Abstract
More than 20 years ago, Index asked
My daughter, who was not yet born when I wrote that article two decades ago (extracts of which can be seen in the graphic opposite), has been accustomed her whole life to speaking to the rest of the world easily and cheaply. Mass-media audiences are no longer reserved for highly capitalised, highly centralised media institutions such as newspapers and broadcasters. Audiences are now reachable by ordinary individuals, who may be equipped with little more than a mobile phone.
Although one could foresee the democratic potential of the internet in 1993, it was by no means clear that debates over internet censorship and government anxiety over internet communications would extend more than two decades into the future. As it happens, 1993 – a year that marked the internet’s transition from something that few folks talked about into something that one’s parents, grandparents and children used to stay in contact – also turned out to be a pivotal year for internet freedom of expression. This was the last full year in which governments around the world seemed mainly to ignore the disruptive potential of a hugely democratic new mass medium. As I was instinctively aware at the time, it was a golden age that couldn’t last.
The following year, 1994, saw the beginning of a series of legal and policy battles in the United States and around the world over internet freedom. Unsurprisingly, given the USA’s cultural roots in Puritanism, the most public of the early internet policy debates centred on the censorship of sexual content. Cultural conservatives were confronted with a medium where individual computer hobbyists enthusiastically published sexual content online in ways that couldn’t easily be censored. Plus there was the ever-decreasing and sometimes nonexistent cost of duplication and redistribution.
A few early hobbyist pornographers – or mom-and-pop entrepreneurs like Robert and Carleen Thomas who sold access to pornographic pictures on an online bulletin board – were prosecuted in the early 1990s. But it was quickly apparent to the USA’s religious-right anti-porn activists that the deterrent aspects of such prosecutions weren’t going to be enough. So they soon moved to design US Senator Jim Exon’s Communications Decency Act, which mutated only slightly before being incorporated into Congress’s Telecommunications Reform Act of 1996.
Credit: Brett Biedscheid/statetostate.co.uk
Ironically, the anti-porn crusaders’ legislative triumph unwittingly did internet-freedom activists like me a favour; the CDA’s scope was so broad, so ungrounded in constitutional doctrine, that it was quickly and effectively challenged in US courts in 1996, with a decisive Supreme Court victory for internet freedom in 1997. The case, Reno v. ACLU, overwhelmingly affirmed a lower court’s finding that the CDA was unconstitutional and the Supreme Court judges squarely classified the internet as a medium protected by the first amendment.
The anti-porn crusaders’ legislative triumph unwittingly did internet-freedom activists like me a favour
In a very short space of time, the moral panic about sexual content on the internet had led to judicial recognition that expression on the internet was as deserving of first amendment protection as expression in newspapers or in books. Maybe even more so, since the first amendment’s “freedom of the press” prerogatives had been technologically expanded beyond traditional publishers to ordinary citizens with internet access.
Of course, a freedom of expression victory in the USA does not guarantee freedom elsewhere around the world. And, in fact, it did not even permanently guarantee US internet freedom. Although constitutional lawyers, like me, had long believed that freedom of expression depends from time to time on the right of individuals to speak and publish anonymously and privately, we also knew that police and intelligence agencies in the US and worldwide had grown accustomed – I actually prefer the word addicted to using technology to intercept and capture private conversations.
The signals intelligence (SIGINT) mavens at the National Security Agency essentially intercepted information above or about electronic communications and they weren’t dummies. They knew that digital communications, and especially those protected by encryption, had the potential to force the NSA and like-minded folks at the Federal Burean of Investigation and other law-enforcement agencies into withdrawal. So even as the public debate in the 1990s centred on internet pornography, or the publication of bomb-making instructions, or digital copyright infringement, a more private debate was being played out, as the US government made efforts to guarantee their right to what one may call the “wiretappability” of internet communications. The NSA and like-minded agencies correctly guessed that the internet would increasingly be central to how we all communicate. These agencies’ reaction to this development, though cloaked in sober pronouncements about “national security” and law-enforcement needs, were driven by panic, similar to how an addict might react to the prospect of involuntary detox in a jail cell.
And, clearly, this response to the prospect of losing the ability to engage in bulk surveillance has haunted the NSA and its partner in the UK, GCHQ to the present day. Even as activists like Cindy Cohn, currently legal director of my first employer, the Electronic Frontier Foundation, have continued to litigate for freedom to use encryption to guarantee privacy, as well as for legal limitations on intelligence and law enforcement agencies’ power to snoop, the agencies have continued to labour in secret to expand their legal and some arguably illegal powers to capture private communications. The same technological advances (powerful digital devices and mass digital storage connected to worldwide networks) that have expanded individuals’ ability to exercise their mass medium freedom of expression, have also expanded the agencies’ ability to gather and search the world’s public and private conversations.
It’s compelling to note, in this post-Snowden revelations era, that the two developed nations that have proudly committed themselves, as a matter of political doctrine, to being open societies are also the first to have the sheer monumental scope of their surveillance practices exposed to public review and criticism. The Snowden revelations have succeeded where many activists had failed, in putting the issues squarely at the centre of public debate in these developed democratic countries.
Now that the debate has begun, we must labour to make sure the right balances are struck, not just in the UK and USA, but also, to vindicate our belief in individual freedom, privacy and dignity, to the rest of the world.
As my own work has increasingly grown more international especially my recent work for Wikipedia and for Internews, I’ve seen the same governmental moral panics about disruptive speech and disruptive limitations on surveillance begin to emerge in other countries. With the possible exception of Antarctica, no continent is immune to this general panic, although it may manifest itself in a range of particular, idiosyncratic forms. But whether one is discussing digital copyright in Latin America’s free-trade agreements, the lamentable “right to be forgotten” in Europe, the suppression of purported blasphemy in Islamic countries, the investment in surveillance infrastructure in Nigeria, the post-Mumbai terror attack amendments to India’s Information Technology Act, the Great Firewall of China, or the targeting of social media dissenters in Thailand, Cambodia and now Hong Kong, one thing is clear: in sharp contrast to the world of 1993, today’s governments have moved regulation of expression on the internet to the top of their agendas.
That’s frightening, but there’s a silver lining to what’s currently happening in the “cloud” – it turns out that the democratising potential of internet communications is actually living up to my 1993 hype. And activists around the world, such as the ones who passed the Marco Civil da Internet in Brazil or those who have crafted the Magna Carta for Philippines Internet Freedom, know that they can no longer merely react to threats of governmental censorship and surveillance. They must proactively set the agendas for the governments in this century in terms that guarantee individual freedom and dignity. Fortunately, the internet itself has given us the tools we need to do just that.
Today’s governments have moved regulation of expresssion on the internet to the top of their agendas
Footnotes
For the original article, see New Frontiers: A Visitor’s Guide, Volume 22, 2/1993.