Comments about this article should be sent to mttlr@umich.edu.
{2} At the same time, outspoken free speech advocates vigorously assert an absolutist position of non-regulation, in what appears to be an unrelenting struggle for every inch of unregulated information infrastructure territory.[3] This information infrastructure is a communicative device of such broad scope and accessibility that it is of paramount importance to free speech absolutists, who characterize it as a tool for democratizing speech on a global basis and insist that it remain insulated from any regulatory mandates
{3} Activists at both ends of the spectrum disregard an integral aspect of the global composition of the Net. Those who advocate unfettered Net communication and those who espouse some form of national Net regulation are similarly constrained in the pursuit of their objectives by the very structure of the information infrastructure. It is the global aspect of the information infrastructure that shapes the debate on freedom of speech and limits absolutists and regulators at the same time.
{4} The nature of this conflict and its potential
resolution will be outlined in this Article.[4]
Therefore, assuming that national policy makers will not want to cede their
authority to regulate the information infrastructure, we will suggest a
mechanism by which those who elect to regulate speech can begin to deliberate
about this objective in a structured, principled, and internationally acceptable
manner.
{5} The international nature of the information
infrastructure places substantial constraints upon both the free speech
absolutists and those who would regulate speech.
{6} Advocates of an unobstructed flow of speech conceive of the Net as (1) an anarchic communicative medium that is an inappropriate area for governmental regulatory intrusion, and (2) a medium capable of advancing freedom on a global scale by razing barriers to accessing information, even in closed societies.[5] In the United States, these free speech advocates rely on the words of the First Amendment, which is framed in absolute terms, and on the Supreme Court, which has occasionally endorsed an absolutist interpretation of the Amendment's dictates.[6]
{7} But speech is not -- and never has been -- inviolate, neither in the United States nor in any other country. In fact, restrictions abound.
{8} Communicative acts on the Net are within national
speech restrictions, as the Net is not extraterritorial and its users are
not otherwise exempted from existing national speech regulations. In fact,
many nations have begun the process of constricting the content of speech
on the Net. The following discussion samples the regulatory rules currently
in force around the world.
{9} Libel. Most nations deal severely with speech that denigrates another's reputation. Many national libel laws apply directly to Net communication.[7]
{10} Pornography. In England, the Obscene Publications Act defines "obscene" as material that "tends to deprave and corrupt persons," making such material subject to regulation. Penthouse magazine's World Wide Web site lists 25 countries that outlaw its so-called "adult material," among which are Egypt, India, Japan, Korea, Mexico, Saudi Arabia, Spain and the United Kingdom.[8] The government of Singapore has recently implemented a licensing scheme for all local Internet operators and content providers that is designed to constrain all forms of sexual excesses in cyberspace.[9] And discussions of sex -- as well as religion and politics -- are banned in Saudi Arabia and Iran.[10]
{11} In Germany, a group of laws designed to protect children was enforced recently in a now-infamous case involving CompuServe. In November 1995, a Bavarian State Attorney ordered a search of the Munich office of CompuServe for evidence of a breach of German child pornography laws, and material was seized by police. The prosecutor pressed CompuServe to prevent all users from accessing through its Internet gateway certain Unsenet newsgroups allegedly disseminating child pornography. In December, CompuServe complied and prevented its users from accessing 200 sites, including all those prefixed with "alt.sex." CompuServe later lifted this ban in the wake of substantial world wide protest.[11] By then, CompuServe had developed a software solution to block certain Internet information resources.
{12} Subversive Information. Computer equipment of anarchist
groups that advocate anti-government violence through utilization of online
sources has been seized by the governments of Italy, England, and Scotland.
Vietnam, concerned that increasing links with noncommunist nations could
undermine the ruling regime, is seeking to control Internet access on the
country's two independent computer networks.[12]
{13} Hate Speech. As might be anticipated, the most virulent
laws criminalizing hate speech are found in those countries scarred by
the Holocaust. In Germany, a number of provisions of the criminal code
are directed at expression that is inconsistent with the "dignity of the
human personality developing freely within the social community,"[13]
the fundamental right preserved in the German Constitution.[14]
For example, Section 130 of the Criminal Code condemns attacks on human
dignity that incite hatred. Section 131 of that same Code proscribes the
production or dissemination of hate speech in written form.[15]
Section 194 permits prosecution for the denial of the existence of the
Holocaust where the disavowal is stated to a person who is a member of
a group persecuted by the Nazi regime. Section 86 forbids the distribution
of propaganda that promotes (1) the precepts of the Nazi regime, (2) unconstitutional
parties, or (3) prohibited associations. And Section 86a censures the use
of insignia--including flags, uniforms, badges and salutes--of these same
proscribed organizations.[16]
{14} The means of enforcing these laws outlawing hate speech and Nazi propaganda are currently the subject of vigorous debate in Germany. German prosecutors in Mannheim are investigating CompuServe, the T-Online network of Deutsche Telekom, and America Online for aiding the Internet distribution of neo-Nazi material that questions whether the Holocaust occurred.[17]
{15} In Austria, the Austrian Prohibition Act similarly prohibits actions on behalf of the Nazi Party, as well as advocacy of its objectives or dissemination of its propaganda. Targeting groups of persons for ignominy or advocating their genocide is likewise forbidden.[18] A special investigation of the Austrian Police into terrorist activities has focused in recent months on the Internet and a Nazi computer network information exchange, known as Thule-Net.[19]
{16} In Canada, separate provisions of the Criminal Code criminalize the willful promotion of hatred[20] and the communication of telephone messages likely to expose people to hatred or contempt because of, among other things, their race, national or ethnic origin, color, or religion.[21]
{17} Privacy Protection. Recently, the European Union decided
to regulate the flow of information about individuals, ostensibly to prevent
corporate intrusion upon individual privacy. The member nations have agreed
to obstruct the export of personal data to nations that do not establish
"adequate" privacy protection.[22]
{18} These are just a few examples of the many national regulations of Net speech in place throughout the world. Even liberal and democratic Western countries seem to consistently restrict freedom of expression. The Net is not an anarchic, unregulated dominion above and beyond individual state control, but rather a terrain policed by varied, numerous, and often contradictory national laws that create a variety of regulatory fiefdoms. Yet, the internationality of the Net, as well as the conglomeration of national regulations and their effects on the flow of information on the Net, invariably shapes all communicative activity on it as a whole. Thus, the international aspect of the Net does not remove discussions on the Net from national regulations, but instead subjects them to panoply of varying and contradictory regulations that breed uncertainty. The consequence is that speech, subjected to a patchwork of constraints, might be restricted more than is intended or necessary.[23] In this respect, the global dimension of the Net could develop into more of a liability than a speech-protecting asset, for this state of affairs generates subtle silencing and chilling of speech, rather than clear-cut regulations.
{19} Speech is, of course, also regulated in the United States. The United States Supreme Court has identified varieties of vulnerable expression, or "low value speech," -- forms of expression that "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[24] Low value speech includes intentional incitement,[25] obscenity,[26] child pornography,[27] defamation,[28] fighting words,[29] and commercial speech.[30] The Court has enunciated a series of quite different standards for each of these varieties of speech to determine, first, whether a particular communication is protected or falls into a vulnerable category; and second, if vulnerable, whether any First Amendment protection is merited.
{20} Obscenity and Related Areas. Obscenity, perhaps the quintessential example of valueless expression, is considered bereft of communicative value, and thus subject to broad controls. The Court's latest formulation for distinguishing obscenity from speech that is merely distasteful, rough, evocative, or erotic--and therefore protected to some extent-- requires a finding that the communication is patently offensive, appeals to prurient interests, and is bereft of serious scientific, artistic, literary, or political value.[31] Integral to these defining principles is the notion that individual communities retain the authority to set their own statutory standards for the definition of pornography, or communications that are "patently offensive" and appeal to "prurient interests."[32]
{21} However, traditional notions of "community" quickly become confounded in the context of a medium such as the Internet, the characteristics of which obliterate any notions of state or national boundaries. For example, a California couple was convicted in 1994 for dispatching over computer bulletin board materials found to be obscene when viewed in Memphis.[33] The materials at issue in this case were arguably obscene by any community standard.[34] But this case and others like it raise the question of whether using the Internet to transmit arguably obscene materials portends that the applicable community standards will be those espoused by the most priggish among us. [35]
{22} Another recent case demonstrates the power of the Internet to subject individuals to criminal prosecution.[36] A University of Michigan student, Baker, communicating with an unidentified person through e-mail, expressed an escalating sexual interest in violence against women and girls. Baker was charged under federal law with transmitting threats to injure or kidnap another, but the court granted his motion to quash the indictment on the grounds that these private e-mail communications did not constitute statutory threats.[37]
{23} Above and beyond existing judicial decisions and state laws, Congress has decided to criminalize Internet dissemination of not only obscene material, but all sexually explicit text or images. The Communications Decency Act of 1996 regulates the carriage and transmission of "indecent" materials on the Internet to persons under the age of eighteen. In this Act, designed to protect minors, Congress defines as indecent "any comment, request, suggestion, proposal, image or other communication that describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."[38]
{24} The Communications Decency Act has provoked
reaction both swift and strong. America Online threatened to terminate
its bulletin boards and chat rooms, opining that only through such severe
measures could AOL assure compliance with the Act.[39]
The Citizens Empowerment Coalition filed suit challenging the constitutionality
of the Act, as did the American Civil Liberties Union. Both groups alleged
that the Internet is a unique communications medium that merits unique
First Amendment protection at least as broad as that afforded to print
media. The challengers argued that parents are the best judges of material
that is appropriate for themselves and their children. A federal judge
granted a preliminary injunction against enforcement of the Act, and a
three-judge federal court agreed that the portions of the Act that attempt
to regulate non-obscene communications do not pass constitutional muster.[40]
The case is currently before the Supreme Court of the United States of
America and a decision should come down sometime in 1997.
{25} Subversive Advocacy. Intentional incitement, or subversive
advocacy, is a special case that illustrates the Court's approach to appraising
the validity of content-based regulations. The Court permits regulation
of expression that qualifies as incitement only if, as a consequence of
the utterance, there exists a genuine likelihood of imminent unlawful conduct,
and if the speaker intends this result.[41]Brandenburg
v. Ohio[42]
declares a general First Amendment tenet that advocacy of even the most
alarming notions is absolutely protected against direct criminal prohibition,
regardless of dangerousness and intent. Interdiction of ideas or perspectives
deemed intrinsically dangerous--and perhaps justifiably so--by government
is forbidden.
{26} As we have established, the Internet, even if global in scope, is not an absolutist free speech domain, but is instead subject to innumerable national restrictions. At the same time, the very structure of the Net substantially diminishes the chances for enforcement of national regulations.[43]
{27} National speech restrictions can be enforced directly only within the territory to which they apply.[44] But the Net is global, and so is the flow of information. People who disseminate information through the Net that is illegal in one country can easily transfer their operations to a country with no similar prohibitions and effectively reorganize their disseminating action in matters of hours.
{28} For the recipients of such information, redeployment is hardly noticeable in an environment dominated by the World Wide Web where information is accessed and retrieved by simply clicking on information links. Because distance from or location of information sources within the World Wide Web is irrelevant to the recipient, access to the relocated information sources is easy and straightforward.
{29} Already there exist numerous examples of exiled political groups taking advantage of information infrastructure networks located in countries with regulatory environments more sympathetic to their cause to widely disseminate political information to countries with more restrictive speech and information regulations. Chinese human rights activists use the World Wide Web to advocate for their cause,[45] and Tibetan women in exile castigate the Chinese government for its treatment of their sisters still in Tibet.[46] CAPA, an organization that supports Cubans fleeing their country and delivers accounts on their rescue and survival can be found on the Web, as well as solidarity pages for the Tupac Amaru hostage takers in Peru[47], while German Nazis use American and Canadian Web sites to discuss fascism and to issue denials of the Holocaust, a crime under the German Penal Code.[48]
{30} Information sources need not necessarily be redeployed for information to be disseminated across porous national borders. Other tools are available on the global Net to channel information in order to obscure its source and place of origin. Anonymous remailers allow electronic information to be stripped off all it identifying bits and sent without attribution to any recipient.[49] Together with widely available tools of public key encryption,[50] remailers allow worldwide electronic communication on a totally anonymous level, thus circumventing any national attempts at speech regulation.
{31} Continued information redeployment will eventually
shape and reshape the global information infrastructure. Nations with little
speech regulation or inefficient enforcement structures will attract vast
quantities of data and information illegal in other countries. The global
infrastructure will experience sustained economic pressures similar to
those experienced on the high seas by the "flags of convenience" phenomenon.
By redeploying their fleets under "flags of convenience," shipping companies
essentially forced countries to deregulate.[51]
A similar phenomenon could materialize on the Net. Some countries might
evolve into booming "data havens", while others might face a choice between
economic hardship and relinquishing their speech constraints, thus compromising
their national or civic values.
{32} In the world of a global information infrastructure, an escalating national de jure regulation of speech meets a similarly pervasive de facto futility of enforcement. Herein, indeed, lies a strange paradox: the international dimension of the information infrastructure both strengthens and weakens speech regulation and free speech protection simultaneously.
{33} Given this paradox, national legislatures might continue to enact regulations, but their regulatory endeavors are unlikely to be as effectively enforceable as they desire. To circumvent the limitations of national regulatory attempts, one might advocate for an international regulatory measure to restrict the content of Internet communications. In principle, of course, a global phenomenon like the Internet should propel nations to achieve international regulatory cooperation and partnership.
{34} Although national legislatures differ dramatically in the kind of content they prefer to regulate, any attempt to regulate the global information infrastructure must be acceptable to the vast majority of nations in order to become enforceable. Hence, any method or tool to devise a framework for an internationally acceptable and enforceable content-based speech restriction must conform to a rigorous set of requirements. Cognizant of the specific structural qualities of global information infrastructures, we posit several such essential requirements.[52]
{35} The Net is a global phenomenon, thus any feasible regulatory attempt should be based on an internationally acceptable, or already accepted, principle. While speech has never enjoyed--and will never enjoy--absolute protection, the principle of freedom of speech has become part of a minimum standard of freedoms among a majority of nations. Therefore, a method should be devised for defining certain categories of speech that will be subject to regulation, while at the same time staunchly protecting all speech not within these categories. Essentially, regulatory lines should be drawn circumspectly, so that only speech that is encompassed within certain specified and narrow confines can be regulated on the basis of its content. All speech outside these narrow boundaries should be assiduously sheltered from content-based regulation.
{36} Even more important, the method for selecting categories of speech subject to regulation should ensure results that will be accepted by the community of nations. The method should thus include a mechanism for reaching a broad international consensus. This consensus should be multinational in its reach, and hence avoid vulnerability to chauvinistic national interests or sentiments. Shifting attitudes in one nation should not alter the overall definitional landscape of what is offensive or outrageous.
{37} The mechanism should also be multi-cultural in scope, in order to circumvent any charges of cultural imperialism, and to stimulate cross-cultural exchanges of ideas. Moreover, this consensus, broad and inclusive in concept, should be behavioral in character. Nations should deem themselves bound by the dictates of this consensus, and should adhere their conduct to it. Only if such a consensus is already experienced throughout the world by the vast majority of nations, can we expect the world to accept it in the telecommunications domain as well.
{38} Creating a general principle and agreeing on it internationally will prove to be difficult, if not outright impossible. Thus, we suggest use of an already-existing international legal principle as a basis for a methodology on which to structure a regulatory mechanism.
{39} The international law concept of jus cogens
might provide such a potential basis for regulating speech content on the
Net. Jus cogens is linked to the conception of International Law
envisioned by its founding father, the well-known Dutch jurist Huig de
Grotius, in 1625.[53]
Grotius theorized that nations were not conducting their affairs in chaos,
devoid of any underlying universal principles. Grotius was convinced that
without binding rules of international conduct--a common law among nations
that binds them--interactions between nations would be impossible. Grotius
traced these norms to natural law principles, and envisioned these principles
functioning as a set of mutual links tying nations together.[54]
(40} Since Grotius, many jurists and writers have accepted and reaffirmed
the principle of such binding international law norms.[55]
Almost 60 years ago, Verdross was the first to advance a coherent view
of the relationship between jus cogens and other sources of International
law.[56]
Verdross suggested that the concept of jus cogens would be consistent
with other international law norms only if international treaties violating
jus
cogens norms would be void. Thus, Verdross' conception of jus cogens
creates in essence yet another layer of international law above and beyond
treaty law and customary international law. International law violating
such peremptory norms is void, similar to national laws that violate the
national constitution.[57]
{41} In 1969, the precept of jus cogens was incorporated into the Vienna Convention on the Law of Treaties[58]. According to leading experts of vastly disparate legal, political, and cultural backgrounds, the issue of whether jus cogens is accepted is now settled.[59]
{42} The Vienna Convention defines jus cogens
as follows:
[A] norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general International law
having the same character.[60]
Thus, jus cogens, gleaned from verifiable behavior across the
community of nations, structurally fulfills the methodological requisites
we posit, and offers the potential for achieving the necessary substantive
consensus in the global telecommunications arena. As a "peremptory norm
of international law",[61]jus
cogens represents a corpus of international law rules that are binding
upon every nation and every people. It comprises by definition the multicultural
and multinational consensus that we assert is essential.
Jus cogens
norms mandate that certain forms of behavior are unequivocally intolerable.
{43} This global consensus commends jus cogens norms as the touchstone for identifying types of speech that are amenable to an internationally acceptable content-based regulation. However, we suggest here that--especially given the scope and power of the Net--a paradigm shift is appropriate. Not only can speech that incites behavior condemned by jus cogens principles be regulated, but also speech that advocates conduct that jus cogens terms depraved can be banned, should a nation desire a broader ban. To be sure, the varieties of speech subject to regulation under a jus cogens-based system would be few and narrow: only speech that advocated clearly reprehensible behavior, e.g., piracy, slavery, genocide, apartheid, aggressive warfare, terrorism, and torture, could be constrained.[62]
{44} Because a jus cogens-based approach narrows the parameters for restrictions to the common denominator among the community of nations, this approach avoids the constant danger of cultural imperialism. It also averts the impulsive, ultimately devastating reflexes that characterize national majoritarianism. As such, jus cogens is uniquely qualified to serve as a methodology for regulating globally connected information infrastructures.
{45} Defining the substantive categories of speech to be regulated is the first step. But no regulation will be effective without a working enforcement strategy. Because the information infrastructure is global, so must be the enforcement. The international instrument that implements the jus cogens approach to regulation of speech on the information infrastructure must address the enforcement issue. Reciprocal extension of the principle of territoriality among the state parties and the broadening and strengthening of international criminal law and its procedural aspects can be a first level for addressing the area of enforcement.[63]
{46} But the objectives of an international agreement are even broader in scope. State parties must recognize the importance of speedy national implementation and rigorous enforcement of the internationally agreed regulations. Moreover, state parties need to execute and implement an enforcement mechanism among them to guarantee continued national support for such an agreement.[64]
{47} International consultative organizations with
existing substantial factual knowledge of the matters at issue, such as
the Organization for Economic Cooperation and Development (OECD), could
facilitate discussions and negotiations leading up to such an international
agreement.
{48} Regulating the content of speech on the Net is still thought of as a national issue. Free speech absolutists and national legislators discuss these matters without considering the international dimension of the information infrastructure, which diminishes the significance of these national debates.
{49} The international aspect of the information infrastructure places unique, albeit unexpected and largely unrecognized, constraints upon both free speech advocates and regulators. The former must come to terms with the fact that the global Net is not an anarchic medium, above and beyond legal restrictions, but on the contrary, is cluttered with numerous--even contradictory-- national speech regulations. On the other hand, national regulators must recognize that domestic controls and enforcement are futile regulatory mechanisms for an international structure in which information can be redeployed and disseminated in a matter of seconds.
{50} Only an international perspective can overcome the current shortsightedness of free speech absolutists and regulators alike. Speech restrictions on the Net must be elevated to the international level to be both subjectively acceptable to the world's nations and globally enforceable. An international legal instrument, jus cogens, which by definition embodies this global consensus and positively binds all nations, could provide a useful tool in drafting a possible solution. Jus cogens, limiting regulation to specific, defined areas such as advocacy of genocide, slavery, torture, or apartheid, together with creative international enforcement structures might facilitate the creation of speech regulations that are both sensible and feasible.