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Cyber Rights: Defending Free Speech in the Digital Age

Author: Mike Godwin
Publisher: New York: Times Books, 1998
Review Published: August 1999

 REVIEW 1: Colette LaBouff Atkinson

Readers may discover Mike Godwin's Cyber Rights: Defending Free Speech in the Digital Age and think, at first, that they have stumbled upon a guidebook, a handbook of sorts. If readers expect, however, that Mike Godwin will tell them how to behave as Netizens in the late nineties, how to work to insure the preservation of free speech in cyberspace, then those readers may be somewhat disappointed. The book doesn't spend -- with the exception of a section on common sense guidelines about copyright -- much time telling readers what to do. This does not mean, however, that Godwin's book is not instructive.

Cyber Rights is both compelling and instructive. Because Mike Godwin, the counsel to the Electronic Frontier Foundation, has been and is directly involved in how legal issues in cyberspace emerge and affect citizens, his book reads as a chronicle of the important and initial efforts by a few to preserve free speech in cyberspace.

The book explains and analyzes some of the events, decisions, court cases, and blunders that occurred between 1994 and 1997 and which have been central to the fight for free speech in the realm of cyberspace. In particular, Godwin focuses on three crucial areas that have been tested by the government, small and large companies, and individuals: copyright, cryptography, and cyberporn. Many of the events and court battles Godwin characterizes will be, no doubt, very familiar to readers. In the case of copyright, Godwin relates the experience of David LaMacchia, a student at MIT in 1994 who was "charged with conspiring to trade millions of dollars of illegal copies of software over the Internet, because he managed a BBS where illegal copies of software had been found" (171). Godwin also recalls the SPA's (Software Publishers Association) lawsuit against a few ISPs (Internet Service Providers) in order to achieve what Godwin considered to be a way of "establishing new measures that the industry should take in response to complaints about copyright infringement" (178). What Godwin notes about this case was that the ISPs that were targeted had not been singled out "to remedy any past infringements, but to lay the groundwork for broader infringements lawsuits" (182).

In the arena of cryptography, Godwin details the particularly disturbing experience of Philip Zimmermann, who "first developed PGP (Pretty Good Privacy), now a world-wide standard for software based encryption tools" and who was investigated for criminal action (154). Godwin tells Zimmermann's tale for two reasons. First, he wants to show that "cryptography is central to freedom of speech" (150) because it allows people to speak without fear that they will be overheard or observed. Second, Godwin surely wants to reveal the government's interest - a hearty one - in making it possible for the NSA (National Security Agency) and law enforcement to police citizens' communications when they deem it necessary.

Finally, the largest portion of Cyber Rights deals with the relationship between free speech and The Great Cyberporn Panic of 1995. This panic, which centered on the availability and accessibility of pornographic material on the Net, involved Time and its publication of a story, which was largely based on a study that had been published by Georgetown Law Journal. That study had been written by a Carnegie Mellon undergraduate named Martin Rimm. The study, as Godwin points out, made claims about pornography in cyberspace that its own methodological approach could not, in fact, substantiate. Time nevertheless covered what Godwin says was a "misleading" story. Rimm was later revealed to have "pro-censorship allies" (201) who were interested in passing the Communications Decency Act (CDA), "a law that would restrict not only pornography, but all sorts of 'offensive' speech on the Net" (207). Godwin's involvement in this panic in 1995 and his subsequent work to make sure that CDA was defeated make for a particularly engaging and profoundly troublesome account because Godwin is clearly impassioned about threats to free speech and because others seem bent on silencing some modes of speech.

In the final chapter of the book, Godwin discloses the significant case that would be the "first to go to the Supreme Court" and "directly address the First Amendment/free speech significance on the Internet" (261). The law in question, the CDA, would have prohibited speech from the Net "that would be perfectly legal if heard on a streetcorner or published in a book" (261). The case of ACLU vs. Reno becomes a crucial culmination in Cyber Rights; Godwin has been trying to argue how central these years were to establishing perceptions of cyberspace and how it might be defined and restricted in relation to the First Amendment. Godwin says "yet here suddenly, the very legal status of cyberspace itself -- including whether I could continue to characterize it as made up of 'publications' or 'homesteads' or 'communities' -- would be put to the test in a constitutional battle" (277). When the case quickly reached the Supreme Court, the CDA was voted 9-0 to be unconstitutional. It is at this point that readers will see how the events that transpired between 1994 and 1997 produced, for Godwin and his colleagues, wonderful results. For Godwin, the determination that CDA was unconstitutional stressed that the impulse to "protect" and therefore "censor" cyberspace often emerges from fears and ill-informed perceptions about the medium and that the cyberspace itself is certainly protected by the First Amendment.

If there is any weakness in this book, it would be that Godwin's depiction of the Rimm Scandal/Time Cyberporn story is somewhat too detailed perhaps because Godwin had been friends with the Philip Elmer-DeWitt, the writer of the Time article. Godwin's account appears, then, to be about a very personal battle between two professionals: one, an editor and writer, the other, a crusader determined to halt any attempts at threats to free speech.

Overall, Cyber Rights is important, even if it is -- incredibly -- already dated. It offers readers a history that will enable them to continue the study of the defense of free speech in cyberspace. One only needs to open a newspaper (or read one online) to know that the battles that Godwin recounts are increasingly important. In particular, the issue of filtering devices, the issue of recorded music, and the continuing battle over citizens' rights to encrypt, continue to press questions about free speech and test the First Amendment's applicability in cyberspace.

Godwin may begin by sounding like he wants to convince everyone about the worth of the Internet, the value of the communities established online, and the reality of it all. He concludes, however, by having provided a relatively cogent account of the steps -- albeit first ones -- that a few have taken to insure that citizens and netizens can be alert and aware about those who mean to hinder speech in cyberspace, monitor its users, and censor its words and images -- words and images that are produced by persons for whom the First Amendment was created. Godwin, finally, simply reminds readers that the First Amendment is not static, but that -- in the digital age -- it must be continually studied and observed in order to understand how it applies to "the new contexts that arise in the online world" (303).

Colette LaBouff Atkinson:
Colette LaBouff Atkinson is a graduate of the M.F.A program in Creative Writing at the University ofCalifornia, Irvine where she also recently earned her Ph.D.  <colettela@hotmail.com>

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