Testimony of Jerry Berman, Executive Director Center for Democracy and Technology Before the Senate Judiciary Committee Subcommittee on Terrorism, Technology and Government Information May 11, 1995 Mr. Chairman and Members of the Subcommittee: 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. I. Overview: Shouting Fire in Cyberspace -- First Amendment Implications 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.(see footnote #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. II. Political Discourse on the Net: Democracy Flourishing Anew in Interactive Media 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.(see footnote #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. * Newsgroups: News groups are open, public areas in which users "post" articles and comments on a variety of subjects. Usenet newsgroups accessible around the world on the Internet may be thought of as a hybrid of a newspaper, because of their broad reach, and community bulletin boards, because of their interactivity and ease of access. Each newsgroup is devoted to a particular subject, from discussion of abortion, privacy rights, to the views of President Clinton and Rush Limbaugh. Newsgroups are read by thousands or even millions of people, and any one who reads the group can also contribute to the discussion by posting his or her own comments. [See Appendix B for a list of politically-oriented newsgroups] * Public mailing lists: Those who have an interest in exchanging information about a particular subject may also join a public mailing list on that subject. Mailing lists enable all members to exchange electronic mail messages easily and allow others to join their discussions. Unlike newsgroups, many mailing lists that are open to the public enable participants to obtain a list of those who are participating in the discussion. * Private mailing lists: In some circumstances, an existing group of people will create a private mailing list to enable the group to discuss issues in private through the exchange of electronic mail. These lists are considered closed to the public and the identity of each participant is generally known. * Interactive chat services: A variety of services are available to enable a group of people to engage in live, instantaneous communications. These services might be characterized as conference calls, social gatherings, or town meetings in cyberspace. As with mailing lists, the chat sessions may be either public or private. The name or identity of each participant is generally known. 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. * Electronic publishing: The Internet is a revolutionary medium for delivering and receiving information inasmuch as distribution is rapid at a low cost compared to print publication. Services such as the World Wide Web enable any individual or organization to quickly disseminate documents, images and even video to individuals all over the world. 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.(see footnote #3) [See appendix A for 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. III. Limits on Law Enforcement Activity in Pure Speech Environments Such as the Internet 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. And, information on how to make an atomic bomb can be found on a Swedish site.(see footnotes #4 and #5) A. Heightened standard for prosecution of crimes involving First Amendment rights 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.(see footnote #6) B. Tradition of special status for law enforcement investigations involving political groups and exercise of First Amendment rights 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. 1. Speech plus required to open an investigation The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (see footnote #7) 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. * Speech plus predicate for a full investigation: The Investigative Guidelines clearly state that a full investigation may not be commenced based "solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution" if there is no "prospect of harm." p. 3. * Supervisory approval required for intrusion on political matters: In the event that a full investigation or even merely a preliminary inquiry is to be opened involving "sensitive" matters, including the investigation of political groups, supervisory approval is required before proceeding. p. 4-5. 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. 2. Limitations on infiltrations 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 Sources (see footnote #8) 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: * Can law enforcement agents participate in online discussion groups? 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. * If so, must they announce their identity as law enforcement officers to the group? If not, must they disclose their identity if asked? 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. C. First and Fourth Amendment nexus: Protecting privacy rights to ensure First Amendment rights 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. IV. Recommendations 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: * Don't criminalize pure speech: Our First Amendment traditions and long-standing law enforcement policy teach that criminal sanctions are only appropriate for "speech plus" some criminal or likely violent action. * Maintain cautious interpretation of Attorney General's guidelines in online investigations: Cautious interpretations of the current guidelines leave the FBI plenty of room to investigate genuine threats and provide the citizenry reassurance that their political activities, even where controversial, are not subject to government scrutiny and intrusion. * Start of dialogue on the proper role of law enforcement in policing the online world: We hope that this hearing is the first step in a process that establishes, based on a broad public dialogue, how law enforcement can be expected to function in the new online environment. 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. * Treat proposals to expand surveillance authority with great caution: In the wake of the Oklahoma City tragedy, law enforcement and the Administration is proposing dramatic changes to federal wiretap authority including new roving tap powers and the use of any federal criminal statute as the predicate for wiretaps in terrorism investigations. Just last year, the Congress enacted changes to wiretap law in the Digital Telephony bill. The changes now sought were not raised in the context of last years bill and there is no indication that any of the changes sought this year are justified by new circumstances. 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. Appendix A -- Politically Oriented World Wide Web Sites General Resource: * Political Participation Project 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. * Project Vote Smart 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. * Interactive Democracy 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. * NewtWatch 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. * Clinton Watch 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. Conservative Sites: * The Conservative Link http://www.moscow.com/~bmdesign/tcl/conintro.html The Conservative Link is a page for people who share the conservative point of view. * The Right Side of the Web 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). Liberal Sites: * The Left Side of the Web http://paul.spu.edu/~sinnfein/progressive.html The Left Side of the Web -- Links to liberal related resouces , newsgroups, publications, and file archives * Progressive Page http://www.io.org/~spamily/SocPolEnv.html A collection of links for progressives, feminists, liberals, and anyone else who"s interested. Political Organizations: * The Center For Democracy And Technology 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. * The Progress and Freedom Foundation http://www.pff.org/ The Progress and Freedom Foundation a non-profit organization dedicated to creating a positive vision of the future. * Internet Headquarters for the Republican Primary 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. * Democratic Senatorial Campaign Committee 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. * United We Stand America 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. * Rock The Vote http://www.iuma.com/RTV/ Rock The Vote - national organization for young people based on one simple idea: young Americans deserve to be heard. Appendix B -- Politically Oriented Usenet Newsgroups 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 talk.abortion -- discussion and debate on the issue of abortion talk.politics.guns -- debate pro and con on gun-control issues alt.activis -- a discussion forum for political activists alt.censorship -- discussion on the topic of censorship alt.feminism -- discussion on feminist issues alt.politics.clinton - general discussion and debate about the President and his policies alt.politics.perot -- general discussion about the former presidential candidate and his policies alt.politics.democrat -- discussion and debate about Democratic party figures and policies alt.politics.usa.republican -- discussion and debate about Republican party figures and policies alt.rush-limgaugh -- a forum for fans and foes of the talk show host FOOTNOTES --------- 0 F. Hacker, Crusaders, Criminals, Crazies: Terro and Terrorism in Our Time, 67 (1976). 0 See Berman & Weitzner, Abundance and User Control: Renewing the Democractic Heart of the First Amendment in the Age of Interactive Media, 104 Yale.L.J. 1619 (1995). 0 See Senator Patrick Leahy's World Wide Web site at ftp://ftp.senate.gov/member/vt/leahy/general/pjl.html. 0 This document can be found at the following URL -- http://www.mcs.dundee.ac.uk:8080/~apaterso/terror.txt 0 See URLhttp://www.nada.kth.se/~nv91-asa/atomic.html. 0 The publication of a bomb-making manual on the Internet is factually distinct from the publication of instructions on making a hydrogen bomb that wa s injoined in United States v. Progressive, Inc., 467 F.Supp 990 (W.D. Wisc. 1979). In that case, the material which was enjoined was classified and was he ld so dangerous that it could lead to world-wide conflagration. Id. at 995. The article was ultimately published and the case became moot because the information previously held as classified was found in a number of public libraries. 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, chemica l text books, and farming manuals -- is clearly not as great as the disclosure of mili tary strategy. 0 Guidelines originally issued by Attorney General Edward Levi in 1976 and modified by William French Smith in 1983 and Richard Thornburg in 1989. Hereinafter Investigation Guidelines. 0 Issued in 1980 by Attorney General Benjamin Civiletti.