Newsletter

The Sixth Conference on Computers, Freedom, and Privacy


The Constitution in Cyberspace

By Daniel C. Stevenson

In the "early" days of the Internet, it was not clear that Constitutional protection of free speech and press extended to electronic communication, said Mike Godwin, online counsel to the Electronic Frontier Foundation, in his morning tutorial at CFP96. Godwin's tutorial provided the basis for discussion of Constitutional rights important to many other CFP events.

Godwin began his review of Constitutional law with an example of this attitude: in 1990, he was discussing the issue with Purdue University's Gene Spafford. Spafford sent Godwin an e-mail message arguing that electronic communication wasn't protected as free speech. Godwin's reply: Spafford had better phone him and tell him that, because he couldn't understand the e-mail message if it wasn't speech or print.

With this modern-day anecdote in mind, Godwin moved quickly back to the time of Justice Oliver Wendell Holmes and the now-infamous "clear and present danger" clause.

In the 1919 Supreme Court decision of Schenck v. United States, Holmes declared that speech is unprotected if "the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Holmes realized he had made a mistake with the "clear and present danger" clause and tried to recover from it in his later opinions, Godwin said. In of those opinions, Holmes presented the "marketplace of ideas" paradigm: "the ultimate good desired is better reached by free trade in ideas."

The definition of protected speech continued to develop over the years, to the point where "Today we know that you can say 'resist the draft'" in the Boston Common, and not get arrested, Godwin said.

A modern case dealing with protected speech involved Jake Baker, a University of Michigan undergraduate. Baker wrote stories about sexual encounters and posted them to Usenet, the distributed global conferencing system on the Internet. The stories were violent, depicted cruelty to women, and were often deeply offensive.

In one such story, Baker named a female character after a classmate. A vigilant alumnus found the article online, and alerted university officials, who called in the FBI. The U.S. Attorney in Michigan decided to prosecute Baker under a threat statute, rather than an obscenity law, which prohibited communication of a threat to the victim. In the end the charge was dismissed, as the communication had not been intended for the classmate; in fact, the learned of the story from the FBI.

The case was not dead, however. Baker's story turned up in Senator J. James Exon's "blue book" during the recent Congressional debate over the Communications Decency Act.

The definition of illegal speech was further clarified and "clear and present danger" ended with the Brandenburg v. Ohio decision of 1969. The Supreme Court decision reversed a Ku Klux Klan leader's conviction under Ohio's criminal syndicalism statute. It replaced the "clear and present danger" clause with the requirements that the speech must be "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action."

Under this definition, the advocacy of illegal activity (Abbie Hoffman writing "Steal This Book" on his book) is protected. Even, as Godwin pointed out, if he were to stand in the middle of Boston Common and call for a riot and burning of buildings, his speech would be protected -- it would hardly be likely to produce the action he would be calling for.

Businesses and private universites are exempt from first amendment law, Godwin pointed out. If Harvard University were to pass a rule forbidding hate speech, it would not be unconstitutional, since it would not be a government action. In practice, however, such action is unlikely since it would both hurt the reputation of such private universities (especially as compared to their public competitors) and could be punished in indirect ways, such as reduced government funding.

Freedoms of the press

Godwin moved on to discuss Supreme Court decisions governing prior restraint and the freedom of the press, including the Pentagon Papers in the New York Times (1971) and the H-bomb schematics in the Progressive (1979).

While the latter was mooted by publication in another magazine, the former (which was decided in favor of the press) clarified the requirement of a huge danger to national security interests in order for prior restraint to be allowed. In that case, the U.S. Solicitor General couldn't even tell the court which parts of the papers were vital to national security, Godwin said.

Godwin next covered libel law, obscenity, pornography, indecency, and anonymity.

The Internet and electronic communication come to play in libel when almost everybody has the potential to answer mass media defamation, and thus becomes a type of public figure in the context of libel law. Internet-related Libel lawsuits haven't appeared in droves, however, Godwin said. This is not because people are congenial on the 'net. Rather, it is unsatisfying and time consuming to pursue a libel suit, while it is very easy to respond to charges, point by point, in an immediate and widely broadcast manner.

Indecency law, which traditionally relied on "community standards," becomes very tricky on the Internet, Godwin said, where it is hard to define or identify one's community.

Godwin predicted a public policy debate about whether anonymous speech on the Internet ought to be allowed.

Copyrights are not property

The last three segments of the tutorial focused on copyrights and trade secrets, the Fourth Amendment protection from unwarranted search and seizure, and the Fifth Amendment protection from self-incrimination.

One case Godwin cited involved David LaMacchia, an MIT undergraduate prosecuted for providing copyrighted software on an Internet file server. LaMacchia was charged with conspiracy to commit wire fraud, a charge that was dismissed based on an earlier case that found that copyright infringement was not theft, and certainly not fraud. The information itself cannot be property, only the copyright, Godwin said.

One type of information that can be stolen is the trade secret, in which disclosure is the same as theft. A Wall Street journal columnist who used advance knowledge of his column to profit from stock trades was prosecuted when the column was considered the property of the journal.

In the area of the Fourth Amendment, a series of cases have determined that certain communications are protected, while others are not. Katz v. United States (1957) provided for a "reasonable expectation of privacy" (in this case, a telephone booth) but that does not include non-intrusive eavesdropping, Godwin said.

And as one audience member observed, much "private" and personal information is now available in public and semi-public electronic databases.

Finally, an important area where the Fifth Amendment comes to bear in electronic communication is encryption, Godwin said. While it is acceptable to subpoena the key to a lockbox, it is unclear that demanding a password is not a "shock of conscience" protected by the decision in Rochin v. California (1952) in which the defendant had his stomach forcibly pumped to produce evidence.

As to continued evolution of Constitutional law, Godwin observed that America was founded as a "common law" country and it there is a strong history perogative for laws to change as times change. "The Framers in 1787 knew that law would evolve and the Constitution would evolve as well," he said.


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