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Open Society and the Internet: future prospects and aspirations

Publication date: 

[This report was written for the Organisation for Security Cooperation in Europe's Representative on Freedom of the Media and was included in the 2004 book 'Future Challenges of the Information Society', pp242-263.]

We once dreamed about the future. It involved a global information infrastructure that was not hampered by borders and governments. Human potential would reach beyond its prior limits as we communicated without interference in a space that was separate from flesh and steel. The Internet would set truth free, and we would follow.
And this truth and liberty are required for the maintenance of an open society. In an open society, social actors yearn for improving society, knowing that no one has perfect knowledge or control of the outcome of decisions – thus creating a space for further actors to join in and participate. It is taken for granted that actors are able to contribute, to participate, and to submit their ideas for consideration. It is far too often taken for granted that the marketplace of ideas will be filled with merchants vying for attention. It is far too often taken for granted that we have the ability to interact, to communicate, to speak freely. The Internet was supposed to be the veins through which this lifeblood could sustain an open society.
I have no intention of mocking the Free Internet image of the future. Although it is common to argue that we were ignorant when we had that dream, such hindsight is uninteresting. I am more interested in the questions of “Why did we want that dream to be true?” and “What was it that we were once seeking that we seem to be so far away from now?”

We Sought in Technology What We Were Promised.

Before the popularization of the Internet, the media world was relatively stable. Film and broadcasting industries were regulated with regards to what they could show, and ratings schema applied. Print and newspaper media were regulated through liability regimes, codes of practices, and ownership regimes, amongst other forms of intervention into the marketplace of ideas. And borders were reasonable constraints on the flow of information, where books and other material could be stopped at borders in accordance with national laws.
Yet we were promised so much more, and we heard of the potential of that promise. Free speech and free expression were long heralded values, core beliefs, and rights. Freedom of speech was enshrined in constitutional documents, international charters, and sustained in jurisprudence.
The law took some time to come around, however. Consider a case in the United States, decided in the Supreme Court in 1919. The case involved five Russians in the United States who were accused of violating the Espionage Act for conspiring with the Imperial Government of Germany. The conspiracy took the form of printing, writing and distributing copies of a leaflet entitled “Revolutionists Unite for Action” and “The Hypocrisy of the United States and her Allies” that criticized the US Government’s attitudes towards Soviet Russia, calling upon “workers” for solidarity and to strike, and to fight. The Court sided with the Government, contending that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe.1
The country, after all, was at war. In a famous dissenting opinion, Supreme Court Justice, Oliver Wendell Holmes argued that the accused were not impeding the war by expressing their opinions.
[I]t is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government – not to impede the United States in the war that it was carrying on.
Controversially, he argued:
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
With this statement he opened discussion on the “marketplace of ideas” and the importance of speech and contestation. Holmes’s words were most surprising because he was behind two court decisions in the previous year that took harsh views of freedom of expression during war time.2 This change of faith reflected conversations he held with others in the meantime, and also that the war was over by the time of the decision. He concludes:
"That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."3
In declaring this he revised his earlier opinion that falsely screaming fire in a theatre was worthy of infringing First Amendment rights to free speech, calling instead for such infringement to occur only in the case of imminent threats and immediate interference. The essence of this dissent was adopted by the Supreme Court 50 years later.
Even before that, however, the promise of speech and protecting its conditions grew greater. In a 1960 court decision in the case Talley v. California, the US Supreme Court upheld the right to anonymous pamphleteering. This case involved a Los Angeles city ordinance restricting the distribution of handbills. The ordinance required the naming of the person who wrote, printed, and distributed the handbill. The petitioner, Talley, was arrested and tried for violating this ordinance with handbills urging readers to boycott against certain merchants and businessmen on the grounds that they carried products of “manufacturers who will not offer equal employment opportunities to ‘Negroes, Mexicans, and Orientals’.” The Supreme Court supported Talley, arguing that
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws anonymously. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. (...) It is plain that anonymity has sometimes been assumed for the most constructive purposes." 4
A similar decision emerged 35 years later that contended that there was a marketplace of ideas, as promised by Oliver Wendell Holmes in 1919. In 1995, the Supreme Court decided that anonymous pamphleteering was protected under the Constitution, in McIntyre v. Ohio.
"The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." 5
Beginning with a dissent, and then adopted into mainstream jurisprudence, free expression is considered as a key component to a functioning democracy, and something that should be upheld, promoted, and protected. This is even the case when it involves anonymous speech.

Law Unto the Internet.

The printing press was heralded because it democratized publishing, decentralizing power to all those who owned printing presses. This was not everyone, obviously. As such, the ability of individuals to rise and speak freely was inhibited by the lack of technology available to all.
The promise of the Internet changed this. Everyone was potentially a printing press. Everyone could broadcast information, and could be the recipient of broadcasts, one-to-one, many-to-one and one-to-many forms of communications. And this was to be beyond the reach of legislatures, courts, and others who wished to impede the flow of information. And no one would know if you were a dog whilst on the Internet due to promises of privacy and anonymity. We wanted an infrastructure that could sustain our liberties, and believed that the Internet would be it.
It almost was. A most celebrated case is the fate of the Communications Decency Act, passed by the US Congress in 1996. The law required access control mechanisms on sites that made “indecent” information available to the general public, to verify the age of visitors. The constitutionality of the CDA was questioned immediately. According to David Sobel, a leading expert on the matter,
"Whether the millions of individuals visiting sites on the Internet are seeking information on teenage pregnancy, AIDS and other sexually transmitted diseases, classic works of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonymously. The CDA seeks to destroy that right."6
The US District Court injunction on the CDA used similar ideas.
"Anonymity is important to Internet users who seek to access sensitive information, such as users of the Critical Path AIDS Project’s Web site, the users, particularly gay youth, of Queer Resources Directory, and users of Stop Prisoner Rape (SPR). Many members of SPR’s mailing list have asked to remain anonymous due to the stigma of prisoner rape."
The Act was eventually struck down on the grounds of identity, anonymity, and free speech. According to the District Court decision, “any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig”, and this was “due to the nature of the Internet.” That is,
"There is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms. An e-mail address provides no authoritative information about the addressee... There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or a minor."7
At the Supreme Court, the majority concurred.
"This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, realtime dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought."8
The Internet was the newest incarnation of the “press” that the Founders of the US had envisioned when they adopted the Constitution, and thus was worthy of all the protections from incursions under the First Amendment. The Supreme Court concluded:
"The Government apparently assumes that the unregulated availability of “indecent” and “patently offensive” material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material."
We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
The marketplace of ideas seemed secured from extraneous interference of censorship and content controls.
This all probably appears to be a bit dramatic, however. Consider the Abrams case: we were really talking about controversial political speech at a time of war. Certainly that deserves some constitutional scrutiny and protection. Similarly, the Talley case involved anonymous pamphleteering regarding racially discriminatory hiring practices at companies; and proportionately, the Supreme Court decision referred to dramatic transgressions upon expression in history as the root of oppression. But when it came to the CDA, this involved a law that merely restricted access to pornography. Why did everyone get so excited, speaking of pigs, and the marketplace of ideas, just because of mechanisms to restrict access to pornography?
My answer to that question is quite simple, and perhaps simplistic. We, and I count myself amongst those who opposed the CDA, saw this as the first step to greater controls. It is a case of the ever-articulated “slippery-slope” argument: if you begin with one form of content regulation, even with the most noble intents the rest will naturally follow. Other forms of regulation will arise either intentionally, through using the “verification” technologies to verify someone’s geographic location to prevent access to non-indecent information, or less directly through the chilling of online speech for fear of surveillance or eventual censoring.

We Are Left with Strengthened Politics.

Despite the “victory” in the CDA decision, the incursions upon free expression continued. Regardless of calls by experts, technologists, and lawyers that the Internet would not respond well to content regulation, content regulation followed nonetheless.
Even in the CDA decision, we were warned that the technology of the Internet could be changed. The technology could be shaped, the structure of the market altered, to permit censorship. According to the dissenting opinion from Justice O’Connor:
"Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws. This transformation of cyberspace is already underway. (...) Internet speakers (users who post material on the Internet) have begun to zone cyberspace itself through the use of “gateway” technology. Such technology requires Internet users to enter information about themselves – perhaps an adult identification number or a credit card number – before they can access certain areas of cyberspace much like a bouncer checks a person’s driver’s license before admitting him to a nightclub. Internet users who access information have not attempted to zone cyberspace itself, but have tried to limit their own power to access information in cyberspace, much as a parent controls what her children watch on television by installing a lock box. This user-based zoning is accomplished through the use of screening software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities, both of which search addresses and text for keywords that are associated with “adult” sites and, if the user wishes, blocks access to such sites."9
Slowly the marketplace of ideas could be chipped away at, through law, and other mechanisms.
Filtering technology emerged and is now enshrined in laws and policies in a number of countries, calling for their use at the end-user level (e.g. Australia), at service providers (e.g. US schools and libraries), and at the national level (e.g. China and Saudi Arabia). Whether through direct regulation of individuals’ conduct or indirect regulation of Internet service providers, censorship is occurring. In the United Kingdom, mobile phone providers are now filtering access to pornographic content in order to prevent children from accessing these sites. An adult customer would have to contact the phone company to prove her age.10
There are other mechanisms, however. Notice and takedown procedures are being implemented into a number of laws in a number of countries. The United Kingdom is particularly proud of the regime for preventing access to criminally obscene material, enforced by a self-regulating Internet Watch Foundation.
The IWF is now supporting other countries in copying the UK’s success. But what starts with “criminally obscene” for the protection against child pornography will soon be used for other purposes. A number of countries in Continental Europe have harsh regimes to combat xenophobia by requiring the takedown of online material.
“Notice and takedown” requests are used now for the protection of “copyright”. A recent study by the Dutch NGO Bits of Freedom found that, when combined with the European E-Commerce Directive that placed liability for illegal content upon website-hosting providers, the effects of copyright protection laws upon free speech are increasingly dangerous. Bits of Freedom tested ten Dutch ISPs on their practices of notice and take down by creating a number of websites quoting a text written by Multatuli, a famous author, in 1871. The text is clearly something that belongs to the public domain, and is no longer subject to copyright protection. Bits of Freedom then filed complaints to the ISPs on behalf of a fake society that was created to act as a copyright holder. Seven providers removed the text without even looking at the website, “or demonstrating any clue about copyright basics”. One provider went so far as to send all the personal details of their customer to the complainant, breaching privacy protections. fn]Sjoera Nas, BitsofFreedom, The Multatuli Project: ISP Notice & takedown, 1 October 2004.
Copyright laws are the creature of increased lobbying by increasingly powerful content production industries. This is a different form of politics from the politics of child protection that led to the CDA. Both political stratagems, however, rely on personal information. Simultaneously, we are seeing a return of the politics that led to the decision in Abrams, in policies and initiatives to combat terrorism. This strategy also relies on the reduction of privacy.
Politics of Surveillance-Enabled Censorship. While the CDA decision noted the challenges in requiring age verification, the minority opinion noted that technology is malleable and can be shaped to meet the concerns of those who wrote the CDA. For a reasonably-regulated Internet, all we would require is every user to disclose her name and country of residence (and even state/province), age, and then bind that information to her network information (e.g. IP address, account number at ISP).
The judges who decided that the CDA was unconstitutional argued that no such infrastructure of personal information disclosure existed at the time. The dissenting justice said that it is possible to do what the CDA envisioned. A French Court made an analogous argument in 2000 when it required Yahoo! to prevent French network users from accessing message boards where users can trade in Nazi memorabilia.
On the other hand, a US Federal court struck down a Pennsylvania law that forced Internet service providers to block access to sites thought to be distributing child pornography, by filtering the IP addresses.11 Because over 80 per cent of websites on the Internet are served from IP addresses that are shared amongst sites, it was argued that the law overblocked legitimate sites. The court agreed with this contention, concluding that with the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment.12
These three decisions all have differing conceptions of the technology. Technology can be constructed to limit access, according to the dissenters in the CDA decision and the French court, while in the Pennsylvania case the technology to limit access also limited access to protected speech, and was thus unconstitutional.
If every user was compelled to disclose this information, these regulations could work. Then if she was under 18 she could not access pornography; if she was from France, she could not access sites that trade in Nazi memorabilia. The Pennsylvania problem does not go away in her case, but if we also required that all those who speak (and set up websites) must first identify themselves, then it is likely that he would risk prosecution. It is also possible that if they both knew that this level of information was available and required in order to speak and gain access to speech, they would probably not bother in the first place. This is the way that surveillance can act as prior restraint, chilling free speech by threatening surveillance.
This is in essence what is occurring currently in the surveillance of subscriber and traffic data, but is being exhibited in two different ways on both sides of the Atlantic Ocean. In North America, under claims of copyright infringement, content-producing industry associations such as the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and the Canadian Recording Industry Association (CRIA) are approaching ISPs to demand subscriber information based on IP addresses. That is, the RIAA and the MPAA are capturing IP addresses of individual users and approaching ISPs so that they will disclose customer information, informing the RIAA and MPAA which user was using what IP address at what moment. Once legal avenues are opened to allow industry associations access to this information, these same avenues will be used by others. In so doing we will increase the use of subscriber information and other sensitive information for any number of purposes.
In Europe, the surveillance of traffic data is not yet focused on copyright infringement policies, but it soon will be, and when combined with anti-terrorism policies, it could be disastrous. Currently various governments in the European Union are establishing national policies that compel communications service providers (telephone companies [land and mobile], ISPs, etc.) to retain their traffic data logs. Under previous law, these service providers would have to delete this personal information once it was no longer necessary for billing or engineering purposes. Now in countries like Italy, France, and the United Kingdom, service providers will have to retain this information regarding users’ e-mail, Internet and telephone habits (and locations) for periods ranging between one and five years. The UK, France, Ireland and Sweden are also pushing for this policy to be adopted at the EU, thus obliging all countries to compel all communications providers throughoutEurope to keep this information for a number of years, just in case one day this information is of value to law enforcement authorities.13
The surveillance of subscriber and traffic data is tantamount to the collection and tracking of all human conduct in the Information Society: who we speak with, who we move with, what we look for, where we receive information from, and where we send it to. As a result of these policies, European users of the Internet will have to grow accustomed to the idea that their actions will be logged for a number of years and accessible to any government that is interested, and possibly others. North American users live under the threat of their personal information being divulged to the content industry which would result in further legal proceedings. If the users are aware of these policies and mechanisms it could chill their ability to create and impart information, hampering their right to free speech. They would be less likely to consult “controversial” information for fear that it will eventually be used against them. On the other hand, if they are unaware of these policies the users will not be changing their conduct in the face of one of the largest threats to personal privacy in the modern era.

The Politics of Security-Induced Censoring.

An increasingly common argument for creating structures to limit free expression is that it will aid in the war on terror. Some countries have returned to the public state of fear in which the US found itself at the time of the Abrams case during the First World War. Governments have called for stricter rules, greater powers, and increased funding to combat terrorism, and it was inevitable that these changes would have effects on free expression.
There are many instances of countries announcing the “takedown” of websites hosting “radical” Islamist material. In reaction to the assassination of a Dutch film director, Belgium announced its intention to shut down certain Islamic websites and closely monitor radio programmes promoting violence.14 A number of anti-terrorism laws introduced around the world involved curbing hate speech. In reaction to threats made on websites or the posting of messages from terrorists, websites have been removed or their contents blocked. It is likely that the website logs were also seized in this process.
One example of this is what happened to Indymedia. The Independent Media Center is an international news network of individuals, independent and alternative media activists and organizations. On 7 October 2004 its servers were seized from the London office of Rackspace, a server-hosting firm. The loss of these servers resulted in the removal of content from twenty news websites. Rackspace received a US Court order to hand over the servers in London. According to the General Secretary of the National Union of Journalists in the UK
"To take away a server is like taking away a broadcaster’s transmitter. It is simply incredible that American security agents can just walk into a London office and remove equipment."15
The reason for the seizure remains under seal, and no US law enforcement agency has taken responsibility for the investigation into Indymedia. No UK law enforcement authorities were involved in the seizure, even though it took place in London. A public prosecutor in Italy admitted that she did request the IP logs from the server through a request to the American authorities, on grounds of combating terrorism.
There was apparently also a request from the Swiss authorities, but this cannot be confirmed either.16 This is the new face of censorship.
Another example of a law developed to combat terrorism that increased surveillance at ISPs is the USA PATRIOT Act, passed by the US Congress in October 2001. Under the USA PATRIOT Act, the Federal Bureau of Investigations may demand information from Internet service providers by showing a “national security letter”, without any judicial oversight. ISPs are then required to comply and are gagged from disclosing their compliance. The NSLs are issued without any judicial review, or any requirement to show individualized suspicion, compelling need, and it cannot be contested.17 The American Civil Liberties Union challenged this procedure on many grounds including that it chilled First Amendment rights. In September 2004 a US District judge agreed. Referring to Talley v. California, and other decisions on restraint on freedom of association,
"The Court concludes that such First Amendment rights may be infringed [...] in a given case. For example, the FBI theoretically could issue to a political campaign’s computer system operator a [...] NSL compelling production of the names of all persons who have email addresses through the campaign’s computer systems. The FBI theoretically could also issue an NSL [...] to discern the identity of someone whose anonymous online web log, or ‘blog,’ is critical of the Government. [...] These prospects only highlight the potential danger of the FBI’s self-certification process and the absence of judicial oversight.18
The Court also argued that “transactional records” deserve privacy protection, despite existing jurisprudence on telephone traffic and bank records that leaves Internet traffic data in legal limbo:
NSLs can potentially reveal far more than constitutionallyprotected associational activity or anonymous speech. By revealing the websites on visits, the Government can learn, among many other potential examples, what books the subscriber enjoys reading or where a subscriber shops.
Without judicial review, the Court concluded, this power was unconstitutional.
Surveillance has indeed been used to limit political activity. These policies are not limited to online activity either. Surveillance has been used as a coercive measure to prevent or disable free assembly. In August 2004 the UK Appeals Courts approved of the United Kingdom Government’s use of stop and search powers at protests. This involved a case where police stopped-and-searched attendees of a protest outside an arms fair in London. The police were empowered to stop and search anyone in the city of London without any precondition of reasonable grounds of suspicion. During the course of the case, it was discovered that since February 2001, this authority, granted to the Government under the Terrorism Act 2000, has been in effect on a rolling basis.19
Similarly, in the summer of 2004 during the American political campaign season, anti-terrorism powers were used against protestors at the presidential conventions. First the FBI would surveil activists using the Internet, and then interrogate activists before the conventions.20 Later, at the Republican Convention, New York police routinely fingerprinted 1,500 people arrested during the convention. This fingerprinting had the effect of delaying the release of detainees.21
In another American case, police installed metal detectors to scan protestors at an annual protest at the School of the Americas in Georgia. On average 15,000 people attend these yearly protests, and in the 13 years of protests, no weapons have ever been found and no protestor ever arrested for an act of violence. A week before the November 2002 protest, the City of Columbus instituted police requiring all protestors to submit to a metal detector search at a checkpoint away from the protest site. If metal was detected in the scan, the police would search through the protestor’s belongings. The City claimed that the decision was due to the elevated risk of terrorist attack, prior “lawlessness”, and problematic “affinity groups”. The Circuit Court in this decision, known for often conservative decisions,22 decided that the practice violated the Fourth Amendment to be free of “unreasonable search and seizures” as “there is no basis for using September 11 as an excuse for searching the protestors”, and “September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.” The Court also found that the practice violated the First Amendment by burdening free speech and association, that the checkpoints and searches were a form of prior restraint, and that the policy was content-based in that it was geared towards these protestors on this issue. Finally, the Court concluded that the search constituted “an ‘unconstitutional condition;’ protestors were required to surrender their Fourth Amendment rights in order to exercise their First Amendment rights.”23
In the coming months and years more decisions will emerge from courts around the world, and they are equally as likely to conflict with one another as they are to lead to a renewed right to free expression. Each case and every decision highlights the tightening relationship between surveillance and censorship, and the risks to privacy and free expression emerging from our responses to terrorism.

Paths to Re-invigorating the Open Society and Protecting the Marketplace.

When we imagine the right to free expression, as it is enshrined in constitutional and international human rights declarations and treatises we imagine situations involving small printing presses distributing revolutionary material under an oppressive regime. Certainly the pro-Soviet Abrams and his colleagues believed that they were revolutionaries when they printed pamphlets during the First World War. Or Talley when he appealed to consumers regarding discriminatory hiring practices. Or McIntyre who insisted on publishing pamphlets despite regulations by the state of Ohio. We do not imagine people trying to download pornography, share copyrighted music illegally as champions in an oppressed world. Yet the fight for both types of people, those who are struggling against oppression and for justice, and those who wish to impart and access information are one and the same. Once we start building mechanisms to control one, the others will also be affected.
It is hard to believe, but is true nonetheless, that we need unfettered speech and privacy rights to ensure the marketplace of ideas, that will sustain the open society. Unless people can speak freely, and not be encumbered by surveillance, particularly from recent policies and practices created to combat terror, then we will not have the dream that we once had, of a place where we can all come together and communicate, separate from flesh and steel.
If we are still seeking such a world, and I think we are, then we need to fix many things. We need to understand that a zone of autonomy exists around all individuals, supported, enhanced, and protected by privacy. This will be supported through laws upholding long-respected rights to be secure from interference.
We also need to halt this alarming progression of policies and practices introduced with the intent of combating terrorism, that in the end have the effect of reducing our rights collectively. We do indeed live in perilous times, just as we did when Abrams was of issue at the end of the Great War. I acknowledge that Oliver Wendell Holmes, whom I celebrate in this paper, actually was quite unforgiving in two previous cases involving similar wartime activity, and wrote opinions condemning the accused. But I remain optimistic. Just as Holmes turned the bend and acknowledged that war does not mean the suspension of rights, and just as the US jurisprudence followed in the 1960s, and reaffirmed in the Georgia decision, rights may prevail.
If rights prevail, then the marketplace of ideas may be secured. I imagine it will be a struggle, but this is not a bad thing in itself. As Holmes noted, when speech is threatened it only reaffirms its importance. Speech is only valuable when governments try to limit it. And as he says, the “ultimate good desired is better reached by free trade in ideas.” We dreamed that the Internet would sustain this marketplace, which in turn would sustain the open society. We were wrong, but our goals remain intact.
Our reasons are thus noble, as we recognize that any incursion upon free expression, even the smallest, interferes with the marketplace of ideas. This marketplace is too important to sustaining an open society to have it damaged. It offends me to see limits placed upon this marketplace, as it offends others too. And these “others” will be visionaries, coming up with legal, political, and technological innovations that may yet deliver on that dream, and bring us in from the cold.


  • 1. ABRAMS v. US, 250 US 616 (1919).
  • 2. Peter Irons, A People’s History of the Supreme Court (Penguin, 1999).
  • 3. ABRAMS et al. v. UNITED STATES.
  • 4. Talley v. California, Supreme Court of the United States, 362 US 60, decided 7 March 1960.
  • 5. McIntyre v. Ohio Elections Commission, Supreme Court of the United States, No. 93986, decided 19 April 1995.
  • 6. Electronic Privacy Information Center, “Internet ‘Indecency’ Legislation: An Unconstitutional Assault of Free Speech and Privacy Rights” (Washington DC, 1996).
  • 7. American Civil Liberties Union et al. v. Janet Reno Civil Action No. 96–963, In The United States District Court for the Eastern District Of Pennsylvania.
  • 8. Reno v. ACLU, 26 June 1997, 521 US 844.
  • 9. Justice O’Connor, Reno v. ACLU, 521 US 844.
  • 10. BBC News, “Mobile censorship” for under-18s, 19 January 2004.
  • 11. Tom Zeller Jr., Court Rules Against Pennsylvania Law That Curbs Child-Pornography Sites, 11 September 2004.
  • 12. Center for Democracy & Technology v. Pappert, United States District Court for the Eastern District of Pennsylvania, No. 03-5051, 10 September 2004.
  • 13. Privacy International, Invasive, Illusory, Illegal, and Illegitimate: Privacy International and EDRi Response to the Consultation on a Framework Decision on Data Retention, 15 September 2004.
  • 14. Reuters, “Mosques, Islamic school attacked in the Netherlands”, Financial Times, 8 November 2004.
  • 15. Indymedia UK, Ahimsa Gone and Returned: Responses to the Seizure of Indymedia Harddrives, 09.11.2004 19:56.
  • 16. Electronic Frontier Foundation, Indymedia Server Seizures <>
  • 17. Anita Ramasastry, Why the Court Was Right to Declare a USA Patriot Act Provision Dealing with National Security Letter Procedures Unconstitutional, FindLaw Legal Commentary, 13 October 2004.
  • 18. John Doe, ACLU v. Ashcroft, 04 Vic. 2614, United States District Court Southern District of New York, 28 September 2004.
  • 19. Privacy International, UK Appeals Court Approves Stops and Searches at Protests, 8 August 2004.
  • 20. ACLU, ACLU Denounces FBI Tactics Targeting Political Protesters, 16 August 2004.
  • 21. Diane Cardwell, “City Challenged on Fingerprinting Protesters”, The New York Times, 5 October 2005.
  • 22. C.G. Wallace, “Screening of Protesters Unconstitutional, Court Rules”, Associated Press published in Washington Post, 17 October 2004.
  • 23. Bourgeois et al. v. Peters et al., United States Court of Appeals for the Eleventh Circuit, No. 02-16886, 15 October 2004.