Software Vault: The Gold Collection/Software Vault - The Gold Collection (American Databankers) (1993).ISO/cdr11/hate_bbs.zip/NTIA.TXT

Internet Message Format | 1993-06-26 | 17KB

Date: 04-29-93 (16:54)              Number: 10173 of 10192
  To: ALL                           Refer#: NONE
From: CLIFF FIGALLO                   Read: (N/A)
Subj: EFF COMMENTS ON "HATE BBS     Status: PUBLIC MESSAGE
Conf: ORG.EFF.TALK (1029)        Read Type: GENERAL (-)

·  Newsgroup: comp.org.eff.talk
· Message-ID: <[e-mail]>
·    Subject: EFF comments on "hate bbs"

================
The National Telecommunications and Information Administration (NTIA),
the executive branch agency that develops telecom policies, is doing a
study on how telecommunications affect crimes of hate and violent acts
against ethnic, religious, racial and sexually-oriented minorities. NTIA
released an official "Notice of Inquiry; Request for Comments" in the
Federal Register.  The following is EFF's response to that inquiry.

===================================================================

Office of Policy Analysis and Development NTIA
U.S. Department of Commerce
14th St. & Constitution Ave., NW, Room 4725 Washington, DC 20230

April 26, 1993

RE: Notice of Inquiry; Request for Comments
Role of Telecommunications in Hate Crimes
Docket No. 930349-3049


Dear Policy Analyst,

NTIA has asked for public comment on the role of
telecommunications in hate crimes.1 The Electronic Frontier
Foundation (EFF)2 requests that the following comments be included
in the record. As described more fully below, speech made over
telecommunications networks is entitled to the fullest First
Amendment protection. Although some material may be considered
hate speech, new telecommunications technologies offer unparalleled
access to all participants for engaging in vigorous debate. Instead of
any government-initiated scheme to control Constitutionally-
protected, even if noxious, speech in this new medium, government
policy ought to promote broader access to the medium as the most
appropriate response. Such an approach would be most fully
consistent with First Amendment jurisprudence, exemplified by
Justice Brandeis's oft-quoted contention, "If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech,
not enforced silence."3 We urge NTIA to remain within this approach
as it considers the record in this inquiry.


The Important Role of Telecommunications

Before electronic communications became available to the common
person, the press was the chief means of educating the electorate. As
Supreme Court Justice Potter Stewart once wrote: "Enlightened choice
by an informed citizenry is the basic ideal upon which an open
society is premised, and a free press is thus indispensable to a free
society. Not only does the press enhance personal self-fulfillment by
providing the people with the widest possible range of fact and
opinion, but it is an incontestable precondition of self-government."4

Telecommunications is an even more powerful force for giving
informed governance to the people. Telecommunications provides
citizens with the power to disseminate and gather large amounts of
information, including numerous different opinions on a single
subject. This ability to gather differing opinions is essential to a
person's ability to make critical choices.

The government has a very strong obligation to protect a person's
right to express opinions and to be exposed to the varying opinions
of others. The First Amendment of the Constitution holds that
"Congress shall make no law . . . abridging the freedom of speech. . .
."5 This does not simply mean protection of speech that is "politically
correct." This protection extends to all speech, and the protection is
especially important for speech that is not popular. As the Supreme
Court has said, "[I]f there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable."6


Hate Speech on Electronic Bulletin Board Systems and Computer
Networks

EFF is especially concerned with NTIA's inquiry into the use of
electronic bulletin boards (BBSs) for advocating and encouraging
violent acts and the commission of crimes of hate. BBSs are a
relatively new form of communication, and it is important that the
speech that takes place over computer networks is given the same
First Amendment protections as all other speech. In fact, there are
reasons that words communicated over BBSs and computer networks
should be given even greater protection than speech that is
communicated through other media.

There are currently over 45,000 privately run BBSs in the United
States, and that number is growing exponentially.7 Electronic bulletin
boards can be general in scope, or they can be dedicated to one
particular topic The number of topics for which there currently are
BBSs is only limited by the imagination. For example, in the
Washington, D.C. area, there are bulletin boards dedicated to
gardening, horse shows, Shriners, religion, handicapped issues,
financial management, humor, fossil energy, radiological health,
amateur radio, medieval fantasy, and, of course, computer
programming tips.8

Undoubtedly, there are some bulletin board systems that carry hate
speech. A 1985 study by the Anti-Defamation League of the B'nai
B'rith (ADL) reported that the Aryan Nations ran a BBS out of Idaho
(accessible through local calls in Idaho, Texas and North Carolina) and
the neo-Nazis ran a BBS out of West Virginia. The first board, called
the "Aryan Nation Liberty Net," described itself as "a pro-American,
pro-white, anti-Communist network of true believers who serve the
one and only God -- Jesus, the Christ." It essentially carried three
categories of information: hate propaganda (against Jews, other
minorities and the federal government), purported enemies of the
cause (listing individuals and organizations that were "race traitors"
and sometimes asking users to post where these "enemies" could be
found), and listings of "patriotic groups" (such as neo-Nazi and Klan
organizations) and their addresses.9

While the ADL study is over eight years old, hate speech on bulletin
boards is probably even more prevalent today. Once reserved only
for boards that catered to this type of speech, hate speech can now
be seen on national information service providers catering to the
general public. In October of 1991, Prodigy, one of the largest
information services providers, was the site of a heated discussion
about the Holocaust of World War II. Many messages were offensive
to Jews and other users of the service. For example, one message
said, "Hitler had some valid points too . . . Remove the Jews and we
will go a long ways toward avoiding much trouble." Other messages
claimed that the Holocaust never occurred.10 Many people were
incensed over the messages and demanded that the messages be
removed from Prodigy's public message areas.

But the Prodigy incident exhibits precisely the reason why the
government should _not_ become involved in censoring hate speech
(or any kind of speech) on electronic bulletin board systems. After
the derogatory messages were posted on Prodigy, a large discussion
ensued, and many Prodigy users responded to the hateful statements
by presenting recitations of historical facts and criticizing the original
posters as being bigots. The discussion on Prodigy turned out to be a
rather fair exchange, with both sides of the issue explaining their
viewpoints, and each side being given the opportunity to learn more
about the other. The hate speech was exposed as being just that --
hate speech -- and the posters of the messages had a tough time
convincing the other users in the merits of their assertions.

However, the print press sensationalized the story. Headlines such as
"Hate Speech Enters Computer Age"11 and "Computer as Forum of
Hate Poses Problem"12 appeared and caused many outside groups to
become outraged that hate messages could be publicly posted. What
these groups did not understand was that after the hate messages
had been publicly posted, they were publicly refuted by others who
had the same access to the same medium.

Unfortunately for those of us who care about free speech, Prodigy
received numerous complaints from the ADL and others, and, after
initially resisting any change in policy, Prodigy eventually gave in
and removed the derogatory messages and changed its policy
regarding hate speech. Prodigy now says that it will bar any future
postings that are "grossly repugnant to community standards."
Prodigy staff members make such determinations on a case-by-case
basis. Many users -- in fact, many more users than had initially
complained about the hate speech -- were outraged by Prodigy's
change in policy, claiming that their rights to free speech were being
abridged. But Prodigy, a privately-owned company, stuck to its new
policy.13

However, the government is not a privately-owned company. The
government's obligation to not abridge speech is Constitutionally
mandated. Any consideration on the part of the government to
censor speech in any way should be approached with extreme
caution.

BBSs are proving to be an even better medium than any that have
come before to share opinions and protect the basic freedom of
speech that is central to our civil liberties. Computer bulletin board
systems and networks are accessible to anyone with a computer and
a modem. And if users of a BBS do not like something another user
has posted, the users have available to them the same medium that
delivered the noxious speech to refute it. In network
communications, it is common to "flame," or verbally put down, a
person whose speech is offensive. Since all users of computer
networks and electronic bulletin boards have access to that medium
of speech, all speech can lead to discourse.

While private bulletin boards must be able to continue to make their
own determinations regarding the information they allow to be
posted and the individuals who can access their facilities, the
government must make rules that keep access to this medium (albeit
not access to particular boards) open to all on a nondiscriminatory
basis. This is crucial to ensure that the ability to be heard remains
with every individual. As soon as this medium is restricted to use
only by those who have the money, or by those who say things that
are "politically correct," it is no longer a medium that fosters and
encourages the public debate that is so vital to our functioning as a
democratic society.

In a case that the United States Supreme Court intends to hear on
appeal later this term, Wisconsin v. Mitchell,14 the Wisconsin
Supreme Court eloquently explained the delicate balance that must
be struck between hate speech and the First Amendment:

"In the wake of the Los Angeles riots sparked by the acquittal of four
white police officers accused of illegally beating black motorist
Rodney King, it is increasingly evident that racial antagonism and
violence are as prevalent now as they ever have been. Indeed, added
to the statistical compilation of bias related crimes could be the
vicious beating of white truck driver Reginald Denny by black
rioters, horrifyingly captured on film by a news helicopter. As
disgraceful and deplorable as these and other hate crimes are, the
personal prejudices of the attackers are protected by the First
Amendment. The constitution may not embrace or encourage bigoted
and hateful thoughts, but it surely protects them.

"Because we wholeheartedly agree with the motivation of the
legislature in its desire to suppress hate crimes, it is with great
regret that we hold the hate crimes statute unconstitutional -- and
only because we believe that the greater evil is the suppression of
freedom of speech for all of us."

While EFF agrees that hate speech may be a contributing factor in the
commission of hate crimes, the current Congressionally-mandated
study begins with the wrong question when it comes to hate speech
on BBSs. NTIA should not be considering ways to limit this type of
speech. Instead, NTIA should be concerning itself with ways it can
ensure access to all who care to make opinions known. By ensuring
access to all citizens, when hate speech is espoused, that speech can
be appropriately disagreed with and discussed by others with an
equal voice. The best defense against those who preach hate is
exposure, ridicule and reasoned discourse. Discourse of this type is
the most basic of our civil liberties.

For this reason, the Electronic Frontier Foundation respectfully asks
that the NTIA make no recommendations to Congress that might
undermine our basic rights to freedom of expression, and instead
suggest ways to protect every citizen's access to media that will give
each of us a voice. As the Prodigy case showed, allowing the
opportunity for more speech is the best antidote for hate speech.


Thank you in advance for your thoughtful consideration of our
concerns. We would be pleased to provide NTIA with any further
information that may be needed.

Sincerely yours,



Shari Steele
Staff Attorney


1 NTIA has indicated that it intends to study crimes of hate against
"ethnic, religious, and racial minorities" and "those based on sexual
orientation." Yet the number of crimes committed against women
because they are women is far greater than the crimes committed
against any of these other groups. While EFF hopes that your
ultimate conclusion is that hate speech is best combatted with more
speech, your findings would be remiss if you did not include women
as victims of hate crimes in your research.

2 The Electronic Frontier Foundation is a privately funded, nonprofit
organization concerned with the civil liberties, technical and social
problems posed by the applications of new computing and
telecommunications technology. Its founders include Mitchell Kapor,
a leading pioneer in software development who was the first CEO of
the Lotus Development Corporation and developed the Lotus 1-2-3
Spreadsheet software; John Perry Barlow, a rancher, writer and
computer enthusiast; and John Gilmore, a cryptography expert and
one of the original founders of Sun Microsystems.

3Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring).

4Brazburg v. Hayes, 408 U.S. 665, 726-7 (1972) (Stewart, J.,
dissenting).

5U.S. Const. amend. I.

6Texas v. Johnson, 491 U.S. 397, 414 (1989).

7BBS magazine editor Jack Rickard estimated that there were 41,000
bulletin board systems in the United States as of March 1992, triple
the number of boards in existence 18 months earlier. It is difficult to
determine the exact number of computer bulletin board systems in
operation, because many are private and one must know the
operator to use them. Gilbert, Computer Bulletin Board Operator
Liability for User Misuse, 54 Fordham L. Rev. 439, 441 (December
1985) (citing Soma, Smith & Sprague, Legal Analysis of Electronic
Bulletin Board Activities, 7 W. New Eng. L. Rev. 571, 572 (1985)).

8Focke's Monthly Listing of Verified DC BBS Numbers (March 1993).

9Anti-Defamation League of the B'nai B'rith, "Computerized Networks
of Hate: An ADL Fact Finding Report" (January 1985).

10Leroux, "Hate speech" enters computer age, Chicago Tribune
(October 27, 1991).

11Chicago Tribune (October 27, 1991).

12Los Angeles Times (November 16, 1991).

13See footnote 8.

14169 Wis. 2d 153, 485 N.W.2d 807 (1992).


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Cliff Figallo                                     [e-mail]
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From: [e-mail] (Cliff Figallo)
Newsgroups: comp.org.eff.talk
Subject: EFF comments on "hate bbs"
Summary: NTIA requested comments on the effects of "hate bbs systems" on crime
Keywords: EFF, bbs law
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Date: Tue, 27 Apr 1993 20:32:47 GMT
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