Talk at the Ontario Library Association Session on Public Networks and Censorship January 15, 1995 Prof. Jeffrey Shallit University of Waterloo and co-founder, Electronic Frontier Canada E-mail:
Good afternoon. Thank you very much for the opportunity to speak to the Ontario Library Association on the subject of public networks and censorship. I'd also like to thank Mike Ridley for inviting me. 1. Librarians and Computers. I had planned to start off with something sententious such as, ``We stand today at an information delivery crossroads,'' but the truth is, that we have already passed this crossroads and are heading into the information age at very high speed. The crossroads, I think, was traversed back in 1989 -- when, for the first time, the number of videotapes rented exceeded the number of books checked out of public libraries. The old concept of the library, as we have known and loved it, is dying. Now I'm not saying that books will cease to be published, or that traditional library concerns such as shelf space and book theft will disappear tomorrow. But I *am* saying that there is an enormous flood of information and communication that is about to be unleashed, that is already being unleashed, and that librarians and the principles they have developed and fought hard for, are desperately needed in the new world as ``information intermediaries''. The librarians of yesterday were valued by the general public for, among other things, their abilities to determine just *where* in that intimidating building full of books, magazines, newspapers, and scholarly journals the particular piece of desired information resided. The librarians of tomorrow will be equally valued, but now much of the information lies in cyberspace. Yesterday, the Reader's Guide to Periodical Literature and Ulrich's; today, the Lexis/Nexis search service; tomorrow ... ? The librarians of yesterday were also known as guardians of intellectual freedom and the freedom to read. The principles of their profession can be found in statements produced by such groups as the American Library Association (for example, Library Bill of Rights, the Freedom to Read Statement, and the Intellectual Freedom Statement); the Canadian Library Association (Statement on Intellectual Freedom); and the Canadian Association of Research Libraries. Let's take a look at just one of those statements, the intellectual freedom statement of the Canadian Library Association : All persons in Canada have the fundamental right, as embodied in the nation's Bill of Rights and the Canadian Charter of Rights and Freedoms, to have access to all expressions of knowledge, creativity and intellectual activity, and to express their thoughts publicly... Libraries have a basic responsibility for the development and maintenance of intellectual freedom. It is the responsibility of libraries to guarantee and facilitate access to all expressions of knowledge and intellectual activity, including those which some some elements of society may consider to be unconventional, unpopular or unacceptable. To this end, libraries shall acquire and make available the widest variety of materials... Libraries should resist all efforts to limit the exercise of these responsibilities while recognizing the right of criticism by individuals and groups... I find those words very inspiring, and I hope you do, too. The question I would like to pose to you today is: as the libraries of yesterday are transformed into the libraries of tomorrow, will these principles govern electronic communication technologies such as the Internet? 2. Shallit's Three Laws. Before we begin discussion of fundamental freedoms on computer networks and the challenges to those freedoms, I'd like to tell you about what I modestly call Shallit's Three Laws of New Media. Shallit's First Law is the following: Every new medium of expression will be used for sex. Now you might say that I'm overstating my case, but think about it for a moment: some of the very earliest sculptures we know about are fertility symbols, such as the Venus of Laussel (c. 20,000 B.C.). One of the earliest books printed after Gutenberg invented the printing press was Bocaccio's erotic classic, the Decameron. Shortly after the introduction of photography, there was a thriving trade in pornographic pictures. And some anthropologists have even claimed that speech evolved so quickly in humans because it facilitated seduction! And this brings me to Shallit's Second Law: Every new medium of expression will come under attack, usually because of Shallit's First Law. Before I get to Shallit's Third Law of New Media, I'd like to tell you a story from a really terrific book, Carolyn Marvin's _When Old Technologies Were New: Thinking About Electric Communication in the Late Nineteenth Century_. Marvin's book is largely concerned with the societal impact of the telegraph and telephone, and, as we will see, neither was exempt from Shallit's Three Laws. As Marvin observes ``New forms of communication created unprecedented opportunities not only for courting and infidelity, but for romancing unacceptable persons outside one's own class, and even one's own race, in circumstances that went unobserved by the regular community. The potential for illicit sexual behaviour had obvious and disquieting power to undermine accustomed centers of moral authority and social order.'' [7, p. 70] Now here's that story I promised: in the summer of 1886, in New Jersey, ``a `nice young man' from the city met `one of the rustic beauties of the place' and they fell in love. They corresponded, and she invited him to visit. One day a telegram appeared with news of his impending arrival. Somehow--nobody ever will know just how--fifteen minutes after the message clicked into the [telegraph] office every person in town knew that young Blake was coming to see Miss Trevette. Every young lady of the town made up her mind to catch a glimpse of this rash young man who sent telegrams, and every man determined to be there to see that everything went smoothly. When young Blake alighted from his carriage... an audience of 499 villagers had gathered to watch. They observed while he paid the driver, studied him as he asked directions to the young lady's house, and followed his progress up the hill. Panicked by the approaching procession, Miss Trevette sent word of her absence, halting the romance at a blow.'' [7, pp. 70-71] An amusing story -- but with a cautionary moral. Today's new communications technology -- electronic mail -- does not yet enjoy any of the legal or societal protections we associate with communication by more traditional means. While employers would think twice before opening an employee's mail delivered by Canada Post, e-mail is another matter. For example, Nissan Corporation dismissed a man for ``inappropriate jokes and language'' found in his e-mail. Epson, a computer company, dismissed a woman after she reported on a co-worker who was reading another employee's e-mail -- apparently with the blessing of management.  And this brings up Shallit's Third Law of New Media: Protection afforded for democratic rights and freedoms in traditional media will rarely be understood to apply to new media. Shallit's Third Law can be rephrased as the fallacy of focusing on the medium and not the message. A good illustration is the regulation of radio and television broadcasting. We tolerate content restrictions on television, for example, that would be intolerable if they were applied to print media . When asked why, most people cite the supposed scarcity of the airwaves as a justification for government regulation of content. The truth is that this scarcity itself is a product of government intervention. The technology now exists to make possible hundreds or even thousands of broadcast stations in any metropolitan area. You don't hear much about this, because broadcasters are understandably less than enthusiastic about new competition, and the CRTC doesn't wish to relinquish its control on content. As Jonathan Emord shows, in his excellent book _Freedom, Technology, and The First Amendment_, regulations on broadcasting were historically enacted with little understanding of the technology and its capabilities . 3. Threats and Challenges to Freedom. We see that traditional democratic freedoms, such as freedom of expression and privacy, are under threat when these freedoms are asserted electronically. And make no mistake, there is indeed a threat. One danger is that the new medium will be regulated to death before it is firmly established. For example, in November 1994, Reform MP Myron Thompson issued a press release alleging ``highly pornographic, illegal stories available on Internet ... that are reaching our children'' and saying, ``this smut must be stopped''. (Shallit's Second Law again!) Also, in a report recently presented to the Canadian Parliament, the Justice Committee recommended changes to the legal definition of ``obscenity'' to include ``undue exploitation or glorification of horror, cruelty, or violence''. In addition to cards and games, the report names ``music, videos, comics, posters, and computer bulletin boards'' as forms of communication that need to be controlled by the government. Communication that falls within this expanded definition and has ``no redeeming cultural or social value'' would be prohibited. The Internet is at risk, but books are safe ... at least for the time being. One reason for this difference in legal protection is that the print medium has existed for more than five hundred years, and libraries have existed for thousands of years. During that time, librarians have earned a good reputation for their craft, and have developed intellectual freedom principles that are well-respected. In contrast, electronic computers have existed for barely fifty years, and computer networks for barely twenty years. Computer system administrators have their own conferences and their own journals, but to my knowledge, they have no statement of duties, responsibilities, or ethics even remotely like the ALA's _Intellectual Freedom Manual_ . Within the next ten years, I predict that the power of many computer system administrators to regulate content on the machines they administer will wane. They will still be needed to help plan day-to-day use, install new software, and fix bugs, but the responsibility for such public forums such as Usenet News, etc., will move to people trained in principles of acquisition and intellectual freedom. It may be that in the near future, the sheer volume of information flow will make selection much more necessary than it is today. When this happens, shouldn't the decisions on what electronic materials to subscribe to be based on the acquisition principles that librarians have worked so hard to enunciate? I hope so. 4. Censorship Incidents. As I pointed out, freedom of expression is at risk on the Internet. I think it's worthwhile to make this concrete by examining some censorship incidents in detail. Since I am most familiar with one Canadian institution, the University of Waterloo, I will focus on that university. First, a little background. Due primarily to historical accident, universities are currently one of the principal locations where people have free and unlimited access to the Internet, one part of the so-called Information Highway. The Internet is also one of the principal places where Usenet news may be accessed. Usenet consists of thousands of bulletin boards called ``newsgroups'', on a variety of topics -- a kind of shared electronic mailbox. Users may read messages that have been posted on a particular topic, reply to those messages (by sending electronic mail directly to the poster), or ``follow-up'' (post a reply to the newsgroup itself). Usenet has existed for about fifteen years, and readership estimates for some newsgroups are in the millions or hundreds of thousands. Usenet censorship can take place in a variety of ways, some more subtle than others. For example, it is possible for a local system administrator to expurgate a news feed, so that only certain newsgroups get through, and others are blocked. When this is done, the user is typically not informed. It is also possible to block certain postings locally from certain newsgroups, as has recently been done at the University of Kentucky . Finally, messages do not stay forever on the bulletin boards they are posted to: something called an ``expire time'' governs how long they are available to the public. By differentially setting the expire times, it is possible to control locally which newsgroups actually get read. The first censorship incident at Waterloo took place in 1988. Brad Templeton, a UW alumnus and operator of a Waterloo-area computer company, moderated a newsgroup called rec.humor.funny, a bulletin board devoted to jokes. People from all over the world sent him jokes; he chose the best ones, and posted them to the Internet. When an ethnic joke offended a student at MIT, he complained to the local newspaper, the Kitchener-Waterloo Record, and the Waterloo administration responded by banning the newsgroup. Ironically, after the ban, compilations of the jokes from the newsgroup could still be found for sale in Waterloo's own bookstore. (Shallit's Third Law!) More recently, the University administration discovered that some of those thousands of newsgroups dealt with sex. In today's climate -- as Trent University professor John Fekete calls it, an atmosphere of ``moral panic''  -- such a thing has become unacceptable. To give you some idea of what we're dealing with, here are some of the newsgroups you can find on the Internet: alt.sex.bestiality alt.sex.bondage alt.sex.stories alt.sex.stories.d [d = discussion] alt.tasteless rec.arts.erotica alt.sex.anal alt.sex.breast alt.sex.exhibitionism alt.sex.fetish.feet alt.sex.fetish.tickling alt.sex.intergen alt.sex.masturbation alt.sex.pedophilia alt.sex.safe alt.sex.services alt.sex.pictures alt.sex.spanking alt.binaries.pictures.erotica alt.binaries.pictures.erotica.fetish alt.binaries.pictures.tasteless alt.binaries.multimedia.erotica ont.personals.whips.and.rubber.chickens For reasons known only to that arcane bureaucracy known as a University administration, all these newsgroups are currently available at the University of Waterloo, except for the first five. I should point out that all five groups are groups in which text, not pictures, is primarily distributed. The newsgroups in which pictures are distributed are not yet banned at Waterloo. How did this censorship happen at Waterloo and other Ontario universities, and why is it being tolerated? I believe (although I cannot prove it) that it started with this September 1992 memo from Bernard Shapiro, Deputy Minister for Colleges and Universities from the Ontario Ministry of Education : It has recently come to my attention that computer systems at Ontario's colleges and universities, normally used for the exchange of information between academics and scientific researchers, may be providing access to pornographic and/or racist material through international computer networks. It is the ministry's position that publicly-funded postsecondary institutions in Ontario should have appropriate policies and procedures in place to discourage the use of their computing systems for purposes of accessing or sending racist or pornographic materials. Furthermore, offensive material should be removed when it is identified, and appropriate sanctions should be in place to deal with offences.... ...I do not believe that publicly-funded institutions should be seen to support either access to, or distribution of offensive material... I find this memo bizarre for a number of reasons. First of all, it exhibits no comprehension of the current purpose or use of the Internet. The Internet is not simply used for the ``exchange of information between academics and scientific researchers''. Second, the memo exhibits the fallacy of ``the medium, not the message''. Pornography -- a word that is often used pejoratively, but should not be -- just means material that is intended to cause an erotic response in the viewer. Pornography is not, per se, illegal in Canada. Many pornographic materials in the print medium are freely available in many Ontario libraries. For example, the University of Waterloo library carries a subscription to _Playboy_, and the University of Waterloo bookstore carries a book called _Women's Erotic Dreams_ . Where is the concern and outrage over these materials? Third, the memo asks for the suppression of *offensive materials* at Ontario universities. I was under the impression (in Clark Kerr's words) that the purpose of a University was to make students safe for ideas, not to make ideas safe for students. If you haven't been offended by *some* idea put forward at a university, then you haven't been paying attention. Again, my university contains books in its library that are patently offensive to many, including _The Protocols of the Learned Elders of Zion_, Bret Easton Ellis' _American Psycho_, and Arthur Butz's _The Hoax of the Twentieth Century_, a book that claims that the Holocaust is a massive Jewish hoax. Butz's book is banned from importation into Canada, but it is nevertheless freely available in the Waterloo library. It was not long after the Shapiro memo that action began to happen at Ontario universities. At Waterloo, the University Ethics Committee was empowered to investigate the Internet and decide what material might possibly Canadian obscenity laws. In February, 1994, based on an opinion from the Ethics Committee, the University administration banned the five newsgroups previously listed. Here is part of the memo from the President of the University, James Downey : Last fall I became aware that certain newsgroups on the Internet carried material which was almost certainly obscene and therefore contrary to the Criminal Code. Advice from the University solicitor was unequivocal: under the Criminal Code it is an offence for anyone to publish or distribute obscene material, and the University is running a risk of prosecution if it knowingly receives and distributes obscene material. In these circumstances I felt the University had to act to protect itself... I am aware, of course, that this is a sensitive area: there is no precise and agreed-on measurement of where on the scale of human taste pornography begins... I am now authorizing implementation of the following process: Complaints concerning newsgroups which contain material considered to be obscene are to be referred to the Ethics Committee. The Ethics Committee, with advice from legal counsel as appropriate, will make a recommendation to the Vice-President, Academic & Provost for the removal of any newsgroups it judges to be carrying obscene material... This memo also troubles me. First, the muddled conflation of "pornography" with "obscenity". Again, pornography is not illegal in Canada -- only certain kinds of pornography are illegal. Second, a quick glance at the Criminal Code informs you that one cannot be convicted under obscenity law if "the public good was served by the acts" . Surely guaranteeing free expression at a university is a case of the public good. Third, notice that the stated goal is simply to avoid legal liability. This would be a reasonable objective for a business or corporation, but not for a university, whose hallmark is the guarantee of freedom of expression. Finally, obscenity law is traditionally among the most vexing and difficult to interpret of all the criminal laws, even with the recent *Butler* decision to give guidance. As Ontario Judge Stephen Borins once remarked, ``Judge or jurors lacking experience in the field of pornography and the attitudes of others toward it face a substantial challenge in making the findings demanded by the law.''  Because of this difficulty, the American Library Association offered the following interpretation of its Challenged Materials policy : Particularly when sexually explicit materials are the object of censorship efforts, librarians and boards of trustees are often unaware of the legal procedures required to effect the removal of such items. Many attorneys, even when employed by state and local governing bodies, are not aware of the procedures to determine whether or not a work is obscene under the law. According to U.S. Supreme Court decisions, a work is not obscene until found to be so by a court of law, and only after an adversary hearing to determine the question of obscenity. Until a work is specifically found to be unprotected by the First Amendment, the title remains a legal library acquisition and need not be removed. Although this policy is written for the United States, its principles are equally valid in Canada. Material in Canada is not obscene until declared so by a court; until then it enjoys the protection of the Charter of Rights and Freedoms. This point was driven home by Canadian Supreme Court Justice John Sopinka, in a November 26 1994 speech at the University of Waterloo. Mr. Justice Sopinka, author of the *Butler* decision, said: ``Difficult issues also arise in the context of universities which take action to ban certain communications found to be offensive and undesirable. First, one must ask whether it is not preferable to permit the expression and allow the criminal or civil law to deal with the individual who publishes obscene, defamatory or hateful messages rather than prevent speech before it can be expressed. Otherwise, individuals may be putting themselves in the positions of courts to determine what is obscene and what is acceptable.''  Isn't this precisely what happened at Waterloo? No Internet newsgroup or message has ever been declared obscene by a court of law. Nevertheless, five newsgroups were banned from the campus. There is an interesting historical parallel. Back in 1961, four copies of Henry Miller's _Tropic of Cancer_ were acquired from Grove Press by the Toronto Public Library. The Department of National Revenue, having declared the book obscene and unfit for importation into Canada, demanded that the Toronto Public Library hand over all copies of the book. But chief librarian Henry C. Campbell refused.  As he pointed out, no Canadian court had declared the book obscene. The Toronto Star editorialized, ``If the authorities deem _Tropic of Cancer_ pornographic, they should test that belief in court... Censorship guided by open court hearings, even on the basis of imperfect law, is preferable to any attempt at censorship by official decree.''  Unfortunately, Campbell's principled refusal to turn the book over to the censors at National Revenue was later overruled by Toronto Public Library Board Chair W. Harold Male. But the inner workings of the censorious mind may be judged by the following: Male huffed that ``any self-respecting public library shouldn't have it on its shelves'', and then was forced to admit that he had never even read the Miller novel.  The sad conclusion: librarians understand the principles of intellectual freedom better than some university administrators. 4. A Simple Principle. We have seen that, true to Shallit's Third Law, the current public perception is that communication on the Internet does not merit protection under the Charter of Rights and Freedoms. In the meantime, what are we to do? One possibility is to establish and debate fundamental principles on which policy can be based. To that end, I would like to bring your attention to a principle of intellectual freedom for electronic bulletin boards, as enunciated by Carl Kadie. The principles of intellectual freedom developed by libraries should be applied to the administration of information material on computers.  Let us try to apply this principle to two specific cases, and see what results. First, the case of access to the Internet by minors. As we have seen, people like Reform MP Myron Thomson are worried that children might gain access to pornographic material. Now, as I have pointed out, many public and university libraries in Canada already contain pornographic materials. For example, the Cambridge Public Library purchased two copies of Madonna's recent book, _Sex_. Following Kadie's principle, we must ask, what special actions have been taken by librarians to restrict access by minors to this kind of pornography? The answer is, nothing. For example, the American Library Association has a policy on access to library material by minors that reads, in part, ``Library policies and procedures which effectively deny minors equal access to all library resources available to other users violate the LIBRARY BILL OF RIGHTS. The American Library Association opposes all attempts to restrict access to library services, materials, and facilities based on the age of library users... ``Every restriction on access to, and use of, library resources, based solely on the chronological age, educational level, or legal emancipation of users violates Article V... ``The selection and development of library resources should not be diluted because of minors having the same access to library resources as adult users. Institutional self-censorship diminishes the credibility of the library in the community, and restricts access for all library users.''  Although this is an American policy, it is generally adhered to by Ontario libraries. Most Ontario public libraries, including the Cambridge Public Library, have ended their two-tier library card system and now only offer a single library card. Madonna's _Sex_ is now freely available to any child with a library card in Cambridge (but they'll have to wait in line to see it, since there is currently a waiting list of 100 people). If parents are worried about the kinds of materials their child might borrow, they are free to refuse permission for their child to obtain a library card. Ontario librarians recognize the right of parents to control their children's reading, but they refuse to act in loco parentis. In the same way, schools and libraries that provide Internet access should refuse to provide a two-tier service in which some newsgroups are censored or suppressed for children. Should parents worry about the kinds of material their children might encounter on the Internet, they are free to deny access entirely for their children; for example, by not telling them the password. Let us now examine another problem, that of requesting new newsgroups. In some systems, users are forced to make their request for new newsgroups in public -- at the University of Waterloo, for example, some newsgroups are automatically subscribed to, but as of this writing others must be requested by posting to a newsgroup called uw.newsgroups. The result is that some newsgroups -- particularly those dealing with sexual topics -- may end up not being subscribed to because users are too embarrassed to make their request in front of everyone. If we apply the intellectual freedom principles enunciated by libraries, however, we see that some other method for requesting newsgroups should be provided. For example, Article III of the ALA's ``Librarian's Code of Ethics'' states  Librarians must protect each user's right to privacy with respect to information sought or received and materials consulted, borrowed, or acquired. I believe that the principles librarians have developed for traditional media are a good basis for the protection of the new electronic media. 6. Why EFC? The Internet and related communications technologies are going to change the way we communicate and research in the 21st century. Rules will be needed to make sure that everyone has a chance to participate, and to prevent abuse of the technology. But those rules should be made with careful thought, by people informed about the possibilities, limitations, and dangers of the technology. It is with this goal in mind that the Electronic Frontier Foundation was founded in the United States in July 1990. But until recently, there was no similar organization in Canada. Professor David Jones (then of McGill University and now of McMaster University) and I founded Electronic Frontier Canada in January 1994. Here is our raison d'etre (based on a similar statement from the Electronic Frontier Foundation): Electronic Frontier Canada (EFC) was founded to ensure that the principles embodied in the Canadian Charter of Rights and Freedoms are protected as new computing, communications, and information technologies emerge. EFC is working to shape Canada's computing and communications infrastructure and the policies that govern it, in order to maintain privacy, freedom of speech, and other democratic values. Our work focuses on the establishment of: * clear institutional policies and new laws that guarantee citizens' basic rights and freedoms on the electronic frontier; * a policy of common carriage requirements for all network providers so that all forms of speech and expression, no matter how controversial, will be carried without discrimination; * a diverse electronic community that enables all citizens to have a voice in the information age. I hope that EFC will become a voice for reason and education as the electronic frontier becomes more civilized. And I also hope that librarians and their understanding of intellectual freedom principles will be at the forefront of the civilizing process. We need you. Thank you. References  American Library Association, ``Free Access to Libraries for Minors: An Interpretation of the Library Bill of Rights'', July 3 1991. (Available by gopher or anonymous ftp to gopher.eff.org.)  American Library Association, _Intellectual Freedom Manual_, 3rd edition, 1989. (Sections also available by gopher or anonymous ftp to gopher.eff.org.)  Jonathan Emord, _Freedom, Technology, and the First Amendment_, Pacific Research Institute for Public Policy, 1991.  John Fekete, _Moral Panic: Biopolitics Rising_, Robert Davies Publishing, 1994.  Carl Kadie, ``Content: The Academic Freedom Model'', paper delivered at the _Third Conference on Computers, Freedom, and Privacy_, Burlingame, California, March 1993. Full text available at ftp://ftp.eff.org/pub/CAF/statements/cfp93.kadie .  Carl Kadie, ``Applying library intellectual freedom principles to public and academic computers'', paper delivered at the _Fourth Conference on Computers, Freedom, and Privacy_, March 1994. Full text available at http://www.eff.org/CAF/cfp94.kadie.html .  Carolyn Marvin, _When Old Technologies Were New: Thinking About Electric Communication in the Late Nineteenth Century_, Oxford University Press, 1988.  Corey L. Nelson and Bonnie Brown, ``Is e-mail private or public?", _Computerworld_, June 27 1994, pp. 135--137.  Ithiel de Sola Pool, _Technologies of Freedom_, Belknap Press of Harvard University Press, 1983.  John Sopinka, ``Freedom of speech and privacy in the information age'', text of speech delivered at the University of Waterloo, November 26 1994. Text available at gopher://insight.mcmaster.ca/00/org/efc/doc/sfsp/sopinka .  ``Librarian refuses to give banned novel to customs'', _Toronto Globe & Mail_, October 30 1961, p. 5.  ``Censorship by decree'', _Toronto Star_, October 31 1961, p. 6.  ``Banned book'', _Toronto Globe & Mail_, November 27 1961, p. 6.  Quoted in Lynn King, ``Censorship and law reform'' in _Women Against Censorship_, Varda Burstyn, ed., Douglas & McIntyre, 1985, p. 86.  Canadian Library Association, Intellectual Freedom Statement. Full text available at gopher://insight.mcmaster.ca/00/org/efc/library/library-cla-policy .  Celeste T. Paul, _Women's Erotic Dreams (and What They Mean)_, Grafton Books, London, 1988.  Memo from University of Waterloo President James Downey, January 31 1994. Full text available at gopher://insight.mcmaster.ca/00/org/efc/univ/waterloo/uw.memo.netnews.31jan94 .  Criminal Code of Canada, Section 163 (3). Full text available from http://insight.mcmaster.ca/org/efc/pages/law/cc/cc.163.html .  Memo from Bernard Shapiro, September 1992. Full text available from gopher://insight.mcmaster.ca:70/00/org/efc/univ/ontario.univ-ministry.memo .