Protector of Cyberspace Mike Godwin
All told by the hero of the Internet, Cyber Rights Attorney Mike Godwin. Deliberating through the biggest year of his life, he spends a lot of time talking about how he got to be where he is now -- positioned as head defender of a medium without definitions -- and he seems just as surprised at his fortuity as the rest of us. Certainly his beginnings were not as auspicious -- a few radical UT password database pranks with homeboy and Mr. Smarty Pants R.U. Steinberg highlight his early computer days. Now the head counsel for the Electronic Frontiers Foundation (EFF) and the leading legal expert on First Amendment rights and the Internet,1996 saw Godwin take on both the conventional media and the government in an all-out nerd brawl for the integrity of what he calls the most "democratic"of mediums. It's no wonder, then, that Godwin was named by Texas Monthly in its "Top Twenty" list of Texans to watch this year. There just isn't anyone out there who can describe the battle that's raging over freedom of speech online better than the man who took up arms to protect it.
By now, the Time magazine Porn Study Scandal is common knowledge. Who could have missed the magazine's July 3 issue, the cover of which featured a seductively open-mouthed child gasping at his computer screen. "Cyberporn" the headline screamed, and in that blue light, we all lost our innocence to half-truths and testimony that computers are bad for us. Pornography is rampant on the Net, said the article's author, who based his theories on a now-discredited study from Carnegie-Mellon University conducted by graduate student Marty Rimm. The study relies, for the most part, on descriptions (not photographs) of about 4,000 images that were posted on Amateur Access, one Internet BBS (bulletin board service) -- selling pornographic images over the telephone -- to make its point about the vast amount of pornography on the Net. Rimm had turned a single index into a national study of the problem.
Godwin was shocked. Not by the number of people the study claimed were downloading sexual material, but by the successful snow-job Rimm pulled over on Time. Having looked over the study prior to the story, Godwin was hot to deflect any, as he says, "stereotyping of the Internet as a result of [the study's] flawed, inflated findings," which fueled paranoid judgements of the Internet as a chaotic, anarchistic, child-porn-generating instrument. Securing himself a spot opposite Christian Coalition leader Ralph Reed on Nightline to debate the porn study just before Time released the article, Godwin proceeded to out-argue and out-stat both Reed and host Ted Koppel. He also out-stayed his welcome, but in the end, he'd won. Time later released a smaller, follow-up article on the study, acknowledging it was "seriously flawed."
If not directly linked by their creators, the Cyberporn article certainly has a societal shift in common with the Communications Decency Act (CDA) that passed through Congress this year thanks to Republican Senator Jim Exon (D-Nebraska). The CDA, as part of the larger Telecommunications Act signed by Clinton, proposes to fine any Internet provider up to $100,000 for knowingly passing obscene material over the wires. It also proposes to fine the downloader. The problem, say Internet advocates like Godwin, who oppose such federal regulations, is that, like your community bookstore, an Internet provider should not be held responsible for every piece of smut passing through their system -- there's just too much material to look through it all. And then of course there's the question of what is obscene, anyway, and who, exactly, is responsible?
The CDA was challenged by the ACLU and defended by the U.S. Justice Department and U.S. Attorney General Janet Reno. This summer in Philadelphia, a three-judge panel granted the ACLU's request for an injunction against the CDA, but Reno is appealing to the U.S. Supreme Court. The ACLU will be there, and so will Godwin, at least online. His writings against the CDA are voluminous and persuasive (see Wired magazine's archives at http://www.hotwired.com) on the issue of keeping the Internet as free of federal encumbrances as possible. Why? Because, Godwin says, there is no other medium as public and as diverse in its airing of opinions as the Internet. Godwin shares some of his early geek tales and talks about the CDA case in an interview this week with the The Austin Chronicle.
The Austin Chronicle: You've become one of the foremost voices in America on First Amendment rights and the Internet. Has it all gone to your head?
Mike Godwin: No. Maybe in my area I'm one of the foremost, but I'm always too busy to appreciate it. If I even believe it. It's funny. I was an Austin slacker, always waiting for the next big chance, for something that would tell me what I was supposed to be doing -- I worked minimally hard, paid the rent, and chased girls. I went to law school because it was an intellectual challenge I wanted to test myself against, then I toyed with the idea of splitting off into journalism when I became editor of The Daily Texan. I had no clear mission, and got all the way through law school without one. I got involved with the Internet from getting on a chat [bulletin] board in Austin and occasionally participating. I logged on one morning, and saw notices of a bust at Steve Jackson Games by the Secret Service, and I thought, `Steve Jackson? A target of the Secret Service? How absurd, these guys are innocuous. They're not running any counterfeit thing, but suddenly here's the Secret Service, now, where did they come from?'
AC: That event got you started on your current path, didn't it?
MG: It was that, and a combination of experiences. At the time, I was in my last year in law school, and focusing on criminal law. I figured criminal was the closest I could get to the First Amendment law -- most laws boil down to who gets the money, and I didn't care about any of that. So, I had the Federal Criminal Statutes next to the computer, including all the references to the Secret Service, who had these computer rules that grew out of their counterfeiting jurisdiction. Unlike the FBI, all government agencies have constraints they want to break out of. They hate the FBI because the FBI is not limited. Anyway, computers were a way for them to do it -- if the Secret Service found a specialized computer system that could purportedly produce counterfeit stuff then they could get a computer angle and investigate away. And once they were in computers they would have an ever-increasing jurisdiction. I was learning all this on the fly and would write up the information on the chat board about the Steve Jackson Games thing. I was troubled by it but not sure what I could do. Steve supposedly had some rights, I started looking into it, and I realized that he needed representation. And the story had never been covered in the Statesman. So, I put together a press kit [got a reporter to cover it], and it became a front page story in a couple of days. Turned out, I could do something after all, even though I was in law school. I had this goofy idea that I could have a practice by answering questions over the Internet. I started writing neutral answers, shaping my own opinions at the same time about how law had adapted, or should adapt, to the Internet. Later, I started taking sides, as I could see how law enforcement had characterized these hackers as conspirators. The fact is, hackers can't even sit in the same room together. It was totally goofy. I graduated in 1990, had no job, and at that time EFF [Electronic Frontiers Foundation] didn't even exist. I met [EFF founders] Mitch Kapor and John Barlow who wanted to set up an organization on Internet legal issues, in part because of the Steve Jackson case. They wanted to send in lawyers, help fund a case here and there. When they started out, they contracted with an Austin law firm, but the bills added up. Their attorney told them they needed some guy right out of law school who knows this area to hire at a flat rate. Really, I was the only one they approached. I was sitting out there with no job, not realizing these guys were crafting a job for me. One could start believing in God. Or dumb luck. My interests in journalism, media hacking, law, and experience at The Daily Texan, all led to this one point.
AC: How has the Internet changed the way we look at the First Amendment?
MG: It's sort of like this: We believe in free speech except for talk radio. What I mean is, we're only coming to terms with pluralism just recently. Prior to the Internet, geography separated us and though we can still use it to isolate ourselves, suddenly now we're linked in ways that are more profound than the telephone [could ever be]. When you're on the Net, you're not separated anymore from people who are different from you culturally, ethnically. All the theoretical stuff you learn about America, about diversity and all that -- you have to put it into practice now. You'd be amazed at how resistant some people are to that. Howard Kurtz, a staff writer at The Washington Post is very contemptuous about Internet criticism of his own media form; it makes reporters uncomfortable to have a medium that criticizes them. I know from my experiences at The Daily Texan just how arrogant the media can be.
AC: The Internet could be thought of as a truly honest form of media criticism -- the users are not part of the conventional outlets. Aren't the observers of media the ones who should say whether they're doing a good job?
MG: Yes, exactly. It does serve that purpose. The media outlets are learning what the readers are thinking.
AC: That brings me to the recent Philadelphia U.S. district court panel decision on the Communications Decency Act [ACLU v. Reno]. What did Judge Stewart Dalzell mean when he said that the Internet deserved more protection on the First Amendment than other media outlets? Is it because the Internet is so diverse in its ideas and purposes?
MG: Yes. There are two approaches to regulating media. In the first approach, you say either you're the press, The New York Times for example, or you're not. The Times gets the full set of protections. If you're not the press, you can be regulated more strictly. That's one approach. The other is: Every medium has its own rules. The judges who went first in this opinion [Chief Justice Dolores K. Sloviter and Judge Ronald J. Buckwalter] took the case from the first approach and wrote that the CDA is unconstitutional in that it attempts to regulate what is essentially a press. But Dalzell really designed this opinion. That's the reason he went last. He argues from the second side, that says the Internet must have its own rules. And when you apply the facts of law to this medium, you find that it deserves even more, because of the wide exchange of ideas. Dalzell eventually writes that whichever approach you take, the CDA is unconstitutional. Because of all the balancing that we let government do to level the playing field, as in libel law, eventually we realize that on the Internet every citizen has the right to free speech with just as much access as the larger media outlets. People can argue that not everyone has a computer, but those conditions are only temporary. There's no clearly delineated public opinion about the First Amendment and the Internet. And the judges didn't want it to be clear -- they wanted to back this one totally out of the park, and make it excruciatingly difficult for the Supreme Court to go against them on either approach. They really did a good job.
AC: The Justice Department has decided to appeal that decision and take it all the way to the U.S. Supreme Court. It was supposed to be heard this fall -- what's happening with the case?
MG: It's going through the procedural process of scheduling.
AC: There's no guarantee that it will be heard?
MG: Almost all the cases the Supreme Court hears are based on petitions, true. But here Congress said [to the lower court], you gotta hear this case. The case is too goddamn interesting for the Supreme Court not to hear it. Or even to affirm the lower court's decision without hearing arguments. We think it may happen this year, no later than next June. The court could put it off for a rehearing, but that's not likely in this case. Congress is watching; the rest of the world is watching.
AC: And if they affirm?
MG: Great. But they could affirm it on narrower grounds than the lower court ruled. They could narrow the theory which might encourage Congress to take another stab at another bill. Conventional wisdom tells us that Congress is going to do that anyway. But this is a tough case to do that with. In my wildest dreams I feel like an art critic who saw a great work when I saw this appellate court decision. But the fact that it's a remarkable thing doesn't save you, because the Supreme Court could screw it up. One thing that you could look at, that is true in our modern era, is that the judges play by the rules. They really can't affirm on the narrowest possible grounds. They have to reach conclusions that are broad and far-reaching.
AC: Why is that?
MG: If you read the facts in the case, you learn about how the Internet is different. If you go through that process of reading them, you're already subverted. Even if you're [U.S. Supreme Court Justice Antonin] Scalia, you may say I don't want this porno stuff on my Internet, but he would be subverted by learning the facts.
AC: What are the ramifications if the Supreme Court doesn't affirm?
MG: Normally we're not supposed to be overconfident. But hardly anyone I know who read this lower court opinion, except for the religious right guys, says it's going to be affirmed. The only question is, what's the score going to be, 6-3, or 5-4? Actually, there's been an intermittent case that may affect what happens. It's over cable television. A lower court seemed to say there were independent grounds for regulating content. But then, that case is about TV, which is already highly regulated by the FCC, more so than other media outlets. After 50 years, no court is going to say TV's good for you -- the commentators mostly think that the regulations for TV are bogus -- but 50 years into it we're locked in as a society. If you said to people now, `Suppose we removed the regulations?' Bad idea. TV forces us to buy things -- it's bad for us. The consensus is so ingrained, you can't get people to argue logically about it. That social consensus about a certain medium is what we want to prevent at this point -- that kind of fear and loathing about the Net. [The Internet] is so deeply democratic, it would be a tragedy if we undermined it.
AC: How do you ask a society to accept unlimited pornography on this new medium, then?
MG: On the subject of porn, nothing's changed. Obscenity is still illegal, porn is still illegal. Always was. People get weird when they hear the words children, computers, and porn together. I did a lecture in San Jose where somebody got up and said you don't need a federal law to prevent child abuse on the Internet -- you have a parent to stop it before it happens. Another lawyer said children are smart enough to find their way around filters. Both arguments come to the same point. In the first, parents are active, not passive, which is what everyone wants. In the second, there's absolutely no way to stop children, who are very smart, from getting around the filters without teaching them porn is offensive. Filtering software won't do it -- values do it. In both answers, the federal government is not necessary to regulate it.
AC: What are the rules about porn on the Net?
MG: The rules are basically the same as anywhere, with a few interesting wrinkles. If you knowingly deliver obscene materials, you could be popped. And if you knowingly download obscene materials, you could be popped. People were mistakenly told this stuff is legal on the Internet, but in reality, there are no loopholes. Also, the obscenity laws are based on community standards.
AC: Please explain your objections to that -- you've spoken widely about the problems with defining "community standards," particularly during your dressing down of Marty Rimm and his Internet porn study.
MG: Not everything is like broadcast, but almost everything now is as broad. In other words, we're stretching information across communities that have different standards, it's wide open to interpretation. A lot of judges weren't getting how big this issue is for the Internet, but they're starting to. Thomas Coon in the "Structure of Scientific Revolution" said that the paradigm shift is complete -- as in the old view is replaced by the new view -- only when all the people in a society who hold the old paradigm have died off. Maybe we're looking at a generational shift, because resistance to change is never about knowledge, it's about society. Maybe we've got to wait for a lot of judges to die before we get a system that has a direct understanding of this medium. But that is a negative view. As a society, we're probably luckier than that, and faster than that. The fact is, even judges of different generations are able to look at these issues.
AC: Regarding the case involving Amateur Action BBS in which a California couple was selling porno images. Is EFF interested in supporting their case?
MG: They're not connected to Internet, remember. They're just a bulletin board service. Judges dare not be seen as approving of them, in fact, they don't approve of them. For the EFF, the issue of pornography is particularly tricky. What happens when the guy in a conservative jurisdiction decides to download it? That guy initiated the crime because he downloaded. Who's guilty? Judges treat these cases like a nuisance issue.
AC: But are these the kind of cases EFF would take?
MG: We like to have the most mainstream plaintiffs to try the case -- that's just tactics. Sometimes the participants aren't the most appealing, as in the Amateur Action case. We also think that the locus of control ought to be on the parental level. When the government tries to standardize that, they can't do it. And it undercuts what our country's about: individual rights. Really, this is the most customizable medium we've ever had -- you can make a lot of choices up front. Software filters -- if the word `fuck' appears, you can screen it out. Parents see this as a feature, not a bug in the system. Don't we really want the government to stay out of our business? I know what Texans believe on that score...
AC: What are you working on now while you wait for the final CDA decision?
MG: My book, Cyber Rights: Defending Free Speech in the Digital Age, is my number one project and EFF has given me the leeway to complete it. I want to point out the right answers about First Amendment questions. People don't understand it deeply and no one has tried to tell them. My voice is not about choosing between free speech and protecting children, it's about how free speech protects your children. It's about how stable free speech is, and how it protects our society. This is all bigger than any medium, and beyond any particular technology. This century it's the Internet, next century it will be something else. If we're going to say we are a free society, we have to walk the walk. There's this notion that you can't trust average people to make decisions for themselves, that you should let the philosophers do that for you. In modern times, that would be our policymakers. I don't buy it -- people are smart enough. If you take the time with anyone they'll know where the proper balances are to be struck. You're not going to win everything. Begin with the assumption that everyone can play, everyone can speak, and everyone is worthwhile. n Godwin's first book Cyber Rights: Defending Free Speech in the Digital Age is due out from Random House, Spring, 1997.