Constitutional Freedoms in the Age of Cybertechnology

by Administrator

Introduction:  The issue of hate crimes and the internet was selected in February 2000 for an in-depth JCPA review because it juxtaposes two central interests of the Jewish community: our interest in combating anti-Semitism, hate speech and violence; and our strong commitment to free speech, individual rights and privacy.  Between February 2000 and June 2001, a JCPA committee examined that balance from a variety of perspectives, as noted below.

 

The events of September 11, 2001, shook that balance to its core.  Our community’s willingness to accept risks and limit law enforcement – all in the name of protecting constitutional freedoms – may be different today than it has traditionally been.

 

Therefore, we examine the internet as a backdrop for a seminal issue facing our community today.  Do the new and serious threats affecting America today and the increased need for domestic security call for any change in our traditional position favoring individual freedom, privacy rights, and free speech?

 

Background:  In February 2000, at its annual Plenum, the JCPA launched a review of current policies within the organized Jewish community under the heading Constitutional Freedoms in the Age of Cybertechnology. The goal of the study was to reevaluate traditional policy positions held by the JCPA with respect to free speech and communications issues, in light of the growth of the Internet and other computer technologies.  Immediately following the Plenum, an ad hoc committee was established to direct the study.  The committee, composed of professional and volunteer leaders from the JCPA’s local and national constituent agencies, framed its activities around a series of programs.  It also encouraged concurrent studies by local community relations councils.  The committee held several meetings, including two daylong sessions, to hear speakers representing a variety of views, including authors, social scientists, academicians, criminologists, attorneys, law enforcement professionals, Jewish communal affairs professionals, and rabbis who addressed Jewish legal perspectives on privacy and free speech.  The committee heard from some that the Internet is not essentially different from other communications media, and can be regulated by policies and laws already in place.  Others argued that cyber-technology does pose new challenges requiring revision of free speech and privacy laws.  Summary reports of committee discussions have been shared with all national and local member agencies.  An interim report on findings of the committee during its policy deliberations was presented for discussion at the JCPA 2001 Plenum.  Following the Plenum, the committee sought further grass-roots community input into the study, examining local strategies for addressing Internet-related issues and exploring ways to benefit from the networking capabilities of the Internet. 

 

Free speech and the Challenge of Hate on the Internet: Among the torrent of information on the worldwide web has been a disturbing stream of hate directed against religious, ethnic, racial and cultural minorities. The broad reach and immediacy of the Internet makes it easier for hate groups to preach to the unconverted, to recruit new members, and to reach an audience many times larger than they could have ever have hoped to reach through traditional means.  Extremists can work anonymously and far beyond the neighborhoods in which they live. While there were only a handful of hate sites in 1993, the ADL has recently monitored over 500 particularly extreme sites and notes that new ones appear weekly.  Anti-Semites have been particularly active, as have those promoting Holocaust denial.  The committee was introduced to the concept of “disintermediation,” wherein the usual identifiers of reliability, such as known authors or reliable publishers, do not exist on the Internet.  This lack of selectivity has allowed anti-Semitic data and scientific data to be viewed on an equal footing; the reputable and the disreputable, indistinguishable, exist side by side.  As more people use the Internet, more are exposed, especially young children who inadvertently come across these sites, some of which are targeted to attract them.

 

Free Speech Implications: The Internet has removed the filter of “traditional media” between hate groups and the rest of society; it has given anti-social individuals and organizations a larger audience as well as the cloak of anonymity.  The committee considered the impact of that broad access, and whether a greater potential for harm requires a revision in what we consider protected speech.  While freedom of speech is one of our most cherished rights, it has never been completely unfettered.  Constraints have always existed to protect society from harm, and speech that is likely to incite imminent lawless action is unprotected by the First Amendment.  The challenge is to distinguish between speech that, while hateful, does not engender violence, and speech that in fact does.  While we may believe with some justification that hate sites influenced the perpetrators of hate crimes during the summer of 1999 in Chicago, Los Angeles and Sacramento[1], and played a role in the tragic Columbine massacre, it is generally difficult to prove that one particular website triggered a violent act.  Still, in one successfully litigated case where a website was judged to be threatening, an anti-abortion group last year was ordered to pay $100 million in damages by an Oregon jury.  The group had posted names of abortion doctors with their home addresses.  Although there were no explicit threats of violence, the website’s author crossed out names of doctors who were killed, which the jury considered a call for violence.

 

The committee heard from rabbis addressing Jewish legal perspectives on these issues.  Jewish sources deal with free speech partly in the context of dangers posed to the community by expressions of anti-Semitism, and some sources suggest that any means necessary to combat anti-Semitism may be permissible.  We were cautioned, however, to remember the context in which that view developed and to recognize that much has changed since Talmudic times.  In the U.S., the Jewish community historically has cherished free speech protections, maintaining that open, unfettered communication is essential to democracy.  The committee was reminded that one of the first measures taken by oppressive regimes has been to clamp down on freedom of speech.  Historically in such regimes, Jews have more often been hurt than helped by restrictions on speech, since those with minority views are usually the first to have their speech curbed.  In its policy opposing censorship, adopted in June 1962, the JCPA proclaimed its conviction that “Jewish security has ever best been furthered by a democratic society which adheres to the Bill of Rights and its guarantees of freedom of expression.  Freedom of speech and of the press are essential tools…for the protection of minority groups and the promotion of democratic ideals.”  We noted that “even in a free society, one individual’s freedom may end where another’s begins. Consequently, some limitations are inevitable,” as in cases of sedition, libel and slander, blasphemy, and obscenity, but also said, “the emphasis must be upon the fullest possible right to speak and write freely, with restrictions imposed only as exceptions….”  This suggests a willingness to err more on the side of protecting speech, rather than suppressing even hate speech. 

 

Solutions sought by Jewish agencies to the disturbing availability of The Protocols of the Elders of Zion on Amazon.com and BarnesandNoble.com underscore the reluctance to support censorship as a solution to hate speech in cyberspace.  Instead of challenging the availability of The Protocols on the Internet, the Anti Defamation League adopted an approach consistent with its previous recommendations to booksellers, emphasizing the need to provide information, offer guidance, post reviews, and educate visitors to these sites about anti-Semitic publications—to expose rather than to suppress.   Although the American Jewish Committee took a different view, asking companies to use their wisdom and discretion to not sell an historic anti-Semitic forgery, to deny a fringe publisher commercial equivalency with reputable publishers, its stance also emphasized voluntary action as opposed to government regulation.

 

Voluntary Measures: Given the global nature of the Internet and the consequent difficulty of imposing truly effective regulation, innovative voluntary responses may be more appropriate, the committee heard.  Current options include:

  • Empowerment technologies such as filtering and blocking (for example through devices that monitor sites visited by children – currently over 100 products are available that block access to websites[2]);
  • Monitoring options – Parents can place children’s computers in open areas rather than in bedrooms, so online activity can be monitored. Or, parents can connect a second monitor to children’s computers and place it in a location where Internet activity can be viewed;
  • “Green spaces” – a set number of web pages can be downloaded to a server, without providing access to the entirety of the Internet;
  • Positive parenting – encouraging parents to take responsibility for what their children view, to educate themselves and their children about the powers and proper use of the Internet.

 

Finally, the ability to form communities of shared interest over the Internet may provide new ways to combat cyber-hate without government intervention.  Organizations can mount a proactive fight against hate, using the networking capability of the Internet itself to organize online communities that challenge, inform and counter hate messages.  Websites could provide links to educational and other sites designed to combat hate speech, develop e-mail lists of interested people and provide them with periodic updates regarding cyber-hate, and engage in other forms of educational activity.  Further, Internet Service Providers can be encouraged to develop a common standard of acceptable practices for people using their services.  The committee heard also that law enforcement must become more aggressive in prosecuting hate crimes on the Internet. People need to know illegal behavior in cyberspace can be tracked in some – although not all – instances, and that threats that would be criminal in the “brick and mortar” world, to the greatest degree possible, will also be prosecuted in the virtual world.

 

Privacy: Those who addressed this issue described privacy as the ability of individuals to protect their private actions and interactions with family members and to regulate government use of personal information through restrictions on certain forms of surveillance, so as to limit the degree of government intrusion.  Discussion focused on issues of consumer privacy and of law enforcement surveillance.

 

Consumer privacy: The committee heard charges that there is little consumer privacy for Internet users, who are subjected to tracking devices that monitor not only what they have bought on-line but every website they visit.  As tracking becomes more sophisticated, companies will be able to build increasingly detailed profiles of each Internet visitor.  It was also reported, however, that companies generally use this information without revealing individual identities to third parties.  In fact, generally no information about personal identity is gathered.  Companies may learn that computer X likes certain brands, books, etc., but nothing personal about the user of that computer.  Information-sharing online was described as similar to selling consumer lists offline.  As legislation to protect Internet privacy is considered, we were told, it should focus on medical, financial, and other sensitive personal data, where concern is warranted.   

 

The Jewish community has long been concerned about the privacy of medical records, including genetic information that might be used inappropriately to deny employment or health insurance.  Our interest is based broadly on civil liberties concerns.  On a more parochial level, there is concern about reports that mutations in certain genes that may increase the likelihood of developing certain cancers are potentially more present in Ashkenazi Jews.  Fear of potential insurance and employment discrimination if information about genetic predisposition to disease is revealed has led people to resist participation in important research, despite potential health benefits.  In a study conducted by the National Institutes of Health, 32 percent of those surveyed declined to participate for fear of discrimination.  The advance of Internet technology has created new opportunities to track these medical issues and increased the need to protect sensitive medical information online.

 

While legislation may provide greater protection, there is also opportunity for more Internet self-regulation to ensure consumer privacy.  The committee was urged to support increased public education regarding how privacy works on the Internet and to press for privacy enhancing technologies that emphasize self-regulation.  Computer software is needed that provides individuals more control over what information can be shared as well as guidance regarding sites that are safe to enter. The World Wide Web Consortium (W3C) is currently attempting to create a uniform privacy standard, through a program called Platform for Privacy Preferences (P3P), which will allow people to receive notice about privacy parameters when entering a website and to decide who may access their information.

 

Law Enforcement Surveillance: The Internet’s greatest strength, the amount of information it can access, also makes it vulnerable to criminals, swindlers and terrorists.  In response to increasing illegal activity on the Internet, the Federal Bureau of Investigation has introduced an Internet surveillance tool called Carnivore, which it says is needed to deal with these crimes in a way that meets the specific criteria required by Congress—that searches be surgical, to ensure that only specific, relevant content is monitored.  Some privacy advocates have challenged the claim that Carnivore meets that standard, however, and questions regarding potential for abuse have been raised in Congress.  A technical review of Carnivore, released by the Justice Department found that the system does what law enforcement officials say it does.  However, the study also confirmed that Carnivore can collect more information than previously acknowledged and more than what would be legally permitted under current law.  “While the system was designed to, and can, perform fine-tuned searches, it is also capable of broad sweeps,” the Justice Department report said.  It recommended several modifications to prevent abuse.

 

Opponents of Carnivore have said the system raises troubling questions about what constitutes a reasonable search and seizure of electronic data.  Law enforcement officials have argued for permission to use Carnivore under the relatively low standards of proof required for “pen registers” or “trap-and-trace” devices[3] (used commonly in criminal cases to access telephone data, recording the origin and destination of all telephone calls related to a suspect).  Opponents say the higher legal standard of proof required for full wiretaps should apply.[4] While law enforcement clearly needs effective electronic surveillance technology with which to protect public safety and security, that need must be balanced carefully against considerations of individual privacy and Fourth Amendment protections against unreasonable search and seizure. As pressures to develop new and better tools for electronic surveillance continue, and as these technologies allow for broader surveillance capability, mechanisms will be needed to monitor and ensure that these technologies are used in compliance with the appropriate laws and federal regulations including the anti-terrorism legislation passed in the aftermath of the September 11th attacks.

 

Privacy and Jewish Tradition:  Jewish texts, the committee heard, establish an obligation to respect the privacy of others, addressing such principles as: The responsibility not to spread falsehood, the right of individuals to an expectation of privacy, the obligation to protect the privacy of others, and the obligation to not reveal private information without permission. The balance between the right to privacy and society’s right to obtain reasonable information is maintained by requiring that only information necessary for rational decision-making be revealed.  The repeating of even truthful but irrelevant information about an individual is prohibited.[5]

 

In the area of public policy, the Reform movement has urged lawmakers to ensure that all patient records shared for reasons related to the care of a congregant or client, such as financial data required by insurers or other payers, remain secure and confidential, except for the most urgent reasons, as in cases of child abuse.  It has asked Congress to “enact legislation restricting the rights of the government and private agencies to collect data on individuals unless there is clear showing that [it] serves a lawful government function,” and has expressed concern over corporate invasion of employee and customer privacy.[6] 

 

Recent years have witnessed an explosion in new forms of information technology.  Most significantly, the Internet has provided an inexpensive, easily accessible method for disseminating information on a global scale.  We are increasingly a society governed by fleeting images transmitted via satellites, fiber optic cables, and computer technology.  Unfortunately, the communications revolution does not come without a cost. The breathtaking growth of information technologies has not only opened up new areas of knowledge, but also created opportunities for purveyors of pornography, violence, and hate to become uncontrollable presences in our high tech world. 

 

The organized Jewish community is among the first to acknowledge that constitutional protections of free speech have been among the central pillars of an open, democratic society, in which we, as individuals and as a community, have flourished.  However, the flood of unfiltered and unfilterable information seems to have drowned the informal constraints against hateful ideas that formerly existed in society – and we have been made too keenly aware of the cost that hate can bring to our nation.  The task is to determine how to restore those constraints without abridging cherished constitutional protections of ideas, expressions and speech.  In some areas, government regulation may be an appropriate response.  In others, voluntary, self-imposed constraints may be more effective in balancing cherished First Amendment freedoms with the need to foster a civil, tolerant society that is secure for all Americans.

 

Conclusion: 

 

            A New Consensus on The Balance Between Liberty and Security? 

 

For nearly a half century, the JCPA has been a champion of free speech and free association, and has been wary of governmental restriction on their exercise.  As delineated in its Statement of Policy on Censorship, first adopted by the Plenum in 1962, the JCPA believes that “Jewish security is best furthered by a democratic society in which there is adherence to the Bill of Rights and its guarantees of freedom of expression.”

 

Inherent in the JCPA’s historical position is the belief that Constitutional freedoms trump governmental concerns about speech, and that societal safety can justify restraint on those freedoms only when a “clear and present danger” of immediate injury exists. Consequently, the recommendations below suggest that the danger of anonymous hate speech on the internet, and the risk that violent hate crime can be incited and facilitated in cyberspace, warrant neither dilution of our individual liberties nor enhancement of police power to snoop into our private internet activities.

 

It is legitimate to stop and consider whether the events of September 11 altered the national Jewish community consensus favoring individual freedom over societal need. The stakes have become higher, the governmental need more pronounced. Should the government be allowed to intercept and monitor messages originating from unfriendly nations? Should it be permitted to infiltrate, and monitor messages among members of, groups that espouse views contrary to the ‘war’ against terrorism? Should that power extend to surveillance of members of groups defined not by their actions but rather by the  ethnicity or religion around which they are organized?

 

There is a general consensus that the government should be allowed to ‘look at’ an email that arranges for anthrax letters or suicide bombs; but to find one of such message, investigators might have to sift through 1,000,000 innocent communications from law-abiding citizens. Is that a price we are willing to pay?

 

On November 27, 2001, during oral argument regarding the proof needed to support a warrantless stop and search of a vehicle, centrist Justice Sandra Day O’Connor suggested that a traditional Constitutional analysis “seems a little more rigid than common sense would dictate” because “we live in perhaps a more dangerous age today”. The same question seems apt in re-evaluating the balance between free speech within, and governmental intrusion upon, cyberspace; the JCPA has yet to discuss that issue in the post 9/11 reality.  

 

Action Recommendations:

Government Regulation

  • Support the use of filtering in publicly funded places that provide Internet access, such as schools and libraries, to block material harmful to minors, provided that unfiltered computers are available for use by adults.
  • Advocate legislation to make illegal the use of the Internet to instruct and encourage individuals to engage in imminently violent criminal activities, including terrorism. Support legislation to protect the privacy of personal information collected on the Internet (such as financial, medical, and other sensitive data), and to provide greater individual control over the collection and use of that information; require privacy disclosures on web sites, consumer consent for use of data, and access by individuals to their own personal data.
  • Promote measures to monitor and ensure that internet surveillance by law enforcement comport with individual liberties including freedoms of speech, association, and due process, and freedom from unwarranted search and seizure. Argue that the Internet communication should be afforded the same legal protection as other forms of speech.

 

Voluntary Constraints

  • Call on Internet service providers (ISPs) to police their clients’ web sites, reminding them there is no law requiring that they continue to do business (with) and provide services to sites that preach violence, teach bomb-making or promote other forms of terrorism.
  • Encourage ISPs to develop a common standard of acceptable practices for use of their services.
  • Advocate increased public education regarding how privacy works on the Internet.
  • Press for privacy enhancing technologies that emphasize self-regulation.
  • Encourage parents to take responsibility for what their children view, to educate themselves and their children about the powers and proper use of the Internet, and to make use of filtering and blocking technologies, options for monitoring children’s computers, and use of “green spaces” technology (whereby specified web pages are downloaded to a server, without providing full Internet access).
  • Promote development of websites designed to counter hate speech. Use the networking capability of the Internet itself to organize online communities that challenge, inform and counter hate messages.
  • Support efforts to promote “voluntary self-labeling,” for example, asking search engines to require that all web sites label content when applying for a spot in their directories.

[1] Benjamin Smith, a World Church of the Creator disciple who committed the shootings in Chicago, visited WCOTC websites often before embarking on his crime spree.  Shortly after the shooting, the site posted a tribute to Smith.

 

[2] The ADL hate filter  blocks websites based on their entire content, rather than searching for specific words, which could be taken out of context.  The filter is used in conjunction with the Cyber Patrol web filter.  It can be downloaded onto a computer at the request of a parent, thereby preventing children from inadvertently making their way to a hate group site.  When a child comes across a filtered site, a statement appears saying “access restricted, to find out more click on the ADL logo.”  Doing so takes the user to the ADL education page, which explains why the site is being blocked.

 

While filters are among the more effective tools to help parents protect children from cyber-hate, even the best have limitations, including an average 20 to 25 percent error rate.  Filters may block some non-objectionable sites and allow some inappropriate material to be viewed.  Moreover, decisions regarding what material to block are controlled by those who design the filter and who may be driven by their own ideology or set of beliefs.   Legislative proposals to tie government funding to the mandatory installation of these filters in public schools and libraries have thus provoked strong opposition.  Moreover, if local communities were allowed to establish standards for local library and school filtering, there are concerns that some might filter out minority religious and political viewpoints, or otherwise violate constitutional freedoms.  At the same time, the committee was reminded, there have always been sections of libraries considered off limits to children.  So long as unfiltered computers are also available for use by adults, it might be possible to argue that free speech would be preserved.

 

 

[3] Pen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls; trap and trace devices capture the numbers identifying incoming calls.

[4] Under the wiretap statute, commonly known as Title III,  the government needs a court order to wiretap communications.  The warrant application must specify the person(s),  facilities, and particular communication(s) the government is seeking to monitor, must explain why other techniques will not work, and must explain how it will seek to minimize the recording of non-relevant information. 

[5] Leviticus 19:16- “Do not be a talebearer amongst your people.”   Babylonian Talmud 60a- The legal category that many scholars have chosen to apply to privacy policy is “hezek rieah,” an obligation to protect the privacy of others.    “A person should not open into a shared courtyard a door across from another door or a window across from another window.  One may do so if it is across from a public space.”  Deuteronomy 24:10-11 – “When you make a loan to your neighbor you must not enter his house to take his pledge.  You must remain outside while the man to whom you made the loan brings the pledge to you.”  This suggests the notion of a distinction between a public and private domain.   

[6] At the request of the Committee, copies of statements and resolutions by the Reform Movement on these issues will be listed in an appendix to the final report.


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