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National Information Systems and the US Bill of Rights 

v. 1.7.1
August 18, 1993 
 
Communications 680 
Ethics in Communication 
School of Communications 
Grand Valley State University 
Allendale, MI, 49401, USA 
Prof. Alexander Nesterenko 
 
by Henry Edward Hardy 
 
Here is a draft of my proposed testimony for "The Role of the
Government in Cyberspace" hearings of the Subcommittee on
Telecommunications and Finance of the Committee on Policy and
Energy of the US House of Representatives.  I am hoping to ensure
that this testimony will one way or another become part of the
public record of these hearings. 
 
--HH (seraphim@umcc.umich.edu, moderator of hh-thesis-l and
hh-readers-l)  


 
 
National Information Systems and the U. S. Bill of Rights 
 
	Mr. Chairman, distinguished members, estimable guests,
citizens of the Republic and people of the Net: 
	It is an honor to appear before you today. I ask that the
complete written text of my prepared remarks be included in the
public record of the proceedings of this Committee. 


ABSTRACT 

"It should not be necessary to reinvent the Constitution for
every new technology.  Mutatis mutandis -- the necessary changes
having been made -- we must understand that every computer is a
press, and every hacker, a publisher."

							(see p. 9)

INTRODUCTION 

	One of the most cherished guarantors of American democracy
is the 'free marketplace of ideas.'  The free marketplace of
ideas is the essential prerequisite of democracy because without
access to the widest possible palette of ideas voting shrinks to
be merely a pallid rubber-stamp of a particular ideology or
party.  It is fundamentally to protect and defend this free
marketplace that the first amendment protections of free speech,
exercise of religion etc. have been so broadly drawn by the
courts and other bodies of governance. 
	The advent of computer mediated communication (CMC) in the
past few decades has provided a new and powerful marketplace of
ideas open to an ever wider segment of the population.  With the
advent of 'data superhighways' access to such avenues of ideation
may become ubiquitous within the next decade or so. 
	US national information systems such as the Internet,
Usenet, Bitnet, Fidonet and their associated networks arguably
provide today the most timely, wide-ranging, and uncensored forum
for argument, analysis, and exchange of ideas and ideals which
has ever existed.  Ironically, it is the same trends which
promise to make this forum universally accessible which threaten
to destroy its value as a free marketplace of ideas. 
	Our national information systems are today threatened by the
twin- headed hydra of commercialization and regulation.  The
thrust of my testimony to you today is that US national interests
and the Bill of Rights would be best served by insuring universal
access to these technologies for all people while adopting
policies which insure that this new national town hall is not
denatured by onerous content restrictions or censorship. 
	This presentation consists of four parts.  First, a
thumbnail description of our national information systems and
their development in the context other historical trends in
communication and transportation in the US.  A substantive  
discussion of the US Constitution and national information
systems follows, with particular regard for the First, Fourth,
Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments.  My
testimony concludes with recommendations and finally a  
substantial bibliography to which the Committee may direct their
staff for further elucidation of the positions outlined in this
testimony. 
 
 
WHAT IS 'THE NET?' 
 
	The Internet.  The Internet we make so much of today -- the
	global Internet which has helped scholars so much, where
	free speech is flourishing as never before in history -- the
	Internet was a Cold War military project.  It was designed
	for purposes of communication in a United States devastated
	by a Soviet nuclear strike.  Originally, the Internet was a
	post-apocalypse command grid. 
 
	And look at it now.  No one really planned it this way.  Its
	users made the Internet that way, because they had the
	courage to use the network to support their own values, to
	bend the technology to their own purposes. To serve their
	own liberty. 
 
(Bruce Sterling, Literary Freeware -- Not for Commercial Use.
Speech to National Academy of Sciences Convocation on Education
and Technology, Washington, D. C., May 10, 1993) 
 
	Our national information systems for purposes of this paper
include those computer mediated communication networks which are
at least partially public and/or non commercial in nature. This
definition includes both store-and-forward networks such as
Usenet, Bitnet and Fidonet as well as integrated networks such as
'the Internet' and Michnet. Such networks may be user-supported,
as in the former three , or partially government-funded, as in
the case of the latter two. 
	These networks and their associated networks are often
referred to collectively as "the Net". Total usership of the
Internet is estimated at more than thirty million people, that of
Usenet at more than six million.  
 
 
THE INTRODUCTION OF NEW COMMUNICATIONS TECHNOLOGY IS ITSELF NOT
UNPRECEDENTED 
 
	Any corporation that genuinely wishes to invest in this
	country's future should step forward now and offer services
	and software. Having thrived	under democracy, in a free
	market, the time has come for these corporations to
	demonstrate an enlightened self-interest, by acting to
	assure the survival of democracy and the free market -- and,
	incidentally, by assuring virtually the entire populace of
	the United States will become computer-literate potential
	consumers within a single generation. 
 
	Stop devouring your children's future in order to meet your
	next quarterly report. 
 
(William Gibson, Literary Freeware -- Not for Commercial Use.
Speech to National Academy of Sciences Convocation on Education
and Technology, Washington, D. C., May 10, 1993) 
 
	While our CMC-based national information systems are new, it
must be understood that the introduction of new forms of
communications technology into the US culture is not
unprecedented.  The US has substantial experience in 
introducing, facilitating, and regulating new mediums of
communication and transportation, and these precedents must be
observed and understood in order to illuminate the future of our
national information systems. 
	Imagine if telegraphy had been made available to every
American in the late 1800's.  Or, conversely, imagine that there
had never been free broadcast television or radio available to
all Americans.  Imagine that there were no public highways and
that every highway belonged to the construction company which  
built it and that they were free in the name of the free market
to make whatever restrictions on use and charge whatever fees for
driving that they desired.  Imagine that there was no Postal
Service and that private companies were free to open and read
every piece of mail they transported. 
	Fax was first made available to people in the old Soviet
Union in the 1940's.  Facsimile communication was technologically
developed in the US by the 1930's, but an alleged anticompetitive
agreement between ATT, RCA and newspaper publishers made such
technology unavailable to the American people for nearly 50
years.  Col. Armstrong, the inventor of FM radio, committed  
suicide as a protest against the alleged suppression of FM
technology.  The fate of Tesla's World Broadcasting Company, the
Tucker automobile, and the story of Ovshinski's amorphous
semiconductors may also be illuminating in this context. 
	The simple fact is that the 'invisible hand' of capitalism
in America might more appropriately be likened to the jaws of a
wolverine, which bites whatever comes within range of its
powerful grip, and fouls whatever carrion it cannot consume.  In
the context of the national information systems, government  
regulation should not obstruct the free marketplace, but rather
nurture and protect our national town hall from being mortgaged
and sold for quick cash. 
	We don't want companies to make windfall profits from other
natural monopolies such as our roads, bridges, electrical power
grid, postal services, telephone and telegraph services. We
should apply the same principles to our national information
systems.  Deregulation of the savings and loan industry resulted
in its self-destruction, and more than a hundred thousand million
dollars of tax money were robbed from the American people to pay
for this immense error.  Airline and oil deregulation have also
been a disaster for the American people, and have served to
decrease free competition rather than the reverse.  Only the
chieftains of American capitalism have benefited from the frenzy
of corporate cannibalism which has eroded America's
once-unquestioned pre-eminence in these fields. 
	Our national information systems are the best in the world.
Let us not repeat the mistakes of the Reagan-Bush years which
mortgaged America for the short term profit of large campaign
contributors.  Commercial network service providers, if any, must
be regulated as have been other common carriers. Government
regulation, if any, must restrict itself to protecting the free  
marketplace of ideas and not allow any sort of content
restriction beyond those imposed on newspapers or telephony. 
	Television, the 'vast wasteland,' might more accurately be
described as the 'narrow wasteland.'  Despite the proliferation
of cable channels, one is simply not likely to hear the views of
a Col. Gritz or a Noam Chomsky or for that matter anyone who's
views might offend ownership, advertisers, sponsors or pressure 
groups.  In terms of the free marketplace of ideas and national
information systems, the FCC regulation of TV and radio content
is an excellent example of what we must do everything possible to
avoid. 
 
 
THE ROLE OF THE GOVERNMENT ON THE NET 
 
	To you good lads that dare oppose 
		all lawless power and might, 
	You are the theme that we have chose, 
		and to your praise we write: 
	You dared show your faces brave 
	In spite of every abject slave 
		with a fa la la 
 
(A Song Upon the Election of New Magistrates for This City, by
John Peter Zenger. To the tune of, "To You Fair Ladies Now on the
Land." New York Weekly Journal no. 2., 1734. Burned by the Public
Hangman and Whipper of New York by order of the October 1734 New
York Grand Jury) 
 
	The American tradition of freedom of speech and expression
antedates the establishment of the Constitution itself by more
than 50 years.  Alexander Hamilton himself undertook the defense
of radical journalist John Peter Zenger in the case of The
Attorney General [of New York] v. John Peter Zenger in 1734. The
case established precedents in both US and British law, although
it was more than 100 years before the case assumed the importance
as precedent with which it is now often cited. 
	The Bill of Rights enumerates and illuminates the
fundamental freedoms of life, liberty and the pursuit of
happiness but does not delimit them.  As Justice Ginzberg said
during her confirmation hearings before the Senate, the
Declaration of Independence which legitimizes the existence  
of the United States as an independent nation also is the basic
rights guaranteeing document of the people.  The Bill of Rights
particularizes and defines some of these rights but does not at
all exhaust them. [PBS, anon2]
	Let us not trample on the Constitution in any haste to
profit from new computer mediated communication mediums.  The
introduction of new technologies need not eviscerate our most
sacred public document.  Rather, through modern innovation let us
vitalize and make whole the frayed but honorable traditions of
public debate, argumentation, and analysis.  Scientific
advancement brings to each generation the opportunity to 
validate, or to disappoint, the ideals of liberty, justice and
equality so nobly written (but so unevenly applied) by the
Founding Parents. 
	In this testimony, I wish to construct my thesis upon the
granite foundation laid down in Chapter 11 of the report,
'Computer Based Information Systems', Office of Technology
Assessment report OTA-CIT-146 September 1981.  In this chapter,
titled 'Constitutional Rights,' the staff identifies as of
particular relevance to the development of national information
systems the First, Fourth, Fifth, Sixth, and Fourteenth
Amendments to the US Constitution.  For those members who have
not had the opportunity to read this excellent report I commend
it to you. 
	I would also commend as of particular relevance and interest
to the Committee "The Constitution in Cyberspace, Law and Liberty
Beyond the Electronic Frontier," the keynote address from the
first Conference on Computers, Freedom, and Privacy by Lawrence
H. Tribe.  Prof. Tribe discusses the issues of national
information systems and the Constitution primarily in terms of
the First, Fourth, Fifth, Sixth, and Ninth Amendments.  His
thesis is essentially that nothing in CMC based systems is so
alien to our systems of constitutional liberties as to be
unprecedented, and he correctly notes two errors in particular
which congress and the courts, by ignorance probably rather than
design, have propagated: 
 
	...assuming that the processing of "0"s and "1"s by 
	computers as they exchange data with one another is 
	something less than "speech"; and 
 
	in generally treating information processed electronically 
	as though it were somehow less entitled to protection for 
	that reason. 
 
	The recent decision in Steve Jackson Games v. US Secret
Service has provided a very strong example of the validity of
Prof. Tribe's position.  In this case, agents of the Secret
Service illegally raided and seized computer equipment used by
the Texas publisher to operate an on-line computer system, or
'BBS'.  The agents were found to have acted improperly and with
amazing ignorance with regard to the Privacy Protection Act, the
Electronic Communications Privacy Act, and the Fourth Amendment
protection versus unreasonable search and seizure. It should not
be necessary to reinvent the Constitution for every new
technology. Mutatis mutandis -- the necessary changes having been
made -- we must understand that every computer is a press, and
every hacker, a publisher. 
	Further, the Constitution protects the right of the people
to assemble electronically just as it protects the right of each
of us to assemble physically.  In Maryland vs. Craig, the Supreme
Court took the first virtual step toward recognizing the legal
identity between telepresence and physical presence.  If computer
mediated communication is to be our new town hall, the right to
so assemble must be understood to extend to each of us assembled
on 'the Net.' 
	The Second Amendment right of the people to be secure in the
persons, houses, papers, and effects likewise has a necessary
corollary.  We must understand that electronic documents and
other forms of stored computer data are papers as surely as if
they were printed with hand-set type on a mechanical press.  The
Constitution cannot be deleted by an accident of technology. 
	The idea that data stored in, or transmitted over, a
computer communication system belongs to the owner of the machine
or network in question, is a pernicious doctrine quite inimical
to the constitution, as the OTA report noted 12 years ago: 
 
	In a recent case [United States vs. Miller, 425 US.
	435(1976)] the Supreme Court ruled that an individual's bank
	records belonged to the bank and were not protected
	constitutionally as his or her personal property.  One basis
	for this ruling was that the use of a bank account was a
	voluntary action.  Yet, it is questionable whether future
	participation in a computerized society can be construed to
	be voluntary if the alternative is to forego all services
	necessary to live comfortably as a member of that society. 
	Extensions of such reasoning could leave only a hollow
	shell of fourth amendment protection for personal records,
	while eroding any substantive effective barriers against
	Government intrusion. [OTA, p. 108] 
 
	Again, a person's computer files, though they may reside in
some sense in a machine belonging to someone else, are just as
much the protected property of that individual as if they were
secured in a locked safe in that person's house.  Likewise, the
procedure by law enforcement which has become all too common, of
kicking in the door and seizing all of the computer equipment  
of a suspect prior to any trial, is tantamount to kicking in the
door and seizing every book and newspaper in the house.  What is
the justification? Are the authorities just too uninformed or in
too much of a hurry to observe the protections provided to an
individual by the law and the constitution just because a
computer is somehow involved? 
	Likewise, I am not persuaded that there is any substantive
difference between a corporation or government agency reading a
person's US Mail and reading their electronic mail. 
	Although a full treatment of the subject lies beyond the
scope of this testimony, the recent attempts by the NSA through
its 'commercial cutouts' RSA and PKP, to limit and cripple the
ability of individuals to use the Diffie-Hellman algorithm must be
appalling to any true patriot.  First, algorithms (generalized  
mathematical procedures) are intrinsic properties of the universe
and as such must not be allowed to be patented. Algorithms are
discovered and not invented.  One might as well allow someone to
patent the Sun, or more exactly, the Pythagorean Theorem. Locks
on people's doors may impede government search and seizure, but
we don't outlaw them for that reason. 
	Further, NSA and its allies have attempted to restrict the
public-domain implementation of the Diffie-Hellman algorithm
called PGP (Pretty Good Protection) on the grounds that the
International Traffic in Arms Regulations defines cryptographic
materials as "munitions".  Even if one accepts the bizarre ITAR
classification, one may argue that the Second Amendment protects
the ownership of such materials precisely because they enhance
national security.  After all, my computer,
river.ann-arbor.mi.us, is rather less likely to be compromised by
a foreign power, than say, ozone.house.gov.  Further, the
proposed "clipper chip" and mandatory public-key registration
scheme represents a considerable attack on the Fifth Amendment
protection against self-incrimination, as well as the Fourth
Amendment protection against unreasonable seizure and the Ninth,
Tenth and Fourteenth Amendment protections.  As noted in the OTA
report: 
 
	If the information is in encoded form (encrypted) and the 
	key to its decoding is only in the head of the suspect,
	fifth amendment protections may allow that person to
	withhold the encryption/decryption key or the encryption
	algorithm. 
 
	[OTA p. 109] 
 
	If encryption is a munition, then perhaps the Second
Amendment supports putting such munitions in private hands.  Many
hands pursuing many schemes is better for security than one
giant, flawed, inherently insecure scheme of public-key
registration. 
	The proposed mandatory public-key registration scheme
represents the worst of all possible worlds: a strategy which
both intrudes on public liberty and decreases national security. 
Consider: my computer at home, river.ann-arbor.mi.us, is
undoubtedly more secure than your ozone.house.gov.  This is  
because your computer is a high value target for every foreign
government and computer cracker.  Mine is small, undocumented,
and extremely idiosyncratic. 
	A central key repository would be a highest-value target,
and would quickly be in the hands of the hacker community and a
dozen foreign and internal intelligence agencies.  Not
universally distributing public keys adds another layer to the
national blanket of security.  Making the use of encryption
completely unregulated would be in the best interests of both the
civil liberties and security of the United States. [cf. Levy 53,
Bamford 353-354] 
	Prof. Tribe develops the theme of "virtual confrontation"
from the Sixth Amendment and Maryland v. Craig.  He asserts that
the core of the confrontation clause of the Sixth Amendment is a
two-way confrontation, liable to make the accuser uncomfortable,
and therefore less likely to lie.  With the advent of virtual  
reality, telepresence, and the existing work in cybernetics, we
need to ask ourselves again what constitutes "presence", for the
purposes of the confrontation clause, and in determining if a
person was present at a certain place such as a crime scene. 
	The Ninth Amendment says: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people."  Underlying the
constitutional guarantees of free press, free speech, assembly,
bearing arms, and the right of a citizen to be secure in their
persons, houses, papers, and effects all uphold a single
principle: freedom of thought.  Freedom of thought means the
ability of every person to discover for themselves  
the underlying truths of nature and to create each their own
varied and individual application.  To regulate the application
of algorithms or the content of computer programs is to make
certain avenues of thought, discoverable by experiment and
introspection by anyone, forever inaccessible. If you allow the
patenting of algorithms, you will make hackers into a generation
of Galileo's burdened by intrinsic truths of nature they have
been forbidden to express. 
	Likewise, nurturing the free marketplace of ideas is the
highest ideal which you must uphold in considering computer
mediated communication systems.  Real freedom of thought means
being able to not only be exposed to, but to advocate, or
criticize, with equal vehemence, any assertion. Our national  
information systems are at their best when they provide access
for even the most extreme views and behaviors.  
	In the case of minors, teachers, parents and guardians are
the best gatekeepers for the participation of their children in
the Net.  Parents have an affirmative duty to learn about the
systems their children participate in and to provide some
guidance in their appropriate use.  Otherwise, the gap between
our  generation and 'the children of the Net' will grow huge.  No
corporation, government agency or regulation can or should
substitute for the appropriate role of the family in determining
what is and is not appropriate for a particular child. 
 
 
RECOMMENDATIONS 
 
1) National Information Systems should include both regulated
commercial and non-regulated public networks. 

	Our National Information Systems have been and continue to
be, largely self-regulating.  This system has worked well, and
should be continued.  Commercial systems are becoming more and
more dominated by the telecommunications and entertainment
industry giants.  Making these network service providers
regulated common carriers like telephone companies is probably
the best solution in the public interest. 
 
2) All public data should be provided to the public free or at a
nominal fee through public data networks. 

	The diversion of public legal and other data from the
government to expensive commercial service providers as an
exclusive source is a violation of the public trust and must be
stopped. 
 
 
3) Algorithms must be unpatentable and free to all. 

	Freedom of thought and particularly the freedom to discover
universal truths through intellectual inquiry is a fundamental
right. 
 
4) Government regulation must put the interests of the people
first. 

	Any future regulation or restrictions on computer mediated
communication systems must be cognizant of the fact of the great
violence that could be done to the free marketplace of ideas
which is the greatest treasure of our national information
systems. 
 
	As the OTA report noted, "The principle purpose of
guaranteeing freedom of speech is to insure a free marketplace of
ideas." [OTA p. 105]
	New technological developments have the promise of
reinvigorating the promise of American democracy through a
virtual town hall and through existing forums for free speech on
the Net.  Our highway and postal systems show us the possibility
and the desirability of having regulated commercial and
public-access systems side by side.  Let us not construct a
highway system like the old Soviet Union with innumerable
checkpoints along the way.  Nor let us construct a system of
unregulated toll roads with innumerable toll booths in the way.
Rather let us construct a mind's highway that runs free from
coast to coast at the speed of light. 

 
 
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copyright (C) 1993 Henry Edward Hardy