Power dynamics, cyberspace, and civil liberties: Issues

• Limits to expression
  • How free is expression on the net right now?

    By almost any metric, speech on the Internet is probably as free as speech has ever been. In the United States, print is in a less tenous and better-protected legal situation, primarily because of the First Amendment to the US Constitution. On the other hand, being a worldwide publisher in print is time-consuming and expensive; using the The World-Wide Web, it is relatively trivial.

  • Should there be a change in the status quo?

    Most of the current population of the Internet is a fairly technically literate, mostly libertarian group. Such a group is, for the most part, not in favor of any restrictions on speech in general, and on the Internet in particular. However, there are many forces pushing in the other direction from outside of the Internet proper; for example, the Exon bill is an attempt to regulate speech on the Internet as if it were a broadcasting model, while the National Security Agency and the Commerce Department have tried hard to limit the spread of technical cryptographic knowledge via export restrictions.

  • Some short-term predictions

    While making predictions is difficult, recent trends in the visibility of the Internet (from practially zero to thousands of articles a year in the popular press, for example) and its demographics (two million subscribers from AOL, another two million from CompuServe, etc) make me feel like an American Indian standing on the shores watching the Europeans arrive---and I know how that story turns out. (The analogy may be closer than it appears---for example, the Indians by and large did not even believe that land could be owned, any more than many of the most libertarian on the net believe that speech can be controlled; see, for example, John Gilmore's quote that "The Internet treats censorship as damage and routes around it".

  • International concerns & cultural differences

    Something that Americans can find easy to forget is that the global nature of the Internet forces political and ethical collisions that are not usually seen by everyday citizens who are not in international positions of power.

    Let us take just one example: the issue of pornography. (CMU has recently dipped its feet into this controversy, for example.) In the United States, child pornography is apparently the most venal representation and the most stiffly prosecuted (sometimes, perhaps by possible entrapment, as in the case of the Thomases)---for an excellent analysis of this issue see the paper written Jolyon Silversmith for a Harvard Constitutional Law course. (Pat Califia has also written extensively about porn and child porn, pointing out that parts of the Federal Government, such as the FBI, seem to be by far the most prolific producer of this otherwise hard-to-obtain material, for use in entrapments.)

    On the other hand, in Japan, images deemed pornographic and illegal are those depicting public hair. Children are fair game, and are indeed preferred both for cultural reasons and because they lack public hair and are thus presentable without image editing.

    Clearly, both cultures are in for a major clash if their images cross international borders. And yet, the Internet makes that inevitable. What now?

• Limits to privacy
  • What is privacy?

    The issue of privacy means different things in different contents. To briefly summarize some of these issues, we have

    • Confidentiality, as made possible via encrypting links such as PGP
    • Anonymity, as made possible by disgusing the identity of a sender, such as by use of a Cypherpunk remailer
    • Transactional privacy, relating to transactions which do not reveal the content of communications per se, but instead traffic analysis of where communcations are going. Financial records (e.g,. credit-card receipts) are examples of transactional systems, as are, for example, pen registers (which record dialed phone numbers in a telephone switch) or pager records (recently declared non-transactional systems, because they can contain more than phone numbers themselves and hence come under the protection of The Electronic Communications Privacy Act [ECPA]).

    Of course, there are some who argue that the important issue is not privacy, but accountability. One such as David Brin, a science fiction author---who has a book in progress discussing this point, and who stands out because most SF authors are more libertarian. (He buttonholed a number of people as CFP '95 about this issue, for example.) Such arguments generally talk about confidentiality, rather than transactional privacy, because of the assumed enormous advantage given to corporations in control of the large amount of transactional data available.

  • What's the status of privacy as it relates to the Internet? With the advent of packages such as PGP, communications privacy is relatively easy to establish as long as one does not cross national borders. Hence, the major impediments to this sort of privacy concern its unsuitability for international communications (because of US export controls and those of other countries) and its lack of widespread, routine deployment (e.g., as part of the communications infrastructure, instead of just being used by those paranoid enough to go to the trouble). In this respect, those who wish that people did not have such a large amount of communications privacy have already lost.

    Transactional privacy is another matter. Every new technology on the Internet brings with it ways to use transactional information that users may wish to conceal; the latest trend is in analyzing user's clickstreams when using the The World-Wide Web to determine which pages are most interesting---invariably a commercial concern.

    In addition, there are many who wish to decrease the available communications privacy; as in the case of free expression above, most such pressures come from outside the Internet proper, such as US government cryptographic policies or recent bills, including Oklahoma's attempt to attempt to limit email privacy in the name of sunshine laws (and before the famous bombing).

Note that, in this analysis, I am mostly ignoring (with some exceptions) two major issues:

• Intellectual property, such as those associated with copyright and patent protection (although you should check out a novel approach taken by Mitch Kapor et al), and
• Nonsymmetric communications, in which users upstream and downstream bandwidths may differ markedly; such systems may become the norm if the Internet because a large-scale user of systems originally designed for cable TV, for example,