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 information. 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 "cyberspace." 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. Free Speech 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 divisions. 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. Privacy 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 sidebar.) 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 surveillance. 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. Stay online. -------------------- 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. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"