Proceedings of the Canadian Association for Information Science, 22nd Annual Conference, May 25-27, 1994, McGill University:109-126.
Copyright 1994 by Leslie Regan Shade. The paper is publically licensed so that it may be copied for further distribution, provided that it is copied and distributed in its entirety, including this title page.
The Homolka case challenges information professionals in learning how to respond and formulate policies that deal with the growing complexity, in both social and legal terms, of new multi-media forms of information. The resolution of these issues is at best unresolved and murky now, as the law has not kept up with technological currency. What is censorship in networked environments? Should electronic information stored on computer networks be accorded the same status as books and other materials housed in libraries? How can one police information, if at all, given the peripatetic qualities of networked communications?
Kovacs allowed in his court room Canadian media "on proof of accreditation to the Court Services Manager", the families of the victims and the accused, Counsel for Paul Teale, and the Court's Law Clerk. Foreign press were not allowed in the court, and the media were not allowed to publish details of the deaths of the victims, or reveal this information directly or indirectly to the foreign press.
Opposing the Crown's decision were four dominant media outlets: the Toronto Star Newspapers Ltd., Thomson Newspapers Co. Ltd., The Toronto Sun, and the Canadian Broadcasting Corporation. They argued that by ignoring Teale's opposition to the ban, the Crown and Kovacs were violating his Charter of Rights and Freedoms. Lawyers also stated that the public had a right to know whether Homolka's manslaughter charge and sentence was appropriate, whether there was a plea bargain, whether victim impact statements were accounted for, and whether Homolka would present a danger to the public upon her release (Platiel).
Judge Kovacs admitted in his ruling that it would be difficult to monitor American coverage of the charges, given the easy cross-border availability of American newspapers, television channels, radio stations, and the impossibility of enforcing an "effective blackout of the cable television channels",(see R. v. Bernardo...), but he certainly did not anticipate how new technological forms, in the guise of computer networks, would subvert his ruling and spark intense debates amongst university administrators, librarians, and the public.
A Toronto Star article that appeared in late July after the conviction of Karla Homolka reported that a number of BBS's, known as "Bernardo Billboards", started appearing following Teale's February arrest, and others after Karla Homolka's arrest (Duncanson, Pron). On July 14th, a new Usenet newsgroup, alt.fan.karla.homolka, was announced with the comment:
"Hey, has anyone noticed how cool Karla Homolka's eyes look? I like women who have a penchant for S&M, and who aren't afraid to take a video camera into the bedroom. This newsgroup is for people who share my tastes. My Canada includes Karla Homolka (and she's a babe)" [see: stem@sizone.jaywon.pci.on.ca].
Alt.fan.karla.homolka, along with another Usenet newsgroup, ont.general, presented a melange of rumors and innuendo, along with political commentary, surrounding the case, the trial, and the media ban. The information was collected into an FAQ (Frequently Asked Questions), an itemization of the alleged atrocities committed by Homolka and Teale. Much of the information was collected by Neal Parsons, a.k.a., "Neal the Trial Ban Breaker", and later corroborated by Frank Magazine, the contemporary Ottawa equivalent to the libelles of eighteenth-century Grub Street. A Montreal journalist for a local weekly newspaper, Hour, wrote about the episode in September, mentioning some of the more fantastic rumors circulating about the case on the newsgroup (Friedman).
It wasn't until November, however, that universities shut down the newsgroup on their Usenet feeds, upon advisement of a memo distributed to CA*net management by a federal government network manager. McGill University, under order of McGill Vice Principal for Planning and Resources Francois Tavenas, was the first university to suspend the newsgroup (Jacqmotte, Broadhurst). Like other universities, McGill was concerned that by carrying alt.fan.karla.homolka, they could be viewed as potentially distributing information about the trial in violation of the Kovacs ban. One month later, 15 other universities in Canada (including 11 in Ontario), the National Capital FreeNet in Ottawa, and one American university had also discontinued the newsgroup.
Ontario Attorney General Marion Boyd accused the media of engaging in a "feeding frenzy", seeking to profit from the lurid case ("Public's right to know..."). Amid a proliferation of foreign news reports on the Homolka case, including coverage in the British Sunday Mirror and Manchester Guardian, an article published by The Washington Post and reprinted in The Buffalo News and The Detroit Free Press, American television coverage on "A Current Affair", and Detroit area radio reports, the Canadian public was able--if they could procure the printed and broadcasted materials--to glean details of the Homolka case. A retired Ontario police office, Gordon Domm, was arrested for distributing copies of the Sunday Mirror. Residents of Southern Ontario streamed across the border to purchase or read copies of The Buffalo News. The Ottawa Sun reported that
"U.S. shopkeepers already stocked with double the normal number of papers called for more....Canadians waited outside B&B Cigar Store in Niagara Falls, New York, in the pre-dawn darkness and quickly bought up 120 copies. Owner Stan Stempien sold 50 cent photocopies until another 80 papers came. A few blocks away at the Wilson Farms store, more than 100 copies were cleared out by 10 am. More than half were purchased by Canadians. Fearing police would seize the papers at customs, Canadians read them in parking lots and parked cars" (Burnside; Cairns).
Canadian border officials turned back trucks that carried copies of The Detroit News that contained a story about the blackout. Detroit television stations who reported that they would provide details of the trial had their signals blacked out by some cable companies. And,
"a Buffalo disc jockey standing on the American side of the Peace Bridge used a loudspeaker to bellow out details from a Washington Post story ... 'Hear ye, hear ye.' screamed Darren McKee of WGRF, 'Let freedom ring out for all our brothers and sisters to the north'" ("Lid Blown Off...").
Several academic and public libraries, fearing they would be in violation of the publication ban, initially took off their shelves copies of newspaper articles, such as the one that appeared in The Washington Post, that covered the case. Later, under legal advice, McGill University, stating that "...it is virtually impossible for the library to monitor the content of each and every periodical and newspaper it receives every day" (Mercille), lifted the ban. Public libraries, including those in Halifax and Regina,also agreed to restore the U.S. newspapers that carried coverage of the Homolka trial.
An anonymous posting service, anon.penet.fi (residing in Finland) is specifically designed for anonymous postings to every Usenet newsgroup, and also provides capabilities for supporting anonymous remail as well. This service allows any mail messages sent to one's id at anon.penet.fi to get redirected to one's original and real e-mail address. One doesn't know the true identity of any user, unless he or she chooses to reveal their identity explicitly. Anonymous posting services are widely used for posting to the alt. hierarchy within Usenet; as Johan Helsingius, a.k.a. "Julf", the operator of the services writes: "And remember this is a service that some people (in groups such as alt.sexual.abuse.recovery) need. Please don't do anything stupid that would force me to close down the service. As I am running my own company, there is very little political pressure anyone can put on me, but if somebody starts using the system for criminal activities, the authorities might be able to order me to shut down the service. I don't particularly want to find out, however..." (help@anon.penet.fi). Using the anon.penet.fi service, a St. Catherine's, Ontario gentleman (who chose to identify himself), set up "Teale Tales", a mailing list to provide information on the trial, including the FAQ, foreign press reports, such as those from The Washington Post and Sunday Mirror, and the transcript from "A Current Affair".
Personal requests posted to various Usenet newsgroups was also a way for people to find out about the case, as well as through individuals offering to e-mail information to interested parties. One individual wrote: "I was very distraught when the government in Canada decided to place a ban on the recent Homolka trial. What disturbed me even more was that an American television program A Current Affair was allowed to air details of the trial in the United States while in Canada we were blacked out. My relatives in the United States just sent me copies of both of the Current Affair programs. I am willing to send copies of this program to anybody that is interested. Due to obvious reasons, I am posting this message anonymously. If you would like more information, please send mail to the anonymous address and I will send you more information" (an49840@anon.penet.fi).
Cross-posting requests for information or direct posts from alt.fan.karla.homolka to other Usenet newsgroups, such as to soc.culture.canada, alt.censorship, alt.journalism, and tor.general; reading Usenet news at other sites which hadn't banned the newsgroup; and using Gopher to find out its location, was a common practice. The University of Toronto's student newspaper, The Varsity, published a detailed guide on how to access the newsgroup "...to show how easy it is to get information on Internet even in a case where the information is so tightly censored", according to editor Simona Choise (Micelli).
Electronic databases could be used to access the full-text of newspaper articles; the Washington Post article was available through Dialog and Compuserve's Information Service and through AP wires. However, users of Infomart, a Southam-owned service, found the following message upon logging in to the system;
"Welcome to Informart Online. In order to honor the publication ban on coverage of the Karla Homolka trial, Infomart will not be giving customers access to stories on this subject from U.S. sources through its gateway to DataTimes. If you try to search or display these stories you will be dropped from the gateway back to Infomart" (see Roby).
The electronic environment raises many problems relative to controlling information and bypassing official channels. Is it even feasible to prevent access to offensive or potentially illegal newsgroups, given that networks such as Usenet are international in scope? Restricting access to such newsgroups will only create an underground network whereby different people outside the restricted zone simply copy the same files and propagate them locally. As well, since not all of the offensive or illegal material is centrally located, unless a policy is adopted of screening all newsgroups and postings (an absurd and impossible task!) the offensive or illegal material won't get snared.
How can one exercise jurisdictional control over network environments? Anne Branscomb dubs the peripatetic qualities of the Internet its "extraterritoriality" and suggests that global standardization of what constitutes acceptable conduct and use of data on networks will alleviate some of these quandaries. In the case of material posted on a BBS or Usenet which broaches local jurisdiction for obscenity, for instance, one is confronted with differing national legal definitions of criminality. In which country does one seek redress of grievances? Can one identify and then obtain jurisdiction over the criminal perpetrator? How can such laws be harmonized and administered globally? (Branscomb, 85).
The line between the public and private domain in networking environments
is murky. In the academic context offensive or potentially illegal
material on Usenet raises the issue of the public-private debate; for
instance, there is the problem that the display or discourse of
potentially illegal material is conducted on public conferences residing
on mainframes which are university-owned. Should one recognize
individual responsibility and control over message content, or implicate
and absolve the network provider from liability on messages it allows to
be published? In the university context, are students solely responsible
for their speech and actions, or are system administrators (and
potentially a whole chain of administrators) responsible for
irresponsible conduct?
According to McGill legal counsel, reading the newsgroup would not be
contravening the ban, but distributing the material to third parties
"would constitute an act of publication which is prohibited". Since
McGill, through the RISQ network, is the distributor of newsgroups
throughout Quebec, they felt that alt.fan.karla.homolka, which
"deliberately aims at breaking the ban" would leave the "University open
to an argument that in so doing, it was actively engaged in an act of
publication as this term is understood under the Criminal Code, which
could differ from other statutory definitions of publication such as
copyright law and others" (Mercille).
As Rodney Smolla has remarked, the impact of technological change on law
and policy is not as rapid as the pace of modern communications
technologies: "forms of communication are converging, collapsing the
legal distinctions that once brought a semblance of order to free speech
policies. For most of this century societies could draw lines of
demarcation separating print media, broadcast media, and common law. New
technologies, however, are rendering these divisions obsolete" (Smolla,
322).
How do we treat newsgroups--as publishers, distributors, or common
carriers? Although Kovacs' ban restricted traditional print and broadcast
media, are BBSs and Usenet exempt from this ruling? Should the common
carrier model apply to computer networks? Common carriers in the
communications industries, such as the telephone companies, are regulated
by federal statutes, and in the U.S., are covered by the First Amendment
provisions of free speech, and therefore not held liable for the content
of the messages they transmit. Does a new, hybrid model need to be
defined for computer networks? How can you regulate heresy, innuendo,
wild and fabulous rantings on networks? Godwin remarks that the history
of U.S. broadcast regulation demonstrates how difficult it is for new
communications media to be accorded the same rights and privileges as
traditional media which already enjoy these privileges. He believes
that network communications should be granted the same rights of freedom
of the press as articulated in the First Amendment's Press Clause, which
extends the right to free expression to pamphlets and leaflets, as well
as newspapers and periodicals (Godwin).
Definitions of speech have not kept up with technical currency. The
technical characteristics of media--i.e., spectrum scarcity in
broadcasting, have been closely linked with the social characteristics of
the media; for instance, the prominence of television in our everyday
cultural life in formulating laws and policies. However, in the case of
computer networking, can we characterize the medium as being a
"broadcast" medium?
A recent court ruling in the U.S. treated the operator of an electronic
information system (EIS) as a distributor rather than as a publisher, in
order to assess liability at the state libel law level. Cubby, Inc. v.
Compuserve, Inc. also set an important precedent by ruling that the
system operator or EIS owner could not reasonably be held liable for the
content of the messages it carries, given the sheer volume and rapidity
of the messages on computerized boards. Although there is no equivalent
Canadian ruling, it is not inconceivable that the Cubby decision could be
advised in setting a precedent here.
This legal advice is supported by national library association statements
on censorship and intellectual freedom. The American Library
Association's (ALA) Intellectual Freedom Committee defines censorship
as
"The change in the access status of material, made by a governing
authority or its representatives. Such changes include: exclusion,
restriction, removal, or age/grade level changes" (ALA).
The Canadian Library Association (CLA) and Canadian Association of
Research Libraries (CARL) Statements on Freedom of Expression also
provide guidance here. The CLA Statement reads, in part:
"It is the responsibility of libraries to guarantee and facilitate
access to all expressions of knowledge and intellectual activity,
including those which some some elements of society may consider to be
unconventional, unpopular or unacceptable. To this end, libraries shall
acquire and make available the widest variety of materials. Libraries
should resist all efforts to limit the exercise of these responsibilities
while recognizing the right of criticism by individuals and groups"
(CLA).
The CARL Statement on Freedom of Expression reads, in part,
"research libraries shall acquire and make available, through
purchase or resource sharing, the widest variety of materials that
support the scholarly pursuits of their communities" (CARL).
However, a conundrum exists here: according to McGill legal counsel, the
Washington Post article is allowed to be physically present in
McGill libraries, while the electronic version of the article on Usenet
is considered illegal, as it is equivalent to "publication". But, like
most users, the process of accessing the article is a voluntary process
for both the library patron and the Usenet reader. Would private
ownership of the article on one's computer without intent to distribute
be considered illegal? What if one sent the article to someone else, at
their private request? Would that be considered illegal? What if someone
xeroxed the same article from the newspaper available in the library and
distributed that--would that be illegal?
"Everyone has the following fundamental freedoms...(b) freedom of
thought, belief, opinion, and expression, including freedom of the press
and other media of communication",
but it is qualified by Section 1:
"The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society".
In the case of R .v Keegstra, the Court found that the section of the
Criminal Code that Keegstra was convicted under (319(2), which states
that willful promotion of hatred against any identifiable group is
subject to an indictable offense) did violate the right to freedom of
expression as guaranteed by the Charter, but was nonetheless a
permissible restriction because it adhered to the Section I principles
for "reasonable limits".
How can different and often conflicting national laws regarding freedom
of speech be harmonized in the global context, when technology knows no
boundaries? Once again, we're left with a legal--and perhaps
insurmountable enigma--that carries no easy resolution. It's also not
inconceivable that any global resolutions could smack of subtle forms of
"cultural imperalism".
Such unanticipated consequences, though, aren't a surprise to members of
the Internet community, and particularly Usenet denizens. Usenet, "the
user's network", is a raucous technology which respects no boundaries
or borders, physical or mental. A diverse community of international
users protects fiercely the notions of free and unfettered communication,
and can hide anonymously behind a thick veneer of bandwidth.
Stephenson's description of the "Internet" is felicitous to Usenet:
"Nearly all academic computers are on the Internet, so access is open
to anyone having an account on such a machine, which is to say, any
student who bothers. The Internet is, therefore, still very much a
college town and shares much the same ambience as Cambridge, Iowa City,
or Berkeley: a dysfunctional blend of liquored-up freshmen and
polymorphously perverse deconstructionists. The politically correct
atmosphere may help to explain the generally frosty stance toward humor
exhibited on Usenet, where people either use it badly--at the level of
toilet-stall grafitti, or categorically reject it" (Stephenson).
The upcoming "virtual library", where multi-media forms will mingle and
inevitably proliferate, presents a challenge for information
professionals with regard to the irresolute aspects of copyright and
intellectual property. For our immediate concern, though, is the dilemma
posed by the legal definition of computer newsgroups. Is Usenet a
publisher or distributor? Should the common carrier model apply to
computer networks? Should information on Usenet be accorded the same
degree of academic freedom as is applied to books and materials in
university libraries? Yes, the Homolka case, given the court-ordered
ban, is extraordinary; but I anticipate that more cases will develop
over censorship of material on Usenet newsgroups, and information
professionals need to understand the technology and formulate their
positions so that they can make a valuable contribution to these debates.
And lastly, what does the Homolka case tell us about access to
information? Given the recent hypebole about the much vaunted
"information superhighway" of the near future, are there any cautionary
lessons we can learn here? Who was able to plunge through the Internet
to locate the elusive alt.fan.karla.homolka? But, most
importantly, what citizens were not able to access this material--and how
can we remedy this discrepancy?
Brenner, Anita Susan. "Would Homolka Be Possible Under American Law?" (1993)
[available in Well, Canada file]
Branscomb, Anne Wells. "Jurisdictional quandaries for global networks",
in Global Networks: computers and international communication,
ed. Linda M. Harasim. Cambridge, MA: MIT Press:83-103.
Burnside, Scott; Alan Cairns. "Cops seize Teale story at border".
Ottawa Sun (November 29, 1993).
Canadian Association of Research Libraries (CARL), Freedom of
Expression in Research Libraries, 1986.
Canadian Charter of Rights and Freedoms, Constitutional Act, 1982.
[available eff.org gopher: Canadian Charter--Full Text]
Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y.1991).
Canadian Library Association, Statement on Intellectual
Freedom. Adopted 1974, amended 1983 and 1985.
Darnton, Robert. The Literary Underground of the Old Regime.
Cambridge, MA: Harvard University Press, 1982.
Duncanson, John; Nick Pron. "Computerized bulletin boards abuzz with
Homolka trial details". The Toronto Star (Saturday, July 31,
1993): A3.
Friedman, Matt. "Not fit for print?" Hour (September
16-22,1993):7.
Godwin, Mike. "New Frontiers: a visitor's guide". Index on
Censorship 2 (1993):11-13.
Gooderham, Mary. "Homolka facts speed across data highway". Globe
and Mail (December 2, 1993):A4.
help@anon.penet.fi: for information on the anonymous posting service.
Jacqmotte, Benoit; Michael Broadhurst. "Homolka newsgroup
suspended". The McGill Tribune (November 16-22, 1993):8.
Lesser, Wendy. Pictures At An Execution: an inquiry into the
subject of murder. Cambridge, MA: Harvard University Press, 1994.
"Lid blown off ban", Toronto Star (December 2, 1993).
"Man arrested, not charged in Teale ban". Globe and Mail
(November 20, 1993).
Mercille, Raynald, Legal Advisor. Memo to Ms. Frances Groen, Associate
Director Public Service & Collections, (December 3, 1993). re:
"Foreign press articles - Canadian Ban".
Micelli, Pat. "Censorship: It's ok to read about Homolka on computer,
lawyers say". The McGill Daily (January 24, 1994):3.
Platiel, Rudy. "Lawyers argue over Homolka ban". Globe and Mail
(December 2, 1993):A4.
"Public's right to know gains here, loses there". Globe and Mail
(December 2, 1993):A1.
R. v. Bernardo Between Her Majesty The Queen, and Karla Bernardo
also known as Karla Teale.(1993). O.J. No. 2047. Action No. 125/93.
Ontario Court of Justice - General Division, St. Catharines, Ontario July
5, 1993.
sjroby@netcom.com (Steve Roby). Subject: Electronic info ban widens
Message-ID:
Smolla, Rodney A. Free Speech in an Open Society. NY: Vintage
Books, 1993.
Stephenson, Neal. "Smiley's People". The New Republic
(September 13, 1993):26.
stem@sizone.jaywon.pci.on.ca (Enhanced 911 Services).Newsgroups:
control,alt.fan.karla-homolka. Subject: newgroup alt.fan.karla-homolka
Message-ID: <56yN7B2w165w@sizone.jaywon.pci.on.ca>. Date: Wed, 14 Jul 93
V. Should information on computer networks be treated the same as
information in printed materials?
McGill's legal counsel wrote that foreign publications which printed
information on the Homolka case and available at libraries would be
exempt from this ban, as "the mere receipt and placing on shelves of a
newspaper, which contains a large amount of other unrelated material,
does not constitute an act of publication" (Mercille). The legal
arguments that McGill, as well as the public libraries relied on were:
1) the libraries are outside of the province of Ontario, where the ban
is, and Kovacs's ruling is unclear in terms of extraprovincial
authority of provincial court orders; 2) Kovacs's order was directed at
the representatives of news organizations who were present in the
courtroom for the trial and sentencing of Homolka; and 3) Kovacs's ban
was not on the publication of all evidence or legal argument; it was on
the circumstances of deaths of persons referred to during the trial. VI. Free Speech in the Global Context
The Homolka case and media ban generated a lively debate on the Well, a
computer conferencing system operating out of the San Francisco Bay
area. In the Canada and Electronic Frontier Foundation conferences,
users principally debated the free speech issues of the case. (It was
also another place to locate banned information in hidden, or "scribbled"
messages). The general consensus of American participants was that if a
similar ban happened in the U.S., it would contravene the First Amendment
provisions for freedom of speech. However, as one member, also an
attorney wrote, a Kovacs ban could happen in the U.S.: "If there were
such a case, particularly in a non-urban area, such a ruling would be
theoretically possible, because the legal standard requires a case by
case determination based on the balancing of the competing interests"
(Brenner). But, it was the American sensibility of free speech--the
feeling that free speech is a paramount
right--as contrasted to the Canadian law on free speech--that irritated
and angered many Americans (a sentiment also expressed in a Washington
Post editorial). The Canadian Charter of Rights and Freedoms has its
own version of the First Amendment in Section 2(b), which reads: VII. Conclusion
Despite the politics of the media ban, the Homolka case was alluring to
many
Canadians--and Americans--because of its shocking and salacious
qualities. As Wendy Lesser argues, there can be no "discrete" inquiry
into violent death: "...the enjoyment of murder...always consists of
wallowing in gory details. The details are all we can grasp" (Lesser).
The court-ordered publication ban was very unique in the way that
technology was used to break the ban; and certainly Judge Kovacs could
not apprehend how computer networks would so rapidly spread news and
rumors of the Homolka-Teale escapades. The "Bernardo Billboards" and
alt.fan.karla.homolka were, in their own quirky fashion,
tantamount to the proliferation of pamplets, libels, and chroniques
scandaleuses during the Enlightenment (see Darnton).
References
American Library Association (ALA) Definition of Censorship,
Adopted by the Intellectual Freedom Committee at the ALA Annual
Conference, 1986.
an49840@anon.penet.fi. Date: Mon, 15 Nov 1993 22:26:24 UTC