Developing a Literature Review

Research Topic: Free Speech (Internet Censorship )


Abstract

For the purposes of this paper I am going to focus on the issue of free speech, to gain further knowledge for my Dissertation Topic (Internet censorship).

Censorship is the moral or legislative process by which society “agrees” to limit what an individual can do, say, think, or see. All societies have forms of censorship, effective only with sufficient threat and severity of punishment for violating the censorship rule. Historically, the various forms of censorship have predominantly focused on social norms. Clearly, political and religious organizations limit what individuals can do. For example, organized societies censor premeditated murder. Censoring this type of behaviour has universal appeal and arguably increases social welfare because individuals can dedicate more resources to productive activity rather than protecting themselves from every individual with which they interact. This represents a reduction in transaction costs. Furthermore, censorship is often aimed at behaviour that creates negative externalities, which are costs borne by third parties. For example, smoking is an activity that can impose costs on non–smokers, and limits placed on smoking attempt to reduce these costs.

One recent target for censorship by governments across the globe has been the Internet. Censorship of the Internet has focused on a wide range of topics, including pornography, hate speech, and bomb–making instructions. The justification for censorship of such content is that this would lead to a greater social good, even if individuals are limited in what they can consume on the Internet. To date, the Internet censorship movements have taken two predominant forms: limiting what can be viewed or what can be posted on the Internet. It is becoming more practical to limit what can be viewed on the Internet through filtering technology. Today there are numerous Internet filtering programs available, several of which are commercially successful.

Users throughout the world are being blocked from viewing content by Internet Service Providers and being subjected to ever more governmental approvals. For example, China is attempting to restrict political expression, in the name of security and social stability. It requires users of the Internet and electronic mail (e-mail) to register, so that it may monitor their activities. Nevertheless, supporters of Internet censorship continue to press for national legislation limiting what can be posted and viewed on the Internet.


Objectives of the Literature Review

This literature review will be conducted prior to the onset of my study of Internet Censorship and will be used as basic information for formulating the objectives of my dissertation.

Through reading several books and journals, I have been able to acquire a good understanding of the questions and issues people have on the subject. For this paper I intend to categorise the various literature I have read into three sections; For & Against censorship and another section for neutral articles. I will then conclude this paper stating which texts are most convincing and make the greatest contribution to my understanding of the topic.


Those who oppose Censorship

Who Controls the Internet? Illusions of a Borderless World
by Jack Goldsmith and Tim Wu

This book is essentially a number of case studies of the Internet's challenge to governmental rule in the 1990s, and the ensuing battles with governments around the world. We learn of Google's struggles with the French government and Yahoo's capitulation to the Chinese regime; of how the European Union sets privacy standards on the Net for the entire world; and of eBay's struggles with fraud.

The authors argue national governments will continue to maintain their sovereignty in the age of the Internet, largely because of economics: e-businesses-even giants such as Yahoo, Google and eBay-need governmental support in order to function. When Yahoo, an American company, was tried in French court for facilitating the auctioning of Nazi paraphernalia in violation of French law, the company was eventually forced to comply with local laws or risk losing the ability to operate in France. As eBay grew into an Internet powerhouse, its 'feedback' system could not keep up with cunning con artists, so it hired hundreds of fraud prevention specialists (known as 'eBay cops').

The destiny of the Internet over the next decades, argue Goldsmith and Wu, will reflect the interests of powerful nations and the conflicts within and between them. Most controversially, they argue that existing international law has the power to control the Internet.



Cyber Rights: Defending Free Speech in the Digital Age
by Mike Godwin

The author of this book is a former American journalist and now counsel to the Electronic Frontier Foundation, an organization devoted to guarding individual rights in cyberspace. Mike Godwin is an activist who was deeply involved in turning back the threat of regulation and, at least for the time being, securing rights of free expression online.

For several years in the mid-1990s, the constitutional future of the Internet hung in the balance as the American courts debated it‘s future: Would it be treated as a medium of expression meriting the full protection of the First Amendment, or would it be subject to content-restrictive regulation, like broadcasting under the Federal Communications Commission?

This book largely presents Godwin's deep involvement in what he calls the "cyber porn panic" the push to control Internet. One key philosophy that Godwin makes a convincing case for is that policing the Net should be a matter of individual ethics rather than of legislation or prosecutions. Godwin also discusses another interesting concept; of changing peoples mindsets rather than enforcing censorship and regulation.



Those who are in favour of Censorship

There's No Such Thing as Free Speech: And It's a Good Thing Too by Stanley Fish.

Of all the books I read, this was the most controversial. In his book, Stanley Fish suggests that the idea that we have “free speech” is a mirage. To make his point, he redefines free speech not as the right to say what we want to say free from governmental punishment, to a perception of “free speech” meaning speech not tied to any belief system. In addition he describes the concept of free speech as something often used for political or other personal ends.

He argues that the purpose of speech is to persuade, because if we speak, it is to put our views forth. He then extends this idea to “we are for this, which means we are against that…” (p. 367). Because people often disagree, he agrees with what Justice Holmes said some years ago that “every idea is an incitement to somebody.” Holmes was arguing that just the desire to maintain peace was insufficient reason to curb an individual’s right to free speech, because someone somewhere would be offended by virtually anything that could be said by another person.
However, Fish also notes that there are occasional curbs on free speech. He does not use the classic example that it not all right to shout “Fire!” in a crowded theatre just to assert one’s right to free speech, because in that instance, the likelihood of panicking others, possibly leading to injuries, is great, and the shouting of “Fire!” when no fire exists has no real personal value.
He notes the difficulties in trying to separate speech from non-verbal action, and in fact we know that things like demonstrations are protected by our right to free speech even if no words are used. He makes the point that there are always limitations on free speech, and that often those limitations are imposed on us by society. He opens his essay with an example of this from English history: John Milton, a writer and poet and someone not wanting his words curbed, spoke out for toleration and free speech. However, he didn’t want Catholics given free speech. Their views were unacceptable and bad for society. The insidious truth hidden in Milton’s view, Fish states, is that there can be no pre-determined list of what is all right or not all right to say: first the person says something, and then it is judged to be so outrageous that it is not protected by free speech. Since Fish views all speech as an attempt to assert a point, then he sees censorship as living hand-in-hand with free speech, and of course any form of censorship curbs free speech.

It could be argued that Fish has unnecessarily complicated the concept of free speech, presumably to persuade people that free speech does not exist. However, the fact that he can challenge the contents of the American Constitution, essentially calling it a lie, seems to demonstrate that we do have free speech, at least on some level. He argues that since religious colleges can censor to some extent what is said on their campus, all colleges should be able to, since all colleges hold beliefs. While this is true, it completely ignores the concept of separation of church and state. In fact, Fish seems to be doing what he accuses others of doing. He is manipulating free speech by redefining it. He has literally had to go to great lengths to attempt to do this: one sentence on p. 373 has 45 words in it. Fish has tried hard, but by demonstrating his right to challenge the American Constitution, he has demonstrated that free speech exists.


Neutral Literature

Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace by Stuart Biegel.

Beyond our control examines the state of American law, international law, social norms and technological controls as they relate to the definition of crime in the information age. The book largely offers a descriptive discussion of the many issues that emerge when we begin to apply the law in cyberspace.

The book is divided into three parts. The first section goes on to elaborate the types of problematic behaviours that can be found in cyberspace. These include dangerous conduct, fraudulent conduct, unlawful anarchic conduct, and finally, inappropriate conduct. Each category then details examples ranging from the dangerous conduct of cyber terrorism to the inappropriateness of hate-related websites. Biegel covers the many contemporary controversies surrounding cyberspace - child pornography, harassment, cyber stalking, copyright violations, cyber terrorism, any many more.

Section Two considers how we might go about regulating problematic behaviour in cyberspace. More specifically, examine the laws that have been passed to regulate Internet-related issues and the different regulatory approaches that are being used. Firstly the author relates to the possibility, and problems, of employing a traditional regulation model involving criminal statutes. For an example of a previous problem, the author turns to the issue of distributing child pornography online. Developed in the late 1990s to regulate the distribution of child pornography via the Internet, statutes were met with substantial debate because of their perceived attempts to regulate activities that many in cyberspace considered protected by the First Amendment to the U.S. Constitution. The author argues that any attempt to regulate the Internet using traditional law must consider issues similar to those that doomed the child-pornography legislation, and such statutes will therefore require extensive consideration and planning during the drafting phase.

The second recommendation concerns the use of international models of cooperation. Returning to an earlier discussion concerning the problem of regulating an area that is not bound by physical boundaries, the author argues that a possible solution could lie in drafting legislation that is enforceable around the globe. Of course, while this seems like a valid solution, even Biegel is quick to point out that there are several problems that could develop from an attempt to regulate cyberspace using international standards and regulations. For example, any attempt to regulate pornography will certainly be faced with the question of what is pornographic, as definitions of pornography must consider which country's definition of pornography is to be accepted. The drafting of this legislation will require an extensive examination of custom and international law. While not impossible, the author concedes that the use of this approach will likely require consideration of the perspectives of officials of countries other than the United States.

The final recommendation deviates from a discussion of the law and instead focuses on the use of code-based regulation. Here, regulation of cyberspace would be enacted by modifying the protocols through which users connect to cyberspace. It has long been accepted that the Internet was not designed with security in mind, and there have been arguments in the past concerning a change to the Internet's technological-security structure. The work of Internet law scholar Lawrence Lessig is referenced in this section, as Lessig has argued in the past that code-based regulation is perhaps the easiest method of regulating criminal activity on the Internet. Biegel, however, recognises that there are problems with solely relying on code-based regulation. First and foremost is the fact that users have historically been successful at circumventing such protections. The question remains as to whether the costly use of code-based regulation would provide an adequate response to the problem, or merely a temporary solution as users modify their approaches to Internet-based crime.

The final section of the book takes the types of regulation that are possible and an example of each type of problematic conduct detailed in the first part of the book and attempts to examine how the law can be used to better regulate cyberspace. He then describes how concepts already present in American law, regulations available at the International level, and changes in the computer code that construct the Internet can be used to regulate this problem. As the argument moves from problematic behaviour where relative consensus exists, such as terrorism, to behaviour where less consensus on the level of crime actually exists, Biegel attempts to note that defining a "crime" is very much a political process.

As a conclusion, Biegel lists a series of "regulatory principles" that emerge from the book. He argues that, "this book takes the position that regulation is a neutral term, and that in a vacuum it should be viewed as neither a curse nor a panacea" (p.356).


Conclusion

While conducting this paper I only used completed articles in book form, no partial articles off the internet that could be bias or have false information. Also, a large proportion of literature read was American and further research will be needed for me to gain a clearer understanding of the global issues of this topic.

The two books I found most useful while conducting this paper were There's No Such Thing as Free Speech: And It's a Good Thing Too by Stanley Fish and Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace by Stuart Biegel. Both these books required me to read them in their entirety to gain a true appreciation of the themes and issues they presented.

Through conducting this paper, I have learned much invaluable information. I now have a good understanding of the general groups of people in favour of and opposed too internet censorship. I am now aware that those with kids, who are married, who are older, who use the internet for religious content, who work in the public sector, and who think pornography or privacy are the predominant issue concerning the Internet tend to favour Internet censorship.

On the other hand, those who are male, live in urban environs, use the Internet for political content, have more Internet experience, are more comfortable on the Internet, work in information industries, and who feel government regulation or censorship is the most important issue concerning the Internet tend to be against Internet censorship.

I also now have a fairly good basic understanding of the issues for and against censorship of material. Having learned that the major problem governments face is the lack of physical boundaries, making it difficult to determine where violations of the law should be prosecuted. Furthermore, I have become aware that many people are strongly opinionated on this issue, yet few base their understanding on fact or sound thinking. For example, many people feel that Internet content regulation should become International. However, given the diversity of cultures that exists throughout the globe, it would be impractical for a set of International laws to exist that every individual country should adhere too. Never mind the costs and difficulties governments would face having to enforce such laws. An alternative idea is Internet content regulation based on the cultures of each country, although this would more than likely lead to a totalitarian internet, comprising of numerous highly monitored policed states.



Reference

Biegel S. 2001, Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace, The MIT Press.

Fish S. 1994, There's No Such Thing as Free Speech: And It's a Good Thing Too, Oxford University Press.

Godwin M. 2003, Cyber Rights: Defending Free Speech in the Digital Age,
The MIT Press; Rev Update edition.

Goldsmith J. & Wu T. 2006, Who Controls the Internet? Illusions of a Borderless World. Oxford University Press, USA.



Bibliography

Bollinger L.C. 2003, Vigilant: Free Speech in the Modern Era,
University Of Chicago Press; New Ed edition,

Coatgate C. 1996, The Internet and the Issue of Censorship,
Cardiff Institute of Higher education, Colchester Avenue.

Isenberg D. 2002,Guide to Internet Law, Random House Trade Paperbacks.

Levinson N. 2006, Free Speech Stories, University of California Press.

Peng Hwa Ang, 1997, How Countries Are Regulating Internet Content,
Nanyang Technological University, Singapore.