, Rimm has been personally attacked for having an agenda for his research, and bending the facts to support his desired and pre-planned outcome. He has been accused of plagiarism, lying, gross ethical misjudgments, and plain sloppy and flawed research techniques. Not even Rimm's faculty advisor on the project finds Rimm's conclusion supportable by the data. In short, the Rimm study has been proven to be a sham. Despite this, it played a major role in shaping national opinion about the Internet, and made it easy for a flawed bill like the CDA to pass Congress.
Knowing the background of the CDA, let us now examine what exactly is proposed by the bill. The CDA extends the ban on deliberate transmission of "obscene, lewd, lascivious, filthy or indecent material with intent to annoy, abuse, threaten or harass someone" which had previously applied only to the telephone to all forms of telecommunication. Additions to the CDA also outlaw information about drugs and devices for producing abortions. Pro-choice members of Congress argued that this provision would make it illegal to discuss abortion on the Internet, but Illinois Representative Henry Hyde, an ardent supporter of pro-life causes, said the provisions restricted the Internet from being used to procure abortion drugs or devices. However, the CDA does not state this clearly, and would be open to a prosecutor looking to make a case on the issue. A violation of this rule could lead to two years in prison and fines of $250,000 for individuals and $500,000 for corporations. (Congressional Quarterly, February 17, 1996. p. 417)
An attempt to protect minors was made by outlawing the knowing transmission of indecent or obscene material to a minor. The same rules would apply to those who would knowingly allow their telecommunications facilities to be used for the transmission of indecent or obscene material to minors. The definition of indecency stems from Supreme Court rulings regulating radio and television programs and includes material depicting and describing "sexual or excretory activities or organs in a patently offensive way, when taken in context and judged by contemporary community standards." (CQ, February 17, 1996. p. 417) The CDA also attempts to protect minors from sexual predators on the Internet by making it illegal to entice or coerce minors across state lines to engage in prostitution or an illegal sexual act. Such an offense would be punishable with a sentence of ten years in prison and again a $250,000 fine for individuals and a $500,000 fine for corporations. (CQ, February 17, 1996. p. 417)
The CDA does offer Internet Service Providers some protection against lawsuits. Gateway Internet providers are exempt from prosecution, as are employers exempt from illegal actions of employees, unless the employees actions were authorized or blatantly disregarded by the employer. Additional protection for ISPs is provided through certain "good Samaritan" clauses. An ISP can be exempted from civil liability for making good-faith efforts to limit access to obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable material, even if the material is afforded constitutional protection. ISPs are also not to be treated in the court system as speakers or publishers of information provided by other sources. (CQ, February 17, 1996. p. 417) Thus, an online service provider is protected from libelous or defamatory material posted to its network by a subscriber. ISPs must also make a good-faith and effective attempt to keep objectionable material from minors. By putting a filtering device into effect, online providers could exempt themselves from liability. The Federal Communications Commission is to decide the meaning of "effective." In addition, no one may sue an individual or company for taking legal steps to restrict access to prohibited materials. (CQ, February 17, 1996. p. 417)
Despite being authored by a Democratic Senator (though Senator Exon is one of the more conservative Democrats), the CDA gained the majority of its support from Republicans. Republican Senators Dan Coats of Indiana and Charles Grassley of Iowa, primary supporters of the bill, brought the Rimm Study and the sensationalist Time article to the floor of the Senate for debate. It was Senator Grassley's hearings in the Judiciary Committee that inserted provisions on child enticement through the Internet into the CDA. In defense of his reasoning behind proposing the CDA, Senator Exon argued that he wanted to avoid turning the Internet into a red-light district, and that pornography could be censored because it is not specifically protected under the First Amendment. (Exon, S2095)
The fight against the CDA in the Senate was led by Senators Patrick Leahy of Vermont and Russell Feingold of Wisconsin. Both repeatedly took to the floor of the Senate to offer impassioned defenses of the Internet and strong arguments against censorship of the Internet. On March 30, 1995, Senator Leahy adressed the Senate and refuted the main claims of the CDA. Senator Leahy acknowledged that he, like many others, is concerned about the accessibility of indecent and obscene materials, but said that a knee-jerk response like government regulation is not the answer to the problem. Leahy objected that, under the CDA, adults will have to converse over the Internet as though they were in Sunday school. (Leahy, S4841) The use of objectionable language in a personal e-mail between adults could result in substantial fines or even jail, for the use of language that is protected in other arenas. In addition, classics such as Catcher in the Rye would not be allowed on the Internet because it would violate the CDA for its use of adult language. Senator Leahy pointed out the constitutional problems with regulation of speech, which the Philadelphia court later agreed with. He was especially critical of the CDA provision exempting the legal responsibility of ISPs who exercise no editorial control over content. This "ignorance defense" would stop Bulletin Board operators from screening boards for objectionable speech, because if they were not aware of what was being posted, they would not be liable. (Leahy, S4841) While such a provision discourages operators from exercising editorial control over bulletin boards, another provision gives ISPs immunity from prosecution if they screen private e-mail for objectionable material. (Leahy, S4841)
Senator Russell Feingold noted that existing statutes already apply to the crimes of child enticement and interstate transportation of child pornography. The effective application of those laws would negate the need for unnecessary censorship provided for in the CDA. He stated that law enforcement should be allowed to focus its resources on criminal activity on the Internet and be unencumbered by worrying about indecent speech. Senator Feingold believes that the First Amendment must be applied to the Internet if it is to grow into a relevant tool of communication. "Shifting political views about what types of speech are viewed as distasteful should not be allowed to determine what is or is not an appropriate use of electronic communications." (Feingold, S15153) He saw the CDA as a dangerous first step towards revoking first amendment protections, just as the Philadelphia court would later rule. Both senators stated that parents must take a more active role to protect their children from material that they feel children should not be exposed to. Software exists which can allow parents to block sites which they personally want to screen. Such a solution allows for individuals to have a level of protection which they themselves have the power to create and change. Rather than subjecting society to follow the beliefs of its most restrictive member, society can decide on an individual basis, free from government interference, what information can be let into their home.
It is clear to see that global state practice tends to support censorship as a viable tool of state policy.
In this paper, I have presented the basic arguments of both sides of the censorship issue, and I have also provided a background into which those arguments fall. Through a detailed study of cases of censorship, I hoped to bring the extent of censorship to light. We in the United States tend to think that we are free from the chains and shackles of censorship, but it is clear that we bear the burden of censorship just as much as other countries. I also showed the ease with which censorship can be averted on the Internet. Censorship of the Internet does not work. It is time that states realize that their attempts to limit information do little to prevent the information from being made available. Their time would be better spent addressing the root causes of the problems they try to hide away. Rather than pushing the neo-nazi group into the underground, bring it into the open and engage in an informed debate of issues. I think that society will easily see the fallacies in their arguments. Their effect and power will be more easily marginalized. The same goes with child pornographers. Rather than ignoring the problem by censoring material, society should address the real psychiatric problem of pedophilia and try to help those who are afflicted. It is my belief that censorship only works to worsen any problem which is addressed. It permits individuals to carry on with their actions and leaves their beliefs unchallenged. An open society should be able to deal with its problems in an enlightened manner, not with the draconian means of censorship. It is ironic that the Internet, which has created a public space for discussion, has itself become the target of censorship.
This nation and this world we inhabit are at a crossroads in terms of communications technology. The Internet has the possibility to connect the whole world through an electronic network. Once states had near absolute control over what information their populace had access to. Now a vacuum stands where that wall once was. Information can flow freely through the borders of countries, allowing people to both access information abroad and disseminate information to others. Every person has the opportunity to be a publisher. No longer does one need the millions of dollars of physical plant to produce material that can be distributed. With only a few hundred dollars of equipment, a person can make information available to anyone in the world. This is an incredible possibility that must not be lost on the world's policy makers. Censorship will work only to hinder this process.
Many questions are yet to be answered in regards to censorship and the Internet. The Supreme Court will soon hear arguments relating to the constitutionality of the Communications Decency Act, but other issues are still unresolved. I believe that it may be best to leave these issues as unresolved for a while. Rather than jump into issues involving the Internet, I feel that Congress should sit back and take a "wait and see" approach. Too often in our history Congress has enacted reactionary measures against new means of communication. Hopefully this will not be repeated with the Internet. I feel that the society of Internet users should be allowed to deal with problems in their society first. Perhaps they can be solved without any interference from government. We saw earlier in the case of Germany and CompuServe that when one government dictates decency standards for the Internet, those standards apply to all countries. However, one country does not have this jurisdictional power in any other sphere, and should not be allowed to have that power over the Internet. Legislative bodies around the world should educate themselves about the Internet and become technologically literate. Only if they truly understand the medium and the implications of their actions may they apply an enlightened rule to the Internet.