CORN-REVERE: First I'd like to thank Feminists for Free Expression for inviting me to come and speak at this today. I think that the topic is one of the most important that at least those of us who care about communications are dealing with right now and it's one that's going to be developing very quickly. Although I have to say -- I'll apologize in advance. I'm from Washington. I used to work at the FCC, and so to be talking about these issues may seem to be a bit ironic. And to compound that, to have a lawyer to be the first person to speak in a discussion on Censorship in Cyberspace is a bit like having a hall monitor be the keynote speaker at a writer's conference. But it is an area that I have been writing about for some time and have some concern about, and hopefully discussions like this one will help move toward a greater understanding that can actually do some good. Being in Washington I'm always hesitant to say that, but it is possible sometimes. First of all I know it isn't in the program, it doesn't mention the term, but I'm going to just say that I hate the expression Information Superhighway. If there is a single thing that we could do to make some sense of what's going on we would eliminate that forever. I mean not only does it spawn just this avalanche of horrible metaphors -- on ramps, off ramps, toll booths, traffic cops. Name it, they're out there. It's just going to get worse, to the point where the Washington Post finally had a front page story that talked about the Information Superhypeway, which is pretty much what it's becoming. And in a way it I mean it really doesn't convey any information. In a way it's a lot like teenagers and sex. I mean, you know, everyone is talking about it. Everyone's convinced that everyone else is involved in it. The people who are talking about it don't really know much what it's about but are convinced that once they're doing it too it's going to be great! That's a lot of what is going on in the policy discussion in Washington, D.C. But I have a particular reason for disliking that expression, and that is that it tends to focus or it tends to direct peoples' attention to the means of transmission by calling it a highway. So we'll need traffic cops. And when you look at the method of transmission historically, that's been the hook, the jurisdictional hook, for governments to get involved in speech. For that reason I really think we would move a long way toward clarity if we could shift metaphors. As most of you I'm sure know, this year the Congress failed to pass telecommunications legislation wanting to be in the forefront of developing the Information Superhighway, talking about all the vital national policies that are involved. And while I don't discount the importance of the issues, I tend to think it's a little bit dangerous to start the debate and start from the proposition that Congress needs to be fashioning this for us, and I think that that's simply going to lead to more trouble. In really underscoring that, I think it's useful to talk about communications systems and talk about the development of these things from something of a historical perspective, because technology has always been an intimate part of the struggle for freedom of expression. It's no accident for example that the first official censorship bureau emerged shortly after the development of the printing press. None existed before then because none were necessary, and to that extent censorship was the bastard child of technology. You didn't need a central official authority to keep track of scribes. The Church did that very nicely, thank you. And the communications that they produced didn't really pose any kind of a threat to the State. First of all they were produced in small numbers, not mass produced, and in the second place you didn't have the ability to produce multiple volumes of a uniform copy, of a simultaneous transmission of exactly the same words. There were minor errors between them and it took a long time to copy addi- tional copies. But once you had because of the printing press the ability to crank out multiple documents that could all be trans- mitted simultaneously, then the communication tended to pose a threat to official authorities and for that reason you then had this drive to establish social policy, policy that would constrain or in some way control that communication for what were considered by those in power beneficial ends. And so you see that sort of history repeating itself over and over again, and ultimately in the end the technology tends to win. You can look at the successive means of censorship in the 16th and 17th centuries, whether they were official censorship bureaus or the Court of the Star Chamber or the Stationer's Company, and government monopoly licensing and those sorts of things. Each of them failed. Each of them went out of fashion because the technology of the printing press was superior to the ability of the bureaucrats to exert control -- up until the point when you get to the formation of the United States and the adoption of the First Amendment, where the United States became the first nation to embrace new technology as an essential component of its political system. That's what the First Amendment is about. It specifically identifies the press, that new technology of its day, or relatively new to the framers of the Constitution, as an essential component of what this country was about. So technology for the first time rather than just being a hindrance to official authorities became an essential part of what free expression is to be and came to be in this country. Despite that hopeful beginning, and despite the fact that it really took a couple of hundred years, well, 120 years anyway before the courts started to define what the First Amendment was about, technology continued to be something of a problem as new technolo- gies for communications were developed. The Supreme Court first faced this problem in 1915 when it was asked to rule on whether or not the cinema was protected by the First Amendment. And this was before the Supreme Court had actually addressed the issue of the First Amendment and what it meant in any way, but it was presented in this case about a licensing board, a trilogy of cases actually about a licensing board in Ohio. And in that case the Court simply said, "This is not speech. We're talking about film here. It's commerce. And besides, it's dangerous." And so they decided that the First Amendment simply didn't apply to the technology of film. Now thirty-seven years later the Supreme Court reversed itself and film was protected the same as the printed word. But it took thirty- seven years and actually longer than that for the pronouncement of the law to become disseminated through the country, where it wasn't until 1972 that the last film licensing board, municipal film licensing board, in Dallas, Texas, was abandoned. So it does tend to take a long time. The same thing has happened of course with television, and again, as with the Information Superhighway, the focus is on the means of transmission and the government's argument historically has been that we have this medium. It's scarce because you have a certain number of frequencies. If the government doesn't regulate it you'll have people speaking over each other, and so the government has to get involved. And by the way, we're not just going to be traffic cops to decide people don't run into each other in the air waves. We also need to control pretty much what's said in the broadcasting as well. And so again focussing on the way the communication was transmitted created the jurisdictional hook by which broadcasting has had second class rights under the First Amendment. Now that's changing. It's changing because the courts have come to be more sensitive to the First Amendment issues involving broadcasting. Most thoughtful observers recognize that the whole notion of scarcity (a) was created by government in the first place, and (b) if, to the extent it was ever true, because government of course decided how many of those frequencies would be used for communications, to the extent it ever was true it no longer is, again because of increases in technology, both because of digital compression, the ability to get a lot more out of the same band- width spectrum, and also because there are so many other techno- logies that can transmit the same information and more than just broadcasting. Whether it's cable television, whether it's fiber optic transmission, whether you're talking about videodiscs, videotapes, there are any number of ways you can transmit the same information. And so the courts are moving more toward an appreciation of the First Amendment status of broadcasting, to the point where the Supreme Court this summer in a case involving cable television essentially said that the government has no business dictating the content of broadcasting. Again, that was just language that the court used, but it tended the signal the direction they're heading. And I think ultimately again the technology will win. My concern though is at each stage where we're confronted with new technology we have to go through this process yet again. It happened with the printing press. It happened with film and then took four decades and longer for practical application, for that to get reversed. With broadcasting it first was regulated in 1927 as a scarce medium and then again that law was rewritten in 1934 and hasn't been rewritten since. We're on the verge of a rewrite, and that's what some of the telecommunications legislation is about, but it doesn't abandon these concepts of government control. In fact it strengthens them and would extend them to the newer technologies, whether it's fiber optics or something else, or direct broadcast satellites for that matter. So I think that it's time to recognize that all speech is the same under the First Amendment, and that the means of transmis- sion don't make any difference whatsoever. The fact that some communications may have social force or power to change things isn't a reason again for government to get involved. That's why the printing press was controlled. That's why we adopted a First Amendment in the first place. And so the method of transmission shouldn't make any difference whatsoever. The other thing that I think is fairly dangerous when it's handled in the way that it's currently being considered is that if things have moved slowly in the past wait until they become the subject of a regulatory agency. Having worked at the FCC I can tell you a lot about that. Things move much more slowly in the regulatory state. We are controlled by endless numbers of defini- tions, and once you fit into a regulatory pigeonhole, a defini- tional pigeonhole, you will stay there either until the courts turn it over, knock it down, or until some sixty years later or however many years later someone decides that that may have been a bad idea in the first place. So I'm very concerned about carving these things into the stone of legislation and then using that as the model for extending government control over communications. The whole idea of having this network, this notion of instantaneous communication, is to free up speech and not to create jurisdictional reasons to exert greater control. For that reason I am particularly concerned about the Digital Telephony Bill that was just passed. It was passed by both houses of Congress in early October, and it does require tele- phone companies to cooperate and assist law enforcement authorities in wiretapping and issues like that. In some ways it doesn't change the preexisting state of the law. In 1986 there was a rewrite of the Federal Wiretapping Law that essentially brought that into, recognized, digital communications. It did require that kind of cooperation. This really more clarifies that rather than imposes a new obligation. The other clarifying part of it thankfully is that it says that federal authorities have to get a warrant before they can do it. But it still maintains the essential premise of governmental control, and I think that what we need to working toward is an understanding that the First Amendment and the Fourth Amendment, because they work together, must be recognized for all technologies as we move on into the future. I'll just say one or two more things because I know I've taken a bit of your time, just to say that if nothing else, because again I've been talking legal structures because that's the world that I work in, but if nothing else it would helpful if people could get an understanding that when they're approaching a new type of communications they're not approaching something fundamentally different, and I'll give you two examples that I think tend to underscore that. One is a recent action by an export office in the Department of State that denied an export license for the disk version of a book on encryption, while the print version is freely available and as a matter of fact 20,000 copies have been sold worldwide. Now the justification is that when you put it on a computer disk it is somehow different and can be disseminated differently when of course anyone can take the print version and key it in and you have the same thing. But that's one example of where the understanding of what the communication is, what the information is, is treated differently under the law because it is in a different technological form. Another has to do with a recent case involving a regional office of the Department of Education's Office for Civil Rights, an action that ended closing down a men's only and women's only computer bulletin system at Santa Rosa Junior College because of allegations of sexual harassment and people saying generally not nice things on this computer bulletin board. But as part of this ruling, and it's still being worked out, it isn't final yet, the Office of Civil Rights took the position that a computer bulletin board is not subject to the same free speech rights as if you were talking about a physical bulletin board or if you were talking about the campus newspaper. It is somehow different. I think these are very dangerous beginnings, very dangerous trends, and unless we address these questions both in terms of our understanding of what's going on and in terms of the law then what we've seen in history will be perpetuated and it will take a far longer time, decades, if we're lucky, for that to be sorted out. So that's why I think this is one of the most important topics that we could talk about today, because I think that communications has been historically a vital force in society and it's only going to get more important. Thank you. * * *