C. Achison* and J. Thomas*. 2000.
"The Internet and the State: Instrument of the State,
or Subversive Technology?" Radical Criminology: An
International Journal. 9(November): 31-67.
THE INTERNET AND THE STATE:
INSTRUMENT OF CONTROL OR SUBVERSIVE TECHNOLOGY?
Chris Atchison and Jim Thomas
The dramatic and continuing expansion of computer technology in
the past decade has expanded public access to computer-mediated
Internet communication such as email and the World Wide Web
(WWW). The proliferation of Internet newsgroups, discussion
lists, and personal homepages has further increased participation
in public and private electronic interaction. As a consequence,
the potential for creating, disseminating, and archiving
information combines to potentially enhance the democratization
of society. Yet, in an ironic twist, the same technological
forces that contribute to democratization may also increase the
power of the state to monitor citizens and control the so-called
ed "Information Highway."
Some observers optimistically view the expansion especially of
the Internet as a way to level social and political inequality.
Other observers are less sanguine, seeing the technology as
potentially dangerous to civil liberties, especially privacy. In
this essay, we begin exploring the question of whether
computer-mediated communication is a potential tool of oppressive
state control or whether it instead subverts unnecessary state
power and enhances democratization.
THE DEMOCRATIZATION POTENTIAL
Some critics suggest that the "computer revolution" is available
to and benefits only an elite few, which subverts any possibility
for democratization. However, in North America, the availability
of computers and Internet access in homes, schools, and libraries
allows most people who choose to go online the means to do so.
The Internet contributes to the democratization of society in
several fundamental ways, and no single factor has primacy over
the others. However, a few examples will illustrate the diversity
and complexity of how, in the aggregate, the new technology
provides a means of social and individual empowerment.
THE COMMUNICATION REVOLUTION
The ability to communicate freely with whom one chooses without
imposed constraints of status, fear of reprisal, or asymmetrical
power games is essential to the democratic process (Habermas,
1972, 1984). The Internet brings several tools by which people
can easily communicate with each other, share ideas, and obtain
or disseminate information. First, the most popular tool,
electronic mail (e-mail), offers a means of inexpensive and near
instantaneous contact with others around the world. Fears of
reduced email privacy neglect the fact that E-mail is no less
secure than its postal counterpart, and communicants who fear
interception of their messages can use encryption software to
virtually assure the security of the message.
Second, discussion groups such as Usenet or listservers bring
people together across ideological, geographical, or cultural
boundaries. Usenet is a system of world-wide public discussion
groups consisting of electronic messages relayed between posters
(people who send a message to a group) interested in discussions,
political organizing, or simply chatting. With over 15,000
different Usenet topics ranging from the most banal to extremes
of political action or graphic sexual content, posters can
communicate openly or anonymously. The international character of
Usenet makes it difficult for governments or groups to suppress
ideas without also banning computer communications entirely. As
computer guru John Gilmore often says, "The Internet interprets
censorship as damage and routes around it." Unlike Usenet, which
has no central authority responsible for controlling or
maintaining discussions, listserves are smaller electronic
discussion groups managed by an individual (or "list owner") and
that originate from a specific computer system. Lists may be
public or private, and the number of participants can range from
two to tens of thousands. This provides a forum for discussion of
topics ranging from sexual bestiality and bondage to the
doctrinal disputes between leftists and the diatribes of
right-wing militia advocates.
A third means of communication, Internet Relay Chat (IRC), allows
users to engage in synchronous, or real time, conversation by
using software that allows them to "log on" to a "place" where
others are discussing topics of mutual interest. IRC also allows
users to initiate their own private topics for discussion, thus
preventing unwanted eavesdroppers. This form of communication is
especially useful for those engaging in illicit group activities,
because it can be done anonymously and, unlike email or
discussion groups, leaves no record of the participants or the
content of their discussions.
The fourth and perhaps the most important contribution of the
Internet for enhancing communication is the WWW. The Web is a
method of exchanging text files or pictures across the Net by
placing them in a given location, called a homepage, that can be
accessed by others. Because there are few restrictions on who can
create a homepage, the Web offers everybody the potential to be a
publisher. With over two million homepages estimated to be on the
web in early 1998, millions of people and organizations are
taking advantage of the ability to write and make available
opposing views, products, photographs, or even video segments. As
a consequence, homepage publishers can provide a resource base
for their users on any conceivable topic, even those that depart
from propriety or legality. For example, right-wing militia
groups, organizations espousing terrorism, or child pornographers
can organize and provide resources for sympathizers as easily as
can politicians, governments, or educators.
HOW DOES THIS LEAD TO DEMOCRATIZATION?
The expanded communicative power made possible by the Net does
not, in and of itself, assure more egalitarian power arrangements
within a nation or culture, between nations, or among people. It
does, however, offer the potential for subverting abuses of power
in several ways.
First, the Net offers a voice to all groups or individuals,
including those with unpopular minority views. People who may
otherwise have felt isolated because of their sexual preferences,
political ideology, or esoteric interests, can easily find an
outlet in newsgroups or on homepages.
Although the Net does not fully remove all of the interactional
problems associated with real-life status, such as sex and racial
identity (Harring, 1993, 1996), Net communication does tend to
reduce most status differences, and race, gender, class, and
other status stigmata are less obvious, and therefore less
intrusive, in online communication. This is a special advantage
to those who feel silenced in face-to-face communication.
Third, the Net partially dissolves geographical boundaries that
might allow a government to suppress expression or publication of
some ideas. For example, it has become common on the Net for
system administrators to mirror (or duplicate) on their own
computer systems material that puts original distributors at risk
in a more repressive own country. Chinese students illustrated
the utility of e-mail when they used it to circumvent government
censorship during the Chinese Tiananmen Square crackdown in June,
1989.
Fourth, the Net allows resistance to abuses of government power,
such as occur through over-zealous prosecutions or repressive
legislation. For example, in an attempted federal prosecution of
a young college student in 1990 for electronically "stealing"
proprietary documents from BellSouth Corporation, organized Net
opposition to the case revealed that the documents, alleged by
the government to be worth over $79,000, were publically
available by mail from the BellSouth for under $13 (Sterling,
1992). In another example, passage by the U.S. Congress of the
Communications Decency Act (CDA) in 1995 led to resistance that
began as online organizing and later escalated into conventional
legal battles. Because of the online organizing, the CDA was
overturned by the U.S. Supreme Court in 1997 (Godwin, 1998). A
watered-down resurrection of the law in 1998, referred to as "CDA
II" (47 USC Sect 231(a)(1)), was immediately challenged by the
same online coalition that defeated the first one, illustrating
the rapidity by which groups can organize against state actions.
Fifth, the Net provides a means to counter conventional news
media spin by providing an antidote to conventional news
accounts. In one of the first examples of a successful Net attack
on a major news medium, Time magazine was forced to acknowledge
the flaws in a cover story that demonized "Net pornography"
(Godwin, 1998). A less noble example can be found in Internet
reporter Matt Drudge's lowering of journalistic standards of
conventional media with his online "Drudge Reports" of the
salacious details of Monica Lewinsky's relationship with
President Bill Clinton.
These are just a few of the examples of the empowering potential
of the net. Ironically, however, the empowering capacity of the
Internet also brings a darker, more repressive side. Not every
democratization influence is equally distributed within or across
populations, and these influences are mediated or subverted by
countervailing factors. Burstein and Kline (1995) offer the "road
warrior" imagery in reminding us that the Internet is still in
its infancy. Therefore, political, economic, and ideological
battles will continue to be fought over control, content, and
accessibility. We next identify several features of Internet
expansion that possess a potential anti-democratic effect.
INFORMAL CENSORSHIP RESTRICTING ACCESS
Some critics of the net (Stoll, 1995) are less optimistic about
its social value. Some remind us that, while it is easy to become
caught up in the hysteria surrounding the unprecedented growth of
the Internet with its 100 million users, we must remember that
there are still several billion people who are not on-line. The
most basic and yet pervasive way in which world governments
control content and communications on the Internet is by
restricting access. In most cases, in many of the less
economically prosperous nations this is not difficult, because
most citizens of these countries do not even have a telephone
(Human Rights Watch, 1996; Salbu, 1998). In countries such as
China, Singapore, Saudi Arabia, Vietnam, India and North Korea
only those individuals of high status and close ties to the State
are even permitted access to the Internet. Even these more
trusted citizens are often required by law to register with the
state and their on-line conduct and communications may still be
monitored by state agents.
THREATS AND PROMISES
An increasingly popular method of informal censorship used by the
State and its agents has been the use of subtle and not so subtle
threats and intimidation. Most often individuals and/or Internet
service providers are warned by state officials that certain
services, links, or communications are either a violation of the
law or are not approved of by the State.These warnings create a
chilling effect which is effective system of self-censorship.
This is the preferred method used by many of the Asian and Middle
Eastern Governments.
FORMAL ATTEMPTS TO CENSOR: LEGISLATED CENSORSHIP
Various world governments have utilized legislation as a means of
expanding their jurisdiction into cyberspace to enable them to
prosecute residents and non-residents for what they deem to be
offensive or harmful on-line activity. French rules of civil
procedure give the French courts jurisdiction over cases
involving actions or communications originating from or entering
into French soil by its citizens at home or abroad (Sdallian,
1996). A similar system exists in Britain (Cohen, 1998). The
blurring of international boarders and citizenship created by the
newly formed European Union may create an interesting legal
scenario for Internet users who possess a European Union
passport.
In the most widely publicized North American attempt to obtain
control of Internet content, the United States Congress passed
the Communications Decency Act in June 1995. The wording of the
Act set the standard of indecency, never unambiguous in the best
of circumstances, to the broadest definition by restricting Net
content to the most stringent community standard in the country.
Although two years later the Act was ruled unconstitutional by
the United States Supreme Court, this attempted legislation
clearly indicated the United States government's intent to
directly control Internet conduct and communications.
TECHNOLOGICAL INITIATIVES AND ISP LIABILITY
Another popular method proposed and/or utilized by governments
such as Singapore, Australia, Vietnam, and China is the legally
mandated use of special screening software to restrict what can
be seen or said by its citizens (Rodan, 1998). Such measures do
not affect just the criminal element they also prevent legitimate
users from accessing or distributing information that, while not
deemed illegal or offensive gets caught within the web of
censored material due to slight overlaps in ideas or wording. For
example, when popular filtering systems are programmed to
prohibit access to sexually explicit pictures it often becomes
impossible to access pages or newsgroups dealing with AIDS
awareness or sex education materials. In onen ironic example,
Special Prosecutor Kenneth Starr's report to the U.S. Congress of
grand jury transcripts summarizing juror testimony before the
special council was banned in China and other countries, and was
blocked by filtering software on many U.S. ISPs.
One means by which various governments such as Canada, the United
States, France, Germany and Australia have decided to control the
content of the Internet and on-line communications has been to
make Internet service providers (ISPs) responsible for ensuring
that users do not encounter illegal or offensive material. Two
distinct approaches have been taken to accomplish this. The first
and least successful approach has been to enact legislation that
makes the ISP legally responsible for the illegal or offensive
conduct of its customers. This method has been employed with
little success in France (Sdallian, 1996) and is currently
subject to public debate in Australia (Electronic Frontiers
Australia, 1998a; Alston, 1998; DCA, 1997).
A second, successful approach has been to enlist the co-operation
of ISPs in setting up systems of self-regulation whereby ISPs are
essentially enforce non-legislative guidelines or codes of
conduct for their subscribers. These guidelines are based upon
mutually agreed upon industry standards and the suggestions of
various law enforcement agencies. The genius of this approach is
that the State does not run the risk of losing control over the
individual. Instead, the ISP becomes an unofficial agent of the
State, allowing the state and its official agents of control to
bypass legislative restrictions on their power to investigate and
prosecute. In a recent and highly publicized example of this, a
United States Federal court ruled that evidence volunteered to
the Federal Bureau of Investigations by America Online (AOL) was
not subject to restrictions of the Fourth Amendment because AOL
is considered a private party under the law (Gilligan and
Imwinkelried, 1998; United States v Maxwell, 1996).
DATABASE COLLECTION, BIG BROTHER IS WATCHING
May critics of Net expansion remind us that we must not view some
of the apparent failures by the State to legislate direct control
over actions and communications on the Internet with too much
complacency., because ,
oppressive potential also rests below the surface where State
agents have at their disposal data collection, storage and
analysis devices that allow them to easily monitor and target
individuals or groups that they define as deviant or threatening.
Many analysts tend to forget that the Internet was originally
created by the United States Government and military, and there
is little reason to believe that government agencies in the more
economically and technologically affluent nations do not possess
the resources to monitor on-line communications and activities
within their own domain.
HOLDING THE MASTER KEY: ENCRYPTION AND KEY ESCROW/KEY RECOVERY
Recent technological developments in conjunction with government
and business imposed restrictions on anonymity create a dangerous
environment for Internet users, providing further reason to
question how free we are to speak and act in the online world.
One of the most effective means available for the State to
control the actions and communications of private citizens is to
prevent anonymous action or communication. For several years, the
United States government has tried, unsuccessfully, to introduce
a voluntary encryption standard known as the Clipper Chip that
would allow state policing agents to decrypt any and all
encrypted electronic files, email messages, or data packets. They
have also proposed that a third party monitored key registry,
referred to as key escrow or key recovery, be set up to house
duplicate copies of all private encryption keys used in the
United States (Jones, 1997). The key registry approach has
recently been adapted by the French government (Lawmoney, 1998)
and both the British and Canadian governments are currently
considering implementing similar programs (Global Internet
Liberty Campaign, 1998; Department of Industry Canada, 1998a,
1998b; Department of Trade and Industry United Kingdom, 1997).
The lone exception to the overwhelming tendency towards State
control of individual anonymity on the Internet can be found in
the Australian government's approach to encryption. Australia has
taken the position that it is not in the best interests of the
citizen or the state to prevent the free use of encryption
software by individuals (Electronic Frontiers Australia, 1998b).
CONCLUSION
Technological progress always contains within it the ironic
dialectic of liberation and domination. The computer-based
information highway is no exception. As a consequence, our own
view is that the computer revolution contains the potential for
both over-control and subversion of control. Science and
technology are not neutral. They are social constructs that exist
only within a context of choices of development and application.
Therefore, it is not the technology that constrains, or
oppresses, or liberates. Rather, the emancipatory potential of
this new technology lies in the degree to which those who use it
can disseminate it and maintain it as a relatively low-cost
communication tool. To date, many of those involved in expanding
the Internet frontier have generally been suspicious of and
resistant to government intrusion into the Net. While it is
often easier to simply dismiss such suspicions as the rants of
conspiracy theorists, history has taught us that such a naive
faith in the benevolence of the government is unwise. Our
intention here has not been to provide a definitive conclusion
about the past, present, or future state of technological
progress, instead we hope that our general discussion will spark
further critical discussion of technology and related topics.
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