Freedom of expression on the Internet - Internet Release 1 (1997-06-10)

1997 Henrik Torstensson. All rights reserved.

HTML by Martin Nilsson 1997-07-28

Henrik Torstensson

Lilla Nygatan 33

591 45 MOTALA

SVERIGE / SWEDEN

tel: +46-(0)141-557 65

e-mail: [email protected]

Platenskolan

MOTALA

SPECIALARBETE

1997-05-04

FREEDOM OF EXPRESSION

ON THE INTERNET

Abstract

Freedom of expression is one of the fundaments of democracy. But the freedom isn’t absolute, abuse can lead to punishment. With the international and decentralised structure of the Internet national laws sometimes are difficult to use. This work takes a look at the developments in the area of freedom of speech on the Internet (the Communications Decency Act, current Swedish legislation and propositions from the European Commission).

1 Introduction

1.1 Purpose

2 Background

3 Methods and material

4 Democracy

4.1 Freedom of expression

4.1.1 Freedom of expression in Sweden

4.1.2 Freedom of expression in the USA

4.2 Internet and freedom of expression

4.2.1 Sweden

4.2.2 EU

4.2.3 USA

4.2.4 Other

5 The Internet

5.1 Different parts of the Internet

5.1.1 World Wide Web

5.1.2 Internet Relay Chat

5.1.3 E-mail

5.1.4 Mailing lists

5.1.5 Usenet

5.1.6 Other (telephony, television, radio, push-media)

5.2 Stopping unwanted material

5.2.1 Blocking software

5.2.2 Labelling

6 Conclusion

1 Introduction

The inventions of the industrial age have made the world truly global. Ideas can be transferred all over the world in minutes. CNN and other media companies can send live from almost any place on planet Earth. If you can afford it you can have the world in your living room. When something happens in Jerusalem, Tokyo or Los Angeles the word gets to Stockholm faster than it takes a person to go by car from Motala to the very same city.

The Internet is the first medium that makes it possible to reach the entire world at an affordable cost for individuals. But till this date almost all media have been local or national, definitely not global. Therefore community standards have set the minimum level for freedom of speech, and the national authorities have been able to make sure that they’ve been followed. With the Internet the information market has become as deregulated as the financial ditto. It doesn’t matter where the server connected to the Internet is physically placed, it’s possible to reach it anyway. National laws can be sidestepped by having the data in another country.

The combination of new technology and the international infrastructure raises many interesting questions. But it all comes down to: "How will the democracies work in the future?".

1.1 Purpose

With this work I’ll try to introduce the ignorant to the question of free speech on the Internet. Therefore I won’t go too deep into every question. They are many and complicated and could easily fill a book each and it’s not my intention to do that. I won’t try to define morality or what standards a community should set, but I’ll look into the question of freedom of expression and the Internet and see which laws that apply to the Net.

2 Background

February 1st 1996 the US House of Representatives and the US Senate passed the Tele-communications Act of 1996. This law included a paragraph known as The Communications Decency Act (a.k.a. CDA). That part made it illegal to transfer not only obscene but also indecent material to minors via online services (such as the Internet). Many Internet users and online civil rights activists thought that the CDA was too broad and vague and therefore unconstitutional. Because of the American system with courts protecting the constitution they challenged the law in a Philadelphian circuit court. That court came to the conclusion that the CDA is unconstitutional, but the government did appeal to the Supreme Court, where the case is right now.

With a growing fear of pedophiles, terrorists, bomb making information and political dissidents more governments (or government agencies) have tried to censor and/or block access to information on the Internet. In European democracies as well as totalitarian Asian countries authorities have blocked or are blocking foreign web sites that would be illegal if they were hosted on a domestic computer.

The European Union has begun to develop common rules for its member states. But the issue is seen as a question for each member state. This situation applies to the international arena as a whole. Freedom of speech is a national affair, and most countries want to keep it that way. But with the international and decentralised structure of the Internet in mind it seems likely that nations will try to reach international agreements on how to deal with ‘harmful and illegal material?and set common minimum standards for Internet publishing.

3 Methods and material

When collecting information to this work I’ve used both online and offline sources. The online sources have been the ones I consider trustworthy, such as the Electronic Frontier Foundation’s Free speech archive, the American Civil Liberties Union web site, the European Union’s Europa and Information Rosenbad (run by the Swedish government). I’ve also picked individual articles from other places, like Aftonbladet.

Offline sources have mostly been books on human rights and freedom of the press in Sweden. I believe that the mix has given me a fairly objective picture of the issue. One of my main objectives has been to be critical of my sources, and by checking information from one source with information from another I think that I’ve avoided lies and disinformation.

4 Democracy

The modern society known as democracy is built on several fundaments. There’s no magic formula that makes a society a democracy, so democracies aren’t the same. Modern democracies are built around rights and freedoms that was written down after the Second World War in the Universal Declaration of Human Rights. There are 30 articles that touches many areas of life but some are equality without regard to race, sex, religion, origin etc., the right to life, liberty and security of person, right to marriage, right to own property, freedom of thought, conscience and religion, right to education and freedom of opinion and expression. In democracies there are also free elections and independent court of laws.

Most European countries have also ratified the European Convention for the Protection of Human Rights. The Convention bears a close resemblance to the Declaration, but is more often a part of common law, which the Declaration usually isn’t.

4.1 Freedom of expression

Freedom of speech is considered to be a human right, therefore it’s protected both in the Universal Declaration of Human Rights and the European Convention on Human Rights. Both value freedom of speech very highly, but the freedom isn’t absolute, as it may infringe upon other rights (see paragraph 4). It may be limited if it’s thought "to be considered necessary in a democratic society, the measure must meet a real social need and be effective without being disproportionate in the restrictions it imposes."

Not having censorship doesn’t mean that freedom of expression is unrestricted. The Swedish press law stipulates that it’s illegal to publish child pornography, racial hatred etc. It’s also illegal to spread certain types of material to youngsters.

4.1.1 Freedom of expression in Sweden

Three of Sweden’s four fundamental laws touch the question of freedom of expression. The laws are the constitution, the press law and the expression law.

In the constitution every citizen is guaranteed freedom of expression and freedom of information. The first refers to "the freedom to in speech, writing, picture or other way communicate information and express thoughts, views and feelings.", while the second refers to "the freedom to collect and receive information and take part of other’s expressions.". Both freedoms can be limited by common law to protect "national security, national food supply, public order and security, personal reputation, privacy or the prevention of or legal action against crime".

This paragraph makes it possible to outlaw everything that could affect the political and social situation with common law, which isn’t good as the point with fundamental laws is to avoid the possibility of rapid change of basic rights and freedoms. Therefore the press law and the expression law play an important role in the Swedish democracy.

Both laws specify the rights as well as the limitations of the media. The first Swedish press law was codified in 1766 and only protected printed expressions, but had an umbrella effect on all parts of society. There’s no point to censor parts of the society if the press still can write about the issue, and the censorship. The law also has some principles that together shall guarantee the citizens?access to information in common interests, for example the Freedom of Information Act.

4.1.2 Freedom of expression in the USA

In the USA free speech is protected by the First Amendment in the Bill of Rights. It says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Obscene material isn’t protected by the constitution at all and there are indecency regulations in some media (TV, cable-TV, radio).

4.2 Internet and freedom of expression

The Internet brings both opportunities and problems. Making it cheaper and easier to publish information is probably good for democracy. But as the Internet is international and the law national problems arise. Generally expressions are protected by general free speech laws. But ordinary expressions don’t need protection, it’s the indecent and immoral ones that do. Especially when different cultures find different things immoral and indecent, but can access it as easily. There’s no special international treaty regulating free speech on the Internet, but maybe it’s needed. Web sites could be separated into those who are domestic and those who are international. A division into different categories would bring new, and probably greater problems than exists today, to democracy and the Internet. Talking about domestic and foreign sites when there aren’t any borders is quite surreal.

4.2.1 Sweden

The debate in Sweden hasn’t been as intensive as in the USA, but does exist. There seems to be great support of regulation of the Internet. According to a survey by Aftonbladet/Sifo as many as 70 % of the population support the idea of an authority with power to censor the Internet. Among Internet users only 33 % think it would be a good idea. Minister of Communications Ines Uusman thought it would be "horrible" with Net censorship.

In the report "Constitutional protection for new media" from the Media Committee the conclusion is that there might be pressure to limit the freedom of speech on the Internet, because of its structure and the enormous piles of information available. The committee does recommend that freedom of speech is as vigorously protected on the Net as elsewhere, though.

4.2.2 EU

The EU has published two reports, "Illegal and harmful content on the Internet" and "Green paper on the protection of minors and human dignity in audiovisual and information services", about freedom of speech in online environments. The former concludes that the Internet isn’t in a legal vaccum, as normal laws are applicable on authors, distributors and others.

The Union declares that it’s the member states that must uphold the law, but worries about safe havens for illegal material. Just like offshore companies are a problem for national tax regulations, offshore servers can be for the police when dealing with Internet-related crimes.

The companies which host individuals?homepages (web hotels, Internet Service Providers) should have some responsibility for what’s published. In Sweden that’s not much of a problem as the Terms of Service and Ethical Rules of most companies prohibit illegal and un-ethical material to be on their servers. The EU seems to think that self-regulation of that kind (ethical rules) is the best solution, as blacklisting doesn’t work very well, as blacklisted sites often get mirrored. The Union also advocates co-operation between members and main third party states.

When it comes to harmful (obscene, indecent) material that is available to adults but shouldn’t be to children the conclusion is "any regulatory action intended to protect minors should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is available freely in other media." Filtering and labelling (especially PICS) is seen as a pragmatic solution to the problem of harmful content. The combination of self-regulation and European ratings agencies renders Union support.

4.2.3 USA

In the US the so far only battle for free Internet speech (in a democracy) is standing. The Communications Decency Act, approved by both Houses and president Clinton, has been taken to the courts. A Philadelphian circuit court dismissed the law as unconstitutional and now the case is pending in the Supreme Court.

The CDA bans "obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass an other person" or ‘obscene or indecent?if the recipient of the communication is under eighteen years of age ‘regardless of whether the maker of such communication placed the call or initiated the communication.? This has been met with outrage from the civil rights activists, because it’s almost impossible to know how old someone on the Internet is. And if a child got access to material banned by the CDA it would set the content provider in great trouble and probably make him more careful when publishing or maybe deter from publishing at all. The thing is that while obscene material doesn’t enjoy constitutional protection indecent does. If the Communications Decency Act is approved by the Supreme Court it will hamper the free use of indecent speech, that is protected by the First Amendment.

On the Internet free speech (anti-CDA) advocates is in majority. By setting the agenda and using the technology effectively they’ve got many supporters around the world. But to some extent this picture is misleading. According to a survey conducted by the Roper Center for Public Opinion Research, The Freedom Forum, Media Studies Center and the Newseum only 34% of the adult American population thinks that freedom of the press should be absolute. The conclusion that many think that CDA actually is a quite good law isn’t far fetched.

4.2.4 Other

Some countries try to control the Internet by not making it freely available, for example Pakistan. In India only the state-owned telephone company, VSNL, is allowed unrestricted and direct access to the Internet. All other companies must connect through VSNL. This makes it easier to filter and censor information that gets into India via the Net.

In the Middle East most countries find political dissent, religious and sexually explicit material very disturbing. Therefore they require the ISPs to provide screening systems and block access to such material.

5 The Internet

The Internet is a computer network using the TCP/IP protocol for communication. Because of the network’s decentralised structure and initial design goal not to have global control at the operations level the network can grow easily. Today it consists of more than 150 000 networks in excess of 90 countries.

5.1 Different parts of the Internet

As the Internet is a digital computer network data (or information) can be represented in many different ways. Text, pictures (moving and still), sound, software programmes and mixes of them can be transferred in the wires of the Net. Combined with the possibility to interact in real-time or with delay several services have to sprung up. New technologies arrive every year but I’ll introduce some of the more common.

5.1.1 World Wide Web (a.k.a. WWW, www, the web)

The web is what made the Internet popular. In the beginning it was a way to publish documents with limited layout possibilities. But today it has advanced layout possibilities and can produce very nice web pages. The thing that makes the web successful is the use of hypertext and ever evolving open standards. Hypertext makes it possible to mark text or other data with information. The option to link text to more information is heavily used. Instead of formatting text with bold or italics you format it with information what to load if a user clicks on the text.

From the breakthrough of the graphical web browser Mosaic in 1993 the World Wide Web has grown extremely fast and become more diverse. Still pictures and text have been joined by sound, film and computer programmes. Combined this have made the world wide web a great tool when building information interfaces.

5.1.2 Internet Relay Chat

This makes it possible to talk with people from all over the world (if desired) in real-time. By joining a channel that discusses a special subject you can share your views with the speed of your typing. Chats are also available on the web. Real word analogy: smalltalk.

5.1.3 E-mail

Sending documents to one or several mailboxes is called e-mailing. Using a programme similar to a word processor to write a message and then telling the mail-program where to send it sums up of the basic idea of e-mail. Real word analogy: mail.

5.1.4 Mailing lists

A mailing-list is e-mail who reach many people. There are two kinds of lists. One where people discuss and one where one people distribute information to the others?e-mailboxes. The former is often used if a group of people want to discuss a certain topic, but find the Usenet to noisy. The later is a way to subscribe to product information, newsletters or e-zines (electronic magazines/fanzines). Either the sender use a e-mail programme that can handle mass distribution without to much trouble or he sends the e-mail to a mail-robot. The mail-robot has a list of subscribers who it sends the message to.

5.1.5 Usenet

Not actually a part of the Internet, but often distributed via the Internet and a de facto part. This is a huge conference system with as much as 100 million new characters typed in a day. The system is divided into newsgroups, each covering a certain topic. With more than 20,000 newsgroups the last time I checked with my Internet Service Provider, Algonet, there’s something for everyone. The big drawback with the Usenet is the huge flood of useless and pointless messages.

5.1.6 Other (telephony, television, radio, push-media)

By using fast Internet connections, video cams and/or microphones and dedicated software people use the Net for long distances calls as they don’t cost more than your local call to your ISP. Both are relatively poor compared with "the real thing" but advancements in software technology makes them ever more viable. One could say that they’re IRC beefed up. Real world analogy: video conferencing and telephony.

Something that seems to become more popular now is push-media. Instead of going to a web site you receive the information automatically via a dedicated channel. Real world analogy: radio or TV.

5.2 Stopping unwanted material

A user can have many reasons to block access to certain parts of the Internet. Avoiding certain places it easy, just don’t go there. But maybe you don’t want your child to get across something by accident or out of curiosity. This can be done in several ways. The most common one is to filter the information being sent to you by installing blocking software.

5.2.1 Blocking software

When the Internet really took off in the USA concerns about sexually explicit material did the same. As many parents don’t want their children to come across pornography, nazism and other obscene or indecent material a market for blocking software has developed. Blocking software is a common description of computer programmes that filter information that the computer receives from the Internet.

Some of the best known programmes are Cybersitter, NetNanny, SurfWatch and CyberPatrol. They can filter information in different ways, these are some of them:

Blacklisting: The programme has a database of inappropriate sites, Usenet groups etc. that the user may not take part of. If the user try to reach the information the programme says something like "This site is filtered by CyberPatrol." and interrupts the transfer.

Whitelisting: The technique is quite like blacklisting, but works the other way around. The database contains information about which sites that the user may go to, and blacklists all other. Another whitelisting technique is to only allow rated (for example with PICS or RSACi) pages to be downloaded.

Reacting on ‘hot words?/b>: Words or combinations of words are filtered. The programme Cybersitter reacts on "gay rights", "safe sex" and "homosexual" among others.

But blocking software, like all other software, can be disabled. This might be a problem for computer illiterate parents. As they wouldn’t notice if their kids turned the programme off.

"’I charge $5 a pop to disable blocking software,?he said. Rather than working at the mall for pocket money like other high school students, it seems, Librator goes to the houses of kids whose parents have turned to blocking software for help in the fight against Net porn, and strikes blows against censorship."

[...]

"Librator says this is all a snap. He’s known how to do it for several years. When parents see a phobic TV show or read some story on Net seduction, and rush out to buy or activate online blocking software, teenagers call Librator - and business booms. He’s there within days. It’s never taken him more than two minutes to do the job, he says, ‘and I swear, I’m not bragging.?

5.2.2 Labelling

Labelling means that the author of a page or a third-party attach information about the information on the page. So when the Internet software is about to get a web page it first gets some bits about what’s coming. If the page contains sexually explicit, violent, extremist or racist material the programme can be made to block the transfer (see section 5.2.1). An author of a racist homepage may not want to label it racist or label it all, but a third party can develop a database with rated sites. Using a combination of third-party databases with blocking software should provide an effective way to avoid unwanted information.

There are two major labelling standards PICS (Platform for Internet Content Selection) and RSACi (Recreational Software Advisory Council on the Internet).

6 Conclusion

The debate over free speech on the Internet shows several things. The first and most important one is that effective censorship doesn’t work as long as governments respect human rights. Taking legal action against illegal material can be more or less difficult, depending on where the material is physically placed. If the data is on a domestic server there usually aren’t any problems. Use the appropriate laws to shut down the page. The problems arise when the information is in another country, as local freedom of expression laws apply and the country has its own standards when it comes to obscene, indecent, political, religious and under-ground material. Sometimes you can co-operate with the local authorities, sometimes you can’t. It depends on which countries that are involved and what’s being published. I believe that international co-operation and probably some kind of treaty will make it easier to enforce some laws in the future.

When it comes to certain issues, like child pornography and terrorism, co-operation is already a reality. I find it highly unlikely that different nations find a common platform when it comes to indecency and obscenity, though, as cultural values and democratic traditions are far too diverse to for such a solution. But the $10,000 question, from a Swedish point of view, is "What happens when the European Union integrates even more?". It’s impossible to say. But the idea of politicians from 15-25 nations coming up with common laws in this area seems very unrealistic, I would even say impossible. Therefore I think that Sweden will, with its liberal tradition in this area, stipulate laws that protect free speech on the Internet, which is a good thing.

The overall best technological way to stop unwanted data is using blocking software (installed on the local computer) and labelling. It’s also the most democratic alternative. The individual decides what he doesn’t want to see, not the politicians. Even though the technologies are far from perfect today they’ll improve and be even more useful in the future. This way human rights are protected too.

The best solution is to supervise kids and youngsters surfing the Internet. Guide them to appropriate places, explain things that they find frightening or don’t understand, learn them that adverts don’t tell the whole truth and so on. This solution isn’t an easy way out for parents, teachers and other adults taking care of children, but without a doubt the best one.

Being a publisher of an e-zine myself and having used the Internet for over a year now I’m profoundly anti-censorship. Some speech must be regulated by law, and maybe even forbidden, but regulations and laws don’t equal censorship. I firmly believe that if governmental censorship would be introduced today it would be the single greatest threat to democracy. Because it creates a society of fear instead of freedom and a society of silence instead of discussion and therefore it kills democracy. We don’t and shouldn’t protect everything with our freedom of expression laws but we don’t and shouldn’t use censorship either.

List of references

Cailliau, Robert (1995), A Little History of the World Wide Web. World Wide Web Consortium.

Crofts, Maria, "Inf?r censur p?internet!" in Aftonbladet April 8th 1997.

Ekman, Kerstin (1994), R?tten att h?da. Svenska Rushdiekommittén.

Gaffin, Adam (1996), EFF's Guide to the Internet, v. 3.20. Electronic Frontier Foundation.

Haselton, Bennett (1997), CYBERsitter: Where do we not want you to go today?. Peacefire.

How Americans use the news and what they think about it (1997). Roper Center for Public Opinion Research.

Illegal and harmful content on the Internet (1996). European Commission.

Katz, Jon, "Liberator, Geek Warrior" in The Netizen April 9-10th 1997.

Leiner, Barry M. (1997), A Brief History of the Internet, version 3.1.Internet Society.

Mediekommittén (1997), Grundlagsskydd f?r nya medier (SOU 1997:49). SOU.

Olsson, Anders R (1992), Yttrandefrihet & tryckfrihet. Tidens f?rlag/Svenska Journalistf?rbundet.

Paulger, Gregory (1996). Green paper on the protection of minors and human dignity in audiovisual and information services. European Commission Directorate-General X.

Om v?ra r?ttigheter II (1983). R?ttsfonden.

Silencing The Net: The Threat to Freedom of Expression On-line (1996). Human Rights Watch.

Sveriges grundlagar : 1989. Riksdagen.

Sveriges grundlagar : 1994. Riksdagen.

WWW-servers

Aftonbladet - http://www.aftonbladet.se/

American Civil Liberties Union - http://www.aclu.org/

Electronic Frontier Foundation - http://www.eff.org/

Europa - europa.eu.int

Human Rights Watch - http://www.hrw.org/

Information Rosenbad - http://www.regeringen.se/

Internet Society - info.isoc.org/index.html

Netizen - http://www.netizen.com/

Peacefire - http://www.peacefire.org/

Recreational Software Advisory Council - http://www.rsac.org/

World Wide Web Consortium - http://www.w3.org/