Technologies of Freedom?

Computer-related prosecutions have grown more numerous and more wide-ranging, he said, and they frequently raise First Amendment issues. He cited the Amateur Action Bulletin Board case, in which a Milpitas, California, couple was convicted of obscenity for having violated the community standards of Memphis, where a postal inspector had downloaded some of their sexually explicit images. "As you may know there are no community standards in northern California, so these people thought they were acting consistently with the laws," Godwin said. "They were astonished to discover that they could be hauled into court in Memphis." In an online environment, the community standards approach to obscenity may no longer make sense, he argued.

Along with sexually explicit material, Godwin observed that hate speech on the Internet has sparked controversies. The nature of the medium, however, permits those who disagree with a message to post rebuttals. "Countless people will respond, and they will cite their sources. There will be substantive debate."

Copyright prosecutions are also causing problems online. In one case, authorities discovered that MIT undergraduate David LaMacchia was making copyrighted software available on the Internet, but he could not be prosecuted for criminal copyright infringement because the statute requires a motive of "commercial advantage or private financial gain." "A civil libertarian would say, well, I guess there's no law criminalizing this guy's conduct; maybe we should go to Congress," Godwin said. "But that's not what the U.S. Attorney's office did." Instead, federal prosecutors indicted LaMacchia for wire fraud. Stretching the law to cover new conduct can be "very chilling to our exercise of First Amendment rights," Godwin added. (Federal Judge Richard G. Stearns ultimately dismissed the case.)

Turning to privacy issues, Godwin spoke of the conflicts over cryptography. Some officials fear that if criminals use unbreakable encryption on their e-mail, court-ordered wiretaps will become nearly impossible. The federal government has asked some major online providers to make their systems "wiretap-friendly" on a voluntary basis. "The government doesn't have to ask Congress to pass a law if the providers, out of fear of being seen as soft on crime, willingly cooperate," he said. He expects that the government will ultimately try to limit the availability of cryptography, arguing that "because a few people might use cryptographic technology to commit crimes, we ought not to let anyone have it." He considers such a restriction "very troubling, if we have a government of limited powers."

No one could have predicted that computers would turn out to be a vast communications tool. They're empowering individuals in a way that no mass medium has ever done before. It has the two-way information flow as the telephone, yet it also has the scope and the potential audience of newspapers and broadcasting. It's a many-to-many medium.... I'm very upbeat about it, except for the fact that because it's immensely empowering, it's also immensely threatening, and a lot of different wings of government feel a need to step in and control it.

Mike Godwin
Online Counsel
Electronic Frontier Foundation