Freedom and Privacy on the Electronic Frontier: A Personal View

by Tim O'Connor

[Author's Note: This was published in 1996, when the status of encryption was still in flux and when there were many uncertainties regarding actions that might be taken by lawmakers and the law enforcement community. In some ways, the fears noted in here have not come to pass. In other matters, the final answer, four years later, is still unclear.]

In matters of electronic privacy and online communication, 1994 and 1995 were discouraging years in the United States. Newly popular forms of communication -- electronic mail, network news, and Web publishing -- were embraced by private citizens. However, it has become clear that the U.S. legal system offers few explicit indications of how cherished American ideals (such as freedom of speech, freedom from unreasonable search and seizure, and the right to privacy) can be protected in the new medium we now call cyberspace.

Freedom of expression is protected when it takes the form of printed material or public speech; it is more frequently restrained in broadcast media such as television and radio. At present, it is not clear that U.S. lawmakers or courts know how to categorize cyberspace communications. Cyberspace proponents and privacy advocates assert that online expression should be protected as much as printed information is protected; some politicians and interest groups, on the other hand, argue that cyberspace is a broadcast medium that most resembles television, and that it must be regulated accordingly.

At the center of these discussions is a movement to keep cyberspace "clean," which is generally interpreted to mean that obscene or offensive material should be suppressed or regulated.

Both sides tend to phrase their arguments in apocalyptic terms. Cyberspace advocates view the current debate in terms of the individual battling for liberty against a tyrannical state that would feel free to review even private e-mail for offensive content. Moralists frame the debate as a fight to defend children from harmful or offensive material and to prevent criminals and terrorists from operating in complete secrecy. Neither side seems able to accept that nearly every element of the dispute over freedom in cyberspace resides in a shapeless area to which no group can lay claim.

As with other reforms, current U.S. proposals tend to use children, drugs, and terrorist bombs as excuses to trim civil liberties and impose restrictions that would be unconstitutional if they were applied to traditional media. Lawmakers, courts, and law-enforcement authorities make distinctions between information in electronic form and the same information when it appears in printed form (which has historically been protected by the U.S. Constitution).

In this topsy-turvy world, for instance, information that is completely legal when printed on paper is illegal when it exists in electronic form. In one case, the book Applied Cryptography, by Bruce Schneier, contains an appendix that lists the source code for many computer programs that can be used to encrypt information. One could type or scan the material into a computer and compile it into working programs. The book may be legally exported from the U.S. The electronic version of the appendix, however, may not be exported from the U.S., because it is classified as a munition -- exactly as if it were a missile, a tank, or a rocket launcher.

To date, courts have g