Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/ELECTRIF.TXT

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July 1992                                              Vol. 4; Issue 5

                         ELECTRIFYING SPEECH
     New Communications Technologies and Traditional Civil Liberties

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             INTRODUCTION:  NEW COMMUNICATION TECHNOLOGIES

     Since the personal computer ushered in a communication revolution
about 15 years ago, the accompanying technology has been likened to
everything from the printing press to Hyde Park Corner, from the
postal system to talk radio. Pungent as these analogies are, their
limitations point up the essential uniqueness of computer-mediated
communication. While the printing press made possible the mass
dissemination of information, computers can individualize information
and increase its flow a thousandfold. In the process, they change the
nature of communication itself.

     Few Americans are unaffected by this revolution, whether they
rely on computers to do their taxes, write a novel, serve up money
from a bank machine, or make airplane reservations -- and then guide
the plane safely back to land. Those who are "on-line" "talk" to
people whom they may never meet face-to-face and form "virtual
communities" in "Cyberspace" -- a place without physical dimensions,
but with the capacity to store vast amounts of facts, conversation,
messages, written or voice mail and graphic images.

     While it is axiomatic that these new capabilities can open up
faster, easier and more inclusive communication, they also call into
question long held assumptions about individual and communal rights.
Some are old questions in a new context: What, if any, is the role of
the government in regulating electronic communication? As more and
more information is recorded and stored automatically, how can the
right of privacy be balanced with the right to know? What happens to
individual protections when information is a salable commodity? Does
the form in which information is kept change the government's
obligation to inform its citizens?

     Other questions arise from the new technologies: When borders can
be breached by a keystroke and texts and images can be reproduced and
modified without ever being published, what happens to definitions of
intellectual property, scholarship, conversation, publication,
community, even knowledge itself?

     In 1983, Ithiel de Sola Pool began his seminal book, Technologies
of Freedom, with the warning that "Civil liberty functions today in a
changing technological context." As if to prove him right, the
government is now proposing a $2 billion investment in computer
networking technologies which will radically alter the way American
communicate. Because the technological context changes more rapidly
than the laws regulating it, the debate about how we want to live in
an electronic world is both volatile and urgent.

                  ELECTRONIC COMMUNICATION AND THE LAW

     United States law has not treated all communication technology
alike. As Pool notes, regulatory policy is based on different
assumptions and varies among print, common carriage and broadcasting,
which were the three prominent modes of mass communication when he
wrote. Thus, lawmakers and jurists delineating free speech sought to
minimize traditional controls on printed speech by rejecting the types
of censorship associated with it, such as prior restraint, taxation
and seditious libel. But early regulators, with an eye to the social
good, had no qualms about requiring common carriers, such as the
postal and telegraph systems, to provide universal service without
discrimination. Their successors, assuming that the broadcast spectrum
was a scarce commodity, designed a regulatory system for radio and TV
based on government licensing, business advertising and a limited
number of channels. Later regulations included the Fairness Doctrine
(imposing on licensed broadcasters an obligation to cover issues
fairly), which regulated the content of speech. But as technologies
merge, traditional distinctions among the modes are no longer
applicable. Today, for instance, anyone regulating electronic bulletin
boards is looking at a cross between a publisher and a bookstore that
operates by means of the telephone, a common carrier.

     Historically, the law has responded to, not anticipated,
technological changes, often reacting repressively when a new
technology challenges the status quo. As in the past, regulation of
electronic communication has been influenced more by market and
political forces than constitutional principles or legal issues. But
electronic communication policy is still fluid enough to allow for
questions about who should set the policy and to what end.

                        The Constitution

     Among the most active participants in the policy discussion is
Computer Professionals for Social Responsibility (CPSR), a public
interest group formed to explore the impact of computers on society.
In March 1991, CPSR held the First Conference on Computers, Freedom &
Privacy in Burlingame, California. The concerns addressed at the
conference fell into three broad civil liberty categories: protecting
speech, protecting privacy, and gaining access to government
information.

     In an opening address, constitutional scholar Laurence Tribe
posed a question of his own: "When the lines along which our
Constitution is drawn warp or vanish, what happens to the Constitution
itself?"  The sections of the Constitution Tribe was referring to in
relation to electronic communication are:

     # the First Amendment, with its prohibition against laws
abridging freedom of speech, assembly, or the press;

     # the Fourth Amendment, protecting people and their property from
unreasonable government intrusion;

     # the Fifth Amendment, guaranteeing due process of law and
exemption from self-incrimination;

     # the Ninth and Fourteenth Amendments, which reinforce other
rights and provisions in the Constitution.

     In applying these long-standing guarantees in the burgeoning
electronic forum, Tribe recommends that policy makers look not at what
technology makes possible, but at the core values the Constitution
enshrines. The overarching principles of that document, he maintains,
are its protection of people rather than places, and its regulation of
the actions of the government, not of private individuals. Other
central values Tribe notes are the ban on governmental control of the
content of speech; the principle that a person's body and property
belong to that person and not the public; and the invariability of
constitutional principles despite accidents of technology.

     To insure that these values prevail as technology changes, Tribe
proposes adding a 27th amendment to the Constitution to read:
     "This Constitution's protections for the freedoms of speech,
press, petition and assembly, and its protections against unreasonable
searches and seizures and the deprivation of life, liberty or property
without due process of law, shall be construed as fully applicable
without regard to the technological method or medium through which
information content is generated, stored, al