Lawyer and writer Mike Godwin has been at the forefront of the struggle to preserve freedom of speech on the Internet. In Cyber Rights he recounts the major cases and issues in which he was involved and offers his views on free speech and other constitutional rights in the digital age. Godwin shows how the law and the Constitution apply, or should apply, in cyberspace and defends the Net against those who would damage it for their own purposes.
Godwin details events and phenomena that have shaped our understanding of rights in cyberspace--including early antihacker fears that colored law enforcement activities in the early 1990s, the struggle between the Church of Scientology and its critics on the Net, disputes about protecting copyrighted works on the Net, and what he calls "the great cyberporn panic." That panic, he shows, laid bare the plans of those hoping to use our children in an effort to impose a new censorship regime on what otherwise could be the most liberating communications medium the world has seen. Most important, Godwin shows how anyone--not just lawyers, journalists, policy makers, and the rich and well connected--can use the Net to hold media and political institutions accountable and to ensure that the truth is known.
|Publisher:||Crown Publishing Group|
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About the Author
Mike Godwin is a Policy Fellow at the Center for Democracy and Technology, in Washington, D.C., and a columnist for American Lawyer magazine.
Read an Excerpt
A NEW FRONTIER FOR FREE
SPEECH AND SOCIETY
Your first experience in free speech in cyberspace may not seem like speaking at all. Or much like writing, for that matter. Your mouse click or key press enters a command at a computer console, and after a short pause you hear a dial tone and a rapid series of tones coming from your modem. One or two rings later and the modem on the other end responds with a high-pitched squeal. Your modem answers back with a similar squeal. The login message prompts you for your name and password, and soon you're connected.
But connected to what? It may be a hobbyist's computer bulletin board system, a university's mainframe computer, a commercial information service, or a "home page" on the World Wide Web. But no matter what you're connected to, you've just become another explorer, and perhaps even a settler, of the newest frontier for the exercise of the freedom of expression--"the freedom of speech, or of the press" guaranteed to Americans by the First Amendment of the United States Constitution. Coming to grips with the immense expressive power given to us by the Net--and with the legal and social issues that power generates--will be one of the central challenges of our generation. And it won't be just the politicians, or the lawyers, or the activists, or the technicians who take up the challenge. Every one of us must explore this new frontier, which is in some sense a medium and in another sense a territory.
The first step toward mapping this territory--which I normally refer to as "cyberspace" or "the Net"--is to understand how dependent it is on freedom of expression. Many other nations provide protections for freedom of expression, but I'm an American lawyer, and I'm most familiar with the cases, the laws, and the social issues in my own country. That's why this book focuses on the First Amendment and on how it defines and protects our "cyber rights." But even if you're not an American, I'm certain that you'll find something of worth in this book's treatment of free speech on the Net.
The term "free speech," which appears in this book's subtitle as well as in its text, is used more or less interchangeably with "freedom of the press," "freedom of speech," and "freedom of expression" to refer to all the expressive rights guaranteed by the forty-five words of the First Amendment, as interpreted by the courts. The First Amendment reads in its entirety as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peace, ably to assemble, and to petition the government for a redress of grievances.
(I used to think that the freedoms of speech, press, assembly, and petitioning the government were the only First Amendment freedoms relevant to cyberspace. Then I came across a Usenet debate between lovers of Microsoft Windows and fans of the Apple Macintosh. That's when I first realized the Net's connection to free exercise of religion.)
Back to the Future
Pluralism is central to the design of our Constitution, and especially to the antimajoritarian guarantees of the Bill of Rights, including the First Amendment. It's no accident that the Constitution includes so many roadblocks to the will of the majority: James Madison, whom most regard as the primary architect of the Constitution and the Bill of Rights, designed the Constitution to function that way. Like other Enlightenment intellectuals, Madison had been educated to regard simple majority rule with a certain measure of fear. Arguments dating back at least as far as Plato's Republic had shaped Madison's thinking about unlimited democracy--he understood that "pure" democracies often led paradoxically to dictatorships, since majorities can easily be swayed by a crisis or a social problem to put all the power into the hands of those few who claim to be able to solve the problem.
The problems and issues I discuss here will, I believe, be relevant to citizens of every country touched by the Net.
I've written this book in the hope of doing three things:
First, I want to teach you how the First Amendment protects (or, at least, should protect) freedom of speech on the Net. By dealing with individual stories and cases--some of which I've been involved with myself--I want to show you how the framework of free speech set up by the First Amendment is not one in which your individual rights must necessarily stand in opposition to the rights of other individuals, or to the values of communities, or to the needs of the nation. I hope to convince you instead that the individual rights protected by the First Amendment function overall to strengthen the rights of others, as well as to give rise to communities and to enhance the public life of the nation.
Second, I'll identity, problems raised by freedom of expression on the Net--such as libel, sexual harassment, copyright issues, and cyberporn. The immense degree to which this new medium empowers individuals to exercise their First Amendment rights is, for some people, a scary development. I want to show you how the First Amendment, when properly understood, resolves most of these problems. At the same time, I'll discuss some situations when the First Amendment doesn't protect your speech on the Net--ideally you'll learn how to avoid those situations that overstep your First Amendment bounds. In addition, I want to answer the fears some people have expressed about the new technology, or of the new social consequences, brought about by the Net. Since fear of a new medium is often used to justify treating it more restrictively, and less rationally, than older forms of communication, I want you to learn to see past the fears, which are usually overblown.
Finally, I want to show you some of the ways in which you can be active yourself in defending free speech on the Net. Armed with the power of the Net and a measure of mass-media savvy, you have immense power to improve the environments both within and outside of our new "virtual communities" and to level the playing field between individuals and traditional mass media, as well as that between individuals and other large corporate or government institutions. We are each obligated to use freedom of speech on the Net to defend that same freedom from those who would damage or destroy it.
A Cyberspace Roadmap
Maybe you don't think the world of computer communications--often called "cyberspace"--is anything new. If you're a journalist, for example, you've known for years that computer technology and freedom of expression are intimately linked. In the United States, for example, all urban newspapers and most rural ones rely on computers for word processing and typesetting. Computers also mediate the transmission of wire-service stories to subscribing newspapers. Broadcast journalism has long relied on computers as well, for gathering news, for presenting it graphically, and for transmitting it by satellite. These trends have only accelerated in the last twenty years as the personal computer industry has made this technology more and more affordable.
But only in the last few years has the true social significance of the spread of computer technology and the Net begun to register among journalists and nonjournalists alike. Remember the first time you heard the word "Internet"? For most Americans, that experience wasn't too long ago.
You'd think that American journalists, who've been coping longer than the rest of us with the increasing connection between computer technology and everyday life, would be quickest to grasp the First Amendment significance of this technology. Strangely, however, for all the influence of automation in the newsroom, many members of the press (even broadcast journalists) still think primarily of words printed on paper when they hear the term "freedom of the press."
We have often seen this lead to a couple of outcomes: we've seen the professional press, who should know better, seize upon a particular story--maybe a computer crime story or a story about cyberporn--and conclude (or at least imply) that all the new freedom the Net gives us is as much a threat as it is a boon. Second, we see various members of the press, preaching from their editorial pulpits, condemning the Net's diversity as chaos, its often fractious public dialogues as divisive, its lack of editorial control as a guarantee that only a fraction of its content has any value.
Neither conclusion is correct. Sure, some people use computers or the Net to do bad things (just as people have used telephones or the printing press to do bad things), but that doesn't mean there's a crisis to be handled or a new law that needs to be passed. And sure, "flames" and political rants may seem to be of little value when you're looking for the answer to a question or just a little good company. But one of the things you learn as you spend more time on the Net is that it's big enough to carry everything--whether you're looking for a "flame war" or a friend.
Increasingly, citizens of the world will be getting their news from computer-based communications---electronic bulletin boards, conferencing services, and networks--which differ institutionally from traditional print media and broadcast journalism. And as we rely more and more on the Net as a third source of information (after print and broadcasting), we have still another reason to ensure that this medium is afforded First Amendment protections at least as strong as those we insist on for more traditional media.
The first step toward understanding how the First Amendment applies to the Net is to understand how the various online free speech forums are structured.
The model that's easiest to understand is the computer bulletin board system (BBS). The operator of a BBS typically dedicates a computer and one or more phone lines at his home or business for the use of a "virtual community" of users. Each user, working with his or her own computer and modem, calls up the BBS and leaves public messages that can be read by all other users. Each user can also send mail to another individual user that remains private, inaccessible to the rest of the system. BBSs become forums--digital public houses, salons, and Hyde Park corners--for their users, and users with similar interests can associate with one another, publicly and privately, without being hindered by the accidents of geography.
A step up from the BBS in complexity is the conferencing system or information service. Functionally similar to BBSs, only much larger, these systems are typically based on a single computer or set of computers located in a particular geographic area. They differ from BBSs primarily in their capacity: they are able to serve multitudes of users at the same time. America Online (AOL) and the WELL (Whole Earth 'Lectronic Link,' based in Sausalito, California) are two better-known examples of such conferencing systems. Each is home to a lively set of communities of users located all across the country. CompuServe, AOL, and the WELL were at one time reachable primarily through proprietary computer networks that enabled users to dial in without racking up immense long-distance charges. (The WELL and a few other systems piggybacked on CompuServe's privately owned network, while some other services, such as America Online, maintained proprietary networks.) Nowadays these systems are all reachable through the Internet, which I'll describe in greater detail as we progress.
Still further up the scale in complexity is the distributed network, which is not located in a particular geographic area but is maintained and supported on a large number of computers located all over the country (or all over the world). The best-known example of a distributed network is the Internet, which directly connects thousands of computers at universities, government entities, and commercial and noncommercial organizations around the world. The Internet is a key conduit for "Usenet," a distributed worldwide conferencing system whose "newsgroups" (discussion forums) touch on just about every topic human beings can think of. The Internet is also the foundation for the World Wide Web, a relatively recent form of graphically oriented publication on the Net that has grown dramatically over the last three or four years. Thousands of other computers gain access to Internet-connected systems by dialing up providers through local telephone lines.
Together, this range of increasingly interconnected computer forums is often called "cyberspace," and its public and private conferencing systems (from Usenet to America Online to the WELL), its new modes of publication (such as the World Wide Web), and even its simplest electronic mail services have spawned hundreds of "virtual communities" of like-minded individuals. The immediacy of such Net communications has already led to their supplanting scientific journals as the major communicators of scientitle discovery and research--in one sense, "the virtual community" is a scientific discovery. (What's "the virtual community"? I hear you thinking. I'll be talking about this in greater detail later, but for now think of it as you would any community, except that this community's members are connected to one another primarily through computer communications rather than through the car, the phone, or the television.)
The Age of Reason:
Finding True Democracy on the Net
Computer networks have abolished the limits of geography for those who use them. In the coming decades, expect to see an acceleration of the growth and interconnection of national and international public network systems--the infrastructure on which everyone, whether a large private company, a government, or a single individual, will be able to build a range of information services and forums for expression and association.
All these systems, from the smallest single-line BBS to the Internet, have one thing in common today: their reliance on text. This is an especially interesting development, since it has been argued that the power of visual media will continue to undermine the influence of the printed word. It's useful to note, however, that July 1996 marked both the fifteenth anniversary of MTV and the fifteenth anniversary of the IBM personal computer. For all that legislators tend to view the Internet as just another form of television, the Net has flowered in a very different way. Even as cable television watchers have grown increasingly accustomed to fast, slick, and thrilling visual images, the burgeoning population of computer users has grown more adept at writing effectively to each other. The world of the networks is a true democracy: your influence is measured not by wealth or position, but by how well you write and reason. It's true that over time the Net will increasingly support other kinds of communication--audio, video, and so on--but as I explain later on, the efficiency and power of text mean that written expression will always play a central role on the Net.
This reliance on the printed word is, of course, something that the computer-based services share with traditional print media. But they differ from print media--and from broadcast media--in two very important ways. First, the means of communication are approaching the point where they're cheap enough for almost everyone in the industrialized world to gain access: a desktop computer and a modem can be purchased now for a few hundred dollars, which renders this form of communication far more democratic than the publishing and broadcast media, whose production costs are prohibitive.
The second difference follows from the first: While traditional print and broadcast media rely on a "one-to-many" model, computer-based communications of the new sort can function as "many-to-many." A newspaper is a typical one-to-many system: information gathering and reporting is supervised by a hierarchy of editors and other management personnel who control the flow of copy and make numerous editorial judgments about what information to include or discard. Information tends to go in one direction only: from the editors to the readers.
Computer forums, in contrast, can function as many-to-many systems--in general they rely on little or no hierarchical editing. Instead these networks are a colloquy of different voices with different styles, with information flowing in multiple directions at once. The "filtering" function performed by newspaper editors is left to the readers, who are also contributors. The very distinction between "reader" and "reporter" is blurred. Compare computer forums to the World Wide Web, which is arguably an adaptation of the one-to-many model--information on a Web page is disseminated outward from a single source. The Web is democratic, too, but its democratic impact derives less from the interplay of voices and opinions within a page than from the low economic barriers to entry for Web publishers, which result in lots of Web pages overall.
This may sound like anarchy, but in practice it's more like a town hall meeting, albeit one in which everyone has a chance to speak, no one is shouted down, and everyone has time to develop and explain his or her ideas. Some systems, like CompuServe rely on moderators to keep conferences on track, but their role is less that of the editor, who may make line-by-line changes of a writer's copy than that of a discussion leader. At their best, these online conferences manifest a give-and-take that surpasses even that of face-to-face discussions. When we're face-to-face, the intimacy of physical proximity tends to be offset by inevitable starts, stops, and hesitations of oral conversation and by the distractions of physical presence. Online, each of us has the chance to write paragraphs rather than sentences--to develop arguments rather than interject comments.
There's one more factor that makes the Net of particular significance to individuals: The economic costs of participation on the Net are minuscule compared to the cost of access to any other mass medium, and those costs are continuing to shrink.
In a nutshell: The structure, the dynamic, and the sheer cheapness of access to the Net mean that this is the first mass medium ever with the potential to give each of us a voice with the reach of a newspaper or TV station, but with the intimacy and responsiveness of the telephone.
The Unlonely Pamphleteer:
How Freedom of the Press Applies to the Net
We've had some success at getting our legal system to recognize the First Amendment dimensions of the Net. Still, even in the United States, which gives a lot of lip service to the ideal of free speech, our fight to ensure that the First Amendment protects online communications has often been an uphill battle--First Amendment arguments are not as popular as they used to be. One reason the hill has been steep is that "freedom of the press" is routinely identified with professional journalism these days, and journalists aren't as popular as they once were. Sure, journalists were held in high regard after the reporting of the Watergate scandal, but it's clear that this high-water mark has yet to be reached again. When I worked as a journalist in the 1980s I was constantly reminded by sources of the common assumption that a newspaper or magazine article wouldn't get things right or would distort the facts to reflect a particular bias. More recently, opinion polls showed the public to be unsympathetic to media complaints about how the military limited their ability to do on-the-scene, unsupervised reporting during the Gulf War. The major news papers, magazines, and television networks--which are often components of larger corporate organizations--are increasingly regarded by Americans as just another special interest. Invoking the First Amendment looks like special pleading.
Compare the American media today with the printers and publishers in eighteenth-century America. In the most famous freedom of expression case in the American colonial era, printer-publisher John Peter Zenger put his own freedom on the line for what he published. In 1732 Zenger, who published the New-York Weekly Journal, was tried for "seditious libel" after he published criticisms of the colonial governor in the Journal. The law of "seditious libel" made it a crime to publish political criticisms that undermined the respect given to government officials, to government generally, or to the law. Although it was not a defense under colonial law to show that one's statements were true, Zenger chose to defend himself by arguing to the jury that citizens should have the right to speak the truth about public officials. Zenger was acquitted. His plight--that of an individual printer-publisher whose commitment to freedom of speech might mean his own imprisonment--was one his fellow Americans in the jury box could identify with.
But do the heads of Time Warner or CBS or Gannett have the same concerns as Zenger? Face the same risks? Clearly not. And does the average American today have the same opportunity to be a publisher--to be heard--that Zenger had? Not too long ago, the answer to this second question also was no.
But freedom of the press has undergone a sea change, thanks to computers and the Net. Many of us are familiar with New Yorker writer A. J. Liebling's famous observation: "Freedom of the press belongs to those who own one." It was because those who "owned one" were increasingly large, inaccessible corporations that legal scholar Jerome Barron began arguing in the late 1960s that there was--or ought to be an "emerging First Amendment right": the right of the public to have access to media to disseminate their own voices and views. The problem then was that most people didn't, and couldn't, own a newspaper or radio station. To contribute to public debate, they could write a letter to the editor, take part in a demonstration, or solicit signatures on a door-to-door petition drive. But the chances of their being heard were minuscule compared with those of NBC's John Chancellor or the Times's Abe Rosenthal or Michael Kinsley (the former CNN Crossfire moderator and editor of the New Republic). That the Net may have turned this balance around is underscored, perhaps, by Kinsley's decision to put aside both TV and the print media and serve instead as editor of a new Web-based publication supported by Microsoft.
The world of computer communications, however, has turned out to be the great equalizer. Suddenly anyone can become a publisher, reporter, or editorialist. What's more, each of us has as good a chance of being heard as anyone else in the electronic community. The new computer-based forums for debate and information exchange are witnessing perhaps the greatest exercise of freedom of expression that the United States, and the rest of the world, has ever seen.
But does this new medium have the same First Amendment protection in the United States that is afforded to the traditional "press"? Even before the Supreme Court addressed the issue in 1997, there were a number of Court precedents suggesting that it does. In one early case (Lovell v. City of Griffin, 1938), for example, the Court gave a fairly broad definition of "the press" for the purposes of interpreting the First Amendment's press clause: "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets .... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Freedom of the press, said the Court, includes "the right of the lonely pamphleteer who uses carbon paper or a mimeograph as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."
Surely online communications are numbered among "every sort of publication which affords a vehicle of information and opinion." And the main difference between computer users and "the lonely pamphleteer" is that technology has made the former a lot less lonely.
But if you're not a lawyer yourself, you may not care much that some industrious attorney like me can cite old cases that support constitutional protections for new media like the Net. What does it matter, you may ask, that the First Amendment protects this medium? Even if that's true, our policymakers and our opinion leaders question whether the Net deserves the same degree of protection that traditional publications have enjoyed.
Many of us passionately believe that while full First Amendment protections are appropriate for traditional written and spoken expression, it's equally appropriate to impose more restrictive rules on radio and TV content. It's been argued that broadcast media are special in a number of ways that justify a special governmental role in controlling their content. I hope to show in this book why the assumptions behind the regulation of TV and radio don't apply to cyberspace.
Even if you're convinced that the Net isn't the same as broadcasting, you could still come up with one kind of argument--based on certain fundamental (but untestable) assumptions about human nature--that is particularly hard for me to answer. Turning my own argument against me, you could ask if the Net is special because of the new scope and power it gives our First Amendment rights, doesn't this in itself make the case that the Net also deserves special restrictions? After all, won't too much freedom of speech damage our society's stability and undermine the very values that bind our communities together?
I've written this book to challenge the assumptions behind these questions. Our society still rests on the foundations that Madison and the other framers of the Constitution laid down more than two centuries ago. These foundations include the social premise that the unchecked power of government is far more of a threat to what we care about than is the empowerment of the individual. From our society's very beginnings, we have insisted that individuals could be trusted with liberty. And I believe that anyone who looks at the Net today with a clear eye and an unbiased heart will see that this trust has borne fruit--that protecting so much individual freedom has been worth the risk. This book aims to show that striking the balance in favor of individual rights has always been the right decision for us and that it remains so even when technology gives us new ways to exercise those rights. Individual liberty has never weakened us; freedom of speech, enhanced by the Net, will only make us stronger.
This book argues that our technologically expanded freedom of expression on the Net is not merely something to be tolerated--it's something to be protected and treasured. Only when each of us has a voice will we be able to draw upon the full strength of an open society as we face the new problems of a new century. Whether the Net will remain as free in the future as it is today will depend in large part on how well the case is made to Congress, to the courts, and to the general public that free speech on the Net--even with the problems it occasionally creates--deserves the full protection of the First Amendment.
I Hear America Typing: Pluralism on the Net
Computers and the Net are likely to give us far more than they can take away. And I'm not talking just about greater industrial efficiency or greater consumer comforts. The Internet--or, to put it more precisely, the technology symbolized by the Internet--marks a permanent change in American and world culture. Call it "radical pluralism."
What is "radical pluralism"? It's the kind of public participation that will characterize public life in the next century, and we're seeing the first wave of it here in the 1990s. But don't confuse it with the first vision of "electronic democracy"--the one we saw bandied about by Ross Perot during the 1992 presidential campaign. That vision was a pretty sterile one that had something to do with online referenda: one day, we were told, we'd listen to pundits and politicians debate the issues, and then we'd vote, maybe by pointing our remotes at our TV or computer monitors.
Radical pluralism, though, is something different. It's what happens when you put the power of a mass medium--computer communications--into the hands of individual citizens who could never have afforded creative access to other mass media like TV or newspapers. Everyone is now a "content producer."
Suddenly, to paraphrase Mr. Whitman, I hear America typing. And, sure, not everything they say is well thought out, or even well intended, but suddenly there are a lot more voices being heard, and a lot more people listening, and you discover that the whole liberal versus conservative, Republican versus Democrat dichotomies don't mean much anymore and that they were never terribly valid in any case. Spend enough time on the Net, and you discover that the pictures we've been given by traditional mass media of the range of political opinion have been vastly oversimplified. (If you find this a particularly difficult claim to swallow, you haven't spent enough time online.)
What's more, you see Net-based voices causing action to take place in the nonvirtual (that is, the "real") world. This action ranges from the now legendary campaign to get ABC to show the final episodes of Twin Peaks to the nuking of Lotus's privacy-threatening Marketplace product. (Then Lotus chief Jim Manzi woke up one morning to find thousands of letters in his digital mailbox, protesting this CD-ROM product, which contained detailed financial profiles of families all across the country.)
To bring together all the threads of this book, we'll explore the political intrigue, the legal issues, the media tactics, and the detective work that frame the exposure of a phony cyberporn study that snookered, then shook, Time magazine.
Will this Net-assisted radical pluralism be comfortable? Hardly. Sometimes the old mass media and the political establishment will wish for us just to shut up. But I have a message for those folks: "The rules have changed. Fasten your seat belts--it's going to be a bumpy century."
Our Town: Virtual Communities on the Net
The ability of individuals to be heard is not the only benefit wrought by the Net. Give people freedom, and they find new things to do with it, things that spring from the First Amendment even though no drafters of the Bill of Rights ever anticipated them. It's no accident that conferencing systems like the WELL and ECHO function as stable "virtual communities" because these forums have built in a strong tolerance for freedom of speech. Freedom of speech for individuals turns out to be the key element in building stability and connectedness for communities--so important, in fact, that I've explored the connection between these two values at some length in this book.
I believe virtual communities promise to restore to Americans at the end of the twentieth century what many of us feel was was lost in the decades at the beginning of the century--a stable sense of community, of place. Ask those who've been members of such a virtual community, and they'll tell you that what happens there is more than an exchange of electronic impulses in the wires. It's not just virtual barn raising of the sort I experienced when, after my library was damaged in a moving van fire, my "neighbors" on the WELL sent me hundreds of volumes to replace the ones I'd lost. It's also the comfort from others that a man like Phil Catalfo of the WELL can experience when he's up late at night caring for a child suffering from leukemia, and he logs on to the WELL and pours out his anguish and fears. People really do care for each other and fall in love over the Net, just as they do in geographic communities. And that "virtual" connectedness is a real sign of hope in a nation that's increasingly anxious about the fragmentation of public life and the polarization of interest groups and the alienation of urban existence.
Empowering people to speak freely on the Net in all the ways that we allow them to speak freely in other media, and with all the privacy that we've allowed them in other media, is a necessary condition for the myriad benefits that the online world has to offer us.
Increasingly we hear stories about "regular folks" (as distinct from dedicated computer hobbyists) who use online communications as an integral part of what can only be called communal activities. Citizens' groups rely on electronic forums to organize events, develop policies, and conduct meetings. Lonely individuals find new ways to connect with the rest of humanity.
This is a benefit worth working for. Consider: One of the chief changes in American public life in the twentieth century has been the transition from a primarily rural to a primarily urban culture, And one of the common tragedies of urban life, for some of us, at least, is our sense that we have lost "community"--that feeling of being part of a larger whole, of having neighbors you can talk to, neighbors who'll step in to help you in a tough time. Is it any surprise that the notion of "virtual community" has such resonance? Many of us know that community is what we've been missing all this time, which is why we treasure it when find it in the online' world.
There are, of course, millions of individuals around the world who are already beginning the hard work of settling these online communities, investing tens of hours in learning arcane computer operating system commands and telecommunications tricks, followed by hundreds of hours online. These people will be our trailblazers--our first resources when we explore what kinds of online communities succeed and what kinds of laws and institutions we need to accommodate the successful ones. As journalists, communications theorists, and policymakers begin to recognize the significance of events on the electronic frontier, these early explorers will be our guides to the new territory, pointing the way to the new social forms of the twenty-first century.
A Brave New World: The Struggle Between
Freedom and Fear
The central political and social struggle in the next few decades will be over whether we can tolerate a technological framework that puts the full promise of "freedom of the press" (and, not incidentally, a much greater power to ensure communications privacy) into each individual's hands. The dominant threat will be whether governments, acting out of fear of both social instability and their own loss of control, institute repressive measures that limit or destroy the full democratic potential of this new medium.
Although the freedoms guaranteed by the First Amendment may benefit society generally, or communities in particular, we don't condition those freedoms on whether they benefit anyone. There is no legal or constitutional requirement that each individual use his or her freedoms wisely. That is part of what it means to live in an open society--you get to make your own choice about whether to acquire wisdom. We don't let government choose for us.
In the past, this kind of trust in the individual doesn't seem to have done us any great harm. Among the principles in place that have seemed to work for us is individual freedom of expression (especially for those whose expression offends us) and a strong individual guarantee of privacy in our First Amendment--protected communications. We allow each other a great degree of privacy, even though the instruments of privacy--which range from tools like encryption software and so-called anonymous remailers to the Fourth Amendment's prohibition against unreasonable search and seizure--may make it a little harder for policemen to investigate and prosecute crimes. Society hasn't yet crumbled just because we assume that most individual citizens can be trusted with freedom and privacy. Indeed, that assumption seems implicit in the kind of government we've chosen for ourselves--we trust individuals with freedom for the same reason we trust them with the right to vote or the right to contribute to the laws and policies of our country as they are made. We have chosen to believe that most people are rational and that if we give them all the facts, we can trust them to make the right decisions. In fact, we make the leap of faith that if we trust each other with this kind of freedom, which includes the freedom to act antisocially and foolishly and to be heedless of what would benefit society, society is still likely to benefit.
Justice Louis Brandeis, who served on the Supreme Court from 1916 to 1939, tackled this apparent paradox head-on in a case now more famous for his concurring opinion than for its own legal or factual background:
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.
In short, individual freedom of speech leads to a stronger society. But knowing that principle is not enough--you have to know how to put it to use on the Net.
A CALL TO ACTION: FREEDOM FIGHTING ON THE NET
Okay, this is the hard part. Everything up to now is just theory--about how to react to the issues raised by the interplay of the Net and society. The real challenge is learning how to act--how to use what we know about both old and new media in order to make things happen. The purpose of cultivating this expertise is not merely to benefit ourselves--although at the very least we'll be able to do that. Instead, our obligation as Netizens (citizens on the Net) is to use this expertise to help protect freedom of speech on the Net. Equipped only with these two tools--the Net and a basic understanding of how the mass media work--any citizen of the Net has the potential to influence public thought and action. This potential gives each of us more power than any of the framers of the Constitution had to change the world. The changes wrought by the Net will require all of us to become media-smart social philosophers--we no longer have any excuse for waiting for someone else to step in and think about media for us.
Since the Net is a world essentially built on communicative technologies and communicative acts, it should come as no surprise that most of the problems and issues emerging in the online world are also communicative in nature--distorted news items, false rumors, disruptive uses of the Net that deny freedom to others, defamatory statements, threats, offensive sexual content, and so on.
In the past, we've handled such problems and issues by delegating them away--either to the industry players who controlled most mass media or to the government. But on the Net there is no higher private or public authority with reliable means of resolving these issues. Yet many of these issues, if they remain unsolved, could result in long-term damage to freedom of speech that is central to the highest and best uses of the Net.
So if neither the corporate media nor the government can be relied upon always to be effective (or, for that matter, always to have our best interests at heart), we've got to get out of the habit of delegation. What's more, we have to become smarten. Sure, the Net theoretically gives each of us the power of a newspaper or TV station, but having that power is not enough; we need to learn to think like Journalists or broadcasters if we want to use it well. This means paying more attention to how other communications media work and to how they interact with the Net.
I wish I could say I'm a media expert; at best, though, I'm just a hacker--a hobbyist with more enthusiasm than expertise. Over the years, as a crusader for free speech, I've done just enough work in media myself to have developed some instincts about how to talk to traditional media and how to leverage the strengths of the Net to maximum effect. Still, at some points in this book I want to share what I think I've learned about leveraging the media and the Net to affect the world in which we live. But be warned: my education is incomplete. That is, I still make my share of embarrassing screwups. I'm hoping, though, that what little I've learned is teachable and that certain stories in this book--notably the story about the Steve Jackson Games ease and the sections having to do with Time magazine, Martin Rimm, and the cyberporn panic--will give you a running start at cultivating your own media savvy.
Want proof that the Net has leveled the playing field? All you have to do is look at the Time/Rimm cyberporn scandal, detailed at length in this book. In that case, a few concerned individuals and I discovered that when you know how to use the Net, and have the truth on your side, it doesn't matter how much sheer media muscle the other guy has. It was a rough ride for all of us. But what we learned then about freedom of speech and the power of the Net turned out to be invaluable--a source of renewed hope about free speech in an open society.
In short, the Net has brought to fruition precisely the promise of freedom of speech that Brandeis wrote about--free speech that gets heard, free speech that makes a difference. "[The founders of the United States] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth," Brandeis wrote, adding that "public discussion is a political duty." Once you know it can make a difference--that it does in fact lead to truth after all--it becomes even more of a duty.
Not that it's an easy duty. When it comes to learning good Netizenship, you have to be willing to make your painful mistakes and keep on learning. Exploring and understanding the Net is an ongoing process. Cyberspace never sits still--it evolves as fast as society itself. Only if we fight to preserve our freedom of speech on the Net will we ensure our ability to keep up with both the Net and society.
Slippery Slope: Legal Cases and Controversies
Article III, Section 2, of the Constitution extends the federal courts' jurisdiction to "Cases and Controversies." This section has long been interpreted by the courts as a limitation on the power of the federal judiciary to interpret the law and the Constitution (including, of course, the First Amendment). The "Cases and Controversies" entry in the Oxford Companion to the Supreme Court of the United States states this limitation succinctly:
Federal courts may consider only issues that are presented in an adversary context. They may not answer merely hypothetical or abstract questions: their power is limited by law to questions that arise out of an actual dispute. The most widely cited reason for that requirement is to ensure full development of cases. When parties contend in a real dispute, each side is permitted to be zealously represented and the court may consider the legal issues against the backdrop of real facts. (page 129)
Not being a federal judge, I'm not so limited in my jurisdiction. So in some parts of this book--especially when talking about issues that may arise in the future of the Net--I do consider "hypothetical or abstract questions." More often, however, I'll be talking about real cases or controversies, because I too believe that it's "against the backdrop of real facts" that we learn how the law works and how it should work.
It turns out that just about all of the cases and controversies surrounding the Net raise First Amendment issues. (This is easy to understand, given that, as I've already said, communication is central to just about everything anyone does on the Net.) Take libel, for example. How does libel law, which supposedly provides protection to our reputations, apply in a world where anyone can send a lie about you to a national or global audience? Two cases discussed in this book--Cubby v. CompuServe and Stratton Oakmont v. Prodigy--underscore an important way in which online forums, while they may partake of the freedoms of the traditional press, are nonetheless different from the traditional press. And they provide a springboard into discussion of how the Net itself, by providing its own remedy for libel, may eventually render libel law obsolete.
What about intellectual property, such as copyright and trade secret law? These areas of the law function (to put it oversimply) by prohibiting the unauthorized copying of certain kinds of protected information. Yet in a real sense the Net is, among other things, a huge and immensely powerful copying machine, able to ship millions of copies to millions of readers in minutes. Can copyright interests and trade secrets survive the Net? One criminal case, U.S. v. LabMacchia, and several civil cases involving the Church of Scientology give us insight as to how intellectual property issues play out against the free speech framework of the Net.
Does the fact that everyone has the potential to be a publisher mean that there is a new need for government to step in and control for illegal or otherwise harmful content? It's well settled that the First Amendment doesn't protect certain kinds of sexually related material--those materials a court can judge to be legally "obscene" in a given part of the country because, among other things, they violate the "community standards" of that geographic locality. What happens when people in any locality can access such "locally obscene" material from anywhere else around the country or around the globe? Central to these cases is the issue of defining obscenity according to "community standards" when every geographic community may be connected by the Net to every other community.
Nor is obscenity the only kind of problematic sexual content. What about material that's acceptable for adults, but that many and perhaps most of us would prefer to keep from our children? Is there any way legally or technically to keep such material from our kids while preserving the rights of adults to read or view it? We will explore this issue as I discuss the controversy surrounding the proposal and passage of the Communications Decency Act.
And sexual content isn't the only kind of content on the Net that people have begun to worry about. So-called hate speech, online "threats," and the online publication of "dangerous information" (such as how to build a bomb) are issues that have been raised during the last year or two on Capitol Hill and in the news. Doesn't the Net give individuals so much power that it is necessary to step in and strike some kind of new balance between the rights of individuals and the concerns of society? Many policymakers have argued that it does, but it's hard to see how such a new balance can be found without departing, at least to some extent, from the very free speech protections that the Net, with all its ability to empower individuals, seems to call for.
Is information about how to make explosives somehow worse or more dangerous if available on the Net than when it is available in magazines or books? Is a frighteningly violent piece of fiction more harmful if published online? Is sexist speech or hate speech less deserving of protection when it appears on the Net? Plenty of people are ready to say yes to these questions, and we must be ready to respond to them. We will examine the Jake Baker case (in which a student was prosecuted for publishing a "threat" on the Internet), which tells us much about how willing the government can be to perceive expression on the Net as threatening when the same material, published in a more traditional manner, would be understood to be protected by the First Amendment. And the Santa Rosa Junior College case we'll review demonstrates how even the most well-intentioned protectors of equality can become so eager to fight one battle (sexism on campus) that they overlook the applicability of the First Amendment to online forums.
Still another area of the law likely to be changed by the growth of the networks is criminal law. Consider, for example, how the development and dissemination of cryptographic software enables individuals to keep their communications private even from the nation's law enforcement and intelligence agencies. One of the legal norms in this country, buttressed by the First Amendment's free speech guarantees, is that under most circumstances you can be prosecuted only for things you do, not for things you say. But the world of global computer networks is one in which your decision to use language relating to cryptography--not just the computer language a cryptographic program is written in, but even public discussions of the technology--might turn you into a felon. Where will the courts draw the line between speech and action? Is the person who writes a cryptography program a criminal? What if she disseminates it accidentally? What if she does so on purpose? What if her activities are part of an academic study program focusing on cryptography? Can merely explaining how a computer program works make you a felon? Should that even be possible? We'll review the actions of the Department of Justice against Phil Zimmermann, the developer of Pretty Good Privacy (a freely available cryptographic package), in light of these First Amendment issues.
Here in the United States, the government has frequently used the fear of Net crimes and Net criminals as justification for imposing greater control on the Net as a whole. I've met a number or computer hackers in my time--whiz kids and otherwise. If I've learned anything from them, it's that the threat of malicious hackers and computer intruders is vastly overstated--once you look into the hacker phenomenon, you discover that very few so-called hackers qualify as genuine threats to society. But this doesn't stop the government or the press from fomenting a backlash against freedom of speech on the Net, and fear of hackers is just another tool for inciting that backlash.
Much of what people are told about cyberspace is wrong, and much of what they're told that's wrong is also frightening. We hear that people don't really communicate well on computer networks, or that something about using computers makes people act badly to each other, or that what some people call "virtual communities" are little more than consensual hallucinations--fantasy lands without any real meaning.
Despite the critics, it is possible to communicate in cyberspace as well as, or better than, we do in the physical world. In this book I show you why. It is possible to form virtual communities that are just as "real" as any community you've ever been a part of--and I describe a framework you may use to design such a community yourself. What's more, while you're more empowered in this world than any individual has ever been before, the power you have in cyberspace is not, for the most part, merely neutral in impact. Give people a modem and a computer and access to the Net, and it's far more likely that they'll do good than otherwise. This is because freedom of speech is itself a good--the framers of the Constitution were right to give it special protection, because societies in which people can speak freely are better off than societies in which they can't.
But let's take this step by step. There's a lot to know, and it helps us understand this new world if we learn about the parts of it before we try to assemble those parts into a whole.
Table of Contents
- Introduction: Two Mornings in Cyberspace
- 1. A New Frontier for Free Speech and Society
- 2. Where the "Virtual" Meets the "Real": Free Speech, Community, and on the Net
- 3. The Net Backlash: Fear of Freedom
- 4. Libel on the Net
- 5. When Words Hurt: Two Hard Cases About Online Speech
- 6. Privacy Versus Society
- 7. The Battle over Copyright on the Net (and Other Intellectual Property Encounters)
- 8. A Bad Spin and a Cyberporn Primer
- 9. Fighting a Cyberporn Panic
- 10. Courting the Future: The Communications Decency Act of 1996
- 11. Lawyer Precognition, Free Speech, and Communities
- 1. A New Frontier for Free Speech and Society