Conference Report: Computers, Freedom, and Privacy 1996

or "Being present as the bits are put in place" by Seth Finkelstein

"The Sixth Conference on Computers, Freedom, and Privacy" (CFP96) took place on March 27-30, 1996 at the Massachusetts Institute of Technology (actually, the Hyatt Regency hotel in Cambridge). It was about as different as can be from the common image of "conference". Most conferences are boring. The sessions are pleasant enough, but they're typically about experts pontificating over The Issues. No conclusions are reached, vigorous debate is rarely seen, it's a high-status "bull session". But CFP96 was as exciting and interesting as such a conference could reasonably hope to be.

CFP96 was about the interactions of technology and society. That's a well-worn theme. But what made the conference so special was that every session had relevance and urgency and deep implications which raised it far above the general media meanderings typically seen on its topic. There was an overwhelming sense that the world is changing due to powerful computation and world-wide networks, and some of the people involved in that change were right here, discussing strategy and tactics, advances and setbacks, where they'd like to be, and where they'll probably end up. The attendee list was virtually a Who's Who of on-line activists, people with an interest in emerging law of electronic media, interested reporters, and so forth.

While all the sessions were fascinating, two in particular stand out to me as capturing the essence of all that went on: 1) "Before the Court: Can the US Government Criminalize Unauthorized Encryption?", a pretend argument about a chillingly possible but made-up law, and 2) "Update and Commentary on the Court Challenge to the Communications Decency Act" a special panel of genuine debate about an all-too-real and chilling law.

"Before the Court" was a "moot-court" session. Here, in the context of a fictitious law involving cryptography, real law professors and lawyers argued a pretend appeals-court case before a panel of real judges. The invented law forming the basis for the case was a "Cryptography Control Act of 1995" (CCA), criminalizing the use of cryptography beyond a certain strength unless the keys were registered in the government. In effect, locks which were to tough too pick open could not be used by the populace unless copies of the lock keys were first given to law enforcement.

One would hope such a law, if it were ever enacted in reality, would be found highly unconstitutional, a clear violation of the First (free-speech), Fourth (search and seizure), and Fifth (self-incrimination) Amendments. The chilling lesson of the session was that a real version of the "CCA", or perhaps a slightly weaker variant, would have a discomforting chance of being upheld as the state of the law now stands.

There was much fascinating material in the moot-court preparation and argument. Extensively researched initial decisions were written for the case, and distributed to the audience beforehand. The oral arguments by each side, and questioning by the judges, were tough and extensive. It was chillingly clear that were such a case ever to occur in reality, as is too likely, it would be very hard-fought.

The civil-liberties side eventually won the case here. The opinions overturning this "Cryptography Control Act" were stirring and eloquent, but sadly (as one of the judges commented before reading her decision), unlikely to be the outcome in an actual ruling.

It was all great fun. But the issue of use of cryptography, and the legal measures surrounding such use, wasn't moot at all. Another of the sessions ("Developments in International Cryptography") addressed it in detail, and the topic came up in other areas (e.g. "Electronic Money: Threat to Law Enforcement, Privacy, Freedom, or All Three?"). Though there wasn't a session devoted specifically to the "Clipper Chip" (the U.S. government's various proposals to deploy a system where all users of it can have their conversations available to the government), it was present by implication. The overarching message was that this is being argued out and settled now, so unless the necessary education and lobbying is done, the "Cryptography Control Act" might just come to pass.

But while the moot court wasn't about a real law, one frighteningly real law which the potential to land any net writer in real court (perhaps Memphis, Tennessee), is the Communications Decency Act (CDA). This censorship law roughly applies the diminished First Amendment status which has been carved out for radio and TV broadcasting to the electronic press, but with criminal liability. Each violation of a vaguely defined "indecent" or "patently offensive" standard in electronic media is a Federal felony which could result in two years in prison and/or $250,000 in fines. Material which is perfectly legal in print could become illegal if made available electronically without some onerous access restrictions. This extreme censorship is now in the process of being challenged by a varied group of organizations, among them The Ethical Spectacle.

Before going further, I should note in terms of full disclosure that I'm associated with one organization The Justice on Campus Project, which is a plaintiff in the lawsuit to overturn the CDA, and part of another, the MIT Student Association for Freedom of Expression, which I tried to have be a plaintiff in the case (didn't make the cut, maybe wasn't patently offensive enough ...). So I'm nearly as far from "objective" as a person can be. On the other hand, due the above, I had an extensive background regarding the topic of the special CDA session.

The panel consisted of three people involved in the CDA court case. There were two on the free-speech side, Jill Lesser, Director of Media Project, People for the American Way, and Barry Steinhardt, Associate Director of the American Civil Liberties Union, and one supporter of the CDA, Bruce Taylor, President and General Counsel of the National Law Center for Families and Children. All three spoke about their view of the potential impact of the Communications Decency Act. It was a drama in miniature of a vital court case which will eventually end up in the Supreme Court, and could define the shape of electronic communications for decades.

Taylor's statements were perhaps the most "interesting" from a political viewpoint. I couldn't decide if he really believed what he was saying, or if he was lying through his teeth. Either way, it was an instructive example of what the electronic free-speech position faces in terms of opposition political propaganda. To put it mildly, he was not well-received by the audience, at time being hissed, hooted, and booed (all of which he roundly deserved, in my not-disinterested opinion). After the session closed, several people tried to educate him about some amazingly ignorant ideas he had about how networked communication functioned. But none of that effort seemed to do any good.

The Communications Decency Act session wasn't the only one to touch on free speech, That issue came up in various ways, from "Limiting On-Line Speech On Campus", to "Copyright and Freedom of Expression in Digital Networked Environment", to "The Struggle to Control Controversial Content on the Global Net". But the CDA panel was perhaps the starkest local illustration of the global of drama happening right now. Just a few days later, the CDA legal case went through another hearing, with the same general arguments which were made at the session being made to the Federal Court.

What I took away from the conference was not so much any particular bit of technical enlightenment, but a general sense of having seen in detail how the future was being shaped in terms of computers, freedom, and privacy. No outcome is inevitable, though some battles were going to be much tougher than others. Nothing is purely determined by the technology, it is rather what we make of it.

Seth Finkelstein

Appendix: URL's mentioned:

Computers, Freedom and Privacy
CFP'96 Program information

American Civil Liberties Union
People for the American Way

The Justice on Campus Project
MIT Student Association for Freedom of Expression