Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci
Civil Liberties The National Newsletter of the ACLU
#380, Spring 1994 (c) 1994 American Civil Liberties Union
A Civil Liberties Ride on the Information Superhighway
By Barry Steinhardt
By some accounts, we are on the verge of a communications
revolution that rivals Gutenberg's invention of the printing press.
And notwithstanding the hype, the information superhighway --
formal name, the National Information Infrastructure -- is on the
way. The grandest vision of same is a vast network of intersecting
technologies, with near limitless voice, data and video
communications available to everyone. The promise, maybe even the
prototype, is expressed today in Internet, a network in use by more
than 20 million people worldwide. Internet allows millions to both
provide and consume almost unlimited amounts of largely uncensored
The power of networked speech and its capacity to evade the
censor are just now becoming clear. Consider, for example, the
public's response to a gag order slapped on the press by an Ontario
judge in a murder case in Canada. Press coverage having been
blocked, electronic bulletin board and Internet "publishers" began
posting and cross-posting updates on the trial, foiling any effort
by the Mounties to track their reports through the electronic
How, then, should civil libertarians approach the
superhighway's construction? Given the billions of dollars at
stake, it is not surprising that public attention has focused thus
far on the competition between telephone, cable and wireless
providers (the "which wire" or "wave" debate) or the on-again off-
again mergers of communication giants like Bell Atlantic and TCI.
The ACLU faces these questions: Will the information
superhighway fulfill its promise of availability to all, and will
constitutional principles undergird its structure? At stake are
three basic civil liberties values: free speech, including access
to information; privacy, and equality. Our task is to ensure that
all three inform the coming communications revolution.
Properly built, the information superhighway will be the
public forum of the 21st century, a "virtual village green" to
which anyone can go to speak or listen. But no guarantee exists,
notes Mitchell Kapor, founder of the Lotus Corporation and the
Electronic Frontier Foundation, that the highway will reflect the
"Jeffersonian vision" of free and robust debate. Only a highway
that accommodates two-way traffic, where it is as easy to offer
information as to receive it, would meet that vision. An eight-
lane road that delivers more than 500 channels worth of movies-on-
demand, games, gambling and junk into the home, while consumers
have only a narrow cobblestone path on which to send their messages
out would undercut the goal of diverse speech.
The free speech principle demands an electronic public forum,
in which all are free to speak and government regulation is limited
to the technical means necessary to ensure equal, non-
discriminatory access. Access providers should be common carriers
modeled after the switched public telephone system. "Electronic
publishers" should not face censorship or discriminatory rates.
Sufficient "bandwidth" -- capacity -- will be required to transmit
multimedia communications that emanate from a vast universe of
sources. And bandwidth's "architecture" should be "open" so that
access providers can attach their hardware and software to a
carrier's terminal. To protect carriers from legal liabilities
that might encourage them to censor, content providers should be
exclusively liable for illegal content.
Since access providers like the regional Bell companies also
want to become information providers, additional safeguards will be
needed to ensure adequate capacity, fairness and non-discrimination
for those other providers who want to join the network.
Universal Service and Equal Access
The infosuperhighway may usher in a brave new world for many,
but unless policy makers are on the case, it will be one of the few
highways in the nation that does not cut through low income
neighborhoods. The guarantee of "universal service" in the Federal
Communications Act of 1934 has meant access to plain old telephone
service -- "POTS." In this high-tech era, meeting the information
needs of the entire population, including persons with
disabilities, the aging and the poor, calls for a new definition of
basic digital service. Otherwise, a new society of information
haves and have nots will emerge, further deepening social
New methods of funding must be found, such as requiring
information carriers to share the costs of providing universal
service. At the same time, special emphasis needs to be placed on
the teaching of electronic communications literacy, and on
guarantees that the superhighway will extend into the nation's
classrooms, libraries, medical facilities and community centers.
The full potential of information technology will never be
realized if people are afraid to use it. Thus, protecting the
confidentiality of speech and information is a must. The
encryption of data, for example, is an increasingly common and
highly protective armor against snooping. Too protective, in fact,
for the Clinton Administration, which has advocated installing a
special window in telecommunications equipment through which the
government alone, ostensibly for law enforcement and national
security reasons, could peer into private communications. (See
The Administration has also proposed a "Digital Telephone"
that would establish the federal government as the final arbiter of
telecommunications progress, giving it a veritable veto over any
new telephone technologies that did not accommodate governmental
New laws are needed that clearly spell out protections for the
privacy of digital information. More protective devices -- like
encryption -- need to be developed. Privately held information
also needs protection, whether subscriber information or personal
data about people's medical, financial and personal lives.
Barry Steinhardt is Associate Director of the ACLU
Sidebar: The Clipper Chip
In April 1993, the Clinton Administration proposed the
production of a new computer chip encoded with a sophisticated
encryption program to protect the security of voice
communications. Since the design's purpose is to provide the
government with a decoding "key" with which to gain access to any
encrypted communications, the proposal drew an uproar from
computer and communications companies, and privacy advocates.
As the "information superhighway" materializes, concerns
about the privacy of data, voices and images traversing the
highway have deepened. Private industry, having embraced
encryption technology as an important means for protecting speech
and privacy, has developed various programs that allow voice or
data to be sent over phone lines in a form only the intended
recipient can decipher.
The new chip, dubbed the Clipper Chip, differs from current
encryption hardware and software in two important ways. First,
the government would hold two keys ennabling it to unscramble
intercepted communications, a feature that the Administration
claims is necessary for law enforcement and national security
purposes. Those keys -- both would be needed to unlock the code
-- would be held "in escrow" by government agencies or agents, to
be obtained only with proper authorization.
Second, although the Administration insists that Clipper
would be voluntary, the government, through procurement policies
and export controls, would put tremendous pressure on
manufacturers and marketers to use it exclusively. Clearly, the
proposal's intent is to make Clipper the only available system
for encrypting private communications.
In testimony last June before the National Institute of
Standards and Technology's Computer System Security and Privacy
Advisory Board, the undersigned pointed out that the proposed
chip raises serious constitutional concerns, and that a case has
not been made that any compelling government need for it exists.
We questioned: the security of the so-called "escrow" system;
government coercion to force acceptance; the constitutionality of
current export controls on encryption; the proposal's failure to
distinguish between seizure of encrypted conversations and of
encrypted documents, and the constitutionality of requiring
release of the key to government hands in advance of probable
cause. Finally, we urged abandonment of the plan, absent a valid
rationale for its implementation.
The ACLU, in a working group with other civil liberties
organizations and industry representatives, has met with senior
Administration officials on the Clipper proposal. In response to
the concerns of this working group and the Advisory Board, the
White House has agreed to both delay full implementation of the
plan and to hold a series of meetings, through the fall of 1994,
to address questions and explore alternatives.
-- Kate Martin and Janlori Goldman
The writers are, respectively, the director of the ACLU's Center
for National Security Studies and former director of the ACLU's
Privacy and Technology Project.
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