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** ** ** *** POLICY POST
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** ** ** *** May 12, 1995
** ** ** *** Number 13
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 13 May 12, 1995
CONTENTS: (1) CDT Testifies at Senate Judiciary Subcommittee Hearing
On the Availability of Bomb-Making Materials on the
Internet
(2) About the Center for Democracy and Technology
This document may be re-distributed freely provided it remains in its
entirety.
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SUBJECT: CDT Testifies at Senate Judiciary Subcommittee Hearing
On the Availability of Bomb-Making Materials on the
Internet
The availability of bomb-making information and 'mayhem manuals' on the
Internet was the subject of a hearing yesterday (5/11/95) before the
Senate Judiciary Committee Subcommittee on Terrorism, Technology, and
Government Information. CDT Executive Director Jerry Berman testified
before the panel. Berman's testimony is available on CDT's online
archives (URL's below).
The bombing in Oklahoma City has brought the Internet under new scrutiny
by Congress and the Clinton Administration. In his opening statement,
Subcommittee Chair Arlen Spector (R-PA) made clear the First Amendment
issues raised by government efforts to censor certain material in
cyberspace. However, Spector acknowledged that the availability of so
called "mayhem manuals" (one of which he displayed before the hearing)
raises concerns about public safety and national security.
Senator Patrick Leahy (D-VT), in his opening statement, urged caution
and careful consideration of the benefits new communications
technologies can bring before Congress rushes to restrict and limit its
use.
"Before we head down a road that leads to censorship, we must think long
and hard about its consequences. The same First Amendment that protects
each of us and our right to think and speak as we choose, protects these
others as well. The rule of this free society has long been that it is
harmful and dangerous conduct, not speech, that justify adverse legal
consequences", Leahy said.
Senator Leahy, an opponent of Senator Exon's Communications Decency Act
(S. 314), and strong advocate of freedom of speech and the free flow of
information in cyberspace, recently introduced S. 714, an alternative to
Senator Exon's bill (the text of Leahy's bill is available from CDT, URL
below).
Witnesses on the panel included:
* Jerry Berman, Executive Director, Center For Democracy and Technology
* Rabbi Marvin Hier, Dean of the Simon Wiesenthal Center
* Robert Litt, Deputy Assistant Attorney General, US Detp. of Justice
* William Burrington, Assistant General Counsel. America Online
* Prof. Frank Tuerkheimer, U. of Wisconsin Law School
What Does It Mean To "Shout Fire In Cyberspace?"
-----------------------------------------------
CDT's Jerry Berman acknowledged the availability of bomb-making
instructions and terrorist manuals on the Internet, but argued that such
materials deserve the same degree of protection as identical materials
available in bookstores or libraries.
"As an open society, governed by the democratic principles of the First
and Fourth Amendments, we tolerate and even encourage robust debate,
advocacy and exchange of information on all subjects and in all media of
expression, without exception. Prior restraint or any government action
which might chill speech have long been labeled intolerable, expect in
the few circumstances in which that speech advocates imminent violence
and is likely to produce such violence. Even in these cases,
Constitutional law and long-standing law enforcement policy have
dictated great restraint in order to avoid chilling legitimate speech
activity."
"Justice Holmes taught that the First Amendment does not protect a
person from punishment for "falsely shouting fire in a theater and
causing a panic," Schenk v. United States, 249 U.S. 47, 52 (1919), but
what does it mean to "shout fire" in cyberspace? We believe that
shouting fire in cyberspace is actually far less threatening, and thus
less deserving of censure, than the equivalent act in the physical
world. Though one can shout fire in an email message or on an Internet
newsgroup, the likelihood that it will incite readers to imminent,
criminal action is much reduced because the readers are dispersed around
the country, and even around the world."
Berman added,
"The Center for Democracy and Technology believes that any prosecutorial
or investigative activity must be predicated on speech **plus** a
reasonable indication that the speech will lead to imminent violence.
Speech alone is not enough to prosecute or investigate in other media,
and it should not be sufficient in interactive media. Moreover, we
assert that current law and the FBI's strict interpretation of the
existing Attorney General investigative guidelines are adequate to serve
both law enforcement purposes and First Amendment interests.
In the sharpest exchange of the hearing, Senator Dianne Feinstein (D-
CA), expressed strong concern about the ability of children to access
bomb-making material on the Internet. Visibly outraged by the testimony,
Feinstein said, "I have a problem with people who use the First
Amendment to teach others how to kill [other people]" Protecting such
speech, "... is not what this country is about."
CDT's Jerry Berman responded, "Excuse me, Senator, but that *is* what
this nation is all about."
Feinstein countered that she believes that there is a " difference
between free speech and teaching someone how to kill others", and
suggested that the government should take a greater role in preventing
the availability of such materials.
Deputy Assistant Attorney General Robert Litt, agreeing with CDT's
assertion that the First Amendment protects bomb-making manuals and
other such material regardless of the medium of distribution, added that
the Justice Department has the authority under current law to prosecute
individuals who use the Internet to commit crimes relating to
"extortion, threats, conspiracy, and aiding and abetting the violation
of other federal laws". But Litt emphasized that such prosecutions must
be predicated by **conduct**.
Litt said:
"We can, therefore, clearly act to punish conduct that falls within the
scope of existing laws. But when we address not conduct but possibly
protected speech, the power of law enforcement is restricted by the
First Amendment. As the Committee well knows, we must guard the public's
right to free speech even while protecting the public from criminal
activity. The Constitution imposes stringent limits on our ability to
punish the mere advocacy of principals or the mere dissemination of
information, without more, even if the communications in question are
utterly repugnant".
However, the Justice Department staked out a more aggressive line on the
issues of encryption and anonymity. On anonymity, Litt acknowledged the
necessity of confidentiality for whistle-blowers and informants, but
argued that the availability of complete anonymity on the Internet is of
serious concern to law enforcement.
In his prepared testimony, Litt echoed FBI Director Louis Freeh's recent
comments that "... unless the encryption issue is adequately addressed,
criminal communications over the telephone and the Internet will be will
be encrypted and inaccessible to law enforcement even if a court has
approved electronic surveillance," and pledged to continue to work to
find solutions to this issue.
In a statement which appears to dredge up previous arguments from the
Department in support of the Clipper Chip government key escrow
proposal, Litt said:
"We believe that it is possible to deal with both of these issues --
encryption and anonymity. Privacy rights should generally be protected,
but society should continue to have, under appropriate safeguards and
when necessary for law enforcement, the ability to identify people and
hold them accountable for their conduct. In the case of encryption, the
appropriate balance can be achieved by the widespread use of reliable,
strong cryptography that allows for government access, with appropriate
restrictions, in criminal investigations and for national security
purposes. The federal escrowed encryption standard issued last year is
designed to achieve this delicate balance for voice telephony."
Rabbi Marvin Hier of the Simon Wiesenthal Center, argued that the
nature of the Internet, including its broad reach and the veil of
anonymity, provides a fertile ground for hate-groups and other
potentially dangerous organizations. While stressing the importance of
the First Amendment, Hier recommended that:
* Law enforcement should have the ability to monitor hate
groups and other organizations that clearly advocate an
intention to commit violence that use the Internet to
distribute information;
* Online service providers (particularly the commercial
services such as AOL and Compuserve) should take steps to
prevent their networks from being used to distribute material
from these organizations; and
* To look at the uses of these communications technologies and
to examine what legal limits can be placed on it.
William Burrington, Assistant General Counsel and Director of Government
Affairs for America Online, stressed that AOL does take steps to address
violations of its terms of service agreement, and has removed users who
use the network to post inappropriate material to public forums.
However, Burrington cautioned that it is impossible and illegal under
ECPA for a service provider to monitor every communication that travels
across their network. Burrington further noted that, while it is
possible for America Online to exercise limited control inside its own
networks, monitoring and controlling content on the Internet is beyond
the reach of any one because of the decentralized nature and global
reach of the network.
Speaking from direct experience, University of Wisconsin Law Professor
Frank Tuerkheimer stressed that the government should not attempt too
prevent or censor the publication of bomb-making manuals or other such
materials -- not only because such action is clearly contrary to the
First Amendment, but also because the material would inevitably be
published in another forum, rendering the government's argument moot.
This is precisely what occurred in 1979 in United States v. Progressive,
Inc (476 F. Supp 990 (W.D. Wisc. 1979). In this case, the government,
sought to prevent the publication of instructions on how to make a
hydrogen bomb. Professor Tuerkheimer was the federal prosecutor in the
Progressive Case. The article was ultimately published and the case
became moot because the information was found to be available in a
number of public libraries.
Tuerkheimer noted that it would be futile for the government to attempt
to prosecute someone for distributing bomb making material on the
Internet, since information on how to build an ammonium nitrate bomb
similar to the device used in the Oklahoma City tragedy can be found in
encyclopedias and in publications available from the US Department of
Agriculture.
NEXT STEPS:
Although the issue of the availability of bomb-making manuals and the
use of the Internet by malitia and hate-groups has received considerable
attention in the press and on Capitol hill in recent weeks, as of this
writing there has been no legislation introduced, and so far none of the
counter-terrorism proposals specifically address this issue.
CDT will closely track this issue, and will alert you to any
developments as soon as they become available.
Paths to Relevant Documents
---------------------------
CDT Executive Director Jerry Berman's testimony is available at the
following URL's:
http://www.cdt.org/policy/terrorism/internet_bomb.test.html
ftp://ftp.cdt.org/pub/cdt/policy/terrorism/internet_bomb.test
Additional hearing documents, including the Department of Justice
testimony can be found at the following URL's
http://www.cdt.org/policy/terrorism/May11_hearing.html
ftp://ftp.cdt.org/pub/cdt/policy/terrorism/00-INDEX.terrorism
The Text of S. 714, Senator Leahy's Alternative to the Communications
Decency Act, can be found at:
http://www.cdt.org/speech/cda/950407s714.html
ftp://ftp.cdt.org/policy/legislation/s714.bill
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(2) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY
The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.
Contacting us:
General information on CDT can be obtained by sending mail to
CDT has set up the following auto-reply aliases to keep you informed on
the Communications Decency Act issue.
For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help -- cda-info@cdt.org
For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant) -- cda-stat@cdt.org
World-Wide-Web:
http://www.cdt.org/
ftp:
ftp://ftp.cdt.org/pub/cdt/
gopher:
CDT's gopher site is still under construction and should be
operational soon.
snail mail:
Center For Democracy and Technology
1001 G Street, NW Suite 700 East
Washington, DC 20001
voice: +1.202.637.9800
fax: +1.202.637.9800
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