Copyright (c) 2003 Albany Law Journal of Science & Technology
Albany Law Journal of Science & Technology
2003
13 Alb. L.J. Sci. & Tech. 273
LENGTH: 63502 words
ARTICLE: COMPLICIT PUBLICATION: WHEN SHOULD THE DISSEMINATION OF IDEAS AND
DATA BE CRIMINALIZED?
Susan W. Brenner*
* NCR Distinguished Professor of Law & Technology, University of Dayton School of Law,
Dayton, Ohio. Website: http://www.cybercrimes.net.
SUMMARY:
... This article is about controlling speech; more precisely, it is about the advisability of using
criminal prohibitions to control the dissemination of ideas and information. ... The content of
theories, ideologies and philosophies is abstract, and is therefore exceedingly unlikely to
become the actus reus sufficient to support the imposition of criminal liability under the
"speech act" doctrine. ... Since notional ideas do not lend themselves to prosecutions under a
"speech act" approach, the only way to impose criminal liability for their dissemination is to
make the articulation of certain types of notional ideas a crime. ... It is exceedingly unlikely
that the symbolic expression of notional ideas in fiction, music and/or art could provide the
basis for imposing criminal liability under the "speech act" doctrine. ... That is, personal
information has negative value because it can be used to locate and harm someone. ... How is
all this relevant to vulnerability reporting? This analysis is concerned with the extent to which
criminal liability can be imposed for the dissemination of certain types of speech. ... It is this
variation in how societies approach the criminalization of speech that creates the scenario
described earlier, in which the owner of the Justice Files website moves it to a jurisdiction
where its content, which is illegal in Washington, is lawful. ...
TEXT:
[*275]
I. Introduction
"Editor-in-chief of the official German news agency ... [and] head of the Wireless News Service
... . Fritzsche used the foregoing positions... to advocate, encourage, and incite the
commission of the ... Crimes set forth in ... the Indictment ... ." n1
This article is about controlling speech; more precisely, it is about the advisability of using
criminal prohibitions to control the dissemination of ideas and information. n2 This is not an
article about the First Amendment, though it incorporates First Amendment principles into its
analysis. Instead, it is concerned with how principles of substantive criminal law devised to
deal with conduct occurring in the "real," physical world can, and should, be extrapolated to
cyberspace. Cyberspace eliminates the pragmatic "filters" that have for so long constrained
the dissemination of ideas and information; n3 it gives rise to new modes of communication
and thereby raises difficult questions about the extent to which speech can, and should, be
criminalized in American law.
These are not merely national concerns; the capacity that cyberspace creates for the
unfiltered, unfettered dissemination of information also raises difficult issues at the
international level, since the content posted, for example, by American citizens can bleed
across national boundaries and reach the citizens of countries where it is illegal. n4 Because
their speech is legal in the United [*276] States, those responsible for posting the
information cannot be prosecuted in this country; consequently, they cannot be extradited for
prosecution in countries where their speech is illegal. n5 This, in turn, creates the possibility
that the United States will become a "speech haven," n6 i.e., a nation that harbors those
whose speech is outlawed elsewhere, and gives them the freedom and the resources that they
need to broadcast their messages to the [*277] world. n7 If one assumes, as seems
reasonable, that the United States would prefer not to become a haven for the Nazis of the
new millennium, it becomes necessary to consider the extent to which the emerging varieties
of, and opportunities for, disseminating information can be criminalized under American law.
n8
[*278] The notion that criminal liability can be predicated upon what one says, as opposed to
what one does, is far from new. n9 In the [*279] Anglo-American tradition, for example, the
crime of blasphemy dates back to the seventeenth century, n10 and other "word crimes" were
in existence long before that. n11
Blasphemy was one of the four "branches" of common law criminal libel; the others were
obscenity, sedition, and defamation. "All four ... sought to ensure that speech did not violate
established norms of respect and propriety." n12 Since courts of this era agreed that
Christianity was part and "parcel of the common law of England," n13 it followed that speech
that was repugnant to Christian values and violated the law, which could be punished as a
criminal act. n14 This was an instance in which the law imposed the views of a dominant
group upon an entire populace instead of protecting the values of many diverse groups, n15 a
phenomenon that has been common throughout history.
This perspective, which came to America with the colonists, n16 survived well into the
nineteenth century, notwithstanding the adoption of the First Amendment. n17 By the end of
the nineteenth century, the dominance of this view had begun to erode, due in large part to
the increasing diversity of American society. n18 The influx of millions of immigrants in the
nineteenth and early twentieth centuries gradually diluted the Anglo-Saxon, Protestant
homogeneity of the original colonies. n19 America became a pluralist [*280] society in which
no single group's views were "parcel" of the law.
One consequence of this diversification of American society was an increasing intolerance for
restrictions on speech, especially value-laden speech. This intolerance, coupled with other
factors, resulted in the creation of free speech jurisprudence, free speech having received little
or no attention from courts during the nineteenth century. n20 As a result of this new
emphasis on free speech, many of the old laws criminalizing speech, including blasphemy
[*281] and sedition laws, were either struck down as violating the First Amendment or fell
into disuse for the same reason. n21
Contemporary American law governing the criminalization of speech is largely the product of
evolved technology. Criminal prohibitions are adopted to control behaviors; laws criminalizing
speech are therefore designed to control at least certain types of speech. n22 To understand
why it has been deemed necessary to control speech, it is necessary to consider how the
technologies of communication have evolved and how they interact with speech.
In pre-literate societies, which have no communication technology, speech is merely oral,
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severely limiting its dissemination: Face to face oral communication is restricted in scale; it
can involve one speaker and one listener or expand to involve more than one speaker and
multiple listeners, but its audience and its [*282] geographical reach are inevitably
circumscribed by time and space. A diatribe delivered to a pre-literate audience (a) reaches
only those who were physically capable of traveling to the location where it was delivered and
(b) survives only imperfectly in the idiosyncratic memories of those who were present to hear
it. These characteristics, plus the fact that one could not speak anonymously, mean that it is
relatively easy for those in power to control speech by exerting informal pressures to
discourage speech that they consider undesirable and/or by using force against those whose
speech they deem undesirable.
The development of written language makes it somewhat more difficult to control speech
because the speaker can use script to transcend the geographical and temporal limitations
inherent in face-to-face oral communication. A dissident can transcribe his diatribe and send it
to a geographically dispersed audience, who can read the diatribe and pass this preserved
speech on to others. Script literacy does not, however, create significant control problems for
those who are determined to ensure that speech stays within what they consider acceptable
bounds: Each copy of the diatribe must be written, or transcribed, individually; the
dissemination of speech remains limited in scale since this is a time-consuming process and
there may be few literate dissidents. Additionally, because it is likely that only a small
proportion of the populace will be literate, and because there is a good chance that each
individual's handwriting is distinctive, it is relatively easy for those concerned with controlling
speech to identify the authors of the diatribes and take action against them.
All this changed with the availability of communication technologies, the first of which was the
printing press. n23 Using a printing press, one can produce hundreds or even thousands of
copies of a transcribed diatribe quickly, cheaply, and anonymously, with the copies being
distributed over as wide a geographical area as physical transport allows. The copies, which
perfectly record the substance of the diatribe, can be preserved or passed on to others; the
substance of the diatribe survives to influence later readers, and perhaps shape future
diatribes. It did not take those in power long to realize the dangers that printing posed to their
ability to control speech: n24 The first printing press was brought to England [*283] in 1476,
and by 1538, a Crown "proclamation required a license from the Privy Council or a bishop
before any English book could be printed." n25 The licensing system lasted until 1694, n26
when it was abolished, common law courts began to use the common law crime of seditious
libel - along with blasphemy and obscenity - to control speech. n27
Part II.A outlines the American history of these common law crimes and the other offenses
that have been employed to control speech. These devices survived the adoption of the First
Amendment and persisted well into the last century, long after communication technology had
expanded well beyond the use of the printing press; n28 indeed, some of these devices are
still in use. n29 This is not surprising because all pre-cyberspace technologies had one thing in
common: Printing, cinema, radio, and television disseminate identical content that has been
generated by or on behalf of a broadcaster to an audience that is composed of many
individuals; the audience's role is passive, to receive the speech, as given, without the ability
to respond or to modify. By the mid-twentieth century, these modalities had become the
dominant [*284] modes of disseminating information and opinion. Economic forces dictate
that those who decide what content to disseminate will identify with the social and political
status quo, so there was little need to resort to formal measures - such as licensing or criminal
prosecution - to ensure that this content stayed within "acceptable" bounds. n30 The attitudes
and allegiances of those who controlled these various media outlets acted as an empirical
"filter," ensuring that undesirable content was not broadcast to the American public. Criminal
prosecution was needed only to deal with the outliers, i.e., with those who persisted in
publishing "questionable" content on a limited scale, n31 and with their patrons. n32
3
The dominance of these modalities of mass communication is being undermined by the rise of
the Internet and the use of cyberspace to communicate. n33 Cyberspace has the capacity to
become [*285] the ultimate marketplace of ideas: Anyone with access to a computer
connected to the Internet can "publish" ideas and information. The pragmatic, empirical
"filters" that are an intrinsic aspect of existing mass media disappear, and one can share
whatever speech they like with the world - recipes, diatribes, innermost thoughts, sexual
exploits and fantasies, conspiracy theories, information, misinformation, etc. This creates new
dilemmas for law, especially for American law with its First Amendment guarantee of free
speech. The rise of cyberspace communication will test the American commitment to the
notion of free speech because a complacential bromide has become a reality; for the first time
in history speech is truly "free." This is a matter of concern for some who argue that it is
necessary to adopt new, formal methods of controlling speech that is disseminated via the
Internet, including the use of criminal sanctions, because the pragmatic, empirical "filters" that
govern speech disseminated by radio, cinema, television, and conventional print media do not
constrain cyberspace communication. n34 The viability of this argument is considered below:
Part II reviews the criminalization of speech in Anglo-American history and Part III analyzes
the extent to which criminal liability can, and should, be used to control cyberspace speech.
III. Complicit Publication: Imputing Criminality to Communication
"We educated no murderers. The contents of the articles which I wrote could not have
educated murderers." n325
Cyberspace democratizes communication by eliminating the tacit, pragmatic filters that limit
what is disseminated by the communication modalities that dominated until the late twentieth
century, i.e., printing, cinema, radio and television. n326 Cyberspace makes speech truly
"free" for the first time, and in so doing, creates a challenge for law, especially for American
law with its professed commitment to free speech: Can social order co-exist with the perfectly
unrestrained dissemination of ideas and information?
To maintain social order, it is necessary to proscribe certain types of behavior. The proscribed
behaviors are those that cannot be tolerated if organized social life is to exist because they
produce socially undesirable "harms;" for the most part, they involve patterns of victimization,
individuals preying on each other. The behaviors are proscribed by defining them as "criminal"
and sanctioning those who flout the proscriptions by engaging in the outlawed conduct. n327
And although criminal proscriptions do vary across social systems, there is a notable level of
consistency in a core set of prohibitions that are designed to protect the interests vital to
every society: The safety of persons; the security of property; the stability of the government;
and the sanctity of certain moral principles. n328 No society can survive if its members are
free to harm each other at will, appropriate each other's property, [*336] undermine the
political order, and/or flout the moral principles that the citizenry hold dear.
Consequently, every society will formulate penal prohibitions defining (a) crimes against
persons (e.g., murder, assault, rape); (b) crimes against property (e.g., theft, arson, fraud);
(c) crimes against the state (e.g., treason, rioting, obstruction of justice); and (d) crimes
against morality (e.g., gambling, defiling a place of worship). n329 There will be varying
degrees of consistency in these prohibitions. By far the greatest degree of consistency will
occur in the first two categories because they represent the malum in se crimes; these are the
absolute prohibitions a society must establish to maintain a modicum of social order since they
outlaw the [*337] direct infliction of "harm" by one person upon another or others. n330
4
There will also be consistency as to a core of offenses in the third category because every
society must protect its basic governing processes; n331 but there will be more overall
deviation in this category because societies vary in the extent to which they are willing to
tolerate political dissidence. n332 The least amount of consistency will exist as to offenses in
the fourth category; these prohibitions are the product of a society's values and religious
principles, and therefore tend to be more idiosyncratic in nature. n333
Criminal proscriptions targeting the content of speech have historically played a minor role in
Anglo-American law. Content-based proscriptions did not really appear until the first great
"information revolution" - the proliferation of the printing press - made it possible to
disseminate ideas and information to a wide audience. n334 Perceiving this as a threat to the
existing social order, British law reacted by creating two new crimes against the [*338] state
(seditious and criminal libel) and two new crimes against morality (obscene and blasphemous
libel). n335 As Part II explained, these crimes became part of American law, but only one obscenity - survives, the others having foundered on the First Amendment or fallen into
disuse.
The second great "information revolution" has just begun but already ideas and information
can be disseminated faster, more inexpensively and on a wider scale than has ever been
possible before. In addition, at this point, it is simply not possible to predict what cyberspace
communication will become in, say, the next century; unlike printing, which is a static
technology, computer-facilitated communication is a dynamic technology that can evolve into
new and ever-more complex forms. Any attempt to develop law and policy in this area is,
therefore, necessarily an exercise in speculation. n336 It is, however, reasonable to postulate
that the pragmatic constraints limiting the amount and type of speech that is disseminated will
be significantly reduced in importance, if they do not disappear entirely.
That brings us back to the question posed at the beginning of this section: Can social order coexist with the perfectly unrestrained dissemination of ideas and information? Or to put it
another way, as the dissemination of ideas and information is constrained less and less by
pragmatic filters, will societies find it necessary to proscribe the dissemination of at least
certain types of speech on the premise that it creates a risk of "harm" to persons, property,
the state or morality?
The best analytical test case for considering how these questions can, and should, be
answered is American society because of its constitutionally embedded commitment to "free"
speech. The sections below undertake this analysis, examining two basic issues: (1) Should
criminal prohibitions be used to limit the dissemination of ideas and information via
cyberspace?; and (2) Can criminal prohibitions be put to this use given the American
guarantee of free speech? These issues are addressed in reverse order, [*339] since the
nature of the available proscriptions is an important factor in deciding whether speech should
be outlawed.
A. Can Cyberspace Speech be Criminalized?
"The evidence has not furnished the slightest proof ... that [Fritzsche] ... committed [a] ...
crime ... through his transmission of news; there is not the slightest evidence to show that he
has instigated a single person to murder, cruelties, deportations, killing of hostages, massacre
of Jews, or other crimes ... ." n337 "The German Command ... had the idea of penalizing the
persons who listened to these broadcasts ... asking the French authorities... to institute the
most stringent penalties, even going so far as to prescribe the death penalty for persons
repeating news heard on the foreign radio service." n338
As Part II demonstrated, two different approaches have been used in criminalizing speech.
One approach criminalizes speech based on its content. For example, using the phrase "Pig
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Madonna," or tying mentions "of God and the Madonna ... to explicit images of sex,"
constitutes criminal blasphemy. n339 The rationale for content-based criminalization is that
the speech in question is either "dangerous" (seditious speech) or "unworthy" (blasphemy and
obscenity). n340 Since the content of the speech is [*340] somehow antithetical to the
maintenance of social order, it must be outlawed. n341 This proposition dictated the creation
of the four common law-derived content offenses discussed in Part II.A. One was a crime
against the state (seditious libel), two were crimes against morality (obscenity and
blasphemy), and the fourth (criminal libel) was a crime against the state (intended to prevent
breaches of the peace caused by defamatory remarks). n342
The second approach - the "speech act" approach - criminalizes speech when it serves as the
actus reus of an independent criminal offense. Here, speech qua speech is not criminalized;
instead, criminal liability is imposed for speech because it is the conduct by which one violates
a freestanding criminal prohibition. In State v. Tally, n343 for example, Tally was convicted of
being an accomplice to murder based on his telling the killers where to find their victim. n344
As Part II.B explained, the speech-act approach allows criminal liability to be imposed for
offenses that effectively target speech (e.g., perjury), as well as for those that do not (e.g.,
contempt).
The division of labor represented by these approaches has been a satisfactory way of
addressing "undesirable" speech, at least until recently. Computer technology and computerfacilitated communication, however, raise issues that cannot easily be resolved by this
framework, as illustrated by United States v. Elcom, Ltd. n345
Dmitry Sklyarov, an employee of a Russian software company called Elcom Ltd., n346 was
indicted on and charged with violating two provisions of the Digital Millennium Copyright Act
("DMCA"); n347 specifically, 1201(b)(1)(A), which makes it unlawful [*341] to traffic
technology designed to circumvent the rights of a copyright owner, and 1201(b)(1)(C), which
makes it unlawful to traffic technology marketed for use in circumventing technology that
protects the rights of a copyright owner. n348 The first count of the indictment alleged that
Elcom Ltd. and Sklyarov conspired to traffic technology that was designed to circumvent
technology that protects the rights of a copyright owner. n349 Furthermore, it alleged that as
an Elcom Ltd. employee, Sklyarov wrote a program called the Advanced ebook Processor
(AEBPR) that allows users to "remove any and all limitations on an ebook purchaser's ability to
copy, distribute, print, have the text read audibly by the computer, or any other limitation
imposed by the publisher or distributor of the ebook." n350
The AEBPR program on its face seems to be legitimate software. However, the program also
produced negative effects.
The conversion accomplished by the AEBPR program enabled a purchaser of an ebook to
engage in 'fair use' of an ebook without infringing the copyright laws, for example, by allowing
the lawful owner of an ebook to read it on another computer, to make a back-up copy, or to
print the ebook in paper form. The same technology, however, also allowed a user to engage
in copyright infringement by making and distributing unlawful copies of the ebook. n351
The indictment accused Elcom of selling the AEBPR program on its website to people who
could use it to circumvent copy protection on eBooks. n352 After Sklyarov's prosecution was
deferred because he agreed to cooperate with the government, his employer moved to dismiss
the indictment on due process and First Amendment [*342] grounds. n353 The company
argued that the DMCA violated the First Amendment "because it constitutes a content-based
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restriction on speech that is not sufficiently tailored to serve a compelling government
interest." n354 The government, in turn, argued that the DMCA does not implicate First
Amendment protections because (a) the DMCA targets the act of selling technology and the
sale of circumvention technology is not "speech," and (b) Sklyarov's computer code, AEBPR, is
not speech protected by the First Amendment. n355 The district court rejected the
government's arguments and held that the prosecution did implicate speech protected by the
First Amendment. n356 Since the First Amendment was implicated, the court turned to the
question of whether the DMCA is a content-based or content-neutral regulation. n357
Elcom Ltd. claimed the DMCA is a content-based regulation because it bans instructive
computer code, which is speech entitled to First Amendment protection. n358 In response, the
government argued that DMCA is a content-neutral regulation subject to less rigorous scrutiny
than a content-based regulation for purposes of the First Amendment. n359 After noting that
"the principal inquiry in determining whether a statute is content-neutral is whether the
government has adopted a regulation of speech because of agreement or disagreement with
the message it conveys," n360 [*343] the court agreed with the government. n361 At the
outset, it found that nothing in the legislative history of the DMCA evinced a
Congressional intent to target speech because of its expressive content. Rather, Congress
sought ways to further electronic commerce and protect intellectual property rights, while at
the same time protecting fair use. In order to balance these priorities, Congress sought to ban
trafficking in any technology or device that could be used to circumvent technological
restrictions that served to protect the rights of copyright owners. n362
Elcom argued that these technologies "necessarily involve computer code" and that "'it is
precisely the content of the code that causes the government to regulate it.'" n363 The district
court explained that this argument went too far.
In the digital age, more and more conduct occurs through the use of computers and over the
Internet. Accordingly, more and more conduct occurs through "speech" by way of messages
typed onto a keyboard or implemented through the use of computer code ... . The mere fact
that this conduct occurs at some level through expression does not elevate all such conduct to
the highest levels of First Amendment protection. Doing so would turn centuries of our law and
legal tradition on its head, eviscerating the carefully crafted balance between protecting free
speech and permissible governmental regulation. n364
The court concluded that the DMCA does not regulate speech; it merely bans trafficking in
devices. n365 Therefore, it held that the DMCA is a content-neutral regulation because it bans
code "not because of what the code says, but rather because of what the code [*344] does."
n366 The court upheld the DMCA under the less demanding scrutiny given to content-neutral
regulations. n367
With all due respect to the Elcom court, it was wrong. The provisions of the DMCA at issue in
Elcom are content-based criminal regulations of speech. To say that the DMCA bans code "not
because of what it says but because of what it does" n368 evades the real issue, which is
whether, in a technologically driven world, it becomes necessary to criminalize certain types of
speech because of its content. The court avoided this issue because it did not want to deal
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with the consequences of finding that the DMCA is a content-based regulation. As a contentbased regulation, the DMCA might not have survived the rigorous scrutiny to which such
regulations are subjected under current law. n369
[*345] To understand why the Elcom court erred when it held that the DMCA provisions are
not content-based regulations of speech, it is necessary to consider a variation on the facts in
the case. The DMCA makes it an offense to "offer to the public, provide, or otherwise traffic in
any technology, product, service, device, component, or part thereof that (A) is primarily
designed ... for the purpose of circumventing ... rights of a copyright owner ... [or] (B) has
only limited commercially significant purpose or use other than [circumventing copyright]
protection." n370 Assume that instead of marketing a program, Elcom had posted on its
website the code that could be used to crack embedded copyright restrictions on eBooks. n371
Also, assume that the code qualifies as technology or a component or part thereof n372 that is
primarily designed to circumvent copyright protection or has only limited commercially
significant uses other than circumventing copyright protection. By posting the code, Elcom has
"offered it to the public" or "provided" it or otherwise "trafficked" in it within the scope of the
DMCA. n373 Therefore, Elcom's conduct violates the DMCA, and it is prosecuted for posting
the code.
Here, the prosecution clearly targets the content of speech. The code functions as a set of
instructions on how to bypass technology that maintains copyright restrictions on eBooks. The
instructions convey information from one human being to another, and are [*346] therefore
speech protected by the First Amendment. n374 By posting the code on the website, Elcom,
or, perhaps more precisely, Sklyarov, n375 communicates this information to anyone who
cares to read it. Elcom is essentially publishing the results of scientific inquiry, an act that is
protected by the First Amendment. n376 Of course, the act of publishing this information is
also a violation of the DMCA, which brings us back to the issue the Elcom court avoided: How
should the law deal with conduct that is presumptively protected by the First Amendment, but
that is potentially capable of assisting in the commission of criminal activity? Is it permissible
to criminalize speech that is merely capable of facilitating unlawful acts?
The problem, which did not exist prior to the rise of cyberspace communication, is that the
potential assistance is ambiguous, subtle, and diffuse in nature. Instead of selling an erstwhile
bank robber the combination he can use to open a bank safe, one posts code on the Internet,
knowing it can be used to override the encryption that protects copyrighted material. Selling
the combination to the safe is a one-to-one transaction that is analogous to the formation of a
criminal contract. The seller knows the robber needs this combination to open either a specific
safe (e.g., the First National Bank safe) or to open a safe of a particular type (e.g., the
Guardian Series 3000 Safe). Because the seller knows that the combination will be used to
engage in specific criminal activity, selling it to the robber is a "speech act" n377 because it
aids and abets a crime that will be committed in the future. n378 If the crime is not
committed, the seller can still be prosecuted for attempting to aid and abet its commission.
n379
[*347] Posting code is a much more ambiguous act than selling the combination to a bank
safe. It is not a one-to-one transaction in which the seller knows, or can reasonably be
deemed to know, that particular, recognized individuals would use the information to commit a
specific crime. Posting information is a one-to-many transaction akin to publishing an article or
a book. The person posting the information distributes it to an undefined universe of
anonymous persons with no way of knowing precisely who will access it and the uses to which
they may put it. n380
Another difficulty is that the information being disseminated may have both legitimate and
illegitimate uses. This is theoretically true of the combination to the bank safe when used
legitimately by bank staff, but the circumstances surrounding its transmission to one with
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acknowledged criminal purposes eliminates any argument that it is disseminated for legitimate
purposes. Comparable circumstances are usually lacking when information is posted on a
website. In the hypothetical given above, for example, Elcom may have posted the code that
can be used to bypass copyright restrictions on eBooks: (a) it wants to facilitate the criminal
circumvention of copyright restrictions on eBooks because; (b) it wants to bring this
information to the attention of computer scientists and thereby increase the body of
knowledge in this area; or (c) this is a marketing device that is intended to demonstrate the
technical expertise of the company's employees. The posted code is speech protected by the
First Amendment. n381 In alternatives (b) and (c), the speech is disseminated for purely
lawful purposes, and cannot provide a basis for imposing criminal liability. n382 In alternative
(a), Elcom "spoke" - [*348] disseminated expressive content - with the knowledge that the
information would be used to engage in unlawful activity and, presumably, with the purpose
that it would be put to this end. Unfortunately, unless Elcom admits that alternative (a) was
the sole reason for posting the code, n383 there is no way to prove its actions constitute a
"speech act" - aiding and abetting violations of eBook copyright protections. n384 There is no
demonstrable link, no meeting of the criminal minds, between Elcom and those who commit
such violations.
The DMCA's approach to these issues is to treat certain types of speech, and more specifically,
certain types of information, as tools that must be outlawed because they can be used to
commit crimes. In effect, the DMCA analogizes information of this type to "burglar's tools," the
possession and manufacture of which is illegal in many states. n385 This is why the DMCA is
in fact a content-based regulation of speech. Like the libel offenses that English law created as
a reaction to the proliferation of the printing press, n386 the DMCA criminalizes a category of
speech based purely on its content. In both instances, criminal liability is imposed for the act
of uttering the speech. There is no inquiry into whether the person responsible for the speech
acted with the intent to facilitate the commission of a criminal act. The English libel offenses
outlawed certain categories of speech because they presumptively threatened the stability of
the state (seditious libel) or offended [*349] prevailing notions of morality (blasphemy and
obscenity). n387 In a similar fashion, the DMCA outlaws a category of speech to protect
private property rights, i.e., intellectual property rights. n388 The question is whether this is a
constitutionally permissible strategy.
It is interesting to contrast the DMCA's approach with the treatment that is given to another
analogous category of speech, which includes books and websites that provide instructions for
creating bombs, poisons, and other devices of destruction. n389 Bomb making instructions in
print have been available for decades, yet Congress has not made any effort to outlaw them.
n390 In 1995, Senator Dianne Feinstein proposed legislation that would have made it a federal
crime to use the Internet to "demonstrate the making ... of an explosive ... or to distribute ...
information pertaining to ... the manufacture ... of such an explosive," but the proposal died in
committee and has never been revived. n391 The Department of Justice was asked to
evaluate the [*350] constitutionality of the Feinstein proposal, since it was clearly a contentbased regulation of speech. n392 In a report issued in 1997, the Department of Justice
concluded that the First Amendment would impose substantial constraints on any attempt to
indiscriminately proscribe the dissemination of bombmaking information. n393 "The
government generally may not ... punish persons either for advocating lawless action or for
disseminating truthful information - including information that would be dangerous if used that such persons have obtained lawfully." n394 The report also pointed out that the Feinstein
proposal
could be construed to impose culpability if the person disseminating the information has
reason to know that some unidentified, unspecified recipient thereof will use the information
for an unlawful purpose, or if such an outcome is the "natural consequence" of publication of
9
the information. Because that construction could cover virtually all public dissemination of
such information, it would raise serious constitutional questions. n395
Comparing the failed history of criminalizing the dissemination of bomb making information
with the DMCA suggests a paradox. The First Amendment does not permit Congress to outlaw
the general dissemination of bomb making information when the natural consequence of that
dissemination is that the information will be used for an unlawful purpose, i.e., to inflict injury
and destruction upon persons and property. However, the First [*351] Amendment does
permit Congress to outlaw the general dissemination of information that instructs how to
circumvent copyright protection technology when the natural consequence of that
dissemination is that the information will be used to violate laws protecting intellectual
property rights. Presumably, this is a matter of less moral import than the infliction of injury,
death, and September 11th types of property destruction.
The Department of Justice would no doubt argue that there is no paradox, and that the
difference between the two scenarios lies not in the consequences that may result from
disseminating the information, but from the nature of the information itself. As noted earlier,
the Department of Justice argued in Elcom that computer code is not speech and is therefore
not protected by the First Amendment, an argument courts have rejected. n396 It has been
argued that while code within the scope of the DMCA may be "speech," it is not speech that is
entitled to full First Amendment protection because it is not solely concerned with
communication between human beings. n397 According to this logic, the code is not entitled
to full First Amendment protection because at least some portion of it is concerned with
facilitating communication between computers, and the First Amendment does not protect
"machine speech." n398
This reasoning is problematic for at least two reasons. It introduces an element of uncertainty
to the application of the DMCA's criminal prohibitions. If Elcom posts a program on its website,
the First Amendment does not apply because a program is machine speech. However, if the
company posts code that humans must use to achieve a result, this is speech because the
code communicates information from one human being to another. [*352] The arbitrariness
inherent in this solution is unacceptable because, aside from anything else, it hinders
predictability. One of the basic principles of criminal law is that individuals must be given fair
notice of what is forbidden so they can conform their conduct to the demands of the law. n399
The level of ambiguity inherent in the DMCA's criminalization of information-as-inchoate-tool
means that individuals can be left uncertain as to whether they risk violating the law if they
choose to disseminate information about subjects that fall within the statute's compass. n400
In some ways, this is a de facto return to the common law rule that eliminated prior restraints
on speech but allowed speech to be prosecuted if it was determined to be unlawful after the
fact. n401
Another problem with the reasoning outlined above is that it ignores the effect computer
technology and cyberspace will have on speech. It is as if the Department of Justice
announced in 1910 that the First Amendment applied to written and face-to-face speech, but
not to speech communicated via the telephone because this was "machine speech," a form of
artificial speech. To use what may be a better analogy, it is as if the Attorney General
announced in 1850 that the First Amendment did not apply to the contents of telegraphic
communication because telegraphic communication was purely "machine speech," i.e.,
telegraphic instruments [*353] communicating to each other via a set of code. n402
Technology allows speech to assume new and different forms, and speech has never been
defined as being outside the First Amendment simply because it takes an unfamiliar form.
n403
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The content-based criminalization used in the DMCA is a simplistic solution to a complex
problem: Preventing the dissemination of ideas or information from being used to cause
certain types of harm. n404 The DMCA focuses on copyright infringement, a relatively
traditional type of harm, which is essentially theft, the ultimate infliction of which occurs in a
conventional manner. The only novel aspect is that the infliction of this harm is facilitated by
cyberspace communication, that is, by the online transmission of burglar's tools. n405 This,
however, does not exhaust the criminal potential of online speech. The increasingly free
speech created by cyberspace communication has already given rise to scenarios in which the
dissemination of ideas and information threatens to: (a) inflict new types of harm; or (b)
create new ways to inflict traditional harms. Since speech is at the heart of these scenarios,
using content-based criminalization to attack them would effectively eviscerate the First
Amendment because it would require [*354] outlawing numerous types of speech. These
scenarios - and others that will likely emerge in the future - should be criminally proscribed
and sanctions should be applied to those who perpetrate them because they do produce
socially unacceptable harms.
The Department of Justice recognized the only logical alternative in its report on the
dissemination of bombmaking information: The "speech act" approach does not criminalize
speech for content, but rather the conduct by which one commits an independent noncontent-based offense. n406 The "speech act" approach avoids First Amendment issues
because it focuses on the traditional benchmarks of criminal activity - an act taken with the
intent to produce a result - instead of on the content of speech. n407
Unfortunately, applying the "speech act" approach to conduct occurring in and via cyberspace
is not as straightforward a process as it might seem. Like all criminal law doctrines, the
"speech act" approach evolved to deal with conduct occurring in the "real world." n408 Real
world conduct is relatively unambiguous because it involves synchronous one-to-one
interactions. n409 For example, if an alienated bank teller sells the combination to the safe in
her bank to someone whom she knows intends to rob the bank, it is reasonable to infer that
she acted with the purpose of bringing about a socially proscribed harm - the theft of property
belonging to the bank. Moreover, it is consequentially reasonable, assuming [*355] the
above facts are proven beyond a reasonable doubt, to hold her liable as an accomplice to the
consummated bank robbery.
Cyberspace complicates the analysis by adding the potential for asynchronous one-to-many
and many-to-many interactions to the synchronous one-to-one interactions that produced the
current body of criminal law. The issues that can arise from these new modes of interaction
are illustrated by a variation on the hypothetical used earlier. n410 Assume that instead of
selling the bank safe combination to someone whom she knows intends to rob the bank, the
alienated teller posts it on a website. If an aspiring bank robber who knows nothing about the
alienated teller or her motivations for posting the combination finds it on the website and uses
it to rob the bank, can the teller reasonably be held liable as an accomplice under the "speech
act" approach? What if instead of posting the combination on the website, she posts
information about the bank's operations, i.e., when employees arrive in the morning and leave
at night, the number of security guards stationed in the bank at any given time, and the
security systems in place at the bank? If the bank is robbed, can she reasonably be held to
have been an accomplice to the robbers? Can the traditional "speech act" approach be used to
answer these questions? If not, how should the law approach apportioning criminal liability in
these and comparable situations?
The sections below address these issues. They consider how the criminal law should go about
imposing liability for the dissemination of speech. The analysis is based on the premise that
criminal liability can be imposed only when speech is the actus reus of an independent, noncontent-based criminal prohibition. It also divides speech into three analytical categories:
Notional ideas, applied ideas, and data. n411
11
In this schema, "ideas" refer to abstractions generated by the human intellect. Ideas are
constructs of the human mind. "Data" is content that has been compiled or structured by the
human mind, but that has an existence independent of the human [*356] mind. n412 The
differences between the three analytical categories are illustrated by the following example:
n413
Notional idea: There are physiological and psychological differences between human races.
The members of some races are stronger or smarter than others.
Data: Statistical evidence showing that more whites than blacks have college and advanced
degrees and that the average earnings of whites far exceed those of blacks.
Applied ideas: Whites are "superior" to blacks (opinion) and therefore whites should receive
certain advantages over blacks. Blacks should be treated as second-class citizens (advocacy).
n414
This division is in no way intended to imply that one category of speech is more important
than any others. It is a device used to explore the possibility that certain types of speech may
have an inherently greater capacity for facilitating criminal conduct than other types. If this is
true, it is a matter that the criminal law needs to take into account; that is, if certain types of
speech have an inherently greater capacity to facilitate criminal conduct than others, this is an
empirical circumstance which needs to be considered in the articulation and application of
criminal doctrines governing conduct mediated through cyberspace. If, of course, this is not
true, then the sections below simply become a useful organizational structure.
B. Should Cyberspace Speech be Criminalized?
The criminalization - or, perhaps more properly, the attempted criminalization - of speech in
cyberspace has two aspects, a national aspect and a transnational aspect. At the national
level, countries are using criminal sanctions - along with firewalls and other measures - in an
effort to control the speech that reaches their citizens via cyberspace. n703 That is the topic
this article addresses; it is concerned with whether the United States of America can and
should criminalize the use of cyberspace to disseminate certain types of speech. The sections
above analyzed the extent to which criminal sanctions can be used to this end. This section
considers whether they should be used to this end.
Earlier, it was explained that criminal proscriptions are used to control behaviors that cannot
be tolerated if a society is to survive. n704 This proposition is obvious as to certain types of
conduct. No society, for example, can allow its citizens to inflict physical injury on each other to rape, assault and murder each other - at their individual whim. The same is true of
property; some level of security in one's property is an essential part of any society. A society
must, therefore, outlaw intolerable behaviors and sanction those who obstinately engage in
them. These rules provide a baseline of stability and predictability that is essential for normal
social functions. Historically, they have for the most part been directed toward conduct, not
speech. Generally, disruptive physical acts are a more destabilizing force than mere speech.
However, speech, too, has been outlawed. As Part II.A explained, [*423] Anglo-American
law has used criminal proscriptions to control speech that authorities have regarded as
"dangerous." As that section also explained, these proscriptions were a reaction to a
technological innovation - the printing press - that made speech more "free" than it had ever
been before. But as centuries passed and pragmatic constraints evolved to regulate the
amount and types of speech that could be disseminated via the dominant modalities of mass
communication - i.e., printing, radio, television and the cinema - the perceived need for
prohibitions of this type eroded and disappeared, at least in American law. n705
12
A new technology has emerged, one that has the capacity to make speech truly "free" by
eliminating these constraints. n706 That capacity is causing consternation in some segments
of American society, as well as in other societies. For example, in some countries, it has
produced efforts to use criminal sanctions to control the potentially unbridled speech made
possible by cyberspace. n707 For American law, there are two possible responses to this
phenomenon: One is to reinstitution content-based prohibitions in an attempt to discourage
speech that is seen as socially intolerable; in my opinion, this is what the DMCA does. n708
The other is the "speech act" approach, discussed in Part III.A, whereby speech is punished
when it becomes the actus reus by which someone violates an independent, non-contentbased criminal prohibition. This approach can be used to impose direct liability for a
substantive offense and imputed liability for facilitating the commission of such an offense.
n709
This is the approach American law has followed for at least sixty years, n710 and it is the
approach we must continue to follow. Embarking upon the proscription of speech based on its
content is inconsistent with the principles and values contemporary American society claims to
honor, and certainly claimed to honor while pragmatic filters meant that speech was "free" in
principle but constrained in fact. The rise of cyberspace has undermined the effectiveness of
these filters, a trend that will only accelerate. The [*424] consequence of this trend is that
speech that seems valueless, offensive, and perhaps even "dangerous," is entering the public
discourse in a way that would never have been possible thirty years ago. n711 While some
may find this disturbing, we are not obliged to "listen" to this speech. We can simply ignore it
or use other means of technology to shut it out. However distasteful or offensive some of this
speech may be, it is merely speech. Unless it becomes the actus reus of a crime, speech is
"harm-less" and should not become the basis for imposing criminal liability. n712 American
society is beginning to confront the world's first real marketplace of ideas. It is learning, along
with the rest of the world, that as in any marketplace, some of the goods are shoddy,
distasteful, even disgusting. n713 The best way, indeed, the only way to preserve freedom of
thought is to allow odious speech to be heard and rejected. n714
There is another aspect to the criminalization of speech in cyberspace debate: The
transnational aspect. Cyberspace transcends national boundaries, but law is still defined by
physical territory. This creates situations in which one nation, outraged by speech a citizen of
another nation has posted on a website hosted in that country, seeks to prosecute the noncitizen for speech that violates its law but is quite legal in the other country. n715 This
scenario raises a number of legal issues, such as jurisdiction and the need to harmonize laws
in an era of cyberspace communication, [*425] which are not pertinent to the issue currently
under consideration. It also raises a practical issue that is relevant to this discussion.
It was much easier to control speech when the printing press produced the first content-based
criminalization of speech laws in the Anglo-American tradition. n716 Printing presses can be
found and confiscated or destroyed, as can the products they create. It is relatively easy to
accomplish this because printing presses and printed matter exist in the real, physical world;
they necessarily exist in a fixed, spatial location that is part of a territorial domain in which
certain laws hold sway. When seditious libel became a crime in England, n717 it was a
relatively straightforward process to find the printing presses that were being used to publish
sedition, confiscate the presses, along with any available seditious literature, and prosecute
the printer. The process was unproblematic because law and territory coincided; the press, the
printer and the literature all were physically present in a jurisdiction in which the publishing of
this particular speech was a crime.
That is no longer true. Websites are hosted on servers that are physically located in a
jurisdiction, but the content they disseminate is available around the world. If the speech a
website displays is illegal under the law of the jurisdiction in which the server hosting it is
located, and if the operator of the website is also physically present in that jurisdiction, there
13
is again a coincidence of law and territory. The operator can be apprehended and prosecuted
for violating local law. The operator of the website can, however, use cyberspace to prevent
law and territory from coinciding and thereby make prosecution difficult, if not impossible.
Assume, for the sake of analysis, that the state of Washington enacts a statute, which makes
it a crime to post personal information about law enforcement officers on a website, and the
Justice Files, a website that is hosted on a server in the state of Washington, displays personal
information about law enforcement officers. n718 If the operator of the website remains
physically in the state of Washington and keeps the site on the original server, there is a
coincidence of law and territory and he can be apprehended and prosecuted. But what if the
operator of the Justice Files, knowing the statute will soon go into effect, moves it to, say,
[*426] a server in Tahiti? n719 Now the website is no longer physically located in the state
of Washington, even though the information it displays is still accessible in Washington and
even though this information is displayed in violation of Washington law. If the operator of the
website remains in Washington, the state of Washington might try to prosecute him for
violating the statute, on the premise that he is physically within its territory and therefore
subject to its laws. Such a prosecution would be problematic if the posting of the information
is legal under Tahitian law; n720 and it would be even more problematic if the ostensible
operator of the site disclaimed any responsibility for the new site, or if he left the state of
Washington and took full responsibility for it. Law and territory no longer coincide.
Lawyers and legislators around the world are grappling with how this scenario should be
resolved. It presents issues of law and policy that, again, are not relevant to this discussion.
However, the scenario is pertinent to this discussion as it illustrates that if the content of
speech is criminalized by one territorial jurisdiction the speech can migrate to another, more
hospitable jurisdiction. Consequently, it becomes much more difficult to use criminal liability to
control speech than it was when England formulated criminal libel laws to control what
appeared in print. This is an empirical reality.
Should this empirical reality impact upon efforts to criminalize the dissemination of
"undesirable" speech via cyberspace? The difficulty of enforcing criminal prohibitions is
definitely not a reason to avoid instituting such prohibitions, but there is more to the scenario
described above than the difficulty cyberspace creates for the enforcement of laws
criminalizing speech. It illustrates how cyberspace creates a gap between "speech" and
"conduct," at least with regard to the application of the criminal law. For the most part,
criminal law is parochial, concerned with occurrences in the local community. That is because
it is concerned with victimization, i.e., with a perpetrator's inflicting "harm" upon a victim.
Historically, victimization involved a face-to-face transaction between the two; rape, murder,
assault, most types of theft, arson and the [*427] like were all synchronous events,
occurring in "real time" and in "real space." n721 As a result, criminal law, which is arguably
the oldest form of law, evolved as bounded law; this, in turn, evolved into the concept of
jurisdiction, which equates physical presence in a territory with the power to apply local law.
This model of criminal law is likely to survive insofar as it is concerned with victimization-byconduct; that is, while some crimes - such as fraud and theft - are migrating into cyberspace,
most are likely to remain a "real world" affair. n722 The primary reason for this is that
traditional "crimes" tend to encompass visceral behavior, physical behavior: n723 People hurt
each other; they damage each other's property; and they take each other's property. People
are going to remain in the "real world," as is most of their property; indeed, the property that
remains in the "real world" will continue to be the most valued property, since it is the only
property one can enjoy in the physical reality where they will spend most of their conscious
existence. This means that the criminal law's bounded, territorial focus is unlikely to prove
problematic with regard to the "conduct" crimes; these are crimes that are predicated on the
infliction of some "harm" in the physical world. Homicide, sexual assault, assault, arson, theft,
fraud and the like will for the most part continue to be local crimes; when they do transcend
national boundaries, scenarios such as the one hypothesized above are unlikely to arise. If
14
police determine that A, who is located in Tahiti, used a website hosted in Tahiti to murder B,
who lived in Washington, it is almost certain that A will be extradited for prosecution in
Washington because murder is a crime in every country. In other words, there tends to be a
great deal of consensus across nations with regard to "conduct" crimes; so if A, who is now in
Sri Lanka, uses a website to defraud B, who [*428] is now in Australia, the Australian
authorities can probably have A extradited to stand trial in their country. There are, of course,
differences in national criminal codes, but extradition should be no more difficult to obtain for
those who commit cyber-mediated versions of "conduct" crimes than it is for those who
commit their "real world" variants.
A greater degree of consensus exists as to "conduct" crimes because they have undeniable,
often immediate, "real world" effects. They are emblematic of the principle that societies must
outlaw certain types of behavior or descend into anarchy and chaos. Speech, however, is very
different. Its effects are not "real world" effects, at least not unless and until they are
translated into conduct by those who "listen" to it. This is why societies vary in terms of the
extent to which, and the ways in which, they criminalize the content of speech. Some, those
that tend not to criminalize the content of speech, essentially view it as not-conduct, i.e., as
something that does not and cannot produce immediate "real world" effects. The criminal laws
of these societies therefore ignore speech except, perhaps, when it becomes the actus reus of
a conventional, "conduct" crime. n724 Other societies regard certain types of speech as a form
of inchoate crime, i.e., as effort that can produce the commission of a "conduct" crime. These
societies criminalize the content of speech that falls into this category. Still other societies go
even further in regarding certain types of speech as crime-in-itself; blasphemy prohibitions are
an example of this approach, since they criminalize speech not for the "conduct" it might
inspire but because its very content is anathema. n725
It is this variation in how societies approach the criminalization of speech that creates the
scenario described earlier, in which the owner of the Justice Files website moves it to a
jurisdiction where its content, which is illegal in Washington, is lawful. If, as seems likely,
cyberspace continues to evolve and becomes an ever-more pervasive force in human
communication, it will be exceedingly difficult for societies to enforce criminal prohibitions on
speech, especially the more Draconian prohibitions. With cyberspace, [*429] speech, unlike
conduct, can become free in fact as well as in aspiration. Empirically free speech challenges,
indeed eludes, the bounded conception of criminal law. It is, perhaps, too much to hope that
the nations of the world will realize this and will at the very least take a parsimonious
approach to criminalizing the content of speech.
IV. Conclusion
In fine, this article argues against the criminalization of speech qua speech. It argues for
confining the use of criminal sanctions against speech to those instances in which speech, in
effect, becomes the "conduct" involved in committing a conventional crime. The article argues
against criminalizing the content of speech, emphasizing the differences that exist between
speech and the conduct targeted by traditional criminal prohibitions. It also points out how
these differences are exacerbated by the use of cyberspace as the vehicle for disseminating
speech.
15