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* Austrian Legal Policy Institute. Professor Mayer-Sch<um o>nberger received his

Mag.jur and Dr.jur. from Salzburg, an LL.M. from Harvard, and a MSc (LSE). He

led the Information Law Project at the Austrian Legal Policy Institute from 1993

to 1995 and is currently with the University of Vienna Faculty of Law.

** Dean and Professor of Law, DePaul University College of Law.

SUMMARY:

... Cite As: Viktor Mayer-Sch<um o>nberger and Teree E. Foster, A Regulatory

Web: Free Speech and the Global Information Infrastructure, 3 Mich. Telecomm.

... National restrictions of freedom of speech on the nascent global information

infrastructure are commonplace not only in the United States, but also around

the globe. ... This information infrastructure is a communicative device of such

broad scope and accessibility that it is of paramount importance to free speech

absolutists, who characterize it as a tool for democratizing speech on a global

basis and insist that it remain insulated from any regulatory mandates. ...

Together with widely available tools of public key encryption, remailers allow

worldwide electronic communication on a totally anonymous level, thus

circumventing any national attempts at speech regulation. ... In the world of a

global information infrastructure, an escalating national de jure regulation of

speech meets a similarly pervasive de facto futility of enforcement. ... In

principle, of course, a global phenomenon like the Internet should propel

nations to achieve international regulatory cooperation and partnership. ...

This global consensus commends jus cogens norms as the touchstone for

identifying types of speech that are amenable to an internationally acceptable

content-based regulation. ...

TEXT:

Cite As: Viktor Mayer-Sch<um o>nberger and Teree E. Foster, A Regulatory Web:

Free Speech and the Global Information Infrastructure, 3 Mich. Telecomm. Tech.

L. Rev. 45 (1997) available at <http://www.mttlr.org/volthree/foster.pdf>

National restrictions of freedom of speech on the nascent global information

infrastructure are commonplace not only in the United States, but also around

the globe. n1 Individual nations, each intent upon preserving what they perceive

to be within the perimeters of their national interests, seek to regulate

certain forms of speech because of content that is considered reprehensible or

offensive to national well-being or civic virtue. n2 The fact that this

offending speech is technologically dispersed instantaneously to millions of

potential recipients strengthens the impetus to regulate.

n1. C.T. Mien. "Steps Taken in Other Countries to Regulate the Internet," The

Straits Times (Singapore), March 9, 1996, p. 35. In Austria, a broad study on

the subject of regulating the information infrastructure was commissioned by the

Federal government. Ursula Maier-Rabler, Viktor Mayer-Sch<um o>nberger, Gabriele

Schm<um o>lzer, Georg Nening-Sch<um o>fb@nker. Net Without Qualities. 1995,

http://www.komdat.sbg.ac.at/nikt. For the restricting effect on speech through a

European Union Directive on Data Protection, see Stewart Baker. "The Net Escape?

Ha!," Wired, Sept., 1995, p. 125. In the United States, the Communication

Decency Act of 1996, outlaws distribution over the internet of material from

child pornography to profanity. 47 U.S.C. " 609 et seq. (1996).

n2. See Thomas L. Pangle, The spirit of modern republicanism: the Moral vision

of the american founders and the philosophy of locke (1988); Michael J. Sandel,

Liberalism and the Limits of Justice 59-65, 147-74 (1982); J.G.A. Pocock, The

Machiavellian Moment: Florentine Political Thought and the Atlantic Republican

Tradition (1975); Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493

(1988).

At the same time, outspoken free speech advocates vigorously assert an

absolutist position of non-regulation, in what appears to be an unrelenting

struggle for every inch of unregulated information infrastructure territory. n3

This information infrastructure is a communicative device of such broad scope

and accessibility that it is of paramount importance to free speech absolutists,

who characterize it as a tool for democratizing speech on a global basis and

insist that it remain insulated from any regulatory mandates.

n3. Howard Rheingold. "Why Censoring Cyberspace Is Futile," Computer Underground

Digest 6.40 (1995).

Activists at both ends of the spectrum disregard an integral aspect of the

global composition of the Net. Those who advocate unfettered Net communication

and those who espouse some form of national Net regulation are similarly

constrained in the pursuit of their objectives by the very structure of the

information infrastructure. It is the global aspect of the information

infrastructure that shapes the debate on freedom of speech and limits

absolutists and regulators at the same time.

The nature of this conflict and its potential resolution will be outlined in

this Article. n4 Therefore, assuming that national policy makers will not want

to cede their authority to regulate the information infrastructure, we will

suggest a mechanism by which those who elect to regulate speech can begin to

deliberate about this objective in a structured, principled, and internationally

acceptable manner.

n4. The debate concerning the prudence and legitimacy of content-based speech

regulation is beyond the scope of this paper. For an analysis of the contention

that some forms of speech are so horrifying and potentially destructive that

they can be regulated, and a proposal for the nature and structure of that

regulation, see Viktor Mayer-Sch<um o>nberger and Teree E. Foster, More Speech,

Less Noise: Amplifying Content-Based Speech Regulations Through Binding

International Law, 18 B.C. Int'l & Comp. L. Rev. 59 (1995).

I. International Constraints on National Information Infrastructures

The international nature of the information infrastructure places substantial

constraints upon both the free speech absolutists and those who would regulate

speech.

A. Restraint by Nations on Domestic Speech

Advocates of an unobstructed flow of speech conceive of the Net as (1) an

anarchic communicative medium that is an inappropriate area for governmental

regulatory intrusion, and (2) a medium capable of advancing freedom on a global

scale by razing barriers to accessing information, even in closed societies. n5

In the United States, these free speech advocates rely on the words of the First

Amendment, which is framed in absolute terms, and on the Supreme Court, which

has occasionally endorsed an absolutist interpretation of the Amendment's

dictates. n6

n5. Donald E. Lively, The Information Superhighway: A First Amendment Roadmap,

35 B.C.L. Rev. 1067 (1994); Note, The Message Is the Medium: The First Amendment

on the Information Superhighway, 107 Harv. L. Rev. 1062 (1994).

n6. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Texas v.

Johnson, 491 U.S. 397 (1989); Cohen v. California, 403 U.S. 15 (1971);

Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times Co. v. Sullivan, 376

U.S. 254 (1964); Yates v. United States, 354 U.S. 298 (1957).

But speech is not - and never has been - inviolate, neither in the United States

nor in any other country. In fact, restrictions abound.

Communicative acts on the Net are within national speech restrictions, as the

Net is not extraterritorial and its users are not otherwise exempted from

existing national speech regulations. In fact, many nations have begun the

process of constricting the content of speech on the Net. The following

discussion samples the regulatory rules currently in force around the world.

Libel. Most nations deal severely with speech that denigrates another's

reputation. Many national libel laws apply directly to Net communication. n7

n7. Ulrich Sieber. "Strafrechtliche Verantwortlichkeit fhr den Datenverkehr in

Internationalen Computernetzen," Juristenzeitung 1996:429-42; Sunday Times v.

United Kingdom, 2 E.H.R.R. 245 (1979). More recently in England, a physics

lecturer and a nuclear physicist brought separate actions against former

colleagues, each alleging that defamatory remarks about his professional

competence had been disseminated on Usenet. "Electronic War of Words in

Cyberspace Is Heading for Very Real Confrontation in a UK Courtroom," The

Financial Times, August 13, 1994, at 24.

Pornography. In England, the Obscene Publications Act defines "obscene" as

material that "tends to deprave and corrupt persons," making such material

subject to regulation. Penthouse magazine's World Wide Web site lists 25

countries that outlaw its so-called "adult material," among which are Egypt,

India, Japan, Korea, Mexico, Saudi Arabia, Spain and the United Kingdom. n8 The

government of Singapore has recently implemented a licensing scheme for all

local Internet operators and content providers that is designed to constrain all

forms of sexual excesses in cyberspace. n9 And discussions of sex - as well as

religion and politics - are banned in Saudi Arabia and Iran. n10

n8. Mitch Betts & Gary H. Anthes, On-Line Boundaries Unclear: Internet Tramples

Legal Jurisdictions, Computerworld, June 5, 1995, at 1, 16.

n9. "Lee Kuan Says Yes to Internet, No to Sex and Violence on TV," Agence France

Presse, Oct. 6, 1995. C.T. Mien, 1996, p. 35.

n10. Faiza S. Ambah, An Intruder in the Kingdom, Bus. Week, Aug. 21, 1995, at

40; Carole Bogert, Chat Rooms and Chadors, Newsweek, Aug. 21, 1995, at 36.

In Germany, a group of laws designed to protect children was enforced recently

in a now-infamous case involving CompuServe. In November 1995, a Bavarian State

Attorney ordered a search of the Munich office of CompuServe for evidence of a

breach of German child pornography laws, and material was seized by police. The

prosecutor pressed CompuServe to prevent all users from accessing through its

Internet gateway certain Unsenet newsgroups allegedly disseminating child

pornography. In December, CompuServe complied and prevented its users from

accessing 200 sites, including all those prefixed with "alt.sex." CompuServe

later lifted this ban in the wake of substantial world wide protest. n11 By

then, CompuServe had developed a software solution to block certain Internet

information resources.

n11. "Censorship Issues on the Internet Continue to Confuse Governments," New

Media Age, January 12, 1996, p. 5; "Sex on the Internet," The Economist, January

6, 1996, p. 18, where the author inquires, "when Bavaria wrinkles its nose, must

the whole world catch a cold?" See generally Ulrich Sieber, Strafrechtliche

Verantwortlichkeit fuer den Datenverkehr in internationalen Computernetzen, JZ

429 (1996), <http://www.jura.uniwuerzburg.de/lst/sieber/stvipdt/svi01/htm>.

Subversive Information. Computer equipment of anarchist groups that advocate

anti-government violence through utilization of online sources has been seized

by the governments of Italy, England, and Scotland. Vietnam, concerned that

increasing links with noncommunist nations could undermine the ruling regime, is

seeking to control Internet access on the country's two independent computer

networks. n12

n12. "Scotland and Italy Crack Down on Anarchy Files,"

<http://www.eff.org/pub/Legal/Cases/BITS-A-t-E<uscore>Spunk/eff-raids.article>.

Adrian Levy and Ian Burrell. "Anarchists Use Computer Highway for Subversion,"

British Sunday Times, March 5, 1995 (England and Scotland);

<http://www.eff.org/pub/LegalCases/BITS-A-t-E<uscore>Spunk/bits<uscore>seizure.article

(Italy)>; "Cyber Notes," The Christian Science Monitor, Sept. 21, 1995, p. 11.

Hate Speech. As might be anticipated, the most virulent laws criminalizing hate

speech are found in those countries scarred by the Holocaust. In Germany, a

number of provisions of the criminal code are directed at expression that is

inconsistent with the "dignity of the human personality developing freely within

the social community," n13 the fundamental right preserved in the German

Constitution. n14 For example, Section 130 of the Criminal Code condemns attacks

on human dignity that incite hatred. Section 131 of that same Code proscribes

the production or dissemination of hate speech in written form. n15 Section 194

permits prosecution for the denial of the existence of the Holocaust where the

disavowal is stated to a person who is a member of a group persecuted by the

Nazi regime. Section 86 forbids the distribution of propaganda that promotes (1)

the precepts of the Nazi regime, (2) unconstitutional parties, or (3) prohibited

associations. And Section 86(a) censures the use of insignia - including flags,

uniforms, badges and salutes - of these same proscribed organizations. n16

n13. The L<um u>th Case, Judgment of Jan. 15, 1958, Federal Constitutional

Court, 7 BVerfGE 198, translated in Donald P. Kommers. The Constitutional

Jurisprudence of the Federal Republic of Germany. (Durham, N.C.: Duke University

Press), 1989, p. 370.

n14. Grundgesetz [German Basic Law] Article 1.

n15. Outlawed are writings that "incite to race hatred or which describe cruel

or other inhuman acts of violence against human beings in a manner expressing

glorification or intentional minimization of such acts of violence or

demonstrating the cruel or inhuman acts in a manner injuring human dignity...."

Strafgesetzbuch [German Penal Code] [StGB] 130, 131.

n16. In December, 1992, the German government banned the sale and distribution

of neo-Nazi rock music advocating violence and death to foreigners to youths

under the age of eighteen. By this measure the German government sought to

staunch the precipitous rise of right-wing violence. Strafgesetzbuch [Penal

Code] [StGB] 194, 86, 86a. "Recent Developments," Harvard International Law

Journal 34:563 (1993).

The means of enforcing these laws outlawing hate speech and Nazi propaganda are

currently the subject of vigorous debate in Germany. German prosecutors in

Mannheim are investigating CompuServe, the T-Online network of Deutsche Telekom,

and America Online for aiding the Internet distribution of neo-Nazi material

that questions whether the Holocaust occurred. n17

n17. German Research and Technology Minister Juergen Ruettgers stated affirmed

that Bonn respected free speech, but declared that the German government must do

more to regulate the Internet. He stated that "we cannot tolerate a situation in

which anything goes" and suggested that the Group of Seven leading industrial

countries take up the issue. "America Online Faces Probe over Alleged Nazi

Material on Internet," The Jerusalem Post, Feb. 4, 1996, p. 2; "CompuServe Still

Blocks Access to Internet," The Reuter European Community Report, Feb. 16, 1996.

W. Boston, "Germans' Internet Crackdown A Sign of the Future," Reuters, Feb.4,

1996. Sieber, 1966, p. 429-42.

In Austria, the Austrian Prohibition Act similarly prohibits actions on behalf

of the Nazi Party, as well as advocacy of its objectives or dissemination of its

propaganda. Targeting groups of persons for ignominy or advocating their

genocide is likewise forbidden. n18 A special investigation of the Austrian

Police into terrorist activities has focused in recent months on the Internet

and a Nazi computer network information exchange, known as Thule-Net. n19

n18. Verbotsgesetz [Austrian Prohibition Act] " 3.

n19. Burkhard Schr<um o>der. Neonazis und Computernetze. (Reinbek: Rowohlt),

1995, p. 41.

In Canada, separate provisions of the Criminal Code criminalize the willful

promotion of hatred n20 and the communication of telephone messages likely to

expose people to hatred or contempt because of, among other things, their race,

national or ethnic origin, color, or religion. n21

n20. Criminal Code, R.S.C. 1985, ch. C46 " 319(2). See R. v. Keegstra, [1990] 3

S.C.R. 697 (Can.), wherein the statute was upheld in a case involving a teacher

charged with willful promotion of hatred against an identifiable group for

promoting anti-Semitism to his students and penalizing the grades of those who

did not respond favorably to his ranting. See also R. v. Andrews, [1990] 3

S.C.R. 870 (Can.).See generally, Michel Racicot, Mark S. Hayes, Alec R. Szibbo,

Pierre Trudel, The Cyberspace is Not a "No Law Land', Industry Canada (1997).

n21. S.C. 1976-77, ch. 33, " 13(1). This statute was upheld in Canada (Human

Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 Can.). It is not yet clear

whether these provisions apply to electronic communications.

Privacy Protection. Recently, the European Union decided to regulate the flow of

information about individuals, ostensibly to prevent corporate intrusion upon

individual privacy. The member nations have agreed to obstruct the export of

personal data to nations that do not establish "adequate" privacy protection.

n22

n22. See generally A. Michael Froomkin, Anonymity and Its Enmities, 1995 J.

Online L., <http://www.wm.edu/law/publications/jol/froomkin.html>. An issue

concomitant to privacy concerns is the right to maintain anonymous communication

on the Net. Whether a right to anonymous speech does - or should - exist is

beyond the scope of this paper. For conflicting views, compare Tom W. Bell.

"Anonymous Speech," Wired, Oct., 1995, p. 80 with Richard P. Klaus and Erik J.

Heels. "Online," Student Lawyer, Sept., 1995, p. 33-36.

These are just a few examples of the many national regulations of Net speech in

place throughout the world. Even liberal and democratic Western countries seem

to consistently restrict freedom of expression. The Net is not an anarchic,

unregulated dominion above and beyond individual state control, but rather a

terrain policed by varied, numerous, and often contradictory national laws that

create a variety of regulatory fiefdoms. Yet, the internationality of the Net,

as well as the conglomeration of national regulations and their effects on the

flow of information on the Net, invariably shapes all communicative activity on

it as a whole. Thus, the international aspect of the Net does not remove

discussions on the Net from national regulations, but instead subjects them to

panoply of varying and contradictory regulations that breed uncertainty. The

consequence is that speech, subjected to a patchwork of constraints, might be

restricted more than is intended or necessary. n23 In this respect, the global

dimension of the Net could develop into more of a liability than a

speech-protecting asset, for this state of affairs generates subtle silencing

and chilling of speech, rather than clear-cut regulations.

n23. See Rohan Samarajiva, Cybercontent Regulation: From Proximate-Community

Standards to Virtual-Community Standards?, The Virtual Institute of Information,

(last visited April 14, 1997)

<http://www.ctr.columbia.edu/vi/papers/citirs.htm>.

Speech is, of course, also regulated in the United States. The United States

Supreme Court has identified varieties of vulnerable expression, or "low value

speech," - forms of expression that "are no essential part of any exposition of

ideas, and are of such slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed by the social interest in

order and morality." n24 Low value speech includes intentional incitement, n25

obscenity, n26 child pornography, n27 defamation, n28 fighting words, n29 and

commercial speech. n30 The Court has enunciated a series of quite different

standards for each of these varieties of speech to determine, first, whether a

particular communication is protected or falls into a vulnerable category; and

second, if vulnerable, whether any First Amendment protection is merited.

n24. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Geoffrey R.

Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189,

194 (1983).

n25. See Dennis v. United States, 341 U.S. 494, 544-46 (1951)(Frankfurter, J.,

concurring). See also Brandenburg, 395 U.S. at 447-48 (1969)

n26. See Miller v. California, 413 U.S. 15, 20-35 (1973).

n27. See New York v. Ferber, 458 U.S. 747, 754-64 (1982).

n28. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Cf. Henry v.

Collins, 380 U.S. 356 (1965) and New York Times, 376 U.S. at 265 (both holding

that defamatory content is not sufficient to remove First Amendment protection).

See generally, Joel D. Eaton, The American Law of Defamation Through Gertz v.

Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349 (1975);

Melville B. Nimmer, The Right to Speak From Times to Time: First Amendment

Theory Applied to Libel and Misapplied to Privacy, 56 Cal. L. Rev. 935 (1968);

Harry Kalven, Jr., The New York Times Case: A Note on the Central Meaning of the

First Amendment, 1964 Sup. Ct. Rev. 191 (1964);.

n29. Fighting words are not inherently menacing in a constitutional sense, but

become so only when such words "by their very utterance inflict injury or tend

to incite a breach of the peace." Chaplinsky, 315 U.S. at 572. See also R.A.V.,

505 U.S. at 382-85. Chaplinsky and its fighting words doctrine, similar to

obscenity and defamation, seems to raise many more questions than it answers.

For example, Chaplinsky addressed his epithets "God damned racketeer" and

"Fascist" to a city marshall who had interrupted Chaplinsky's soap box speech.

Chaplinsky, 314 U.S. at 569. Why should this outburst not be construed as a cry

of frustration at the overweening power of government, and therefore as

protected political or civic speech? Martin H. Redish, The Value of Free Speech,

130 U. Pa. L. Rev. 591, 626 (1982). What of the emotive content of protected

First Amendment speech? See Cohen, 403 U.S. at 18 (finding that state lacks

power to censure underlying content of a "fighting words" message). Could

Chaplinsky be convicted for uttering fighting words had he written the same

phrases on a poster that he carried while walking the public streets? It has

been suggested that the fighting words doctrine's distinction between

suppressible rough language and protected provocative words - both of which

might stir a listener to anger - operates more to repress "low value" speakers

than "low value" speech. Stanley Ingber, The Marketplace of Ideas: A

Legitimizing Myth, 1984 Duke L.J. 1, 33-34.

It is interesting that since Chaplinsky, no conviction for uttering fighting

words has been sustained by the Court. See, e.g., Plummer v. City of Columbus,

414 U.S. 2 (1973); Brown v. Oklahoma, 408 U.S. 914 (1972); Lewis v. New Orleans,

408 U.S. 913 (1972); Gooding v. Wilson, 405 U.S. 518 (1972). Yet, the fighting

words doctrine retains technical validity. See R.A.V., 505 U.S. 377. A number of

commentators have criticized the continuing constitutional validity of

Chaplinsky, and called for its modification or elimination. See Toni M. Massaro.

Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L.

Rev. 211 (1991); Kent Greenawalt, Insults and Epithets: Are They Protected

Speech?, 42 Rutgers L. Rev. 287 (1990); Note, The Demise of the Chaplinsky

Fighting Words Doctrine: An Argument for Its Interment, 106 Harv. L. Rev. 1129

(1993).

n30. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425

U.S. 728 (1976). Commercial speech was once utterly vulnerable to regulation.

See Valentine v. Chrestensen, 316 U.S. 52 (1942). However, the Burger Court, and

now the Rehnquist Court, have enhanced the respectability afforded to speech

that proposes a commercial transaction. Unlike the aforelisted categories of

vulnerable speech, the validity of commercial speech is assessed by means of a

balancing test not unlike that used by the Court to evaluate incidental

regulations on otherwise protected communication. Posadas De Puerto Rico Assocs.

v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).

Obscenity and Related Areas. Obscenity, perhaps the quintessential example of

valueless expression, is considered bereft of communicative value, and thus

subject to broad controls. The Court's latest formulation for distinguishing

obscenity from speech that is merely distasteful, rough, evocative, or erotic -

and therefore protected to some extent - requires a finding that the

communication is patently offensive, appeals to prurient interests, and is

bereft of serious scientific, artistic, literary, or political value. n31

Integral to these defining principles is the notion that individual communities

retain the authority to set their own statutory standards for the definition of

pornography, or communications that are "patently offensive" and appeal to

"prurient interests." n32

n31. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Miller v. California,

413 U.S. 15 (1973). In Roth v. United States, 354 U.S. 476, 484 (1957), Justice

Brennan opined:

The protection given speech and press was fashioned to assure unfettered

interchange of ideas for the bringing about of political and social changes

desired by the people.... But implicit in the history of the First Amendment is

the rejection of obscenity as utterly without redeeming social importance.

Another justification for categorizing obscene speech as taboo is offered by

Professor Schauer - that obscenity is specifically designed to evoke a entirely

physical effect, and thus is a physical, and not a mental, stimulus. "[A]

pornographic item is in a real sense a sexual surrogate." Fred C. Schauer,

Speech and "Speech" - Obscenity and "Obscenity": An Exercise in the

Interpretation of Constitutional Language, 67 Ga. L. Rev. 899, 922-23, 926

(1979).

n32. Child pornography is a special case. Materials depicting children in sexual

poses or activities can be criminalized, even if the same materials depicting

adults would pass First Amendment muster. New York v. Ferber, 458 U.S. 747, 756,

773 (1982). Moreover, mere possession of child pornography, even in the privacy

of one's own home, can be criminalized, despite the contrary holding of Stanley

v. Georgia, 394 U.S. 557 (1969), concerning possession of adult pornography.

Osborne v. Ohio, 495 U.S. 103 (1990). But see Jacobson v. United States, 503

U.S. 540 (1992)(conviction for receiving child pornography in the mail

overturned where defendant, the target of a government "sting" operation, was

entrapped into the purchase).

However, traditional notions of "community" quickly become confounded in the

context of a medium such as the Internet, the characteristics of which

obliterate any notions of state or national boundaries. For example, a

California couple was convicted in 1994 for dispatching over computer bulletin

board materials found to be obscene when viewed in Memphis. n33 The materials at

issue in this case were arguably obscene by any community standard. n34 But this

case and others like it raise the question of whether using the Internet to

transmit arguably obscene materials portends that the applicable community

standards will be those espoused by the most priggish among us. n35

n33. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). Mark L. Gordon &

Diana J.P. McKenzie, A Lawyer's Roadmap of the Information Superhighway, 2 J.

Marshall J. Computer & Info. L 177, 203 (1995).

n34. The materials "depicted images of bestiality, oral sex, incest,

sado-masochistic abuse, and sex scenes involving urination." Thomas, 74 F.3d at

705.

n35. See also Samarajiva, Cybercontent Regulation, supra note 24.

Another recent case demonstrates the power of the Internet to subject

individuals to criminal prosecution. n36 A University of Michigan student,

Baker, communicating with an unidentified person through e-mail, expressed an

escalating sexual interest in violence against women and girls. Baker was

charged under federal law with transmitting threats to injure or kidnap another,

but the court granted his motion to quash the indictment on the grounds that

these private e-mail communications did not constitute statutory threats. n37

n36. United States v. Baker, 890 F. Supp. 1375 (E.D.Mich. 1995).

n37. Baker also posted to an Internet newsgroup, alt.sex.stories, a story that

graphically described the torture, rape and murder of a woman, who was

designated by the name of one of Baker's classmates at Michigan. This story was

the basis for a superseded indictment, but was not mentioned by the Government

in the later indictment that was the subject of this case. Id. The court

declared:

While new technology such as the Internet may complicate analysis and may

sometimes require new or modified laws, it does not in this instance

qualitatively change the analysis under the statute or under the First

Amendment. Whatever Baker's faults, and he is to be faulted, he did not violate

18 U.S.C. 875(c).

Id. at 1390-91.

Above and beyond existing judicial decisions and state laws, Congress has

decided to criminalize Internet dissemination of not only obscene material, but

all sexually explicit text or images. The Communications Decency Act of 1996

regulates the carriage and transmission of "indecent" materials on the Internet

to persons under the age of eighteen. In this Act, designed to protect minors,

Congress defines as indecent "any comment, request, suggestion, proposal, image

or other communication that describes, in terms patently offensive as measured

by contemporary community standards, sexual or excretory activities or organs."

n38

n38. 47 U.S.C.A. 609 et seq (1996).

The Communications Decency Act has provoked reaction both swift and strong.

America Online threatened to terminate its bulletin boards and chat rooms,

opining that only through such severe measures could AOL assure compliance with

the Act. n39 The Citizens Empowerment Coalition filed suit challenging the

constitutionality of the Act, as did the American Civil Liberties Union. Both

groups alleged that the Internet is a unique communications medium that merits

unique First Amendment protection at least as broad as that afforded to print

media. The challengers argued that parents are the best judges of material that

is appropriate for themselves and their children. A federal judge granted a

preliminary injunction against enforcement of the Act, and a three-judge federal

court agreed that the portions of the Act that attempt to regulate non-obscene

communications do not pass constitutional muster. n40 The case is currently

before the Supreme Court of the United States of America and a decision should

come down sometime in 1997.

n39. Leslie Miller, New Law May Silence On-Line Chat, AOL Says, USA Today, Apr.

2, 1996, Life, at 6D.

n40. American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. June 11,

1996). See Shakespeare, Bible Restricted?, Communications Daily, March 25, 1996,

at 4; America Online Says Censors in Some Cases, Reuters Financial Service, Apr.

1, 1996; Matt Godbey, Internet "Smut" Law Challenged, Pennsylvania Law Weekly,

Apr. 1, 1996, State Court Rulings, at 12; Richard Gehr et. al., Best of the Net,

The Village Voice, Apr. 2, 1996, Cyber, at 21.

Subversive Advocacy. Intentional incitement, or subversive advocacy, is a

special case that illustrates the Court's approach to appraising the validity of

content-based regulations. The Court permits regulation of expression that

qualifies as incitement only if, as a consequence of the utterance, there exists

a genuine likelihood of imminent unlawful conduct, and if the speaker intends

this result. n41 Brandenburg v. Ohio n42 declares a general First Amendment

tenet that advocacy of even the most alarming notions is absolutely protected

against direct criminal prohibition, regardless of dangerousness and intent.

Interdiction of ideas or perspectives deemed intrinsically dangerous - and

perhaps justifiably so - by government is forbidden.

n41. Brandenburg v. Ohio, 395 U.S. 444 (1969).

n42. Id.

B. National Enforcement and International Structures

As we have established, the Internet, even if global in scope, is not an

absolutist free speech domain, but is instead subject to innumerable national

restrictions. At the same time, the very structure of the Net substantially

diminishes the chances for enforcement of national regulations. n43

n43. "The on-line world's lack of respect for state and national borders is

making a mockery of outdated laws." Attempts to erect national barriers against

subversive or culturally-polluting information are readily circumvented. On-Line

Boundaries Unclear: Internet Tramples Legal Jurisdictions, Computerworld, June

5, 1995, News, at 1.

National speech restrictions can be enforced directly only within the territory

to which they apply. n44 But the Net is global, and so is the flow of

information. People who disseminate information through the Net that is illegal

in one country can easily transfer their operations to a country with no similar

prohibitions and effectively reorganize their disseminating action in matters of

hours.

n44. However, the United States has occasionally, and with some degree of

success, extended its territorial reach. For example, in United States v.

Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court upheld the United

States' assertion of jurisdiction over a Mexican national who had been forcibly

kidnapped and brought to the United States to stand trial for the murder of a

Drug Enforcement Agent in Mexico.

For the recipients of such information, redeployment is hardly noticeable in an

environment dominated by the World Wide Web where information is accessed and

retrieved by simply clicking on information links. Because distance from or

location of information sources within the World Wide Web is irrelevant to the

recipient, access to the relocated information sources is easy and

straightforward. Already there exist numerous examples of exiled political

groups taking advantage of information infrastructure networks located in

countries with regulatory environments more sympathetic to their cause to widely

disseminate political information to countries with more restrictive speech and

information regulations. Chinese human rights activists use the World Wide Web

to advocate for their cause, n45 and Tibetan women in exile castigate the

Chinese government for its treatment of their sisters still in Tibet. n46 CAPA,

an organization that supports Cubans fleeing their country and delivers accounts

on their rescue and survival can be found on the Web, as well as solidarity

pages for the Tupac Amaru hostage takers in Peru n47, while German Nazis use

American and Canadian Web sites to discuss fascism and to issue denials of the

Holocaust, a crime under the German Penal Code. n48

n45. Support Democracy in China <http://christusrex.org/wwwl/sdc/ sdchome.html>.

n46. Statement of the Tibetan Women's Delegation Fourth World Conference on

Women, NGO Forum 95 Huairou, China - September 2, 1995

<http://www.grannyg.bc.ca/tibet/tibetpr3.html>.

n47. See, e.g., The official Tupac Amaru Homepage can be found at

<http://www.cybercity.dk/users/ccc17427>, for an US Tupac Amaru Solidarity Page,

see <http://burn.ucsd.edu/<diff>ats/ mrta.htm>. For an Italian one see

<http://vivaldi.nexus.it/commerce/tmcrew/news/mrtal.htm>.

n48. The Institute for Historical Review, an organization denying the Holocaust,

is present on the WWW through a server in the United States. Its internet

offerings include "Auschwitz myths and facts" and "What is a Holocaust denial?"

and include outrageous quotes presented in a quasi-scientific context. The

Stormfront magazine is a fascist publication operating servers in the United

States and Canada. It maintains the White Nationalist Resource Page and contains

explicit references to notorious Nazi Gary Lauck. Lauck has used electronic and

conventional mail to massively disseminate Nazi propaganda in Germany. He was

arrested in Denmark while on a lecture tour and later extradited to Germany,

where he is currently awaiting trial for violation of the German Penal Code

prohibiting national socialist propaganda. Other web sites include The White

Nationalist Page and the Counter-Revolutionary Resource Page. Electronic mailing

lists are available a well. For extensive information, see Schr<um o>der, supra

note 20, at 41 and see also Maier-Rabler, supra note 1, at 72.

Information sources need not necessarily be redeployed for information to be

disseminated across porous national borders. Other tools are available on the

global Net to channel information in order to obscure its source and place of

origin. Anonymous remailers allow electronic information to be stripped off all

it identifying bits and sent without attribution to any recipient. n49 Together

with widely available tools of public key encryption, n50 remailers allow

worldwide electronic communication on a totally anonymous level, thus

circumventing any national attempts at speech regulation.

n49. The most well-known anonymous remailer is operated without charge by Johan

Helsingius in Finland. His remailer can be reached at anon.penet.fi. A Usenet

discussion group on remailers can be found at alt.privacy.anon-server; see Andre

Bacard, Anonymous Remailer FAQ <http://www.well.com/ user/abacard/remail.html>.

n50. David Chaum, Achieving Electronic Privacy, Sci. Am., Aug. 1992, at 96-101.

Continued information redeployment will eventually shape and reshape the global

information infrastructure. Nations with little speech regulation or inefficient

enforcement structures will attract vast quantities of data and information

illegal in other countries. The global infrastructure will experience sustained

economic pressures similar to those experienced on the high seas by the "flags

of convenience" phenomenon. By redeploying their fleets under "flags of

convenience," shipping companies essentially forced countries to deregulate. n51

A similar phenomenon could materialize on the Net. Some countries might evolve

into booming "data havens", while others might face a choice between economic

hardship and relinquishing their speech constraints, thus compromising their

national or civic values.

n51. "Flags of convenience" defines a situation where registration of

foreign-owned and foreign-controlled vessels is permitted by certain countries

under conditions that are convenient and opportune for the registrant. Flags of

convenience have been variously referred to as "flags of necessity," "cheap

flags," and "free flags." R. Tali Epstein, Should the Fair Labor Standards Act

Enjoy Extraterritorial Application? A Look At the Unique Case of Flags of

Convenience, 13 U. Pa. J. Int'l Bus. L. 653, 655 (1993).

II. Consequences

In the world of a global information infrastructure, an escalating national de

jure regulation of speech meets a similarly pervasive de facto futility of

enforcement. Herein, indeed, lies a strange paradox: the international dimension

of the information infrastructure both strengthens and weakens speech regulation

and free speech protection simultaneously.

Given this paradox, national legislatures might continue to enact regulations,

but their regulatory endeavors are unlikely to be as effectively enforceable as

they desire. To circumvent the limitations of national regulatory attempts, one

might advocate for an international regulatory measure to restrict the content

of Internet communications. In principle, of course, a global phenomenon like

the Internet should propel nations to achieve international regulatory

cooperation and partnership.

Although national legislatures differ dramatically in the kind of content they

prefer to regulate, any attempt to regulate the global information

infrastructure must be acceptable to the vast majority of nations in order to

become enforceable. Hence, any method or tool to devise a framework for an

internationally acceptable and enforceable content-based speech restriction must

conform to a rigorous set of requirements. Cognizant of the specific structural

qualities of global information infrastructures, we posit several such essential

requirements. n52

n52. Consuelo Lauda Kertz & Lisa Boardman Burnette, Telemarketing Tug-of-War:

Balancing Telephone Information Technology and the First Amendment with Consumer

Protection and Privacy, 43 Syracuse L. Rev. 1029, 1053-55 (1992). To be

effective, any regulation of speech - on the net, as well as In conventional

communicative forums - must focus on the party who disseminates the

communicative act. Attempts to focus on the party that delivers or receives the

message have proven to be ineffective, cumbersome or plain wrong in the past,

and no necessity dictates a resurrection of such plans. For example, a telephone

carrier is not culpable for a fraudulent 900-service transmitted, and media are

not responsible for the accuracy or good faith of advertisements carried unless

the publisher undertakes to guarantee the soundness of the advertisement or the

product it describes. Pittman v. Dow Jones & Co., Inc., 662 F. Supp. 921, 922

(E.D. La. 1987).

The Net is a global phenomenon, thus any feasible regulatory attempt should be

based on an internationally acceptable, or already accepted, principle. While

speech has never enjoyed - and will never enjoy - absolute protection, the

principle of freedom of speech has become part of a minimum standard of freedoms

among a majority of nations. Therefore, a method should be devised for defining

certain categories of speech that will be subject to regulation, while at the

same time staunchly protecting all speech not within these categories.

Essentially, regulatory lines should be drawn circumspectly, so that only speech

that is encompassed within certain specified and narrow confines can be

regulated on the basis of its content. All speech outside these narrow

boundaries should be assiduously sheltered from content-based regulation.

Even more important, the method for selecting categories of speech subject to

regulation should ensure results that will be accepted by the community of

nations. The method should thus include a mechanism for reaching a broad

international consensus. This consensus should be multinational in its reach,

and hence avoid vulnerability to chauvinistic national interests or sentiments.

Shifting attitudes in one nation should not alter the overall definitional

landscape of what is offensive or outrageous.

The mechanism should also be multi-cultural in scope, in order to circumvent any

charges of cultural imperialism, and to stimulate cross-cultural exchanges of

ideas. Moreover, this consensus, broad and inclusive in concept, should be

behavioral in character. Nations should deem themselves bound by the dictates of

this consensus, and should adhere their conduct to it. Only if such a consensus

is already experienced throughout the world by the vast majority of nations, can

we expect the world to accept it in the telecommunications domain as well.

Creating a general principle and agreeing on it internationally will prove to be

difficult, if not outright impossible. Thus, we suggest use of an

already-existing international legal principle as a basis for a methodology on

which to structure a regulatory mechanism.

The international law concept of jus cogens might provide such a potential basis

for regulating speech content on the Net. Jus cogens is linked to the conception

of International Law envisioned by its founding father, the well-known Dutch

jurist Huig de Grotius, in 1625. n53 Grotius theorized that nations were not

conducting their affairs in chaos, devoid of any underlying universal

principles. Grotius was convinced that without binding rules of international

conduct - a common law among nations that binds them - interactions between

nations would be impossible. Grotius traced these norms to natural law

principles, and envisioned these principles functioning as a set of mutual links

tying nations together. n54

n53. Cornelius F. Murphy, Jr., The Grotian Vision of World Order, 76 Am. J.

Int'l L. 477 (1982).

n54. Id. at 480.

Since Grotius, many jurists and writers have accepted and reaffirmed the

principle of such binding international law norms. n55 Almost 60 years ago,

Verdross was the first to advance a coherent view of the relationship between

jus cogens and other sources of International law. n56 Verdross suggested that

the concept of jus cogens would be consistent with other international law norms

only if international treaties violating jus cogens norms would be void. Thus,

Verdross' conception of jus cogens creates in essence yet another layer of

international law above and beyond treaty law and customary international law.

International law violating such peremptory norms is void, similar to national

laws that violate the national constitution. n57

n55. See Mayer-Sch<um o>nberger & Foster, supra note 5, at 90-96 (extensive

discussion of the jus cogens doctrine).

n56. Alfred von Verdross, Forbidden Treaties in International Law, 31 Am. J.

Int'l L. 571 (1937).

n57. In 1945, the concept of jus cogens was applied and extended in the

Nuremberg trial of major war criminals. Steven Fogelson, Note, The Nuremberg

Legacy: An Unfilled Promise, 63 S. Cal. L. Rev. 833 (1990). The Allied court not

only concluded that Germany had violated peremptory norms of International Law,

but also extended the concept of jus cogens from the realm of states to the

level of the individual. Louis B. Sohn, The New International Law: Protection of

the Rights of Individuals Rather than States, 32 Am. U. L. Rev. 1 (1982). See

Charter of the International Military Tribunal in Trial of the Major War

Criminals Before the International Military Tribunal (Andronicus Pub. Co. 1946)

11.

Since Nuremberg, jus cogens prohibits not only states from engaging in certain

conduct, but also holds individuals accountable for conduct that violates jus

cogens. The Nuremburg Legacy, 63 S. Cal. L. Rev. at 868-870. See also Articles 7

& 8, Charter of the International Military Tribunal (1946). This acceptance of

peremptory norms of International Law is the significant legacy of the Nuremberg

trials, and since Nuremburg, jus cogens has become a widely accepted mainstream

principle. The Nuremburg Legacy, 63 S. Cal. L. Rev. at 883.

In 1969, the precept of jus cogens was incorporated into the Vienna Convention

on the Law of Treaties. n58 According to leading experts of vastly disparate

legal, political, and cultural backgrounds, the issue of whether jus cogens is

accepted is now settled. n59

n58. Vienna Convention on the Law of Treaties, 63 Am. J. Int'l L. 875 (1969),

signed and ratified to date by 48 nations. During the drafting process, 43 out

of 44 nations commented positively on the proposed jus cogens regulation.

Comments by Governments, ILC Reports on 2nd part of its 17th Session and on its

18th Session, General Assembly, 21st Session, Official Records, Supp. No. 9

(A/6309/Rev.1), Annex.

n59. For the Socialist view, see Geoffrey Hazard, Book Review of Aleksidze, Some

Theoretical Problems of International Law: Peremptory Norms: Jus Cogens, 78 Am.

J. Int'l L. 248 (1984); for a western view, see W. Paul Gormley, The Right to

Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens, The Right

to Life in International Law (B.G. Ramcharan ed., 1985). For a general treatise

of jus cogens see Lauri Hannikainen, Peremptory Norms in International Law

(Finnjish Lawyers Pub. Co. 1988).

The Vienna Convention defines jus cogens as follows:

[A] norm accepted and recognized by the international community of States as a

whole as a norm from which no derogation is permitted and which can be modified

only by a subsequent norm of general International law having the same

character. n60

n60. Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155

U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).

Thus, jus cogens, gleaned from verifiable behavior across the community of

nations, structurally fulfills the methodological requisites we posit, and

offers the potential for achieving the necessary substantive consensus in the

global telecommunications arena. As a "peremptory norm of international law,"

n61 jus cogens represents a corpus of international law rules that are binding

upon every nation and every people. It comprises by definition the multicultural

and multinational consensus that we assert is essential. Jus cogens norms

mandate that certain forms of behavior are unequivocally intolerable.

n61. Mayer-Sch<um o>nberger and Foster, supra note 5, p. 90-96.

This global consensus commends jus cogens norms as the touchstone for

identifying types of speech that are amenable to an internationally acceptable

content-based regulation. However, we suggest here that - especially given the

scope and power of the Net - a paradigm shift is appropriate. Not only can

speech that incites behavior condemned by jus cogens principles be regulated,

but also speech that advocates conduct that jus cogens terms depraved can be

banned, should a nation desire a broader ban. To be sure, the varieties of

speech subject to regulation under a jus cogens-based system would be few and

narrow: only speech that advocated clearly reprehensible behavior, e.g., piracy,

slavery, genocide, apartheid, aggressive warfare, terrorism, and torture, could

be constrained. n62

n62. Id. at 97-102.

Because a jus cogens-based approach narrows the parameters for restrictions to

the common denominator among the community of nations, this approach avoids the

constant danger of cultural imperialism. It also averts the impulsive,

ultimately devastating reflexes that characterize national majoritarianism. As

such, jus cogens is uniquely qualified to serve as a methodology for regulating

globally connected information infrastructures.

Defining the substantive categories of speech to be regulated is the first step.

But no regulation will be effective without a working enforcement strategy.

Because the information infrastructure is global, so must be the enforcement.

The international instrument that implements the jus cogens approach to

regulation of speech on the information infrastructure must address the

enforcement issue. Reciprocal extension of the principle of territoriality among

the state parties and the broadening and strengthening of international criminal

law and its procedural aspects can be a first level for addressing the area of

enforcement. n63

n63. For example, The Genocide Convention of 1948, 78 U.N.T.S. 227, has been

ratified by more than 100 nations. Persons charged with genocide, an offense

against the community of nations, can be tried by any nation.

But the objectives of an international agreement are even broader in scope.

State parties must recognize the importance of speedy national implementation

and rigorous enforcement of the internationally agreed regulations. Moreover,

state parties need to execute and implement an enforcement mechanism among them

to guarantee continued national support for such an agreement. n64

n64. A possible, albeit dramatic, consequence of continuous, open and systematic

non-enforcement of the international agreement by one nation could be the

restriction of access for information flows from that country, or by that

particular government. For example, these domains could be temporarily disabled

in the network domain name files.

International consultative organizations with existing substantial factual

knowledge of the matters at issue, such as the Organization for Economic

Cooperation and Development (OECD), could facilitate discussions and

negotiations leading up to such an international agreement.

III. Conclusion

Regulating the content of speech on the Net is still thought of as a national

issue. Free speech absolutists and national legislators discuss these matters

without considering the international dimension of the information

infrastructure, which diminishes the significance of these national debates.

The international aspect of the information infrastructure places unique, albeit

unexpected and largely unrecognized, constraints upon both free speech advocates

and regulators. The former must come to terms with the fact that the global Net

is not an anarchic medium, above and beyond legal restrictions, but on the

contrary, is cluttered with numerous - even contradictory - national speech

regulations. On the other hand, national regulators must recognize that domestic

controls and enforcement are futile regulatory mechanisms for an international

structure in which information can be redeployed and disseminated in a matter of

seconds.

Only an international perspective can overcome the current shortsightedness of

free speech absolutists and regulators alike. Speech restrictions on the Net

must be elevated to the international level to be both subjectively acceptable

to the world's nations and globally enforceable. An international legal

instrument, jus cogens, which by definition embodies this global consensus and

positively binds all nations, could provide a useful tool in drafting a possible

solution. Jus cogens, limiting regulation to specific, defined areas such as

advocacy of genocide, slavery, torture, or apartheid, together with creative

international enforcement structures might facilitate the creation of speech

regulations that are both sensible and feasible.

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