------------------------------------------------------------------------ ****** ******** ************* ******** ********* ************* ** ** ** *** POLICY POST ** ** ** *** ** ** ** *** May 12, 1995 ** ** ** *** Number 13 ******** ********* *** ****** ******** *** CENTER FOR DEMOCRACY AND TECHNOLOGY ------------------------------------------------------------------------ A briefing on public policy issues affecting civil liberties online ------------------------------------------------------------------------ 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. ------------------------------------------------------------------------- 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 by 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/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/policy/legislation/s714.html ftp://ftp.cdt.org/policy/legislation/s714.bill --------------------------------------------------------------------- (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 ###