on the Internet and the First Amendment
Before the Senate Judiciary Committee,
Subcommittee on Terrorism, Intelligence and Government Information
May 11, 1995
The issue is troublesome because we are forced to balance a desire to avoid terrible and personal harm against abstract and nebulous concepts. This is never an easy task and certainly not made easier by arising in the immediate wake of the worst domestic terrorism incident in the history of the United States. I believe, however, that our obligation to remain true to the basic values that characterize our system of government and make it unique among the world's democracies should not be weakened by the horrors of the moment. Any effort now undertaken to deal with domestic terrorism, whether directed at the means by which information useful to terrorists is spread or expanded wiretap authority when there is no showing that existing procedures have been found inadequate, is no doubt well-intentioned. Laudatory intentions, however, are not enough to justify restrictive legislation. Mr. Justice Brandeis, in his famous dissent in Olmstead v. United States, 277 U.S. 438 (1928) warned that "experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest threats to liberty lurk in insidious encroachment by mean of zeal, well-meaning but without understanding."
The members of the committee have no doubt given much thought to these questions. I am not sure I can add much to their own deliberative processes. What I bring to the Committee is over 30 years as a lawyer, over 20 as an academic, over 10 years as a federal prosecutor, and the commitment of a professional lifetime to the values and strengths of our form of government. It is perhaps for that reason, that even while working on The Progressive Case as United States Attorney for the Western District of Wisconsin, I was probably the least enthusiastic about the case among the team of federal attorneys working on it. As you know, the Progressive case was the effort by the government to enjoin publication of a magazine article describing how an H-bomb was constructed. Even my limited enthusiasm waned considerably once the case took the turn of attempting to enjoin the publication of information gathered from the public domain. While the battle in that regard was won, insofar as the courts upheld the injunction, the war was lost once another journal published the same information, mooting the case, as result, I believe, that was inevitable.
The Internet is a method of communicating information, quickly, to many people and for great distances. Such communication may be in the form of a message from one person to others, distribution of information available on a public posting, or a combination of the two. What distinguishes an Internet communication from the mail, the telephone, or the voice for that matter, is the speed and breadth with which information is disseminated. In the end, however, it is just another method of communicating, and when the issue of regulating it arises, this cannot be overlooked.
Members of the Committee staff have made me aware of some of the information which has been communicated on the Internet, information which might be of great use to terrorists and others whose mission in life is the unlawful destruction of property and the taking of lives. Such information is also available to minors capable of Internet use. While no sensible person can derive satisfaction from these bare facts, I do not believe that the answer is injunctive relief against the dissemination of such information, for several reasons. First, information is neutral in terms of what is to be done with it. Information on explosives, sent via the Internet, could be used by a company seeking a demolition contract in preparing specifications for a job offer. If time is of the essence the Internet is a more convenient form of communication than the fax since an e-mail can be down-loaded and placed directly into the specifications. On the other hand, such information can sent for purposes of implementing a terrorist scheme resulting not in the lawful demolition of a deserted building as the first step in the construction of a new one, but in the unlawful destruction of an occupied building resulting the large loss of lives. This suggests that any legislative effort focusing on the Internet should focus on the intent of those making the communication.
Second, the Internet is one of several methods of communication available to someone wishing to convey information. The telephone, the fax, the postal system, an overnight express service, a short-wave radio, travel and personal contact are all alternate methods of communicating. If we are concerned with a particular item being communicated, in addition to the purpose of the communication, we ought to focus on what it is that is being communicated, rather than the form of communication.
Third, the information on explosives that is transmitted via the Internet exists prior to electronic transmission; it has a life separate from the method used to communicate it. That life may be in any number of forms including a training manual for construction workers, a text-book for civil or mining engineers, and a general explanatory text on explosives in an encyclopedia. Attached to this statement is a copy of pages 275-282 of Volume 21 of the 1986 Encyclopedia Britannica. It reveals great detail on explosive manufacture, similar in many respects to the information disseminated electronically of concern to the Committee and others, including, on page 279, a description of the Ammonium Nitrate/Fuel Oil mixture used in the Oklahoma City bombing. Also attached is a list of books containing similar information to the kind transmitted electronically. The books on this list were obtained from the Engineering and Agriculture libraries at the University of Wisconsin in the one day between the invitation to appear before this Committee and the preparation of this statement and are generally available. Among these books is a "Blasters Handbook" published by the Department of Agriculture Forestry Service which in turn includes a description of the Ammonium Nitrate/Fuel Oil explosive used in Oklahoma City along with the recommended mixture of the two chemicals. The widespread availability of information whose electronic transmission is to be enjoined argues conclusively, in my opinion, against such extraordinary exercise of government power.
Finally, children do not have access willy-nilly to information on the Internet, certainly not more so than to comparable information available elsewhere in libraries and encyclopedias. A child either savvy in the use of a public library or just smart enough to ask a librarian for help can easily find the same kind of information available on the Internet; indeed, such information is available to the public as a whole without the need for any capital investment or technological skill. Children who can obtain access to terrorist manuals on the Internet presumably live in homes where computers and modems are in use; if parents are concerned their children will obtain information they can use for the wrong purposes, they can take steps to insure that their children do not do so. Despite the distressing number of accidents involving children and firearms, in all the discussion on regulation of firearms, no one has yet proposed that people with children in the house be prohibited from owning guns.
The thrust of these observations is that if Congress proposes to deal with the use of the Internet for illegal purposes, it should do so in the same manner it has dealt with the use of other federal instrumentalities and facilities of interstate commerce used for illegal purposes. For example, it is a crime
(1) to use the mails in furtherance of a scheme to defraud (18 U.S.C. sec. 1341),
(2) to use wire facilities in furtherance of a scheme to defraud (18 U.S.C. sec. 1343),
(3) to transport an explosive in interstate commerce with intent to unlawfully damage a building (18 U.S.C. sec. 844)
(4) to travel in interstate commerce or use any facility in interstate commerce with intent to facilitate designated illegal activity (18 U.S.C. sec. 1952)
(5) to transmit in interstate commerce any threat to injure another (18 U.S.C. sec. 875)
These are just five examples of a legion available in Title 18 of the United States Code reflecting the Congressional use of its jurisdiction over interstate facilities to deal with criminality involving the use of such facilities.
With these existing statutes as a guide, upon a showing of need and the absence of applicable legislation, Congress could consider a law making illegal the dissemination of information via an electronic media by a person who has knowledge that the dissemination of such information is in furtherance of designated criminal activity. Such a law would be far more effective than an effort to obtain a prior restraint on the dissemination of information. This is so for several reasons.
First, it would permit the arrest of the person seeking to disseminate such information, thereby assuring not just that the Internet will not be used for the prohibited purpose but any method of communication since the person himself or herself will not be able to utilize alternate methods of communication from jail.
Second, criminalization and arrest are superior to a prior restraint in that they are more effective. It is difficult to envisage a type of person who is prepared to use the Internet to further illegal activity compliantly stopping once served with a court order directing that there be no communication. When engaged in conduct involving serious criminal penalties, the threat of a contempt of court citation is not exactly bone-chilling.
Third, by focusing on the purpose of the person using the Internet, the risk of needless government interference with legitimate activities is significantly minimized. Such government interference is not to be undertaken lightly. Mr. Justice Hughes in Near v. Minnesota, 283 U.S. 697, 716 (1931) made it explicit: "any system of prior restraint comes to the Court bearing a heavy presumption against its constitutional validity." Even governmental assertions of damage to national security during the Vietnam War did not overcome that presumption. New York Times v. United States, 403 U.S. 713 (1971) ("Pentagon Papers case"). It would appear far wiser for Congress to focus on illegally motivated conduct rather than the technology used to communicate information.
There have been very few prior restraints in our history precisely because of the directives of the First Amendment. While technological changes create challenges to a society operating under the First Amendment, they also give power to the government vastly beyond anything the framers of the Amendment could have imagined when it was drafted. This underscores the importance of the First Amendment and the ongoing need to pay heed to its constraints.