Freedom and the New Age

The proliferation of home computers has led to a proliferation of electronic bulletin boards--public computer networks that enable users around the country to exchange messages and information from terminal to terminal over the telephone. These bulletin boards are the electronic equivalent of the community bulletin boards that hang outside many supermarkets, but they can be used by anyone, anywhere, with a telephone, a computer terminal and a modem, the device that links one to the other.

There are about 75 computer bulletin boards in the 213 area code alone, and several thousand operating around the nation. Some are large (CompuServe has a quarter of a million subscribers), and some are small; some welcome general information, and some are narrowly focused on specific topics; some are free, and some charge for the service. In whatever form, they are the vanguard of the democratization of communication, a revolutionary development in the flow of information.

A home computer linked to a bulletin board is an electronic printing press, enabling its owner to publish information and distribute it widely. Until now, getting a message to millions of people required a large capital investment and was limited to a relatively small number of major publishers and broadcasting companies. But the electronic revolution is changing that. It is now possible to have a printing plant, a television studio, a recording studio and a Western Union office in the home for under $5,000. Computer technology has revived the age of the pamphleteer, who in earlier times printed his message on paper and distributed it in his community. Now the distribution is electronic, instantaneous and potentially global.

As frequently happens, developments in technology have outpaced developments in the law, which is now trying to catch up. The growth of computer bulletin boards and the information that is communicated on them has led to two divergent theories of law in both Washington and Sacramento. One approach seeks to restrict the kind of information that can be communicated electronically. Someone says, “We don’t like what you’re talking about,” and wants to regulate the content of communication in the name of a social good. One bill is pending in Congress that would prohibit sending obscenity over a computer network. Another bill has been introduced in Sacramento to outlaw the posting of unauthorized credit-card numbers on an electronic bulletin board.

The alternative legal theory starts from the premise that electronic communication enjoys the full constitutional protection of the First Amendment, which guarantees freedom of speech and of the press, and the Fourth Amendment, which forbids unwarranted search and seizure. At this point in the embryonic development of this technology, these rights should be assumed to apply.

There are other ways to combat anti-social behavior. Government regulation of the content of speech is a cure that’s worse than the disease. The Constitution protects electronic words as much as spoken or written ones. The rules of print should apply to computers. Whatever is legal to publish on paper should also be legal to publish electronically.

Similarly, the police have on occasion seized computer equipment that they believed contained unauthorized information. One such case is now pending in New Jersey, where the police seized a bulletin-board computer and rifled all its files.

The seizure of a bulletin-board computer is the equivalent of the government’s seizure of a printing press. It is a prior restraint on publication, which is unconstitutional. Examination of private computer files is the same as delving into personal mail and papers, which the government may not do without an explicit search warrant.

It is crucial to establish these principles in law while the technology is still in its infancy. The free flow of information must remain unfettered. “The handling of the electronic media is the salient free speech problem for this decade,” Ithiel de Sola Pool wrote in 1983 in his seminal work, “Technologies of Freedom” (Harvard University Press). “The onus is on us to determine whether free societies in the twenty-first century will conduct electronic communication under the conditions of freedom established for the domain of print through centuries of struggle, or whether that great achievement will become lost in a confusion about new technologies.”