ARTS & FARCES internet

In late July 1996 the G7 nations announced plans to monitor online communications as part of a concerted attempt to curtail international terrorism. A little-known provision of the Antiterrorism Bill (H.R. 2703; S.735) that became law in April 1996 requires the United States Justice Department to conduct a 180-day study of bomb information available on the Internet.

At the same time, new legislation was introduced in the United States by Senator Dianne Feinstein (D-Calif.) that would criminalize publication of bomb-making information in both electronic and print media. Companion legislation was introduced in the United States House of Representatives by Rep. Jerrold Nadler (D-NY). Although Feinstein’s bill doesn’t draw a distinction between various media, the California senator has consistently drawn attention to what she describes as the easy availability of such information in cyberspace. In a Cable News Network (CNN) interview, Feinstein made specific reference to Internet sites that provide instructions for making pipe bombs. Some observers feel that this is an attempt to restrict certain types of speech in electronic media that are protected in print media.

Free-speech advocates were quick to point out that the same bomb-making materials available on the Internet are also available in various print media and that existing law provides adequate protections.

Supporters of Feinstein’s bill point out that publishing instructions for making bombs on the Internet needs to be specifically forbidden because there is no intermediary—such as a librarian or bookstore clerk—between the reader and the material.

Still others voiced concern that passage of the bill would play directly into the hands of terrorists whose sole intent is to provoke fear.

Clearly, some speech is not protected under the First Amendment. Two Federal appeals courts have upheld a law that prohibits “demonstrating how to make an explosive device if one intends or knows that it will be used in a civil disorder involving acts of violence affecting interstate commerce.” While this law clearly doesn’t cover all publication of material relating to bomb-making instructions, it cuts a pretty wide swath.

Similarly, a federal district court enjoined The Progressive from publishing an article entitled “The H-Bomb Secret” in 1979. Most of the material for the article came from government publications. The magazine appealed the decision, but the government withdrew from the case before the appeals court could rule. The article appeared in the November 1979 issue of The Progressive, but the original federal district court ruling stands as a legal precedent.

It’s important to remember that some forms of volatile speech were routinely punished in the United States before World War I. In 1919 the Supreme Court restricted the government to prohibit speech only when the speech carried a “clear and present danger” of bringing about an unlawful act. Since then, the courts have tried to refine the “clear and present danger” term.

In related action, Congress and the Clinton administration seemed to reach an agreement to implement a new electronic surveillance initiative. Parts of this initiative are quite disturbing with regard to both free speech and personal privacy issues.

The new electronic surveillance initiative would:

• Allow law enforcement agencies to wiretap “suspected terrorists” for up to 48 hours without first obtaining a court order.
• Provide funding for the current Digital Telephony proposal without any public accountability over how the funds are spent.
• Impose new restrictions on cryptographic technologies.
• Criminalize the distribution of bomb-making information on the Internet that is protected under the First Amendment in print.

1995 counter-terrorism legislation proposed by President Clinton called for permitting law enforcement agencies to wiretap “suspected terrorists” for up to 48 hours before obtaining a court order.