Freedom of Speech in Cyberspace

An essay written for Computer Ethics class
instructed by Dr. Robin Murphy
2/21/2000, by Bruce Neufeld

The Constitutional Right to Freedom of Speech

The first amendment to the United States constitution states, in part, that "Congress shall make no law . . . abridging the freedom of speech." (Bill of Rights) At first reading, that statement would appear to be blanket permission for any and all speech, both beneficial and harmful. The goal of the framers of the constitution, however, was not to provide unlimited license to patently deleterious speech, but to limit the ability of government to unilaterally remove the rights of individual speech. In the intervening years after the writing of the Bill of Rights, case law has provided the framework for the current understanding of what is permissible and prohibited speech.

Permissible speech, under the aegis of the first amendment, has generally been defined as any speech that has not been specifically prohibited. The "Preferred Position Doctrine" is the concept that free speech is "more fundamental than other freedoms, and thus should be considered above other freedoms." (Callis) Some of the other freedoms granted in the first amendment closely relate to the freedom of speech. Freedom of the press and freedom of assembly are necessary and integral parts of freedom of speech. Several criteria for unprotected speech have been accepted and were later considered to be constitutionally weak. These include the "Bad Tendency Doctrine," the idea that some speech had a "tendency to lead to illegal action." A lesser-used criteria for the restraint of speech, the "Clear and Present Danger Test," has been largely restricted to use during wartime. (Callis)

Speech that falls into the unprotected category generally can be said to create a clearly harmful effect. Examples of such speech include personally damaging speech, called libel (written) and slander (spoken). These types of speech are generally determined on a case by case basis, in both civil and criminal law. Speech considered to be seditious, that is, speech meant to incite violence or resistance to lawful authority has seen much less constitutional challenge.

The coming of the age of cyberspace has provided new grounds for testing the concept of free speech. At issue is the definition of just what aspects of cyberspace constitute a forum for speech, who is responsible for what is said and how old laws apply to the new paradigm of worldwide interconnectedness.

Daniel Bernstein vs. the U.S. Government

Daniel Bernstein is a mathematics, statistics and computer science professor at the University of Illinois at Chicago who, as a graduate student, wrote an encryption algorithm called "snuffle." Bernstein wished to be able to publish his algorithm on the Internet, as well as discuss it with anyone, including foreign nationals, who might have an academic interest in it. (2 Encryption) He "applied for a license to export his encryption source code" and was denied. (Encryption) He then filed suit to overturn the classification of his (and other) encryption algorithm(s), in source code format, as "munitions." (Rosenoer) This odd classification stems from the desire of U.S. government agencies to have the ability to eavesdrop on data communications, in the manner of wiretapping. It has been suggested by government officials that if the U.S. government does not have the ability to monitor encrypted data traffic, that foreign intelligence agencies and criminal organizations will have free reign in America. After 4 years of litigation, the U.S. court of Appeals for the Ninth Circuit in California rendered its decision. The regulations against Bernstein distributing encryption software constitute a "prior restraint on speech that offends the first amendment." (Bernstein) It has long been the contention of software suppliers that the restrictions on the export of encryption enable software has become a serious impediment to American competitiveness on the world software market. While the U.S. government has in recent months sought to loosen the restrictions on encryption exports, significant roadblocks remain in place for those companies wishing to incorporate encryption into their software products. Bernstein’s case has not had the desired effect of allowing free speech for all in the area of encryption algorithms.

The Nuremberg Files

The Nuremberg Files was an anti-abortion web site by a 54-year-old programmer named Otis O’Neal Horsley. (Litigation) His site featured a large list and "wanted-style" posters depicting doctors and other abortion providers who Horsley suggests will be brought to trial for "crimes against humanity" when a government amiable to his cause is brought into place at some future date. (Horsley) Not coincidentally, Nuremberg Germany was the location of the famous Nazi trials held by the Allies at the end of World War Two. Doctors who have been wounded are listed in grey and a strikethrough denotes a "fatality." (Nuremberg) The connotation to be derived by fanatical pro-life activists is that it is their duty to "assassinate" abortion providers and their accomplices. Horsley insists that his site did not do anything to encourage the murders and attempted killings of any of the people on his list.

The subjects of the Nuremberg Files, Planned Parenthood, the Portland Feminist Women’s Health Center and four doctors sued the web site owner and other anti-abortion groups. The case hinged on the contention by the plaintiffs that the web site constituted a direct threat to physicians, citing over 300 violent acts, including seven murders over five years. (Anti-abortion) The defendants in the case argued that the first amendment protected their speech because they did not directly threaten anyone. The court’s test for a true threat was "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as serious expression of harm or assault." In the end, the jury in the trial awarded the plaintiffs $107 million dollars. In their significant decision, the jury found that the anti-abortion groups had violated federal anti-racketeering laws as well as the 1994 Freedom of Access to Clinic Entrances Act. (Cyberspeech) The primary freedom of speech test in this case was the strong possibility of direct harm, which was established by the jury. After the decision was rendered, oddly enough, Horsley was not required to take down his site. However, Mindspring, Horsley’s ISP, removed him from their server, citing "violations of appropriate use policy." (Internet)

Raytheon Corp. vs. Yahoo!

The Raytheon Corporation significantly challenged free speech in cyberspace. A group of individuals, suspected to be Raytheon employees used the message boards of Yahoo! to discuss company matters in public. (Estes) Some of the topics of discussion included earnings projections and potential trade secrets. When Raytheon determined that the individuals were probably its employees, it sought and won an injunction against Yahoo! to reveal the identities of the persons who posted information about Raytheon. (Yahoo!) Although false names were used by the message board users, the identities of the individuals were nonetheless easily obtained. In the end, four Raytheon employees resigned their positions, rather than be fired and possibly prosecuted for revealing trade secrets. (Raytheon Triumphs)

The issue central to the Raytheon vs. Yahoo! scenario is the anonymity protection of the message board users. Yahoo! posted a disclaimer stating that users were prohibited from posting defamatory or illegal messages. (Yahoo!) Raytheon, however, did not seek to prove their charges, only to reveal the identities of the posters who may have defamed Raytheon. (When) Once Raytheon knew the identities of the posters, the case was dropped and Raytheon then dealt with each poster individually, with the result that four employees lost their jobs. In that way, Raytheon was able to misuse the legal process to stifle speech without the need to prove their case in a court of law. ACLU Associate Director Barry Steinhardt expressed that, "We fear that the libel laws are being used as a means against unpopular speakers." (When) Obviously, the same laws that are used to protect personal and corporate rights, can also be used to inhibit free speech in cyberspace.

Usenet "Death Penalties"

Usenet is the name given to the Internet technology used for public messaging commonly known as "newsgroups." While it has no formal organization, it is comprised of nearly all the major Internet service providers as well as business, government and educational institutions on the Internet. (Lucke) When an agency, typically an ISP, fails to provide reasonable protection to Usenet against its own users’ abuses of Usenet, an informal, but effective form of censure sometimes takes place, known as a UDP, or Usenet Death Penalty. The abuse created by the users is generally a type of message called "spam," which denotes unsolicited advertising or otherwise unwelcome messages. The level of spam on Usenet has reached epidemic proportions in recent years and threatened to render it all but unusable. Many systems have been subject to UDP’s and in general, the results have been positive. Given the ultimatum to clean up their user problems or be UDP’ed, most ISP’s will do whatever it takes to correct their shortcomings immediately. The problem with this system, as some see it, is that the UDP is a form of censorship, or even a form of group bullying by the majority of Usenet providers. The issue is that a UDP not only gets rid of undesirable content, but blocks a large amount of legitimate and unobjectionable postings as well. Users of UDP’ed systems lose their ability to have their posts propagated worldwide. Efforts by some ISP’s under UDP to seek legal redress have been rebuffed, since there are no legal requirements for ISP’s and Usenet servers to accept messages from any given system. So the self-policing of the Usenet is for the most part very effective. However, the issue of free speech and the UDP will remain a significant thorn in the side of many users.

Conclusions

Freedom of speech in cyberspace, like that in "meatspace," is not a cut and dry proposition. Because cyberspace transcends international borders, much of what happens cannot be regulated by any one country, even one as ubiquitous in online presence as America. However, for those transactions occurring in American cyberspace, the old definitions of free speech need to be expanded and clarified to encompass the new conduits of speech. At present, free speech on the net is in danger. It seems that the American government has more respect for online business than it does for the rights of free speech online. Other regimes, like China, have even less respect for free speech and its policies toward the Internet exemplify that. The United States needs to take a stand on freedom of speech on the net similar to its stand on net taxes. Where there is no stand for free speech, certainly there will be those who will seek to take away whatever rights there are now.

....works cited available from author upon request....