Jerry Berman, Executive Director
Center for Democracy and Technology
Before
the Senate Judiciary Committee
Subcommittee on Terrorism, Technology and Government
Information
May 11, 1995
My name is Jerry Berman, Executive Director of the Center for Democracy and Technology. The Center is pleased to have opportunity to address the subcommittee on one of the critical civil liberties issues of our day: the right to free speech, free association, and privacy on the Internet in the aftermath of Oklahoma City. The Center for Democracy and Technology is an independent, non-profit public interest policy organization in Washington, DC. The Center's mission is to develop and implement public policies to protect and advance individual liberty and democratic values in new digital media. The Center achieves its goals through policy development, public education, and coalition building.
The recent tragedy of Oklahoma City brings us here with questions and concerns about terrorist activity and constitutional rights on the Internet. The Internet is a global network of networks that connects over twenty million users around the world. Each day hundreds of thousands of documents and millions of electronic mail messages are exchanged through these interconnected computers.
Yes, there is information on the Internet about how to build bombs, reasons to overthrow the United States Government, and how to organize violent militia groups. The question facing us, as an open society, is how to respond to the most controversial and extreme uses of this new technology, this electronic, global Gutenberg printing press that turns all citizens into publishers who can reach thousands and even millions of people around the country and the world.
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.
As interactive media such as the Internet become more and more common in public life, we will be challenged to revisit these basic issues about the difference between protected advocacy and truly dangerous action. Articulating this line, over which government investigation and prosecution must not cross, requires faithfulness to the traditions of our open society and careful attention to the unique characteristics of this new medium. Answering these questions is particularly important because the Internet is the site of new, vibrant political discourse and information. Given the political character of communication in online environments, it is especially important that First Amendment activity and privacy rights be protected.
Indeed, in the face of terrorist threats, it is particularly important to maintain an open society in order to minimize public paranoia about the government and to discredit the arguments of those who advocate the destruction of our government. The openness of the Internet and other interactive media should be seen as a great boon to our democracy, not as a threat to order. A noted scholar of terrorist behavior notes that:
The U.S. has been remarkably free of political terrorism because the U.S. institutions for conflict resolution and justice redress, available to everyone, were believed to be working by and large in a satisfactory manner.1
Following Oklahoma City, the debate over counterterrorism policy has presupposed that the openness of our society is at odds with the fight against domestic terrorists. At least in the case of political advocacy on the Internet, we believe that a policy that promotes openness can help heal the paranoia and distrust of government and the political process by engaging the citizenry in a new political forum.
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.
To judge the Internet solely by the aspects of this new medium that have caught Congressional attention this year would lead to the belief that it is a haven for bomb-makers, militia members, racists, and purveyors of child pornography. Yet this view of the Internet fails to account for the great democratic potential of interactive media, and the fact that a considerable degree of political discussion, grass roots organizing, and political education takes place on the Internet today. Indeed, if present usage patterns continue, we believe that the Internet has the potential to revitalize political discourse by providing citizens with access to more detailed information about the political process and by creating a forum for political organizing that includes far more citizens in the political process than does the passive politics of television-based campaigning.2. This potential will be chilled if the medium is not properly protected from intrusion.
As the popularity and accessibility of the Internet and commercial online services grows, and as the medium becomes easier to use, the political uses of the net are flourishing. Political discourse is facilitated by a variety of different communications techniques available online, including newsgroups, mailing list discussion groups, chat sessions, and a host of electronic publishing capabilities.
These services have been used to hold public conferences and discussion sessions on a variety of subjects from music to politics. A geographically dispersed political group might well use interactive chat services to hold a meeting online.
The Center for Democracy and Technology has found World Wide Web services critical to our own public education activities, and an increasing number of grass roots and community groups are coming to rely on the Internet to keep in touch with members and constituents. In fact, even some Senators offices are using the World Wide Web to communicate with and solicit feedback from constituents. 3 [See appendix Afor a list of politically-oriented World Wide Web sites.]
Political groups left, right, and center are using the Internet to communicate, to organize, and to advocate their own views. As a nation we should be encouraging political discourse in this new medium, because of its potential to raise the level of political discussion beyond the soundbite and to involve more citizens in the political process. One aspect of encouraging political discourse in interactive media is to assure all users that their First Amendment and privacy rights will be respected fully.
All discussions and exchanges of information on the Internet are speech, and thus any proposal to criminalize or investigate such activity triggers a heightened degree of scrutiny. The tradition of prosecutorial and investigative sensitivity in areas involving First Amendment activity is both long standing and well-founded in our democratic traditions. We outline here the restrictions that have traditionally safeguarded political activity from harmful, chilling government interference, and suggest ways in which their application to cyberspce poses unique, new questions.
In our preparation for this hearing, we have found information on how to construct bombs on the Internet. Curiously, the most detailed information that we found comes from Internet sites located outside the United States. The Terrorist Handbook, that contains information on how to make bombs similar to the one used in Oklahoma City, is available from a British World Wide Web site.4 And, information on how to make an atomic bomb can be found on a Swedish site.5
Even putting the problems of international criminal jurisdiction aside, we believe that the mere publication of these bomb manuals is protected by the First Amendment from criminal sanction. Criminal prosecution of speech-related activity must withstand the two-pronged test established by the Supreme Court in Brandenberg v. Ohio, 395 U. S. 444 (1969). Advocacy may not be proscribed unless it 1) "is directed to inciting or producing imminent lawless action", and 2) that such advocacy is "likely to ... produce such action." Id. at 447. Both the call to immediate criminal action and the likelihood that such a call will be heeded are necessary to justify prosecution. Advocacy of violence alone is insufficient. Yates v. United States, 354 U.S. 298, 318 (1957) (advocacy and teaching forcible overthrow of the government is immune from prosecution under the First Amendment). Taken together, these cases form what is commonly referred to as the "speech plus" doctrine. Some action or evidence of action beyond mere words must exist to justify a criminal prosecution of political advocacy activity. Cox v. Louisiana, 379 U.S. 559, 563 (1965). In Cox, the "plus" that justified prosecution of the advocacy in the course of a street demonstration was the imminent threat that the demonstrators would violently attack the county courthouse around which they were circling.
Speech and advocacy on the Internet, unlike a street demonstration, are pure speech, with no immediate threat of physical violence, in all of the circumstances that we can imagine. As passionate and vehement as speech on the Internet may be, it remains only speech, with no immediate nexus to violence in most situations. Unlike the crowded street in which demonstrators circle a building, no matter how incendiary the words sent over the Internet may be, they are still a long way from causing criminal harm. Words sent over the Internet may inspire or incite, but the nexus between the words and subsequent action is far more attenuated than any case in which the Court has approved criminal sanction. Thus, we believe that even if one publishes bomb-making instructions online, the second prong of Brandenberg is not satisfied. There is no "plus" incident to the publication of a document that constitutes action likely to produce violence.6
Further recognition of the sensitivity of law enforcement intrusion on First Amendment activities is found in the Attorney General's Guidelines governing investigation, infiltrations, and information collection involving First Amendment activities. In response to several decades of law enforcement harassment of political organizations, these guidelines established the general principle that law enforcement may not interfere with political activity based solely on predicates drawn from the speech and advocacy activities of political groups. As in the prosecutorial standard described above, something more than speech is required before investigations, infiltrations, or intrusive infiltration gathering activities are commenced.
The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations7 are in place in order to "encourage Agents of the FBI to perform their duties with greater certainty, confidence and effectiveness," and to "give the public firm assurance that the FBI is acting properly under the law." This dual purpose guides the FBI toward the most effective investigative path, and assures the public that their free speech and privacy rights are fully respected. Of particular relevance to this hearing are the guidelines as they relate to domestic security/terrorism investigations. The guidelines state:
"A domestic security/terrorism investigation may be initiated when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States." p. 13.
These guidelines describe requirements for opening full investigations, and also, procedures and requirements for opening preliminary inquiries, which inclyde investigative activity where a full investigation in not necessary or not yet justified.
The Investigation Guidelines recognize all political activity as "sensitive" to undue law enforcement intrusion. Two provisions exist to safeguard sensitive First Amendment activity from the chilling effect of improper intrusion.
Given this tradition of forbearance in the case of investigations of First Amendment-protected activity, we would expect that all investigations and preliminary inquires involving political activity on the Internet or other interactive media would be subject to the above requirements.
Historically, law enforcement infiltration of domestic political groups has been shown to be excessive and violative of individual's right to free association. The Attorney General's Guidelines on FBI Use of Information and Confidential Sources8 were issued in order to set reasonable limits on law enforcement's use of these techniques. Like the Investigative Guidelines, the Infiltration Guidelines also recognize that extra care is needed when the use of these techniques implications First Amendment activities. In assessing the appropriateness of a particular operation, the FBI must consider that risk of intrusion upon "lawful association of individuals or expression of ideas." p. 3, 11. As with the Investigative Guidelines, supervisory approval is required for the use of an informant or confidential source who will "make use of formal or informal affiliation with an organization that is predominantly engaged in political activities." p. 11. Furthermore, the FBI intrusion must be assessed in light of its potential to "hinder the ability of the organization to function." p. 11.
Inasmuch as many of the political activities undertaken in interactive media involve group discussion and planning, concerns raised by the Guidelines are especially relevant to any law enforcement activity online. We believe that this new medium raised many questions as to the proper role of law enforcement in light of these Guidelines. For example:
We believe that it may be allowed under the guidelines for law enforcement agents to read Usenet newsgroups under certain circumstances, however we are gravely concerned that the Bureau should not train a large vacuum cleaner on the Internet for the purpose collecting masses of information as to the political views of individual citizens, especially where those citizens are in no nexus to any criminal activity.
Absent authorization for infiltration under the Justice Department's criminal investigation standard, we believe that law enforcement agents should certainly be required to identify themselves.
To encourage full political participation by all citizens requires that law enforcement respect individual privacy, as well as free speech rights. For, if individuals feel that they may be investigated, tracked, or otherwise subject to government scrutiny merely for association with a particular political idea or group, then they may be less likely to vigorously participate in the political process. The Court has long recognized the nexus between the First Amendment and Fourth Amendment privacy rights. United States v. United States District Court, 407 U.S. 297 (1972)(warrantless wiretap not only violates Fourth Amendment, but also implicates the First Amendment). Recognizing these concerns, the various Attorney General guidelines discussed above, as well as the Privacy Act, puts limits on the degree to which law enforcement may invade the privacy of individual and group political activity.
In the absence of an authorized FBI inquiry or investigation, the Bureau is barred from maintaining any record on the First Amendment-protected activities of individuals. Section (e)(7) of the Privacy Act of 1974 (5 U.S.C. 552a) provides that: "Each agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about who the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity."
Congress included Subsection (e)(7) in the Act to reassure the American public that the FBI, CIA and the military would no longer have free reign to monitor and maintain files on the first amendment-protected activities of citizens. The Senate Report on the bill explains that "[t]his section's restraint is aimed particularly at preventing collection of protected information, not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future." (S.Rept. 93-1183) As Representative Abner Mikva pointed out in hearings leading up to the passage of the Privacy Act: " The harm comes when the ordinary citizen feels he cannot engage in political activity without becoming a 'person of interest,' without having his name and photo place in a file colloquially, if not officially, labeled 'subversive.' "
In floor debate on the final wording of the section, the importance of protecting lawful speech was underscored: "[N]o records or files shall be kept on persons which are not within constitutional limitations... The rights of Americans to dissent in a lawful manner and for lawful purposes must be preserved."
In guidance issued by the Office of Management and Budget in December, 1975, the (e)(7) prohibition was interpreted to bar the collection of information on individuals even if the information was published and considered publicly available, with the exception of standard bibliographic or library reference materials: "Collections of newspaper clippings or other published matter about an individual maintained other than in a conventional reference library would normally be a system of records [and thus subject to the Privacy Act]."
Further, a 1983 Justice Department memorandum intended to clarify the Privacy Act application to FBI collection of publicly available information concluded : "that unless the individual or group meets the standard for either a preliminary inquiry or a domestic security/terrorism investigation, collection of published materials, outside the library context, is barred." It is important to note, however, that the FBI guidelines state in the General Principles section that "Nothing in these guidelines is intended to prohibit the FBI from collecting and maintaining publicly available information consistent with the Privacy Act."
An issue here is how the (e)(7) prohibition applies along the continuum of speech activities on the Internet. Both the Privacy Act and the FBI guidelines were written before the development of the Internet. A question exists as to whether, for instance, newsgroup communications are to be publicly available information for purposes of collection by the FBI.
In conclusion, we want to commend Chairman Specter and this subcommittee for your diligence in addressing this very important issue. We close with the following recommendations:
One venue for such a dialogue is the legislation (S.714) that Senator Leahy has introduced, calling for a study of proper legal responses to violence, hate speech, and sexually-explicit material in interactive media. We commend Senator Leahy for his leadership on this issue, and are grateful to Senator Kohl for his co-sponsorship of the Leahy study. We have also been in discussions with this subcommittee about the study, and look forward to working with you.
Though these issues are beyond the scope of today's hearing, we do want to note for the record that we are very concerned about expansion in roving tap authority, additions to the list of predicate crimes for electronic surveillance, as well as other records access provisions proposed in various counterterrorism bills now before both houses of Congress.
Again, we thank the Chair for the opportunity to appear before you on this very important issue and are ready and willing to work with you on these critical civil liberties issues affecting interactive media.
General Resource:
http://www.ai.mit.edu/projects/ppp/home.html
The Political Participation Project is a research program investigating how computer networks can be used to facilitate political participation. The Project's mission is to design networked, interactive media that improve citizens' participation in the democratic process. The Project, affiliated with the Intelligent Information Infrastructure Project at MIT, is non-profit and non-partisan.
http://www.peak.org/~votesmrt/
Project Vote Smart is a voter's self-defense system that provides the voter with factual information on candidates and elected officials.
http://www.teleport.com/~pcllgn/id.html
A free service that provides a gateway to allow individuals to send email messages to a list of representatives of government and the media.
http://www.cais.com/newtwatch/
NewtWatch is a new web service designed to be your resource on Speaker of the House Newt Gingrich. Contains information on Gingrhich's voting records, political contributions, legislative efforst, and more.
gopher://dolphin.gulf.net:3000/
Clinton Watch is a political column on the Internet devoted to a critical analysis of the policies and actions of the Clinton administration.
http://www.moscow.com/~bmdesign/tcl/conintro.html
The Conservative Link is a page for people who share the conservative point of view.
http://www.clark.net/pub/jeffd/index.html
The Right Side of the Web is a unique listing of resources for political conservatives. The page contains links to other conservitie oriented sites, email lists, publications/editorials, and links to other policical groups (including liberal groups).
http://paul.spu.edu/~sinnfein/progressive.html
The Left Side of the Web -- Links to liberal related resouces , newsgroups, publications, and file archives
http://www.io.org/~spamily/SocPolEnv.html
A collection of links for progressives, feminists, liberals, and anyone else who"s interested.
http://www.cdt.org/
CDT is a non profit public interest organization working to develop and advocate public policies that preserve and enhance democratic values in new communications media.
http://www.pff.org/
The Progress and Freedom Foundation a non-profit organization dedicated to creating a positive vision of the future.
http://www.umr.edu/~sears/primary/main.html
Internet Headquarters for the Republican Primary - info on who are running, who may run, and who's not running for President in the Republican party.
http://www.dscc.org/d/dscc.html
Over the next several months, look for new information about potential candidates, impact issues in 1996, and other DSCC activities.
http://www.telusys.com/uwsa.html
An educational, nonpartisan, nonprofit organization designed to inform the public about the important issues facing our country and to give our members a voice in the way we are governed.
http://www.iuma.com/RTV/
Rock The Vote - national organization for young people based on one simple idea: young Americans deserve to be heard.
Usenet newsgroups are analogous to a community bulletin board, only they are available worldwide to anyone who has access to the Internet. There are more than 4,000 usenet news groups available on the Internet, and each covers a different topic.
Although some specific groups are moderated, usenet as a whole is not organized or administered by any one individual or organization. Adding and removing discussion forums is governed by consensus among system administrators.
Below is a list of just a few of the usenet newsgroups dedicated to
We would also distinguish Near v. Minnesota, 283 U.S. 697 (1931), a case approving the bar on publication of troop movements in local newspapers. Near stakes out an extremely narrow area involving prior restraint for the sake of national security threats, such as the location of troops. The threat of bomb-making information -- all of which is generally available in libraries, chemical text books, and farming manuals -- is clearly not as great as the disclosure of military strategy. back