From: rarachel@photon.poly.edu (Arsen Ray Arachelian)
Date: Wed, 30 Nov 94 12:06:20 PST
To: anavarro@pipeline.com
Subject: Censorship In Cyberspace 2/6
Message-ID: <9411302009.AA00807@photon.poly.edu>
MIME-Version: 1.0
Content-Type: text



          CORN-REVERE:  First I'd like to thank Feminists for Free
Expression for inviting me to come and speak at this today.  I
think that the topic is one of the most important that at least
those of us who care about communications are dealing with right
now and it's one that's going to be developing very quickly.
Although I have to say -- I'll apologize in advance.  I'm from
Washington.  I used to work at the FCC, and so to be talking about
these issues may seem to be a bit ironic.  And to compound that, to
have a lawyer to be the first person to speak in a discussion on
Censorship in Cyberspace is a bit like having a hall monitor be the
keynote speaker at a writer's conference.  But it is an area that
I have been writing about for some time and have some concern
about, and hopefully discussions like this one will help move
toward a greater understanding that can actually do some good. 
Being in Washington I'm always hesitant to say that, but it is
possible sometimes.
          First of all I know it isn't in the program, it doesn't
mention the term, but I'm going to just say that I hate the
expression Information Superhighway.  If there is a single thing
that we could do to make some sense of what's going on we would
eliminate that forever.  I mean not only does it spawn just this
avalanche of horrible metaphors -- on ramps, off ramps, toll
booths, traffic cops.  Name it, they're out there.  It's just going
to get worse, to the point where the Washington Post finally had a
front page story that talked about the Information Superhypeway,
which is pretty much what it's becoming.  And in a way it I mean it
really doesn't convey any information.  In a way it's a lot like
teenagers and sex.  I mean, you know, everyone is talking about it. 
Everyone's convinced that everyone else is involved in it.  The
people who are talking about it don't really know much what it's
about but are convinced that once they're doing it too it's going
to be great!  That's a lot of what is going on in the policy
discussion in Washington, D.C.  
          But I have a particular reason for disliking that
expression, and that is that it tends to focus or it tends to
direct peoples' attention to the means of transmission by calling
it a highway.  So we'll need traffic cops.  And when you look at
the method of transmission historically, that's been the hook, the
jurisdictional hook, for governments to get involved in speech. 
For that reason I really think we would move a long way toward
clarity if we could shift metaphors.
          As most of you I'm sure know, this year the Congress
failed to pass telecommunications legislation wanting to be in the
forefront of developing the Information Superhighway, talking about
all the vital national policies that are involved.  And while I
don't discount the importance of the issues, I tend to think it's
a little bit dangerous to start the debate and start from the
proposition that Congress needs to be fashioning this for us, and
I think that that's simply going to lead to more trouble.  
          In really underscoring that, I think it's useful to talk
about communications systems and talk about the development of
these things from something of a historical perspective, because
technology has always been an intimate part of the struggle for
freedom of expression.  It's no accident for example that the first
official censorship bureau emerged shortly after the development of
the printing press.  None existed before then because none were
necessary, and to that extent censorship was the bastard child of
technology.  You didn't need a central official authority to keep
track of scribes.  The Church did that very nicely, thank you.  And
the communications that they produced didn't really pose any kind
of a threat to the State.  First of all they were produced in small
numbers, not mass produced, and in the second place you didn't have
the ability to produce multiple volumes of a uniform copy, of a
simultaneous transmission of exactly the same words.  There were
minor errors between them and it took a long time to copy addi-
tional copies.  
          But once you had because of the printing press the
ability to crank out multiple documents that could all be trans-
mitted simultaneously, then the communication tended to pose a
threat to official authorities and for that reason you then had
this drive to establish social policy, policy that would constrain
or in some way control that communication for what were considered
by those in power beneficial ends.  
          And so you see that sort of history repeating itself over
and over again, and ultimately in the end the technology tends to
win.  You can look at the successive means of censorship in the
16th and 17th centuries, whether they were official censorship
bureaus or the Court of the Star Chamber or the Stationer's
Company, and government monopoly licensing and those sorts of
things.  Each of them failed.  Each of them went out of fashion
because the technology of the printing press was superior to the
ability of the bureaucrats to exert control -- up until the point
when you get to the formation of the United States and the adoption
of the First Amendment, where the United States became the first
nation to embrace new technology as an essential component of its
political system.  That's what the First Amendment is about.  It
specifically identifies the press, that new technology of its day,
or relatively new to the framers of the Constitution, as an
essential component of what this country was about.  
          So technology for the first time rather than just being
a hindrance to official authorities became an essential part of
what free expression is to be and came to be in this country. 
Despite that hopeful beginning, and despite the fact that it really
took a couple of hundred years, well, 120 years anyway before the
courts started to define what the First Amendment was about,
technology continued to be something of a problem as new technolo-
gies for communications were developed.  
          The Supreme Court first faced this problem in 1915 when
it was asked to rule on whether or not the cinema was protected by
the First Amendment.  And this was before the Supreme Court had
actually addressed the issue of the First Amendment and what it
meant in any way, but it was presented in this case about a
licensing board, a trilogy of cases actually about a licensing
board in Ohio.  And in that case the Court simply said, "This is
not speech.  We're talking about film here.  It's commerce.  And 
besides, it's dangerous."  And so they decided that the First
Amendment simply didn't apply to the technology of film.  Now
thirty-seven years later the Supreme Court reversed itself and film
was protected the same as the printed word.  But it took thirty-
seven years and actually longer than that for the pronouncement of
the law to become disseminated through the country, where it wasn't
until 1972 that the last film licensing board, municipal film
licensing board, in Dallas, Texas, was abandoned.  So it does tend
to take a long time.
          The same thing has happened of course with television,
and again, as with the Information Superhighway, the focus is on
the means of transmission and the government's argument
historically has been that we have this medium.  It's scarce
because you have a certain number of frequencies.  If the
government doesn't regulate it you'll have people speaking over
each other, and so the government has to get involved.  And by the
way, we're not just going to be traffic cops to decide people don't
run into each other in the air waves.  We also need to control
pretty much what's said in the broadcasting as well.
          And so again focussing on the way the communication was
transmitted created the jurisdictional hook by which broadcasting
has had second class rights under the First Amendment.  Now that's
changing.  It's changing because the courts have come to be more
sensitive to the First Amendment issues involving broadcasting. 
Most thoughtful observers recognize that the whole notion of
scarcity (a) was created by government in the first place, and
(b) if, to the extent it was ever true, because government of
course decided how many of those frequencies would be used for
communications, to the extent it ever was true it no longer is,
again because of increases in technology, both because of digital
compression, the ability to get a lot more out of the same band-
width spectrum, and also because there are so many other techno-
logies that can transmit the same information and more than just
broadcasting.  Whether it's cable television, whether it's fiber
optic transmission, whether you're talking about videodiscs,
videotapes, there are any number of ways you can transmit the same
information.  
          And so the courts are moving more toward an appreciation
of the First Amendment status of broadcasting, to the point where
the Supreme Court this summer in a case involving cable television
essentially said that the government has no business dictating the
content of broadcasting.  Again, that was just language that the
court used, but it tended the signal the direction they're heading. 
And I think ultimately again the technology will win.  
          My concern though is at each stage where we're confronted
with new technology we have to go through this process yet again. 
It happened with the printing press.  It happened with film and
then took four decades and longer for practical application, for
that to get reversed.  With broadcasting it first was regulated in
1927 as a scarce medium and then again that law was rewritten in
1934 and hasn't been rewritten since.  We're on the verge of a
rewrite, and that's what some of the telecommunications legislation
is about, but it doesn't abandon these concepts of government
control.  In fact it strengthens them and would extend them to the
newer technologies, whether it's fiber optics or something else, or
direct broadcast satellites for that matter.
          So I think that it's time to recognize that all speech is
the same under the First Amendment, and that the means of transmis-
sion don't make any difference whatsoever.  The fact that some
communications may have social force or power to change things
isn't a reason again for government to get involved.  That's why
the printing press was controlled.  That's why we adopted a First
Amendment in the first place.  And so the method of transmission
shouldn't make any difference whatsoever.
          The other thing that I think is fairly dangerous when
it's handled in the way that it's currently being considered is
that if things have moved slowly in the past wait until they become
the subject of a regulatory agency.  Having worked at the FCC I can
tell you a lot about that.  Things move much more slowly in the
regulatory state.  We are controlled by endless numbers of defini-
tions, and once you fit into a regulatory pigeonhole, a defini-
tional pigeonhole, you will stay there either until the courts turn
it over, knock it down, or until some sixty years later or however
many years later someone decides that that may have been a bad idea
in the first place.
          So I'm very concerned about carving these things into the
stone of legislation and then using that as the model for extending
government control over communications.  The whole idea of having
this network, this notion of instantaneous communication, is to
free up speech and not to create jurisdictional reasons to exert
greater control.  For that reason I am particularly concerned about
the Digital Telephony Bill that was just passed.  It was passed by
both houses of Congress in early October, and it does require tele-
phone companies to cooperate and assist law enforcement authorities
in wiretapping and issues like that.  
          In some ways it doesn't change the preexisting state of
the law.  In 1986 there was a rewrite of the Federal Wiretapping
Law that essentially brought that into, recognized, digital
communications.  It did require that kind of cooperation.  This
really more clarifies that rather than imposes a new obligation. 
The other clarifying part of it thankfully is that it says that
federal authorities have to get a warrant before they can do it. 
But it still maintains the essential premise of governmental
control, and I think that what we need to working toward is an
understanding that the First Amendment and the Fourth Amendment,
because they work together, must be recognized for all technologies
as we move on into the future.
          I'll just say one or two more things because I know I've
taken a bit of your time, just to say that if nothing else, because
again I've been talking legal structures because that's the world
that I work in, but if nothing else it would helpful if people 
could get an understanding that when they're approaching a new type
of communications they're not approaching something fundamentally
different, and I'll give you two examples that I think tend to
underscore that.  
          One is a recent action by an export office in the
Department of State that denied an export license for the disk
version of a book on encryption, while the print version is freely
available and as a matter of fact 20,000 copies have been sold
worldwide.  Now the justification is that when you put it on a
computer disk it is somehow different and can be disseminated
differently when of course anyone can take the print version and
key it in and you have the same thing.  But that's one example of
where the understanding of what the communication is, what the
information is, is treated differently under the law because it is
in a different technological form.  
          Another has to do with a recent case involving a regional
office of the Department of Education's Office for Civil Rights, an
action that ended closing down a men's only and women's only
computer bulletin system at Santa Rosa Junior College because of
allegations of sexual harassment and people saying generally not
nice things on this computer bulletin board.  But as part of this
ruling, and it's still being worked out, it isn't final yet, the
Office of Civil Rights took the position that a computer bulletin
board is not subject to the same free speech rights as if you were
talking about a physical bulletin board or if you were talking
about the campus newspaper.  It is somehow different.  
          I think these are very dangerous beginnings, very
dangerous trends, and unless we address these questions both in
terms of our understanding of what's going on and in terms of the
law then what we've seen in history will be perpetuated and it will
take a far longer time, decades, if we're lucky, for that to be
sorted out.  So that's why I think this is one of the most
important topics that we could talk about today, because I think
that communications has been historically a vital force in society
and it's only going to get more important.  Thank you.

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