Hacker 2/HACKER2.mdf/cud/cud533c.txt

Text File | 1995-01-03 | 16KB | 302 lines

Date: 27 Apr 93 13:44:00 PDT
From: Cliff Figallo <[e-mail]>
Subject: EFF Response to NTIA "Hate Crimes" Inquiry

 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 the following official "Notice of Inquiry; Request for
 Comments" in the Federal Register.
 The following is EFF's response to this Request:
 ===================================================================

 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
 against any of these other groups. While EFF hopes that your
 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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