My response to Steinberg's letter and speech


Thank you for your response on March 13 to my letter of February 27, concerning the subject of CMU's policy toward certain Internet newsgroups. Since you took the time to answer me personally, I would like to respond to some of the points you made, and to continue our dialog on this issue. I welcome any further comments you may have. While I suspect that we will not, in the end, change each other's view of the situation, I would like to explode whether we can come to an understanding of each other and perhaps even a compromise.

Let me start with your letter to me, and then move on the talk that you gave at Duke Law School which you so graciously included for my perusal. Finally, I will summarize with what I believe the larger, real issues here are, which have less to do with the details of either the law or our conversation, and more to do with CMU's attitudes and the effects it might have on the rest of the world. I apologize for the length of these remarks, but these are subtle and numerous issues, deserving of careful analysis.

COMMENTS ON YOUR LETTER

Did CMU go far enough in attempting to deny access?

You comment that CMU's decision to stop mounting certain newsgroups in no way interferes with the ability of members of the CMU community to access those newsgroups from elsewhere in the campus. As someone who has participated in the design of various Internet network protocols for at least the last 15 years, I can assure you that I already know this. However, I find your comment to be, at best, disingenuous, as follows.

If CMU stopped mounting these newsgroups because it felt it had a legal obligation to prevent minors from reading or viewing the material, then it did not go far enough. Due diligence in this regard means that CMU must prevent, to the best of its ability, access of this material. Since obviously even the administration knows that it is not, in fact, preventing such access (and has said so publically, such as in your address to Duke), it is deliberately violating the law---assuming, as you seem to, that there is law here and that CMU is in a position to violate it in the first place (an assumption that I will get back to later).

An argument that "CMU cannot prevent access to the materials from off-campus points" would probably raise some eyebrows legally. It can clearly cut them off completely, by dropping from the net. As a less draconian measure, it could program its IP routers to drop any packets carrying traffic on the well-known-ports for netnews service, unless that traffic was going to one of a small set of those servers which refused the questionable material. This would make it much more difficult (though still not impossible) for the CMU community to access such material; access would then require either telnetting out to read news on exterior sites (unavailable to most members of CMU), specially-configured news servers that kept switching ports to avoid router reprogramming, encrypted news links, or news-to-mail gateways.

Clearly, the problem here is not that CMU cannot deny access, nor that couldn't make it much more difficult. Instead, those responsible for this policy are trying to have their cake and eat it too, by claiming, "We aren't stopping anyone from seeing anything" while also claiming "We aren't carrying content that would be legally troublesome."

Consider the difference between common carriers and publishers. A common carrier is not responsible for content carried, because it does not originate the content and cannot monitor it. A publisher is responsible for content, because it does originate the content and decides what to publish. CMU's current stance appears to be an attempt to be both a common carrier and a publisher at the same time, a position of dubious legal merit and one which has historically been difficult to maintain. (A more recent example concerns the problems certain non-Internet online service providers have experienced in trying to claim to be both at once.)

Resources to increase understanding of the issues

You say, on page 5 of your address to Duke, that you have "no legal expertise" on these issues. Given that, and given your other comments, it seems that you may be unclear on the status, history, and legality of the definitions of common carriage and publishing. So as to further inform your thoughts on these issues, I strongly recommend that you read an introductory work such as Pool's Technologies of Freedom (MIT Press, 1983---hardly a recent work in the field and a well-respected and -cited work amongst those who discuss telecommunications policy). This seems particularly important since you claim to be discussing a matter of law---yet claim not to understand it! (Note that I will refer to Pool's book elsewhere in the text below to document certain claims.)

CMU's other options

CMU has an abundance of other positions available:

Counsel and misinformation

I got my information about CMU's consultation with counsel, or lack thereof, from the ACLU's letter to CMU that is available publically on the World Wide Web. Perhaps the ACLU is confused about the case, but, being lawyers, they are known for diligence and attention to detail. Why do you suppose the ACLU might be confused about this, and why has CMU not attempted to set the record straight with them on it?

Indeed, most of my information on this entire controversy was obtained from sources on the Web, which are infinitely updatable with current information. It is trivial to correct misapprehensions on the Web, by changing the document available, so your comment about CMU's inability to retrieve or counteract misinformation on the wire services is irrelevant here. If you feel that the ACLU has misepresented your position, I invite you to use what the First Amendment makes abundantly clear is your right, namely more speech (published on that very Web server if you so desire) which presents your side of the issue for all to see.

COMMENTS ON YOUR ADDRESS TO DUKE LAW SCHOOL

Common-carriage vs publishing vs "knowing"

You start your address by falling directly into the common-carrier/publisher quagmire I've spoken about above. You assert that you have somehow complied with (vague and possibly nonexistent or inapplicable) law by taking an action that does not actually affect access to questionable materials. How is this action compliance with the law? In what way can you credibly claim to have done anything to help the situation?

You then argue that CMU, as a result of the impending publication of a scholarly work, that CMU would become "knowing" under Pennsylvania law. I find it difficult to conceive that the administration was otherwise unaware of the content of the networks that it maintains. Even if the administration was so out-of-touch with the realities of the wold (for at least the last 15 years), it could hardly claim that its computer science faculty, for instance, were unaware. Many of those faculty, staff, and students built the network.

Distinctions: sexual content vs pornography, print vs images

You then go on, all through the paper, to confuse "sexually explicit" content with pornography, a term with a much more rigorous legal definition and one which encompasses almost no material published anywhere, at any time, in any medium. Whether one uses the Miller criterion or the more-stringent, older Supreme Court criterion , merely being "sexual explicit" doesn't cut it.

You also make a peculiar delineation between print and images, both in your comments and in the behavior of the administration, which originally attempted to dismount everything in alt.sex.* (clearly demonstrating a lack of knowledge of, e.g., alt.sex.safe-sex---yet CMU claims it could be found "knowing"?), and then reversing that decision and restoring the text-only newsgroups. The Supreme Court has historically protected both images and text, considering both to be "speech" (where would political cartooning be otherwise?). If the bits on the Internet are legally considered "speech" (a matter of some controversy), then presumably both text and images (not to mention, e.g., audio samples) must be protected similarly. On the other hand, if some future decision denies the protection of "speech" to the net, then both the images and the text must go. (Of course, since laws are rarely retroactive, one might also argue that CMU would not be liable for such a violation until the law clearly applies, which it does not yet.)

You make a big deal, on page 4, of establishing your credentials as a "card-carrying member of the ACLU" and of violating the law in smuggling home copies of banned books. It is unclear to me what you intend to accomplish here, except an emotional appeal to say, "See, I'm for civil liberties, too." In truth, your stance on these issues is irrelevant---what matters is CMU's actions as an organization.

You argue, on page 5, that we all live on a slippery slope, but fail to understand that this sentiment cuts both ways. I made the point in my previous letter that one "slippery slope" is that of "common practice" and precedent---how CMU and others behave on the Internet. The "slippery slope" that you fail to see is the possibility that others will follow CMU's example, in the lack of a clear legal reason to do so. That certainly would deprive others on the net of access to the questionable materials, completely without any actual challenge to their legality. This would accomplish an extralegal ban on the materials---can you really state that CMU would be a willing party to this?

You then fall into another rat-hole on page 6 of your remarks, when you talk of the Clitoral Hoods. You seem to assume that somehow the impression of a couple of random undergraduates about the difference between text and images matters more than the opinion of those who are legally trained in such matters (the "First-Amendment lawyers" you refer to at the top of the page). It seems that you are grasping at any straw you can find in attempting to support an arbitrary division between the two media.

Far worse, however, you have failed to grasp the distinction between public and non-public space. A poster on the wall at CMU can be considered essentially in a public space. (Some might argue that CMU, as a private institution, has no truly "public" space---but as far as a member of the CMU community is concerned, it seems fairly clear that a corridor wall is "public".) However, a message to a newsgroup is not public in that sense, any more than a book on a shelf is "public". The fact that anyone can read it (should they be motivated to look it up and request it) does not mean the same as display in a public space, where one can argue that one must actively avoid the material. "Private", meaning "restricted to a small number of authorized personnel", is not the opposite of "public" in this sense---a world-readable newsgroup is still not a "public space" in that it requires effort to see it, rather than effort to avoid it.

[By the way, in your rather irrelevant comments about the Clitoral Hoods, have you considered asking them who they are? They make available a rather large amount of information about themselves on the Web. For example, it would have been trivial for you to have discovered that they were founded by several female graduate students. If it matters to you that you don't know who they are (and it must, since you bring it up in your talk), then perhaps you should take the effort to find out---it's no secret.]

It is at the bottom of page 7, however, that you make one of the most appalling implications I have ever seen in discussion of civil liberties. This particular statement has nothing to do with how well or poorly you grasp either the law or the circumstances of the situation, and everything to do with "expediency" and lack of a principled stand on the issues.

What is this implication? You imply that it must be okay for the CMU administration to take the stand that it does because "it is not a burning issue for large numbers of people." Your logic here is highly questionable. Either CMU must take these actions, because the material is illegal (hence it would not matter how many people complained), or it could stand up for an ethical principle of free access to information (in which case abrogating that principle because you didn't get more than an arbitrary percentage of CMU at a rally would be the height of hypocrisy). In neither case is it relevant how many people are complaining. The only case in which it does seem relevant is one in which CMU is attepting to be actively hypocritical, taking whatever action is most expedient and gives it the least grief. This is popularly known as "covering your ass" and is apparently quite popular with bureaucrats and administrators in general. It is much less popular among scientists and those concerned with democratic discourse.

Let me give you an analogy. It is a rather inflammatory and biased analogy, and is not meant to accurately describe the current situation, but it makes the point. Suppose that you were a high official in a dictatorial country, one which imprisioned dissidents. You might have second thoughts about your policies in some areas. However, you could quite right say that "few complain, so it must not be a burning issue for very many." Would you be right to therefore conclude that your policies must be perfectly acceptable to the vast majority of the people?

Of course, if expediency and lack of complaint is your metric, how much weight do you put in the fact that people outside of CMU are also complaining? The fact that you took the time to answer my first letter clearly shows that you are paying attention; how many people like myself outside of CMU must complain before it is clear that it is not expedient any more?

You spend a page, starting at the bottom of page 8, talking about how it is your right (and everyone's right) to judge. But you fail to grasp the distinction between the colloquial use of "judge" and its more prescriptive form. You have a perfect right to "judge" whether material offends you, or even to guess whether it offends others. You also have a perfect right to use speech to make your judgments known, and perhaps to persuade others. Where you do not have a right to judge, however, is in the domain of action. Because you and others in the administration have the power to force others to do what you tell them to do, and because you have exercised this power, your judgment takes an action that deprives others of speech, if indeed anything on the net is speech at all. That is what people are complaining about when they cry, "But who are you to judge?". To fail to understand the difference between speech and action is to fail to understand the entire argument. Are you being deliberately disingenuous, or has this distinction escaped you?

You then spend an amazing three pages (9-12) talking about town/gown conflicts, Oxford history, and your funding sources. The apparent point of this entire section is to demonstrate that CMU will prostrate itself to anyone who gives it money, and will abandon any sort of principled stand on any issue if it offends the sponsors. (You take care to point out that student protestors in the Sixties angered your military sponsors [as if CMU had much of a choice about the issue], but why bring up the whole digression if you are not making the point that your "accomodation" extends to placating the sponsors on non-research-related issues.)

You have, in short, stated that CMU is engaged in prostitution, not academic freedom and integrity, by letting those who fund you for particular purposes to also dictate your behavior in issues that have nothing to do with the research which they are funding. It is one thing to do the research that you are funded for; it is quite another to allow your funding sources to constrain the other aspects of your behavior. MIT faculty are often encouraged to take stands that make our sponsors unhappy; for example, Noam Chomsky has not made a lot of friends in the military/industrial complex, the media, or many other places. But I have never heard anyone in authority at MIT claim that he must be restrained lest our sponsors become unhappy with us.

This particularly egregious section actually lends a tremendous amount of support to my initial letter to you, in which I stated my unhappiness with an institution that did not appear to value academic freedom. You have proved my point.

You conclude your essay by quoting Freud. While it makes for a nice finish, basing an argument on quotes is hardly convincing. I could just as easily bring up, for example, "The price of liberty is eternal vigilance" or "It is seldom that liberty of any kind is lost all at once" [Hume] or "Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them" [Frederick Douglass]. So what? One can find a quote to support any position. What matters is action.

In summary, your rhetoric appears illogical. It conflates several issues, make digressions into irrelvant subjects, admits that its author does not understand the law but feels competent to take actions based on what the law says.


Lenny Foner
Last modified: Thu May 18 06:50:01 1995