Will your freedom and privacy be roadkill on the information superhighway?
by Erik Ness
(The Progressive, December 1994)
“Have you ever renewed your driver’s license… at a cash machine? Fixed your car… with a television? Or had an assistant… who lived in your computer? You will….”
In its popular series of futuristic commercials, AT&T paints a liberating picture of your not-too-distant life, when the information superhighway will be an instrument of personal freedom and a servant to your worldly needs and desires. But is the future of cyberspace really so elegant, so convenient? Or does it represent a serious threat to your privacy and your freedom?
The information superhighway is at least a decade away for most of us, but whether you know it or not, you already exist in cyberspace—through credit and other electronic records, your phone line, and your cable television. Constitutional scholar Laurence Tribe has argued that “without further thought and awareness . . . the danger is clear and present” that the Constitution’s core values will be compromised “in the dim reaches of cyberspace.”
When you visit your doctor, it is increasingly likely that your medical records are kept on a computer. Many of the health-care bills introduced in Congress this year called for a national medical database to link these records. Unfortunately, law-enforcement officers could gain access to those files without even obtaining a warrant. President Nixon’s henchmen had to break into Daniel Ellsberg’s psychiatrist’s office to pull his files. Using a national medical database, they would need only to press a button.
Of course, the Government already has large stores of sensitive personal information at its disposal. In July of this year, Senator John Glenn, Ohio Democrat, released Internal Revenue Service papers showing that its employees were using IRS computers to prowl through the tax files of family, friends, neighbors, and celebrities.
Since 1989, the IRS says, the agency has investigated more than 1,300 of its employees for unauthorized browsing; more than 400 employees have been disciplined.
But even seemingly benign information—your address in a government computer, for example—can betray you. Chris Criner volunteers as an escort for an abortion clinic in Tustin, California. After a Saturday morning of escort work in November 1992, Criner returned home to find a note on his door reading, “Hi. We came by for coffee. We’ll be back.” One week later, Operation Rescue picketed his apartment. Criner was mystified; after clinic work he always went shopping or took a different route home to shake any over-zealous pursuers.
Criner had noticed a new protester lately—a man scribbling notes on a clipboard. Then one protester asked about Criner’s wife, a clinic worker, using her given name-not the one she was known by. On a hunch, Criner and others at the clinic filed a complaint with the California Department of Motor Vehicles and found that four of their license plates had been illegally traced within an hour of each other at the Anaheim Police Department.
A former police employee eventually confessed to intruding into the restricted files. But Criner is still chilled by the incident—particularly after the shooting deaths of two abortion providers and a clinic escort in Pensacola, Florida. “Who knows where this information went besides this one little picket group?” he wonders. “Maybe it’s on a computer bulletin board somewhere, or in some militant prolife newsletter. Should I worry about my wife getting shot in the back of the head as she walks up to our front door because they know where we live?”
Businesses, government officials, activists, engineers, and intellectuals are busily defining cyberspace, and with various goals. Their divergent interests meet on the National Information Infrastructure, the so-called information superhighway. This cable—capable of delivering voice, data, and video images at high speed—is eventually supposed to connect every home and business in the United States and the world to an ever-growing web of electronic services ranging from stock quotations to movies on demand. The buzzword for this change is “convergence”—the melding of telephone, computer, and television technologies into the foundation of an information economy.
The Clinton Administration, particularly Vice President Al Gore, is a self-proclaimed champion of this information age. The business world is salivating over potential profits in the information economy. Meanwhile, consumer advocates and privacy experts warn that, without proper safeguards, this potential global village could become George Orwell’s 1984.
The National Information Infrastructure is projected to cost between $400 billion and $700 billion. During the 1992 Presidential campaign, Gore called for a major Government role in its development, but high Federal debt has led the Administration to favor private-sector design and operation instead. This shift has placed an even bigger burden on Congressional efforts this year to restructure the nation’s $170 billion telecommunications industry, consisting of local telephone companies (worth $90 billion), long-distance carriers ($60 billion), and cable television industry (worth $20 billion).
The basic goal was to allow phone and cable operators to compete with each other locally, while preventing a total monopoly of both by any one company in one area and developing a new definition of universal service. Regulators and activists alike have long been leery of allowing a monopoly of the wires going into the American home, and their apprehensions have been heightened as electronic communication and commerce increasingly become central parts of our lives.
But even as telephone companies and cable television were eager to compete with each other for emerging markets, their rivalry got the better of them, killing telecommunications restructuring in the Senate. “Much of this battle is over who will control the television of the future,” explains Jeff Chester of the Washington-based Center for Media Education. One example, he says, was NBC’s effort to create a competitor for Ted Turner’s twentyfour-hour Cable News Network. John Malone, president of TCI—who has a financial stake in CNN—controlled enough of the cable market that he was able to force NBC to turn a hard-news service into a softer, infotainment-oriented channel. “Their principal focus is profit, not the currency of democracy, not the diversity of ideas,” warns Chester.
“We’re in real danger of having a handful of giant, global communications corporations controlling the public mind,” says Chester, whose organization filed a thirty eight-page brief with the FCC opposing last year’s mega-deal between Bell Atlantic and cable giant Telecommunications, Inc. The deal broke down, but that has not slowed the pace of consolidation: In the last year, AirTouch Communication acquired U.S. West (a deal worth $13.5 billion), AT&T Corporation merged with McCaw Cellular Communications, Inc. (a $12.6 billion value), and Viacom bought Blockbuster Entertainment ($7.97 billion).
“There is a direct relationship between the health of our democracy and the diversity of our communications system,” says Chester. “I think one reason why the body politic is so ill can be traced back to problems with the media system and the institutions which are part of it.”
If we’re not careful, he says, today’s captive consumer of telephone and cable television will become tomorrow’s totally exposed consumer. “We’re turning over the info superhighway to Madison Avenue, so they can better, more effectively serve the needs of advertisers to target individuals in discrete demographic groups.”
As if to emphasize this, no sooner had the telecommunications restructuring bill died for the year than the computer service America Online ignited a fresh battle in cyberspace when it advertised its “upscale” subscriber list in a direct-mail trade publication. “America Online members are computer and modem owners who pay up to $200 a month to enjoy hundreds of entertaining and informative services,” the ad promised. “Credit-worthy—over 85 per cent pay by credit card…. Mail Order Buyers!”
The popular online service drew fire from Massachusetts Representative Edward Markey, chairman of the House Subcommittee on Telecommunications and Finance, who fired off a letter to America Online president Steve Case, arguing that “comprehensive privacy protections must become part of the electronic ethics of companies doing business on the information superhighway and a fundamental right of all its travelers.”
According to David Banisar, staff attorney for the Electronic Privacy Information Center, the America Online controversy is important because commerce on the Internet is in danger of becoming more like a shopping mall than a public street. “In shopping malls, the owners can pretty much do what they want,” he warns, “and those same shopping malls are going to be collecting reams, if I can use an old-fashioned term, of personal data.” With more transactions taking place over the net, more personal information about you enters cyberspace. “Even if you go into a store,” says Banisar, “the odds are it’s going to transfer transaction information via the same superhighway to its suppliers, to its deliverers, and to its main offices.”
America Online was not unique. As Case pointed out, CompuServe, another online service, had been renting its list for years. In fact, the mailing-list business is a refined industry; lists can include explicit and implicit demographic information ranging from income to political preferences to your favorite television shows. But these are relatively primitive compared to what advancing computer technology could produce: complete profiles of consumers, including brand-name inclinations, credit histories, and shopping habits. Many supermarkets already use check-cashing cards that, in conjunction with computerized scanners, keep detailed records of consumer spending habits. Will your insurance company someday be able to learn whether or not you buy beer and cigarettes?
First Amendment rights are already at issue in cyberspace. One major concern is whether commercial online companies deserve the broad protection of telephone companies, which have no responsibility for the content of conversations on their wires, and bookstores, which are also broadly protected, or are like publishers and broadcasters, who are held accountable for libel and other transgressions.
CompuServe, the oldest and largest online service, appears to want it both ways. In 1990, an online journal called Rumorville, produced under contract for CompuServe, published allegedly defamatory remarks about a competitor, Skuttlebut. When Skuttlebut sued for libel in a New York district court, CompuServe argued that it was more like a bookstore than a publisher, and therefore subject to a different standard of libel. The court agreed, saying a “computerized database is the functional equivalent of a more traditional news vendor.” Because it did not exercise control over editorial content, it was not held liable for defamation.
But last year, CompuServe took a different approach toward Richard Patterson, a computer programmer and CompuServe member who believes—and claimed online—that the company had infringed on his trademark. CompuServe asked a Federal court to resolve the trademark dispute, but warned Patterson that if he discussed the suit online it would sever his CompuServe access.
This contradictory strategy indicates the general confusion over what rights and privileges are accorded in the commercial online environment. Because the services are private, they are not automatically obligated to respect constitutional rights of privacy and freedom of expression. Several years ago, Prodigy, another service, booted subscribers who tried to fight a rate hike, and censored anti-Semitic comments in online forums. Just this year, America Online closed several feminist discussion forums for fear that young girls might stumble upon adult discussions.
Censorship can take insidious forms online. Users do not always understand the different regions of cyberspace, which is divided into loosely overlapping sectors ranging from the commercial services to the Internet to underground bulletin boards trafficking in stolen credit card numbers. Usenet, for example, is a sprawling electronic forum with more than 8,000 discussion groups ranging from alt.NoamChomsky to alt.tv.dinosaurs.barney.die.die.die.
CompuServe and America Online both offer access to Usenet, but restrict areas—largely those dealing with sexuality—that they deem objectionable. On CompuServe, you can’t subscribe to a newsgroup deemed objectionable by the company unless you know the exact title. Since many people choose their newsgroups by scanning for key words, the company automatically reserves full access for the initiated. America Online does not provide access at all to what it decides are objectionable groups. Both companies promised to provide me with the list of excluded discussion groups, but did not.
Less-restricted portions of the net are also censored, though generally with a lighter touch. Working within established and respected community guidelines, some Usenet groups are moderated to keep discussions focused. It’s easy to appreciate the utility of the policy—communication on the net is often hailed for its casual intelligence and its potential to build community. But if every keystroke of every person who had ever surfed the net were saved in perpetuity, it would quickly drown in its own chatter.
Of more immediate concern these days is the increasingly unruly environment as new members unfamiliar with traditions flood the net. The Internet actually began as a military research project, but when scientists discovered its usefulness for exchanging data and computer power, the National Science Foundation took over administration. It grew largely unregulated into what has been called the largest functioning anarchy, with users establishing protocols and “netiquette.”
Within this intellectual framework of self-governance, the move toward commercialism has met vociferous resistance. Last April, the Phoenix immigration law firm of Canter & Segal advertised its services on Usenet by placing messages in thousands of forums, the vast majority of which had no relationship to immigration. While informational postings in related areas have been tolerated on Usenet, the indiscriminate Canter & Segal posting drew a furious response. Outraged “netizens” deluged the company with angry email messages called “flames.” Undeterred by the communal outrage, Canter & Segal ventured onto the net again in June, drawing the ire of a Norwegian programmer who devised a search-and-destroy program, or “cancelbot” to wipe out the firm’s transmissions. As the net becomes more crowded and contentious, the specter of vigilante censors seems quite real.
Despite the phenomenal growth of computer networks, relatively few people are actually online. Some five million subscribe to commercial services, while as many as twenty million gain access to the Internet through universities or work. Online computing has sparked such interest because it is the most likely model for the emerging information economy. In the future, your telephone, computer, and television will all be linked, and you’ll gain access to everything from the latest rap video to maps of Virginia in the 1600s stored in the Library of Congress, using the kinds of graphical interfaces being pioneered by America Online and CompuServe. But while the media hype a Golden Age of democracy spurred by the free flow of information, commercial online services resemble nothing so much as the current offerings of television and newsstands: Time, The Atlantic, ABC, DC Comics, the Chicago Tribune, Associated Press, and Reuters.
What would it take for a publication like The Progressive to get online? Brian Jaffe, director of online publications for CompuServe, the country’s largest commercial online service, is firm about its priorities. “We’re in business to make money,” he explains. “The overall tone is going to be: You have to sell me on you.”
First, The Progressive would have to show CompuServe that it would “add value to the service” by providing the demographic makeup of the people it was planning to reach online. Second, Jaffe looks at brand-name awareness. “When you pop up in our WHAT’S NEW—our intrusive marketing area—and I see The Progressive is online, come visit our area, I don’t know what type of emotion that’s going to stir in our two-and-a-quarter million users.” Finally, Jaffe looks at “comarketing opportunities”—basically, what kind of new members The Progressive would offer to CompuServe—an evaluation driven by circulation and demographics. “We are an extremely powerful marketing entity,” says Jaffe, citing CompuServe’s phenomenal growth rate of 85,000 new members a month. Next to this, The Progressive’s 32,000 circulation is relatively small, a factor that he says doesn’t work in its favor.
Still, you may yet find publications like The Progressive available from commercial online services. “I’m never going to turn a deaf ear, because I never know when the next winner is going to come around,” says Jaffe. But, he cautions, “You’re right, we don’t have a lot of political-type publications online. To be quite honest with you—maybe you can convince me otherwise—but it doesn’t quite fit in with the publishing formula that I’m looking for in a successful online product.”
The clout of these commercial services already intimidates small publications. As a staff member from one alternative periodical said after discussing its efforts to get online, “Don’t say anything about us being critical of them that could hurt their willingness to sign us on in the future.”
This clout will only increase as the Internet moves from the public to the private sector. More than half of it is now commercial in origin, and the National Science Foundation is passing management of the remainder into private hands. The Internet has thrived in part because its flat-rate pricing has made it possible for individuals and nonprofits to take full advantage of electronic communications. Eventually, the net will abandon flat-rate pricing, which could curtail open participation as costs rise. The booming media interest in the Internet may also be more cloud than silver lining: “It’s clear to me the media industries want to use the Internet as another programming channel that they control,” says Chester.
While the Clinton Administration has won praise for its information-age advocacy, it has taken a beating on privacy. “The Clinton Administration has paid some lip service to privacy issues, but it’s really done almost nothing,” explains Dave Banisar of the Electronic Privacy Information Center.
Bill Clinton’s first mistake was the hugely unpopular Clipper chip proposal. Clipper is a computer chip that scrambles a message using a classified mathematical function. Users would have numerical keys to encode and decode messages, but two agencies—the Treasury Department and the National Institute of Standards and Technology—would hold copies of the keys in escrow, providing Government access as needed. Clipper was the response of law enforcement and national-security officials who see cheap and powerful computers making it easier for criminals and spies to break the law.
Many cryptographers worried that Clipper, classified and developed in secret by the National Security Agency, might not be secure, and would not sufficiently protect privacy. To get your key, law officers would not have to present a warrant they would only have to fax a request claiming they had a warrant. Safeguards against dissemination of the key and guaranteeing destruction once the order had expired were also deemed insufficient.
The keys for every Clipper chip would be available to only a handful of people, but if these individuals were corrupted, the whole system would be compromised. NSA involvement also worried some people: Had the agency built a trapdoor into the system that would allow it special access?
Even the Office of Technology Assessment criticized the agency’s involvement in Clipper, concluding it was “part of a long-term control strategy intended to retard the general availability of ‘unbreakable’ or ‘hard-to-break’ cryptography within the United States.”
Clipper has been essentially abandoned for data encryption, but is still on the table as a standard for voice encryption. Gore is currently working to develop a compromise, but has said that the White House will not yield on the proposed key escrow, though the Government would not have to be the escrow agent.
Clipper is only one part of vigorous efforts by the authorities to protect their eavesdropping rights. “If you think crime is bad now, just wait and see what happens if the FBI one day is no longer able to conduct court-approved electronic surveillance,” FBI director Louis Freeh told an audience last May soon after the reintroduction of his agency’s Digital Telephony in Congress.
First proposed by the Bush Administration and one of the few bills successfully pushed through the last Congress by Clinton, digital telephony requires common carriers—telephone companies—to help law-enforcement officers with appropriate court orders to listen to your conversations. It would also make transactional data—who’s calling whom—easily available to law-enforcement officers. To do this, the phone companies need special equipment to ensure access to their new digital switches—equipment the legislation would buy for $500 million.
But is this cost-effective law enforcement? Freeh testified before the Senate in March that not a single wiretap order has been hindered by advancing technology. Since the 1968 passage of wiretap legislation, there have been about 900 Federal and state wiretaps per year, costing an average of $46,492 per tap in 1992.
Why should law-abiding citizens be concerned with wiretaps, codes, and scrambled conversations? The British royal family is certainly the most public example of the hazards of unsecured communications, but Philip Zimmermann, a cryptographic software designer, told Congress last year that technological advances made possible massive Government intrusions on privacy. “Today,” Zimmermann warned, “electronic mail is gradually replacing conventional paper mail, and is soon to be the norm for everyone, not the novelty it is today.
“Unlike paper mail,” he added, “e-mail messages are just too easy to intercept and scan for interesting key words. This can be done easily, routinely, automatically, and undetectably on a grand scale. This is analogous to drift net fishing—making a quantitative and qualitative Orwellian difference to the health of democracy.”
Among the rationales for increased electronic-monitoring powers is the need to fight computer crime. Law-enforcement officials cite a burgeoning traffic in pornography, illegally copied software, and stolen credit information, but often they have been too triggerhappy in policing a world they don’t fully understand. Specific targets have been computer bulletin boards, which people dial into to obtain information or to talk.
Police in Munroe Falls, Ohio, confiscated the $3,000 computer of Mark Lehrer, charging that kids had seen pornography on his bulletin board, Akron Anomaly. Lehrer did have some X-rated files, but access was restricted—users had to send a copy of their driver’s license to get in. A few explicit photos were in common space—Lehrer claims a filing error—so local police recruited a fifteen-year-old to gain access to the files, then busted Lehrer. But with no complaints from local parents, the charge didn’t stick. Police filed new charges alleging that other photos—not even available on the bulletin board, but seized with the computer—could have depicted minors.
Lacking the money for expert testimony, Lehrer entered a guilty plea to a misdemeanor charge of possessing a criminal tool—his computer. But confiscating the computer for a misfiled picture is akin to seizing a convenience store for a misfiled copy of Penthouse. An Akron Beacon editorial asked “whether the police were protecting against a child pornographer or using the intimidating powers of the police and judicial system to help themselves to a nice hunk of expensive machinery.”
Michael Elansky ran the Ware House bulletin board in West Hartford, Connecticut. Elansky was arrested in August 1993, when police found files on his bulletin board explaining in detail the construction of various explosive devices. The files had been written four years earlier by a fifteen-year-old, and contained constitutionally protected information widely available in sources ranging from chemistry textbooks to The Anarchist Cookbook.
Elansky’s case was compounded by his previous scrapes with the law—he eventually entered guilty pleas to parole violations—but the charges relating to the bulletin board files were never dropped. Activists maintain that his arrest and detention (Elansky could not post the $500,000 bond) were a violation of First Amendment rights and do not bode well for free speech in cyberspace.
“I don’t think it’s a police conspiracy to chill the whole net,” says Banisar of such crackdowns, “but it certainly has that result.” Banisar says the most closely watched legal contest in cyberspace is that of Robert Alan Thomas and his wife, Carleen, who live in Milpitas, California, where they ran the Amateur Action Bulletin Board Service. Subscribers—3,600 in the United States and Europe—paid $99 a year, using their computers to call the Amateur Action computer and download pornographic photographs, chat with other members, and order explicit videotapes.
Then a Tennessee hacker broke into the system. Disturbed by the hard-core content, the intruder alerted the Memphis authorities, who began a sting operation. The Thomases were busted and saddled with eleven Federal obscenity charges—not in California but in Tennessee, the heart of the Bible belt. For the first time a bulletin board operator was prosecuted where the obscene material was received instead of at its point of origin. The Thomases were convicted; the case is on appeal and could end up in the Supreme Court.
At issue is the Supreme Court’s 1973 ruling that obscenity be judged by local community standards. This time, the Court would have to answer a new question: Where are you when you’re in cyberspace? “Whatever your view of looking at nudie pictures, this is pretty chilling for everybody in the rest of the country that doesn’t want to be subject to Tennessee morals,” says David Banisar of the Electronic Privacy Information Center. “If I wanted to be subject to Tennessee morals, I’d move to Tennessee.”
Just as Al Gore is playing an important role in the National Information Infrastructure, his father helped create the interstate highway system in the 1950s. The interstate, while it ushered in an era of great prosperity, has also been blamed for the decline of the cities and the loss of services to poor and minority communities. Many advocates fear that a poorly designed information superhighway could lead to further marginalization of the underprivileged in society.
The big telecommunications players are at pains to promise this won’t happen, and both Pacific Telesis and AT&T-McCaw have signed commitments with community groups in California to ensure that the state’s minority, low-income, inner-city, and disabled populations are wired into the electronic future. But a recent study of early plans for advanced communications networks by a coalition of groups (including the National Association for the Advancement of Colored People, the Consumer Federation of America, and the Center for Media Education) suggests that poor and minority neighborhoods are already becoming victims of “electronic redlining.”
“Everyone is going to need affordable access to interactive communications services to ensure that the public has access to a basic range of information,” explains Jeffrey Chester. He says it’s conceivable that the media could evolve so that CSPAN is the only source of information for what’s going on in Congress, making a lower-cost tier of information services vital for democracy.
“We don’t know what a Twenty-first Century version of public television will look like, but we can start thinking about it when we look at the Internet and freenet and community radio stations,” he suggests. Freenets, for example, provide access to e-mail, computer databases, and the Internet in such cities as Buffalo, Cleveland, and Seattle, through libraries and other outreach programs. “Those services are not going to become a part of the information superhighway without a real public policy to ensure that they are a viable—not marginal—part of the media system,” warns Chester.
Another access question raised by the information economy is that when information is bought and sold in units, you can only know as much as you can afford. The commercial databases used by large corporations, law firms, and news services are expensive. In legal cases, in particular, this puts the well-heeled at a distinct advantage. Most of the material in legal databases consists of case law and judicial decisions in the public domain, but such companies as West Publishing maintain that they own the copyright for the page numbers of the decisions, giving them an effective monopoly in the legal database market for many states and Federal courts. Furthermore, local, state, and federal Governments maintain many valuable databases which are not currently accessible to their putative owners—the general public.
While this is a dark rendering of tomorrow, the future of cyberspace could be a lot more promising. Activists worldwide are already using advanced computer networks to share information and coordinate strategies. And citizens across the country could instantaneously gather information from a variety of sources uncensored by the corporate media.
But the perils of the Information Age are broad. In his book, The Cult of Information, Theodore Roszak reminds us that information cannot replace—and may even obscure—knowledge, insight, and wisdom. “Every mature technology brings an immediate gain followed by enormous long-term liabilities,” he writes. “How things will balance out is a matter of vigilance, moral courage, and the distribution of power.”
Consider the story of Philip Zimmermann, a software engineer who believes in “freeware”—software given away to help people better use their computers. In 1991, Zimmermann released an encryption program called Pretty Good Privacy (PGP) to help protect electronic mail; since then it has spread all over the world. On the day that Boris Yeltsin went to war against his own parliament, Zimmermann received an e-mail message from Latvia: “Phil I wish you to know: Let it never be, but if dictatorship takes over Russia your PGP is widespread from Baltic to Far East now and will help democratic people if necessary. Thanks.” But despite the worldwide availability of PGP and other encryption tools, this technology is still controlled by national-security interests. The U.S. Customs Service is currently investigating how PGP was exported.
Testifying last year before the House Subcommittee for Economic Policy, Trade, and the Environment, Zimmermann worried that “some elements of the Government” were intent on denying citizens their privacy. “This is unsettling because in a democracy, it is possible for bad people to occasionally get elected—sometimes very bad people,” said Zimmermann. “Normally, a well-functioning democracy has ways to remove these people from power. But the wrong technology infrastructure could allow such a future government to watch every move anyone makes to oppose it. It could very well be the last government we ever elect.”