Science, Technology, and the First

Amendment

January 1988

NTIS order #PB88-166426
Library of Congress Catalog Card Number 87-619897

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, DC 20402-9325

(order form can be found in the back of this report)
Foreword

In honor of the Bicentennial of the United States Constitution, OTA is conducting a study of Science, Technology, and the Constitution. At the request of

the Committee on the Judiciary of the House of Representatives, and its Subcommittee on Courts, Civil Liberties, and the Administration of Justice, we are examining ways in which continuing scientific advances and new technological developments may influence the scope and meaning of enduring constitutional principles

and protections. A background paper, Science, Technology, and the Constitution,

was released in September 1987.

Freedom of speech and press, embodied in the First Amendment, are among

the most cherished of those protections. As the first of a series of special reports

this document considers challenges to freedom of speech and press that come from

the advance of science and technology.

Part I of the report discusses how the meaning of “the press” has expanded

from printed material to include a wide range of broadcast and electronic media.

Satellites, computers, electronic bulletin boards, teletex, videotext, and other new

ways of gathering, editing, and delivering news are blurring legal and regulatory

distinctions between common carriers and “the press, ” thus changing arguments

about the constitutional rights that they have each enjoyed.

Part II addresses freedom of speech and press as they apply to scientific communications and technological know-how. As science and technology become ever

more important to our economy and our military strength, the delicate balance

between individual rights and the national interest becomes both more important

and more difficult to maintain.

Director

,..

Ill
ERRATA-- SN 052-003-01090- 9

Science, Technology, and the Constitution

Project Review Panel

William Carey

Advisor to the Carnegie Foundation of

New York

Washington, DC

James Duggan

Director

New Hampshire Appellate Defender

Program

Concord, NH

Judith Lichtenberg

Center for Philosophy and Public Policy

University of Maryland

College Park, MD

Peter Low

Hardy Cross Dillard Professor of Law and

John V. Ray Research Professor of Law

School of Law

University of Virginia

Charlottesville, VA

The Honorable Pauline Newman

United States Circuit Judge

United States Court of Appeals for the

Federal Circuit

Washington, DC

Monroe Price

Benjamin Cardozo Law School

New York, NY

Mark Rothstein

Director of Health Law

University of Houston

Houston, TX

Thomas Smith, Esquire

Assistant Director

Criminal Justice Section

American Bar Association

Washington, DC

Paul Stephen

University of Virginia

School of Law

Charlottesville, VA

Laurence R. Tancredi

Kraft Eidman Professor of Medicine

and the Law

University of Texas Health Sciences

Center

Houston, TX

Contractors

Christopher Burns, Christopher Burns, Inc.

Harold Green, George Washington University

National Law Center

NOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by the reviewers. The reviewers

do not, however, necessarily approve, disapprove, or endorse this report. OTA assumes full responsibility for the report

and the accuracy of its contents.

Iv
Science, Technology, and the First Amendment

OTA Project Staff

John Andelin,

Science, Information,

Assistant Director, OTA

and Natural Resources Division

Fred W. Weingarten, Program Manager

Communication and Information Technologies Program

Program Staff

Vary T. Coates, Project Director

Benjamin C. Amick III, Analyst*

Robert Kost, Analyst

Mary Ann Madison, Research Analyst

Administrative Staff

Liz Emanuel Sandra Holland Becky Battle

*Until May 1987.
Page

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part I. Freedom of the Press in the Information Age

Chapter 1. New Technologies for Gathering News and Information . . . . . . . . . . . 5

Newsgathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Computer Databases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Media Satellites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Implications for Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . 12

Implications for National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Chapter 2. New Technologies for Editing and Selecting News

and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Electronic Publishing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Editorial Control and Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...21

Global Networks and the International Press . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chapter 3. New Technologies for Publishing and Disseminating News

and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

The Convergence of the Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cable Television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Information Services Delivered Over Telephone Lines . . . . . . . . . . . . . . . . . . . . 32

Part 11. Scientific Communications and the First Amendment

Chapter 4. National Security and Scientific Communications . . . . . . . . . . . . . . . . 37

Science, Free Speech, and National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

The Executive Branch and Classification of Documents. . . . . . . . . . . . . . . . . . 41

Export Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Chapter 5. The 1980s: Converging Restrictions on Scientific Communications . . 55

Contractual Restrictions on Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Restrictions on Informal Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Self-Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

National Security Directives and the Role of the National Security Agency. 60

Chapter 6. Constitutional Issues: An Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Appendix A. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Summary

The First Amendment says:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for redress of grievances.

The provisions of the First Amendment are

designed to protect the most sensitive areas

of personal belief-religion, ethics, political

philosophy-and to act as a bulwark against

government intervention in the most basic elements of our democracy: the expression of

thought and opinion. As necessary conditions

o democratic governance, the rights embodied in the First Amendment occupy a “preerred position” in the hierarchy of constitutional rights and powers. The first clear

statement of this preferred position doctrine

came in Thomas v. Collins, in which Justice

Rutledge, speaking for the majority of the Supreme Court, said:

This case confronts us again with the duty

our system places on this Court to say where

the individual’s freedom ends and the State’s

power begins. Choice on that border, now as

always delicate, is perhaps more so where the

usual presumption supporting legislation is

balanced by the preferred place given in our

scheme to the great, the indispensable

democratic freedoms secured by the First

Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting

dubious intrusions, and it is the character of

the right, not of the limitation, which determines what standard governs the choice . . . .1

Notwithstanding the absolute language of

the First Amendment and its preferred position in the constitutional order, however, the

Supreme Court has never interpreted freedoms

of religion, speech, press, or assembly to be

without limitation. These rights, which are collectively referred to as freedom of expression,

can be limited in a variety of ways. Government can prohibit entirely speech that is ob-

’323 U.S. 516, 530 (1945).

scene, threatens national security, or is an

incitement to imminent violence or to the overthrow of the government; it can place reasonable restrictions as to the time, place, and manner of commercial speech or speech that takes

place in public; it can force one to compensate

victims of defamation and other forms of

speech injurious to private interests; and it can

regulate speech that takes place over the airwaves. Moreover, when speech or the exercise

of religion merges into action, government can

regulate those forms of expression to protect

the public health, safety, and welfare.

As necessary conditions to democratic

governance, the rights embodied in

the First Amendment occupy a “preferred position.”

Because freedom of expression is not absolute, it often involves a balancing of governmental interests against the rights of individuals where the two are in conflict. Balancing

rights against power occurs in the context of

contemporary values and institutions: economic, political, ethical, legal, and scientific

or technological.

Science and technology may affect the

balance between First Amendment

rights and government interest by

changing power relationships.

Science and technology may affect the balance between First Amendment rights and

government interest by changing power relationships between individuals and between the

individual and the state. As it first did with

the printing press, technology will give rise to

new ways of communicating, which amplify

the ways in which individuals and organizations express themselves. Information and

communications technologies, such as satel-
lites, computers, and digital transmission lines,

are, like the telegraph, telephone, radio, and

television technologies before them, changing

the ways in which we communicate ideas, theories, opinions, and incitements to action—

they affect who can say what, to whom, to how

many, and at what cost.

Taken together, advances in computers and

telecommunications may change the concept

of ‘the press’ from one in which one organization publishes for many to one in which many

share information amongst themselves. With

these changes will come new First Amendment

challenges to the power of the government to

regulate access to and ownership of communications media. New technologies, such as

electronic publishing, may not fit easily into

old models of regulation, and First Amendment distinctions between the rights of print

publishers, broadcasters, and common carriers

will become increasingly difficult to justify.

Distinctions between the First Amendment rights of print publishers, broadcasters, and common carriers will become increasingly difficult to justify.

New capabilities for the press to gather,

store, and retrieve information on individuals

may require that rules of liability for constitutionally protected speech be reexamined. The

potential for technology to decentralize the

editorial function may raise questions of editorial control and liability under the First

Amendment. And, in an era of global communications, the question of whether First Amendment rights extend to foreign speakers in this

country, or to speakers in foreign countries

when they are heard or read here, will also be

raised.

The open communication of scientific information—data, hypotheses, conclusions, explanatory theories, technological know-how—is

special kind of speech or publication. There

no consensus on the question as to whether

scientific communication enjoys the full protection provided by the First Amendment 1

political communications. In a society in which

science and technology play a central and critical role, this is an issue meriting continuing

attention and debate.

It is well established that scientific communication can be limited when necessary to protect national security. But how severe can and

should that limitation be? As science and technology become ever more important to our

economy and our military strength, the delicate balance between individual rights and the

national interest becomes both more important

and more difficult to maintain. Do the limits

imposed by classification, congressionally legislated restrictions, and export controls, collectively negate the right of free speech and

free press in the field of science?

In fields such as mathematics, biology, or

physics, basic research results in certain areas

can have direct and immediate implications for

technological development. In those case

where the line between basic knowledge (science) and its implementation (technology) becomes thin and difficult to discern, a balance

between the right of expression and interest

of the state in preserving security is very difficult to achieve. There are likely to be many

situations in the future in which the government will assert compelling reasons for limiting basic scientific communications.
Part I

Freedom of the Press

in the Information Age

We should note the force, effect, and consequences of inventions which are

nowhere more conspicuous than those three which were unknown to the ancients,

namely, printing, gunpowder, and the compass. For these three have changed the

appearance and state of the whole world . . .

—Francis Bacon, Novum Organum, Aphorism 129*

Networked computers will be the printing presses of the twenty-first century.

If they are not free of public control, the continued application of constitutional

immunities to the nonelectronic [press] . . . may become no more than a quaint

archaism, a sort of Hyde Park Corner where a few eccentrics can gather while

the major policy debates take place elsewhere.

–Ithiel de Sola Pool, Technologies of Freedom (1983)

*AS ~uo~ ~ E~abet,h L. Eisens~~,Prjntjng ]+rss as an .4gent of Ch.wIge (Cambridge, MA: ~arnbridge

University Press, 1979), vol. 1, p. 43.
Chapter 1

New Technologies for Gathering

News and Information

Despite its origins in the context of printing, “freedom of the press” has come to be interpreted as protecting communication to the

public generally, regardless of the medium.

Print media, motion pictures, broadcasting, cable television, and even the mails have come

to be considered as the “press” for purposes

of the First Amendment. As the Supreme

Court has said, "[press] comprehends every

sort of publication which affords a vehicle of

information and opinion.”1 Moreover, while

some have argued that freedom of the press

was only intended to shield the dissemination

of news and opinion, the protections of the

First Amendment have been extended to protect scientific, literary, and artistic messages

as well. It is this broad notion of the press as

a vehicle for every kind of public expression

that is used in this report.

The printing press provided, for the first

time, a capability for mass communication,

whereby one individual or organization could

inform, entertain, or persuade many others. At

the time the Constitution was written, publishing in the United States had not yet become the “mass medium” it is today.2 A

craftsman printer produced one page at a time,

and could produce about 2000 copies of it in

a 10-hour day. The technology was inherently

egalitarian; it took neither political power nor

large sums of money for an individual to publish a work. The “freedom of the press” had

a more or less literal meaning; government was

l~ove~] v. Grjffjn, 303 U.S. 444, 452 ( 1938).

‘The press as a mass medium awaited the industrial revolution; with its steam-driven power (and later rotary) presses, which

increased production tenfold, and its new modes of distribution, its assembly lme methods, and division of entrepreneurial

functions. Ithiel de Sola Pool, Technolo&”es of Freedom (Cambridge, MA: Belknap Press, 1983). (Hereafter referred to as Technolop”es of Freedom) and Encyclopedia Britannica, ‘‘Publishing , 1986.

prohibited from licensing or otherwise controlling the use of the technology.3

In the two centuries that have passed since

the ratification of the First Amendment, innovations in technology have added to the variety and power of the press, and have, as a

consequence, changed the social, economic, and

political impact that the press has had.4

Thanks in large measure to technologies such

as the communications satellite, for example,

global television is now a reality; over 500 million people watched the moon landing in 1969,

and over 2 billion may have seen the Los Angeles Olympics in 1984.5

Changes to the legal environment in which

the press operates have accompanied these

technological changes.6 “Freedom of the

~The importmce of this concept must be understood in the

context of the English law that preceded it, which granted the

Stationers Company monopoly rights over printing and required

government licensing to own and operate a printing press. Even

after the ratification of the First Amendment in America in 1791,

however, the exercise of this freedom could be severely curtailed

and punished.

‘The new capability for rapid, accurate, and mass publication provided by the printing press facilitated the speed with

which the Protestant Reformation spread through Europe: “heralded on all sides as a ‘peaceful art,’ Gutenberg’s invention probably contributed more to destroying Christian concord and inflaming religious warfare than any of the so-called arts of war

ever did. ” Printing Press as an Agent of Change (Cambridge,

MA: Cambridge University Press, 1979), p. 319. Four centuries later, with live coverage of the civil rights movement in

the American south, and riots in the north, east, and west, radio and television thrust the issue of racial equality before the

American public in the 1960s. Television has also been credited

with a major role in ending the United States’ involvement in

the Vietnam War. Michael Mandelbaum, “Vietnam: The Television War, ” Daedalus, fall 1982, p. 157.

bJoseph Pelton, “The Technological Environment, ” Toward

a Law of Global Commum”cations Networks, Anne Branscomb

(cd.), by the Science and Technology Section of the American

Bar Association (New York: Longman, 1986), pp. 37, 43.

GThe inherent differences in the tdIIIOIOgY of Print ‘d ‘hat

of broadcast, for example, led the Supreme Court to uphold the

FCC’s regulation of “indecent” speech over broadcasting, because of broadcasting’s “uniquely pervasive presence on the

lives of all Americans, ” and the fact that “prior warnings cannot completely protect the listener or viewer from unex~cted

program content, ” FCC v. Pacifica Foundation, 438 U.S. 726,

reh. denied, 439 U.S. 883 (1978).

5
6

Franklin Press

\. T Y

+

4

Communications satellite SBS-3 being deployed from

Space Shuttle Columbia

Today communication satellites distribute staggering amounts of information over thousands of miles in a fraction of

the time needed for Ben Franklin’s press to print one page.

press” has been extended to all forms of publishing, but real or perceived limitations on the

technology-most notably, in the case of broadcasting-have nevertheless resulted in a patchwork of exceptions to the freedoms originally

granted the printing press.

However, even broadcasting, with its national and now global audience, and its compelling use of images from all over the world,

did not change the “one-to-many” nature of

journalism that has characterized the press

since the first era of printing. Although the

number of broadcast organizations now far exceeds that of newspapers, legal and economic

barriers to entering and successfully competing as a broadcaster have perpetuated this oneto-many character.

New technologies will not only augment the capabilities of the press they

may give rise to new forms of press,

alien to the last 200 years of First

Amendment jurisprudence.

Observers argue that we are now entering

an era that is variously referred to as an information age, an information society, or a postindustrial economy. These phrases conjure images of new technologies-high-speed computers, global communications networks, “in-
elligent” machines, and low-cost storage

media of astonishing capacity. But, more important for present purposes is what these

technologies mean for the structure of communications, and consequently, for the way in

which the press gathers and publishes information. In changing the way in which information is produced and disseminated, technology may change who and what is considered

the press. ” New technologies will not only

augment the capabilities of the press as we

know it today, they may give rise to new forms

of press, alien to the last 200 years of First

Amendment jurisprudence.

Taken together, current and anticipated advances in technology suggest a fundamental

shift from the concept of “press” to the concept of “network. To some extent, the past

mode of one organization publishing for many

may give way to a communications mode in

which many share knowledge among themselves. One-to-many publication will no doubt

continue, but will be joined by new and unfamiliar forms. Gathering, editing, and disseminating news and information, which today is

commonly integrated in one organization, may

eventually be fragmented between many specialized entities. The electronic publisher of the

future may act more as a clearinghouse for the

exchange of news and information than as a

gatherer. Global electronic networks may eventually allow the gathering, writing, filming,

editing, and publishing of news to be decentralized among many organizations, which

may sell one another specialized services.

One-to-many publishing will also coexist

with one-to-one publishing, such as electronic

mail, and many-to-many publishing, such as

computer conferencing. Each of these permutations may merge into the other under given

circumstances—what started out as an electronic mail message may be integrated into a

broadcast, which individuals may then store

in a database, to be redistributed in different

forms to different audiences. Specialized, individualized reports may be generated by one

organization for a few subscribers or patrons,

and distributed over electronic mail. Pieces of

7 —.

one message may be integrated into a whole

and distributed to an audience larger or smaller

than the original.

New forms of publishing will grow up alongside the “mass” communication that we are

familiar with today. Individuals will be able

to select the subject matter of the information

they receive, and determine its format and

manner of presentation. This processing may

be done by consumers at intelligent terminals

in their home or business, or it may be done

further “up the line, ” by the local telephone

or cable company.

As a consequence of this shift from a centralized press with a uniform product to a decentralized network selling diverse services,

the courts and Congress may face new questions of constitutional interpretation not presented when the press was a more or less distinct, identifiable institution. Even today, with

the convergence of information processing with

telecommunications, questions of categorization

for purposes of the First Amendment–beyond

those of common carrier, broadcaster, and

print publisher-are emerging.

Like the underground press that flourished in the 1960s, the electronic underground press may become the crucible of cultural change.

Technology will further challenge distinctions between the freedoms of speech and

press, “nonmedia” and “media” that were already difficult to make. Whether there is a

difference between First Amendment rights

of speech and press is a matter of disagreement

among scholars,7 but practical consequences

‘Scholars disagree over whether the distinction between the

freedom of speech and the freedom of the press is of constitutional or legal significance. Former Supreme Court Justice Potter

Stewart, for example, adheres to the view that freedom of speech,

worship, assembly, and other liberties guaranteed by the Bill

of Rights are substantive and individual in nature, while the

freedom of the press is 4 ‘structural, and extends freedom of

expression to an institution. “The publishing business is, in

short, the only organized private business that is given explicit

constitutional protection. Potter Stewart, “Or of the Press, ”
flow from it. Many of our 20th century assumptions about freedom of the press depend on notions of the press as a business, located in a

community, dependent on the support of

readers and viewers, committed to a regular

cycle of publication and broadcast, managed

by responsible persons, and striving—to some

degree-for objectivity, balance, and a fair

presentation of the facts. What if those elements change?

The Colonial press was characterized by irregular appearance, pseudonymous invective,

and a boisterous lack of respect for any form

of government. Modern, high-technology international versions of this may flourish in parallel with the established press. New interactive communications technologies can make

producing and disseminating underground

‘‘newspapers’ as economical as a phone call,

and as egalitarian as a New England town

meeting. Like the underground press that

flourished in the decades before and after the

First World War, and again in the 1960s, the

electronic underground press may become the

crucible of cultural change.8 The first simple

experiments of this sort are already underway

on many computer bulletin boards.

New questions of liability and potential for

harm will also be raised. Distinctions between

primary publishers, secondary publishers, and

republishers-which served to allocate responsibility for defamatory publications-will be

more difficult to make.9 Locating the “source”

of inaccurate or false information that causes

harm may prove elusive on electronic networks.

The press’ use of remote sensing systems

26 Hastings LtIw Jan-d 631 (1975). Former Chief Justice

Burger disagrees, arguing that “the First Amendment does not

‘belong’ to any definable category of persons or entities: it belongs to all who exercise its freedoms. ” First IVational Bank

of130ston v. Beflotti, 435 U.S. 765, (1978), Burger, J. concurring.

Whe “cultural revolution” of the 1960s found expression and

momentum in a thriving underground press-’ ’[o]nly on the

pages of the underground press, with its melange,of stories,

articles, events, hunches, graphics, fantasies, exposes and the

ories can one find the Movement. Laurence Learner, The Paper Revolutionaries: The Rise of the Underground Press (New

York: Simon & Shuster, 1972) p. 14.

9w Kwton, D.Dobbs, R. Keeton, and D. Owen, ~osser ‘d

Keeton on Torts (St. Paul, MN: West Publishing Company,

1984), pp. 799-811.

Limitations on the liberty of the press

may come from a failure to reconcile

private ownership interests in the

physical media with public interest in

the message carried over these media.

aboard orbital satellites, or “mediasats,” together with an unprecedented ability to search,

store, and process large amounts of information on individuals may give rise to new concerns over the ongoing conflict between privacy and freedom of the press.

The continuing debate over the deleterious

effects of barriers to entry on the diversity of

news and information available, and the role

of government in mitigating them, will intensify. The assumption of Classical Liberalism

that the principal threat to individual liberty

is from large public organizations-such as the

Federal Government-may no longer hold. Instead, limitations on the liberty of the press

may come from a failure to reconcile private

ownership interests in the physical media with

public interest in the message carried over

these media.

Courts and First Amendment scholars have

developed a variety of ways of classifying and

organizing the functions of the press for purposes of analyzing First Amendment issues.1

I°For purposes of assessing the press’ regulatory status an

shielding from Liability under the First Amendment, a distim

tion is commonly made between the press as printed mediurr

as broadcaster, and as common carriers (which are not consid

ered press). OTA Workshop on “The Future of the Press am

the First Amendment,” Mar, 26, 1987, Washington, DC. %

also: Richard Neustadt, The Birth of Electrom”c Publish”n/

(White Plains, NY: Knowledge Industry Publications, Inc.

1982); and Lynn Becker “Electronic Publishing: First Amend

ment Issues in the Twenty First Century, ” 13 Fordhaxn Urbax

Law Journal 801 (1984). With regard to defamation, one text

book organizes constitutional privileges around notions of th~

press as the originator of speech, as commentator, or as repeater

Marc Franklin, Cases and Maten”afs on Mass Media Law

(Mineola, NY: Foundation Press, Inc., 1987), In analyzing Firs{

Amendment tensions between rights of access and exclusion

another author distinguishes between the press as editor (mak

ing decisions about the content of messages, which decisions

are protected by the First Amendment) and the press as ownel

(making decisions about the use of the medium, which decisions

are protected by the Fifth Amendment). Mark Nadel, “A Unified Theory of the First Amendment: Divorcing the Medium

from the Message, ” 11 Fordham Urban Law Journal 163 (1983).
9 —

Familiar constitutional issues—pitting

freedom of the press against privacy

rights and national security interests

—will be placed in unfamiliar contexts.

Because this report is concerned with the impact of technological innovation on the press,

however, press functions will be organized

along lines that reflect more or less discrete

types of capabilities offered by new technologies. These capabilities and press functions

can be most usefully grouped as follows:

Ž New technologies for gathering news and

information: databases and satellites

Ž New technologies for editing news and information: electronic publishing

• New technologies for publishing and disseminating news and information: the convergence of computers and communications.

The rest of this chapter will deal with the first

of these broad topics; new technologies for editing and publishing are covered in chapters 2

and 3 respectively.

NEWSGATHERING

In order to publish news and information,

he press must have an ability to gather it in

he first place. The Supreme Court has yet to

decide, however, whether newsgathering is itself a protected First Amendment activity, separate from speaking and publishing.11 The

Supreme Court said in Branzburg v. Hayes

that “it is not suggested that news gathering

does not qualify for First Amendment Protection; without some protection for seeking out

the news, freedom of the press could be eviscerated.12 . . .” However, the Court has declined

to say that government has a positive duty

to allow journalists special access to information. The press has access to government proceedings, records, or other information that is

available to members of the public generally. 13

Presumably, the converse is also true; access

denied to the general public may also be denied to the press, 14 but the government may

not close down avenues for gathering and acquiring news that are generally available to

the public, without a compelling reason.

Although the press may not, as a constitutional matter, have any greater rights to gather

information than the general public, they may,

as a practical matter, have a greater and more

concerted ability to gather information than

most individuals. In the coming years, technology will greatly amplify the informationgathering resources of the press. As a result,

familiar constitutional issues–pitting freedom

of the press against privacy rights and national

security interests—will be placed in unfamiliar

contexts. Technology is likely to blur distinctions between gathering information and publishing it, and the Court will eventually have

to confront the question of whether the press

Mediasat would supply a stream of

timely information—peering where

repressive governments or dangerous

natural environments had formerly

kept the press at bay.

llBrmzburg v. Hayes, 408 U.S. 665 ~1972~

“Ibid., p. 681.

“Pen v. Procum”er, 417 U.S. 817 (1974); Saxbe v. Washingon Post Co., 417 U.S. 843 (1974); cf., Houchins v. KQED, 438

U.S. 1 (1978). See also, Rita Ann Reimer, Legal and Constitutional Issues Involved in kfd”asat Actiw”ties (Washington, DC:

Congressional Research Service, The Library of Congress, 1987),

Report No. 86-823A, pp. 6-8.

14 When, in 1983, the United States invaded Grenada, the

government imposed a total news blackout and prohibited members of the public and the press from traveling to Grenada. The

press sought prospectively to enjoin the Executive from imposing any such future ban. The case was dismissed as moot,

but the court went on to say that “[the] decision whether or

not to impose a press ban during military operations and the

nature and extent of such a ban if imposed are matters that

necessarily must be left to the discretion of the commander in

the field. ” Flynt v. Weinberger, 588 F. Supp. 57,61 (D.D.C. 1984),

affirmed (on the basis of mootness), 762 F.2d 134 (D.C. Cir. 1985).
10

interests in gathering news merit constitutional protection under the First Amendment.

Among the new tools that the press will have

at its disposal for gathering information are

computer databases and remote sensing satellites. The use of these technologies may raise

a number of constitutional questions concerning, for example, individual privacy rights,

national security, and

records.

COMPUTER DATABASES

Databases are records of information stored

in machine readable form, and are typically

accessible by personal computer over packetswitched data networks (e.g., Telenet, Tymnet, or a variety of privately owned communications networks). Information in electronic

databases is usually searched and retrieved by

software provided by the vendor of the database service.

For purposes of this report, the concept of

computer databases is kept separate from that

of electronic publishing, which is discussed in

chapter 3. In reality, database vendors are, by

definition, also electronic publishers, since they

publish information in an electronic, machinereadable form. However, electronic publishing

is a broader concept, which includes transactional services (i.e., banking and merchandising) and messaging services that are beyond

those available from database vendors. Perhaps the distinction is easiest to make in the

following way: database vendors provide information; electronic publishers provide information services, which may include database

access. 15

15Terminology for these new forms of publishing is still unsettled. In the “Huber Report, ” the author distinguishes between “information service providers, ” who offer call and network management services, timeshared computing, access and

retrieval systems, messaging systems, and transactional services, and ‘‘computerized databases and electronic publishers,

who offer retrieval of documents, data and text from magnetic

or other storage media. The Geodesic Network: 1987 Report

on Competition in the Telephone Industry, prepared by Peter

Huber as a consultant to the Department of Justice, Antitrust

Division, January 1987, chs. 6 and 7. Other authors make the

distinction between online databases and videotex. See, e.g.,

Hugh E. Look, Electrom”c Pubh”shing-A Snapshot of the Early

1980s (Oxford, England: Learned Information, 1983).

the expungement of

The database industry is growing at a rate

of 15 to 18 percent a year. Total revenues were

estimated to be $2.2 billion in 1986, and are projected to be more than $4.2 billion by 1990.16

In 1986, there were 3,200 online database services available worldwide compared with 400

in 1979.17

In principle, anything that can be represented in digital form can be stored and

retrieved from a database. Today, this includes

the full text of newspapers, magazines, journals, and publications from any major scientific or professional discipline. In the future,

computer software, motion or still pictures,

and high fidelity music and voice will be stored

on computer and shipped over telephone or cable television lines. Existing database services

are categorized as bibliographic and abstractive (e.g. the Library of Congress’ SCORPIO);

full text (e.g. Mead Data Central’s LEXIS);

or numeric (e.g. Data Resources, Inc. ’s DRISecurities and Exchange, Current Economic

Indicators, Bank Analysis Service, and Financial and Credit Statistics).18

Optical disk storage (principally, Compact

Disk Read-Only-Memory, or CD-ROM), with

its extremely high capacity, low cost, and durability, is likely to change both the economics

of online databases, and the type of information sought on them. Optical disks offer much

more powerful searching software, and avoid

rising telecommunications costs. In the future,

‘GOn/ihe Database Systems Market in the U.S. (#1517), Frost

and Sullivan, Inc. 1986, as quoted in Information Hotline vol.

19, No. 2, February 1987, p. 3.

‘TFrom Information Industry Association estimates.

l~Thi9 taxonomy was put forth by Martha Williams, ‘ ‘Electronic Databases, ” Science, vol. 228, Apr. 26, 1985, pp. 445-456.
11 —

news organizations might make extensive use

of optical disks instead of the online services

employed in the past. 19

Today, there are many “gateway” services,

in which one database vendor sells the information services of another. A possible scenario

for the future database industry is the emergence of a “meta-library” or “virtual database, ” which would interconnect many or all

of the now separate database services. Such

a system might allow a user to enter a query

in everyday English on any given subject, conduct a search for the location of the information, and retrieve it. Achieving this goal depends on, among other things, considerable

technical progress on computer memory, transmission, and processing speeds; advances in

computer software; and the development of

standards controlling how computers and networks ‘‘talk’ to one another. Current technological trends suggest that this scenario is

obtainable. 20 Much depends on the establishment of standards.21

Databases–whether online or on disk–are

powerful tools for the press. Researching stories, investigating the background of subjects

and sources, corroborating information, drawing out latent connections between people and

events, and constructing “mosaics” of information from disparate sources, will all become

more practicable, and in some cases, possible

for the first time.

It is safe to say that, by the end of this decade, every recent news story, news picture, wire

service report, and major press release will be

commercially searchable from the reporter’s

workstation, subject only to the cost his newspaper is willing to incur. The press will have

a long and comprehensive memory.

190pticaVEJectrom”c Publishing Directory 1986, Learned Information. Online databases are likely to remain valuable for

tim~sensitive, transient information, while CD-ROM will be

favored for archival information. See also, Bradford Dixon, “The

Impact of CD-ROM on On-Line Data Bases, CD-ROM Rew”ew,

vol. 1, October 1986, p. 52.

zoGreat prowess is being made in the ability tO tr~smit

large quantities of information very rapidly. INTELSAT satellites can now transmit the equivalent of 20 copies of the Encyclopedia Britanm”ca every minute. J. Pelton, M. Perras, and

A. Sinha, INTELSAT, The Global Telecommum”cations Network (Honolulu, HI: Pacific Telecommunications Conference,

1983), p. 17. Depending on bandwith required, fiber optic communication cables can now transmit the entire contents of a

CD-ROM disk–the equivalent of 200,000 pages of text–in

about 1 second. Science and Technology in Japan, OctoberDecember 1986, p. 8.

Z! These stmdmds concern the way in which information ~d

instructions are communicated to and within a network. The

FCC, in its Computer Inquiry III, Phase I Decision, mandated

the adoption of an “Open Network Architecture” standard, with

the goal of facilitating a total free market in telecommunications and information services. See: A,M. Rutkowski, “Open

Network Architectures: An Introduction, ” Tekwommum”cations,

February 1987, p. 29. Voluntary communications standards,

called Open Systems Interconnect, have already been established by the International Standards Organization.

MEDIA SATELLITES’*

The news media are increasing the use of sat- wish to own and operate their own remote sensellite imagery in reporting world events. This ing systems dedicated to newsgathering—

leads some to believe that the press will soon

dmn, OTA-TM-ISC-40 (Washington, DC: United States Gov-

‘2The issues concerning media satellites are examined in ernment Printing Office, May 1987). This section draws solely

depth in U.S. Congress, Office of Technology Assessment, Corn- on the analysis of that publication, hereafter referred to as Newsmercial Newsgathering From Space—A Technical Memoran- gathering from Space,

80-6/i’) - 87 - p
12

termed “mediasat.” Mediasat would supply

a stream of timely information—peering where

repressive governments or dangerous natural

environments had formerly kept the press at

bay.

Many nations will have their own remote sensing systems within a decade,

and the press might purchase data

from, or invest in, these foreign

systems.

Today’s press obtains data from two remote

sensing systems, EOSAT—formerly the U.S.

Government Landsat system–and SPOT, a

French system. 23 Neither of these systems,

however, is particularly well suited to the needs

of the press; the resolution of these sensors

may be too low (EOSAT yields a maximum

of 30 meters resolution, and SPOT a maximum

of 10)24 and their coverage of a given point on

the Earth too infrequent for them to be a

timely, valuable, and reliable source of information for the press. In addition, the press’

access to data cannot be assured because the

satellites’ owners currently depend on ground

stations owned by other countries to collect

certain data. It is likely, therefore, that the

press would require a dedicated mediasat system to meet their needs.

-——

- ‘EOSAT (Earth Observation Satellite Co. ) is a private company which now handles the operation and marketing of data

for Landsat, which was formerly owned by NASA. For a history of the transfer of the Landsat system to the private sector, see: U.S. Congress, Office of Technology Assessment, Remote Sensing and the Private Sector: Issues for Discussion—A

Technical Memorandum, OTA-TM-ISC-20 (Springfield, VA: National Technical Information Service, March 19841. SPOT (System Probatoire d ‘Observation de le Terre) is a French company

responsible for marketing the data from the satellite owned by

the Government of France.

‘iThe greater the resolution of the sensing system, the more

detail that can be discerned. The SPOT system, for example,

allows one to see individual buildings and highways.

To be effective, a mediasat would need more

than high resolution; it must also be able to

sense news wherever and whenever it occurs

and to transmit the news rapidly to the news

agency. A mediasat system would need at least

two satellites to ensure same day coverage of

events around the globe. In order to receive

data in near-real-time, a mediasat system would

need to have access to ground stations all over

the earth and use on-board tape recorders.

Satellite and database technologies

may change the very meaning of “public” and “private.”

Although the technology is available to create such a system, including very high resolution technology, the high cost and currently

low demand for remotely sensed data will limit

media efforts to own and operate a dedicated

remote sensing satellite system. Moreover, the

value of satellite imagery to the press is uncertain, and is likely to remain so until experience and a more robust remote sensing market combine to define a stable demand for these

data. preliminary calculations indicate that the

costs of a mediasat system might exceed its

expected revenues.

Notwithstanding the considerable barriers

to implementing a mediasat system, it may at

some point in the future become a viable concept. The press might form a consortium to

share the cost of a mediasat system, or it might

resell the data collected by mediasat to subsidize its own use, or it may wait until technical

advances reduce the cost of sensors, satellites,

and launch vehicles. Moreover, many nations

will have their own remote sensing systems

within a decade, and the press might purchase

data from, or invest in, these foreign systems.

IMPLICATIONS FOR PRIVACY

When the press gathers and publishes infor- tion as source material, there is a potential for

mation about a person, or uses such informa- conflict between the individual’s common law
right of privacy and the right of the press to

gather and publish news and information.

Databases store many pieces of personal information, and permit the creation of larger

mosaic pictures of the individual from these

pieces. Satellites allow information to be obtained without individuals’ knowledge, and

without physical intrusion or proximity. Because of the way in which these technologies

enhance the newsgathering ability of the press,

they create a potential for conflict between

privacy and the First Amendment.

Until recently one of the best barricades against breach of privacy was

the difficulty and impracticability of

integrating all of the public data about

a person.

It was in fact the press, and reactions to the

press, that first precipitated legal recognition

of an individual right to privacy. 25 Privacy is

a word that embraces a number of separate

but similar values. It has been variously defined as “the right to control information about

oneself; ”26 “ the claim of individuals, groups

or institutions to determine for themselves

when, how and to what extent information

about them is communicated to others;"27 or

simply, “the right to be let alone."28 Although

State statutes have recognized a panoply of

- ““The wminal article hy l,ouis 1). Brandeis and Samuel ktrarren, ‘Arrhe Right to Pri\’acy, ‘‘4 Harvard Law Retriew 193( 18!30),

which structured subsequent debate, litigation, and legislation

on pri~’ac~ in the [Jnited States, was a reaction to the editorial

practices of the E30ston newspapers: “The press is overstepping

in ever-} direction the ob~~ious bounds of propriety and decency

.,. To occup~r the indolent, column upon column is filled with

idle gossip. ~’hich can only be procured by intrusion into the

domestir circle. ., ,” W’herr the Warren/Brandeis theory of

prit’acy was r~’jected in the first major case to consider it, f70berson ~, Hoche.qter [’olding l~cj.y [’o., 171 X.Y. 538, 64 N.17. 442

( 1902), the VCW Yrork legislature reacted by creating a statutory right of prl~a[’}, New York Civil Rights I.aw, $ j 50 and51,

“This definition forms the basis for the Privacy Act of 1974,

I’ublic I,aw’ 93-579, 5 (J. S. C’, \5fi2{a),

-;Alan Jt’est in, i)ri~art’ and Frwxiom (1’Y’Pw York: Atheneum,

1 967), p. 39.

‘I)ran[lei+ an(i \4’arr[~rl, op cit

13

privacy interests, the concept of privacy developed as common law is most often asserted

against the press. 29

Satellite and database technologies may

change the very meaning of “public” and “private.” As remote sensing satellites become

more sophisticated, for example, it is possible

that the average person’s expectation of

privacy could be eroded. Satellites are currently capable of spotting certain crimes, such

as violations of environmental control laws.

Eventually, satellites may be able to perform

other functions, such as identifying and locating marijuana fields, or determining the inventories of manufacturers. In the far future, satellites may be able to monitor the activities

of individuals.

Under current law, a person is protected

against publicity given to facts about his or

her private life. Although hard to define, the

protections afforded by this right to privacy

are clearly reduced when a person appears in

public.30 Mediasat could alter the current understanding of what the law regards as “appearing in public. ” Recently in California v.

Ciraolo, 31 the Supreme Court decided that

aerial reconnaissance was an acceptable law

enforcement technique and that activities taking place in the defendant backyard were in

“plain view, “ even though they were surrounded

by a 10-foot-high fence. Applying Ciarolo’s

logic broadly, one could argue that citizen’s

have no right of privacy for any activity that

might be seen from an airplane or satellite.

Computer databases may also change the

meaning and expectations of privacy, The

press may take advantage of the storage, re-

‘qCommon law invasion of privac~’ is subdi~ided into f{jur

separately actionable torts: intrusion, disclosure, false light, and

appropriation, William I.. Presser, ‘‘ Privac~’, 48 C:ilif(jrnia l,a }{’

l?e~’iew. 383 (1 960). Of particular concern for the presf’nt ciiscussion is the tort of ‘public disclosure of private facts, which

requires that the information made public b~’ the prx)ss be in

fact pri~ate, that the disclosure be highly offensi~(’ t () ii r(~as(~nable person, and that the subject matter of the diw’losure not

be of legitimate concern to the public.

“)l]anson, libel and Related Torts, !260 ( 1969).

‘1 106 S. Ct. 1809 ( 1986). Ciraolo was a criminal case invol\-

ing a warrantless search. As such, its reasoning ma~’ not be

dirf’ctl~’ applicable to rit’il suits for in~. asion of prilrac~’.
14

trieval, and processing capabilities of modem

computer technology to construct comprehensive pictures of an individual from a myriad

of transactional details-much as a mosaic

painting is constructed from smaller pieces of

no artistic significance in and of themselves.

This capability was not practical in the world

of print, where storing, retrieving and collating a mass of trivial detail was inefficient and

wasteful, even when possible. Computer databases permit one person to fabricate whole new

bodies of knowledge out of heretofore unconnected pieces of information. Much of the information about an individual’s life is not,

when taken in isolation, intimate or confidential. Purchasing merchandise at a department

store, traveling on holiday, visiting the doctor,

joining an association, reading a newspaper—

these activities are often done in the open, and

are available to anyone who cares to watch.

Although the press may, in certain instances,

be liable for the collection or publication of personal information, this liability may conflict

with the freedom of the press, especially when

the information collected is available through

public sources. In Cox Broadcasting Corp. v.

Cohn, 32 the Supreme Court struck down a

Georgia statute that barred publication of the

names of rape victims. Although the Court recognized that “there is a zone of privacy surrounding every individual, a zone within which

the State may protect him from intrusion by

the press,“ it said that State may not censor

“judicial records which are maintained in connection with a public prosecution and which

themselves are open to public inspection.”33

The Court limited its ruling to court records,34

but also said that:

Public records by their very nature are of

interest to those concerned with the administration of government, and a public benefit is

‘]’420 U.S. 469 (1975).

3sIbid.

34 The court declined to decide the more gener~ question

whether “the State may ever define and protect an area of

privacy free from unwanted publicity in the press, ” and instead

focused on the narrower question concerning publicly available

judicial records.

performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information

appears to us to be of critical importance to

our type of government in which the citizenry

is the final judge of the proper conduct of public business.35

Whether this First Amendment right of the

press to publish court records also applies to

other public records and publicly available

information in general remains to be determined. 36 The problem has not been of widespread concern, in part because until recently

one of the best barricades against breach of

privacy was the difficulty and impracticability of integrating all of the public data about

a person. Records such as arrest and prosecution data, credit status, purchases, mortgages

and property records, hospital admissions,

travel information, associational behavior,

banking activity, and previous appearances in

newspapers or on television were either uneconomical to keep for long periods of time, inaccessibly “buried” with thousands of other

records, geographically dispersed, or not crossreferenced. 37

The conflict between privacy and press freedoms may be most acute in cases where the

government acts on behalf of the individual’s

privacy to foreclose the revelation of information that is normally public. In the case of satS5420 U.S. 469 (1975) at 32.

sGIn Vhgy v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert.

denied 425 U.S. 998 (1976), the Ninth Circuit Court rejected

the notion that the press has a First Amendment right to publish all private facts that are publicly available (in this case,

facts drawn from an interview of the plaintiff). Only if the facts

are newsworthy or of legitimate public concern would the press’

First Amendment defense obtain.

sTThe new power to aggregate information was Mustrated

last year when two prominent businessmen were competing pub

licly to buy a major U.S. newspaper company. An enterprising

journalist ran a check on both their names in Mead Data Central’s NEXIS database, and learned that one of them, who lived

in Indiana, was married to the sister of the investment banker

representing the target newspaper’s interests. He also learned

that the Indiana man had just returned from a weekend with

his wife in Mexico City, where the competitor lived. The two

men announced a few days later that they were joining forces

to buy the newspaper together, leading the journalist to report

that the businessmen were colluding, rather than competing.

Christopher Bums, “Freedom of the Press in the Information

Age, ” OTA contract report, Apr. 21, 1987, p. 20.
15

State policy concerning the expungement of records on individuals maybe

ineffectual, because it must yield to

freedom of the press.

ellite surveillance, for example, government

might forbid press acquisition of private or proprietary pictures through remote sensing. This

would undoubtedly be assailed as a “prior restraint” on press freedoms. The doctrine of

prior restraints

holds that advance limitations on protected speech may not be “predicated on surmise or conjecture that untoward

consequences may result."39 Constitutional

issues concerning prior restraint arise most

often where the government acts to protect national security.

The State or Federal Government may act

on behalf of individuals’ privacy rights in ways

that conflict with press access to information

held in public or private databases. Many

States, for example, have “expungement statutes that apply to criminal or other records,

which typically require that records be destroyed after a certain period of time, or when

a defendant in a criminal case is acquitted. The

theory behind the statutes is that an offender,

once rehabilitated, deserves a chance to be free

of his past and start anew.

If interactive electronic services are

considered analogous to cable operators or newspapers, then they may,

like cable and newspapers, claim First

Amendment protection.

‘“A prior restraint is government censorship. Other forms of

iability or punishment for speech are imposed after the harm

:aused by the speech has occurred. Prior restraint, in contrast,

s a prohibition of speech or publication before it occurs. “Any

;ystem of prior restraints of expression comes to this Court

)earing a heavy presumption against its constitutional validty. ” Bantam Books, Inc. ~. Sullivan, 372 U.S. 58, 70 (1963);

;ee also New York Times Co. v. United States, 403 U.S. 713

1971 ), and Near \r. Minnesota, 283 U.S. 697 ( 1931),

‘~’]New York Times Co. i’. United States, 403 U.S. 713 (1971),

Justice Brennan concurring at 724.

However, because more and more information is created or accessed in machine-readable

form, and because the costs of storing it in that

form are plummeting, newspaper morgues are

growing in size and comprehensiveness. The

question therefore arises whether the press will

be required to expunge records that were once

public and are now kept in its own files. Recent Supreme Court decisions suggest that no

such requirement could be imposed on the

press, especially if it carries a criminal penalty.40 In some cases, State policy concerning

the expungement of records on individuals may

be ineffectual, because it must yield to freedom of the press.”

When information is not only stored and accessed, but also provided by the press electronically, further complications ensue. In interactive electronic services which provide

information and services to the home, the use

of the service by the consumer/reader also generates information for the provider about reading, viewing, and consumption patterns. This

information can in turn be used to target and

tailor information, such as advertising, that

is fed back to the consumer. According to one

author:

Every transaction which is executed, and

every page of information or service which is

delivered, will generate its own electronic

(machine-readable) record. The return channel

in an interactive system will perform double

labor for the interactive services industry; not

only will it facilitate consumer requests for

services, and thereby stimulate consumption,

it will also transmit back to industry much

relevant information concerning the modalities of consumer demand and consumption. 42

Early concerns about privacy pertaining to the

collection and sale of transactional information generated by the electronic press were ad-

‘

OSee Landmark Communications v. Virginia. 435 U.S. 8’29

(1978); and Smith v. Daily Mad Publishing Co., 443 U.S. 97

(1979).

41 ShiffJet v. Thomson Newspapers, Inc., 431 N.E.2d 1014, 8

Med. L. Rptr. 1199 (1982).

‘iKevin Wilson, “The Videotex Industry: Social Control and

the Cybernetic Commodity of Home Networking, ” Media, Cuiture, and Socie.t~’, vol. 8, 1986, pp. 7, 25. (Hereafter referred to

as “Cybernetic Commodity.”)
16 —

dressed in the Cable Communications Policy

Act of 1984.43 And, the Privacy Commission,

whose recommendations were in large part

adopted by Congress in the Privacy Act of

1974, suggested principles for the use of information gained through interactive electronic

services. However, the Supreme Court has

decided that individuals have no inherent legal interests in personal records owned by third

parties.”

But privacy may only be part of the problem. The use of interactive information systems to provide the press with a precise consumer stimulus/response mechanism suggests

to some that “improved techniques of social

management are on the technological horizon

. . . creating a truly cybernetic45 cycle of pro-

‘

]

47 U.S.C. j631.

“’U.S. v. Miller 425 U.S. 435 (1976).

“’The term, “cybernetic, comes from control theory and

refers to systems that are highly adaptive, responding to their

environment by sensing changes and responding by altering

the environment or their response or both. In this case, a cybernetic cycle is one in which the electronic media, by virtue of

its individualized and rapid interaction, not only adapts itself

to individual consumers wants, but also acts to influence those

wants,

duction and consumption.”46 The difference

between such cybernetic control and the familiar television or newspaper advertisement may

be simply a matter of the degree of precision

and power that electronic systems provide.

Moreover, a greater sensitivity to consumer

preferences may be generally desirable. Limiting the cybernetic control of consumer preference is more likely to be a political decision than

a judicial issue. However, a question could also

arise as to whether the collection and feedback

of information through interactive services in

protected speech, and thus whether this “cybernetic cycle” is an activity protected by the

First Amendment. If interactive electronic

services are considered analogous to cable operators or newspapers, then they may, like cable

and newspapers, claim First Amendment protection. What information to provide to which

consumers may be a matter of editorial discretion protected by the First Amendment. 47

“’’Cybernetic Commodity” at page 35. See also Deann

Collingwood-Nash, and John Smith, Interactive Home Med~

and Privacy, report prepared for the Office of Planning, U. f

Federal Trade Commission, 1981.

‘

7 Miamj I{erdd ], 7’Orni)lo, 418 U.S. 241 (1974).

IMPLICATIONS FOR NATIONAL SECURITY

Where the press seeks to gather information

concerning national security, whether through

satellite surveillance or computer databases,

there is a potential for conflict between national

security policies and the First Amendment.

With satellite images, for example, the press

could:

disseminate information regarding U.S.

military operations, thereby depriving

U.S. troops of the critical element of

surprise;

reveal information considered sensitive by

foreign governments, thereby prompting

them to retaliate against U.S. Government activities, assets, or personnel;

provide valuable intelligence to countries

currently lacking their own reconnaissance satellites;

The Federal Government may attempt to limit access to or use of satellite imagery by the press.

● reveal facts about an unfolding crisis

making it more difficult for government

leaders to act calmly and responsibly; and

• misinterpret satellite data in such a ways

as to precipitate a crisis.48

In response to these potentials, the Federal

Government may attempt to limit access to

or use of satellite imagery by the press. In the

‘“Taken from OTA, ,Vew’slathering From Space, op. cit, p. 4.
17

case of a dedicated “Mediasat,” it might do

o permanently, through the licensing procedres established in the 1984 Landsat Act,49

or temporarily, during a crisis, by limiting the

resolution of the satellite’s sensors, the images

the satellite is allowed to collect, or the images

the press is allowed to disseminate. Any of

these options may run afoul of the doctrine of

prior restraint. Prior restraints are allowed

only if necessary to prevent “direct, immediate, and irreparable damage to our Nation or

s people."50 The outcome of such a challenge

would turn on the exact nature of the Government limitations and the Supreme Court ultimate determination of the status of newsgathering under the Constitution.

Similar First Amendment difficulties may

e encountered with attempts to suppress or

limit access to information in computerized

databases. The ability of electronic information systems to construct revealing mosaic pictres from many smaller pieces of information

has many parallels to the situation underlying

the case of United States v. The Progressive,

Inc.51 In that case, The Progressive magazine

proposed to publish an article on ‘The H-Bomb

Secret: How We Got It, Why We’re Telling

It," which was derived entirely from public domain, unclassified sources. The Federal Government sought, and was granted, an injunction barring publication of the article under

the Atomic Energy Act.52 Notwithstanding

the fact that the injunction constituted prior

restraint--the most severe abrogation of First

Amendment rights–and the fact that most of

the research for the article was done in freely

Accessible government libraries,53 the court

held that the various sources of information,

"when drawn together, synthesized and collated. . . . acquires the character of presenting

‘{ 1,; [J. S,C, t }420 1-4292.

“’,\-ew I’ork ‘Nme.s CO. t. 1‘njfed .State.$, -$():J [ 1.S. 7111 (1971),

usticws Stewart and \$’hite, concurring

‘46’7 F. Supp. 990 (W’. 11. Wrisc. 19’79), The fb-o~p-essi~re case

+ discussed i n part 1. ch 2, of this report.

’68 stat. 919.42 U.s. c. 2011-2296.

Sfw: Rita Ann R[~imer, Legal and Con.stit utiona] I.s,sues lnol~’(d in .Iledia.sat 1 cti~’ities (Yf’ashingt on. 1)(’: (’on~rres+ional

{vsear{h Ser\rice. ‘l’he 1,ihrary’ of (’{)n~rt,<+, 19H7 I, l{~p[)rt No.

{ f;-,< 2~~ .+~, p 12

immediate, direct, and irreparable harm to the

interests of the United States"54 (emphasis

added).

Although the Progressive case did not involve computer databases, the enhanced ability of computer systems to achieve the same

“aggregation and synthesis” of unclassified

materials was at the heart of a recent public

debate concerning National Security Decision

Directive 145 (NSDD-145).55 The efficiency

with which online databases can construct mosaic information was, in part, the rationale behind NSDD-145, which, among other things,

established a‘ sensitive, but unclassified’ category for information in government databases, and perhaps privately owned commercial databases as well.56 NSDD-145's focus on

electronic storage and retrieval systems recognized that databases store information that

‘‘even if unclassified in isolation, often can reveal highly classified and other sensitive information when taken in aggregate.’’57

The Federal Government proposed taking

measures to protect sensitive information from

hostile governments, including screening database entries, precluding the electronic publication of certain databases, providing database

subscriber lists to the government, and/or limiting foreign subscriber access.58 Some of

these proposed measures may raise constitutional issues.59

‘ 167 F’,supp. 990, tit 996.

NSI)I)- 145, Sept. 17, 1 9N4.

‘ ,4s of ,J anuar~ 1987, the status of N S1)[1- 145 ~it h rt’sp~’ct

tG commercial databases had not been clarified. Ipor a m(~rt’

detailed discussion of NSDD- 145, and related executi~t’ and

1egislati\e actions, see part 11, ch. 4 of this report,

“TNational Polic~ on Protection of Sensiti\e but (Unclassified

Information in Federal (;o\’ernment Telecommunicate ions an(i

Automated Information Systems, NTISSP No. 2, (M, 29, 19F(i

(hereafter cited as ‘ ‘National Policy’ ‘). This perception t~ a~

echoed in a C 1 A Report, .%~’iet Acquisition of .Ililitaril.} .>’iL~-

nificant Western Technolog-j-: An Update See part 1, ch. :1 of

this report,

‘HNASA has alread~’ implemented an access policy which restricts access with respect to foreigners, and members of the

Air Force have visited several commercial database ~’endor<

asking for subscriber lists. See Scientific Informat i~)n.

“’9For example, the Federal Government has a ri~ht to (’rt’-

ate conditions on access to, or publication of, go~’c’rnr]}t’~lt:~ll?r

funded information, so long as they do not conflict with the

k’reedorn of 1 nformation Act., ,5 [1, S.C. \,552(a). hforeot’er. as we

ha~e seen, the Supremt’ (’ourt has not recognized a constitution] right of the press to ~zther information. so it is unlikel}”
18

The Federal Government proposed

taking measures to protect sensitive

information from hostile governments,

including screening database entries.

Prior restraint on commercial database publishers raises peculiar problems for the traditional theories under which prior restraint is

permissible. Individual database entries do not

necessarily pose a threat to national security

that would justify restraining them. It is ostensibly the concatenation of individual database entries that raises national security concerns, but this concatenation may not be

specifiable before a given database search. Yet

judicial precedent with prior restraint has,

without exception, concerned a single publication, the contents of which could be known

ahead of time.

Prior restraint issues normally arise when

the government seeks an injunction prohibiting publication. But, even alternative approaches to national security problems of database mosaics may pose constitutional issues.

In the case of NSDD-145, for example, sensitive but unclassified information is defined as

“information the disclosure, loss, misuse, alteration, or destruction of which could adversely affect national security or other Federal Government interests.”60 But database

vendors may have little clue as to whether the

data that they sell could “adversely affect national security” until it is conjoined with other

data; the “sensitivity” of information in a database will depend on its combination with other

information. Attempts to control disaggregated

data may therefore run afoul of the “vagueness ” doctrine, which is based on the due process clause of the 14th Amendment, and which

requires that a statute “neither forbid nor require the doing of an act in terms so vague that

men of common intelligence must necessarily

guess at its meaning and differ as to its application." 61 Vague laws may also infringe upon

the First Amendment rights of the press by

“chilling” protected expression.

continued from previous page 61)~rom ‘‘Nat,ion~ po~cy} that the press, as database users, would be able to assert a con- “ Section II—Definition.

61zwej~er v. ~CW~~, 38$) U.S. 241 (1967). stitutional interest in access to sensitive information.
Chapter 2

New Technologies for Editing and

Selecting News and Information

Far more information is produced than consmed. Measuring information in words, one

census found that, on average, over 11 million

words are made available to Americans over

print and electronic media each day, and this

figure has been growing at roughly 8 percent

each year since 1980. Of these words supplied,

only about 48,000 were actually read or heard

by any one individual (on average). 1 Editors,

whose task it is to gather, select, and organize

this welter of information for particular purposes or consumers, are more crucial to the

information consumer than ever. As one commentator has observed, “in the Age of Information, editors assume an even greater importance; people will pay not to be deluged with

reedited data.”2

For the electronic publisher, exercising

responsibility for identifying, verifying, and policing sources of information may become difficult or impossible, raising questions about standards

of liability.

IIthiel de Sola Pool, et al., Communications Flows: A Census

n the United States and Japan (New York, NY: Elsevier Scimce Publishing Co., 1984), p. 16. Survey years 1960-1980.

2Bruce Owen, “The Role of Print in an Electronic Society, ”

;ommum”cations for Tomorrow: Poh”cy Perspectives for the

‘980 ‘s, G. Robinson (cd. ) (New York, NY: Praeger Publishers,

1978); as quoted in Mark Nadel, “Editorial Freedom: Editors,

?etailers, and Access to the Mass Media, ” 9 Comment: Hastngs Journzd of Communications and Entertainment Law 213

winter 1987), which provides a useful discussion of the role and

inctions of editors.

ELECTRONIC

Electronic publishing combines information

access and retrieval capabilities with messaging and transaction services. It is a point-toIt does not follow from this, however, that

editing will continue to be a centralized activity, nor one conducted solely by people. Quite

the contrary: the deluge of information made

possible by electronic publishing technology

may require technological methods of sorting

information for relevance and importance.

Technologies such as expert systems are emerging, which when used in conjunction with electronic publishing, can disperse editorial control

to the recipients, rather than the originators,

of news stories and information. Citizens may

come to see “news stories” not as a standardized, authoritative, and “balanced’ text, but

as a largely self-selected collection of sources

to be assayed in context.

The emerging electronic publishing industry will pose unique questions concerning

editorial control and responsibility under the

First Amendment. Traditional assumptions

about the press’ editorial responsibility for the

information it publishes may be drawn into

question. The First Amendment serves to insulate responsible press conduct from liability in the interest of robust debate on matters

of public importance. But for the electronic

publisher, exercising responsibility for identifying, verifying, and policing sources of information may become difficult or impossible,

raising questions about standards of liability

for what is carried over phone and coaxial cable lines. Electronic publishing also challenges

traditional distinctions between publishers and

common carriers, further complicating questions of liability and First Amendment protections.

PUBLISHING

point communication system in which text, audio, or video information may be carried by

telephone network, microwave transmission,

19
satellite relays, or even coaxial cable television home shopping and home banking.8 Although

lines. It is roughly equivalent to what the Jus- there are substantial differences between the

tice Department calls “information services” types of electronic publishing (teletext, for

and the Federal Communications Commission example, is broadcast, while videotex is telecalls “enhanced services.”3 Within the ambit phonic), they will be referred to collectively as

of electronic publishing are teletext,4 videotex, 5

electronic publishing.9

electronic mail,6 electronic bulletin boards,7 —

Excluded from present consideration is and electronic transactional services, such as broadcast radio or television, cable television

S1n um”t~ States V. A7’&T CO., 552 F.supp. 131, 181 (D-c.

Cir. 1982), affirmed 103 S. Ct. 1240 (1983) (Modified Final Judgment), Para IV J, “information services” were defined as “the

offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available

information which may be conveyed via telecommunications.

In Computer 11, 77 F.C.C. 2d 384, at 498, “enhanced services”

are “services, offered over common carrier transmission facilities used in interstate communication, which (1) employ computer processing applications that act on the format, content,

code, protocol or similar aspects of the subscriber’s transmitted

information; (2) provide the subscriber additional, different or

restricted information; or (3) involve subscriber interaction with

stored information. ”

‘Teletext is a one-way broadcast transmission of textual information, using the Vertical Blanking Interval (VBI) of a conventional television signal. Data is transmitted to a subscriber’s

television from a central computer, and the viewer selects from

“pages” of information. Teletext requires a decoder, attached

to a television set, to be received. The most common form of

teletext transmission in the United States is closed-captioning

for the hearing impaired. See: Efrem Sigel, The Future of

Videotext (White Plains, NY: Knowledge Industry Publications,

1983); Richard Neustadt, The Birth of Electronic Fublish”ng

White Plains, NY: Knowledge Industry Publications, 1982);

Neustadt, Skall & H amrner, “The Regulation of Electronic Publishing, ” 33 Federal Communications Law Journal 331 (1981);

and Anne Branscomb, “Electronic Publishing: A Global view

unenhanced voice telephony (i.e., exclusive of

voice-mail storage and forwarding systems)

and conventional print publishing. The distinction between electronic publishing and conventional communications, such as TV or radio

is somewhat artificial, but suited to present

analyses. In the long run, the convergence of

modes of communication will destroy distinctions between electronic publishing and other

forms of publishing; “the one-to-one relationship that used to exist between a medium and

its use is eroding. This is what is meant by the

convergence of modes."10 

Electronic publishing may look like a different kind of service at different times, depending on the use the subscriber makes of it. It

may function like conventional mail at one

time; book or newspaper publishing at another;

a bulletin board with messages pinned to it at

another; a conference room at another; or even

a bank or retail store at another.

of Videotex, ” 36 Federal Commum”cations Law Journal 119

(1984).

svi~eotex differs from teletext in SWI?rd ways:‘t ‘‘inter - In the long run, the convergence of

active, “ in that information flows in two directions, from the

user to the host computer and back again; information is typi- modes of communication will destroy

cally organized by search, rather than by preset pages; there distinctions between electronic pubis no theoretical limit on the amount of information that can

be transmitted and stored; and videotex is normally transmitted lishing and other forms of publishing.

via contained media (i.e., telephone or cable lines) in digital,

computer-processable form. For present purposes, videotex includes networks accessed by personal computer, such as The Moreover, electronic publishing networks SOURCE, CompuServe, LEXIS, NEXIS, WESTLAW, and ARPANET, as well as television-adapted networks, such as the can be “nested” within other networks; a servexperimental Viewtron, Keyfax, T~intex, and “dedicated” network systems such as the Telidon (Canada), Minitel (France),

and Prestel (England) systems.

%lectronic mail is an electronically transmitted message

from one computer terminal to another, usually via a host computer, which stores and routes the message. Electronic mail is

commonly available in most videotex services. Current electronic

mail services include MCImail, CompuServe, the SOURCE,

GTE Telemail, and Western Union Easy Link.

‘An electronic bulletin board is a publicly accessible videotex computer file, which is typically organized into “conferences’

or “topics” that users may create and join, or limit membership to. See note 5 above.

“Home banking, for example, allows a customer to handle

electronic funds transfers from his or her own computer. The

first system in the United States was Chemical Bank’s “Pronto”

system, which began in September 1983. See: U.S. Congress,

Office of Technology Assessment, Efftits of Information Tech.

nology on Finanu”al Sem”ce Systems (Springfield, VA: National

Technical Information Service, September 1984).

‘See p. 15 of this report for a discussion of the distinction

between electronic publishing and database services.

IO Ithiel de Sola Poo1, Technolo~”es of Freedom (Cambridge,

MA: Belknap Press, 1983), p. 280.
ce for routing messages from one location to

another maybe added on top of a network providing for their storage, which may itself lease

mes and switching service from one or more

networks. Members of these various networks

can also “talk” to each other between otherwise self-contained networks.11

Electronic publishing is also interactive; unlike all previous media used by the press, where

he journalistic product was a single package

whose contents and priorities were controlled

by editors, many electronic publishing systems

permit the style, organization, order, and content of the items to be selected by the user,

rather than the publisher. The converse is also

true: writers and publishers may choose their

readers, and differentiate their products across

classes of readers.12

Interactivity means, moreover, that users

can themselves become reporters or publishers.

This feature is of great significance for the

question of “who is press, ” and it also suggests

that the sources for news and information may

in the future become dispersed, and less sub-

] IThe~e ~~metwork lix& are known as ‘‘gateways. %

 J

@u-terman and J. Hoskins, “Notable Computer Networks, ”

;ommum”cations of the ACM, vol. 29, October 1986, pp. 932-

171, for a good summary of computer networks and related

:oncepts.

1 ~The press has already be~n this differentiation prOCeSS

with, for example, the publication of domestic and international

/ersions of ~“me and Newsweek, inclusion in newspapers of supplements aimed at suburban readers, and the circulation of 7’}’

;uide to different viewing audiences. Electronic publishing will

mable finer distinctions aJong different classificatory lines,

ject to centralized control by the electronic publisher. A paper publishing system which today

looks something like this:13

Source(s) + Reporter + Publication + Distribution +

Point of Sale + User

may one day be joined by an electronic publishing system that looks more like this:

Source(s) + Interconnection + User

These features of electronic publishing-the

decentralization of editorial control, the multiplicity of versions of news and information

products, the loss of an authoritative text, the

many roles of electronic publishers, the dispersion of news and information sources—raise

significant questions about liability for false,

inaccurate, defamatory, indecent, obscene, and

infringing information. Holding the electronic

publisher liable for injurious information14 entails conflicts with the “profound national commitment’ made in the First Amendment ‘‘to

the principle that debate on public issues should

be uninhibited, robust, and wide open . . ."15

‘ ‘From an OTA staff conversation with Mr. R. Taylor Walsh,

l+~lectronic Information Services Development, Silver Spring.

MD.

1 IThe term i ‘injurious information will be used to refer to

defamation, negligence, copyright infringement, fraud, in~asion

of privacy, intentional infliction of emotional distress, and other

uses of information that cause pecuniary, emotional, reputational, or bodily harm. This is in accordance with a recent appeals court decision that held that “First Amendment protections apply to all actions whose gravamen is injurious

falsehood. ” Blatt-v \’. New York Times, Inc., 12 Med.1,, Rptr,

1928 (2nd Cir. 1986), cert. denied, No. 86-1803) (19871.

‘-’New York TirzIes t. Sulli$’an, 376 U.S. 254 (1 964).

EDITORIAL CONTROL AND LIABILITY

The editorial decisions of the press go to the

heart of the First Amendment protection of

its freedom. As the Supreme Court said in Miami Herald Publishing Co. v. Tornillo,16

The choice of material to go into a newspaper,

and the decisions made as to the limitations

on the size and content of the paper, and treatment of public issues and public officials—

—

1“418 U.S. 241 (1974).

21

whether fair or unfair-constitute the exercise

of editorial control and judgment. It has yet

to be demonstrated how governmental regulation of this crucial process can be exercised

consistent with the First Amendment guarantees of a free press as they have evolved to

this time.

A corollary to editorial freedom is editorial

responsibility; under common law, the exercise of editorial discretion over whether and

what to publish is the basis for liability for defa-
22

mation and other forms of injurious information.17 An assumption underlying conventional theories of press liability is that the

press—be it newspaper, journal, magazine, radio, or television–is capable of exercising

editorial discretion over the content of its publications. Where the press is required by law

to accept content “as is, ” it is generally absolved from responsibility for damages caused

by false or inaccurate publication.18 Where a

medium is treated by law as a common carrier, and is therefore forbidden from discriminating against any speaker or otherwise

exercising editorial control, it is absolved of

any legal responsibility for statements made

over the medium.19

This simple symmetry between control and

liability may become hard to apply to electronic

publishers. On a network, electronic publishers

may resemble conventional print publishers insofar as they can or do choose which speakers

An assumption underlying conventional theories of press liability is that

the press is capable of exercising editorial discretion over the content of

its publications.

17& with torts gener~y, the basis for liability for ‘ ‘informational torts, ” such as defamation, negligent misrepresentation,

fraud, and even product liability, is that of misfeasance; that

is, once one undertakes a discretionary action, such as publication, one is bound to exercise reasonable care in carrying it out.

Although the press is, in certain instances, no longer strictly

liable for what it publishes, New York Times v. Sullhm, 376

U.S. 254 (1964) and Gertz v. Robert WeJch, Inc., 418 U.S. 323

(1974), the basis for liability for defamation, invasion of privacy,

and negligent misrepresentation remains an intent to publish.

Where the exercise of editorial judgment and control in conveying or publishing information is prohibited by law—as is

the case with common carriers such as telephone and postal

services—there is no liability for the information.

lsFor exmple, when a broadcaster is required by law ‘o Pro

vide “equal time” for the responses of political candidates, it

will not be held liable for defamatory statements made in the

response. Farmers Educational cooperative Union of America

V. WDA Y, 360 U.S. 525 (1959).

lgNation~ Association of Broadcasters V. FCC, 740 F.2d

1190 (D.C. Cir. 1984).

may use their services.20 They may in fact

choose who shall “speak,” but they are less

often in control over what is said over the network. The choice of who speaks may be made

explicitly-as where a computer network contracts with news or database services for the

provision of information to subscribers.21 Or

it may be made tacitly, and involve nothing

more than permitting subscribers to speak, or

allowing the creation of bulletin board conferences.

Whether an electronic publishing service

should or can bear liability for information distributed on its service is a matter of some constitutional consequence. If, in lieu of action by

Congress or the Supreme Court, the Federal

Communications Commission (FCC) were to

decide that electronic publishing is beyond its

jurisdiction as being neither “ancillary” to

broadcasting, nor common carriers (and thus

not relieved from publisher liability),22 an

argument can be made that it should be treated

in the same way as print publishers. The question then is whether the electronic publisher

can, as a practical matter, exercise the same

control as these other types of publishers,2

and if requiring it to do so will inhibit the content of or access to the system. In order to

20 For exmple, Sewices such as ‘1’HE SOURCE, LEX*S

NWI, and CompuServe contract with selected newswire serv

ices to provide information to their subscribers. Some electroni[

publishers, while they do not themselves provide particular new:

services, may allow such services to be “ported” from anothel

online source to their own. National security directives may even

tually force videotex providers to exclude some potential users

21 For exmple, west pubhshing contracts with DOW Jones

News Retrieval Service to enable WE STLAW subscribers ac

cess to Dow Jones’ financial analyses and news services.—

ZzTeleco~um”cation9 Research and Action Center V. FCC

13 Med. L. Rept. 1881 (D.C. Cir. 1986)

230n networks that provide bulletin bo~d ~d news ad in’

formation services, there may be literally hundreds and thousands of new messages each day. They may come in faster than

any publisher could scan them. Even if such scanning were pos.

sible, controlling what is posted may be impossible. “To con.

trol what is posted on a network, it is necessary to control access to that network. Most existing networks are not strong

on security. The safest policy in using networks is to assume

that any network can be broken, that any transmission can be

recorded, and that most can be forged. ” J. Quarterman and J.

Hoskins, “Notable Computer Networks, ” Communications oi

the ACM, vol. 29, October 1986, p. 967.
23 —

avoid civil liability for defamation, negligence,

or infringement of copyright, or criminal liability for fraud or theft, the electronic publisher

may be forced to censor what is written to its

host computer.

The spectre of “self-censorship’ has caused

the Supreme Court, on several occasions, to

recognize First Amendment privileges that effectively limit the circumstances under which

newspapers and broadcasters will be held liable.24 Electronic publishing raises the question whether the limited types of privileges

now granted the press will be adequate to avoid

self-censorship. Monitoring the accuracy and

truthfulness of all of the information posted

to a computer conference, for example, may

well be beyond the system operator’s abilities.

The press, in becoming electronic, may require

more latitude for error than conventional print

publishers. 25

“Beginning with IVew York Times, 1rIc. v. Sti”van, 376 U.S.

254 (1964) and cuh-ninatingin Gertz v. Welch,418 U.S. 323 (1974),

the Supreme Court fashioned First Amendment-based press

privileges with respect to defamatory speech concerning public officials and public figures. In Rosenblatt v. I%er, 383 U.S.

75 (1966), the Court recognized a similar privilege with respect

to speech that is invasive of individuals’ privacy.

‘sOf course, the sources of information posted on a computer

network may also be held liable for injurious information. While

straightforward in theory, this may be difficult to implement

in practice. Database providers to the network offer thousands

of “pieces” of information, most of which they have no involvement in creating; mediated by artificially intelligent “front

ends, ‘‘ information may come to consumers that is a machinecompiled synthesis of many sources, which may themselves not

be cited in the allegedly defamatory or negligent report; and

the long and complex chains of distribution that are possible

in value-added networks may give a totally different and often

circuitous meaning to the nature of what counts as a ‘‘fact”

or the “truth’ for purposes of verification of information. See

generally, Ithiel de Sola Pool, Technolo&”es of Freedom, ch. 7

(Electronic Publishing) and Anthony Smith, “InformationTechnology and the Myth of Abundance, ” Daedelus, vol. 111, fall

1982, pp. 1-16.

The question whether the privileges extended

the press also apply to “nonmedia” defendants,

i.e., to individual citizens, and whether a distinction between media and nonmedia defendants can be made at all, is crucial to the extent of First Amendment protections afforded

electronic publishers. The Supreme Court was

recently urged to hold nonmedia defendants

to a higher standard of conduct than the media, but it avoided the issue entirely, holding

instead that press privilege against defamation extended only to “matters of public concern” (an incorrect credit report was held not

to be a matter of public concern).26 However,

because conventional print and broadcast media are in great part responsible for defining

what constitutes a protected “matter of public concern, ” that question may hinge on the

medium of communication, after all. The role

of technology in expanding who constitutes

“the press” was recognized by Justice Brennan who wrote in his dissent that:

“[f]irst amendment difficulties lurk in the

definitional question such an approach would

generate. And the distinction would likely be

born an anachronism. (Brennan’s footnote):

Owing to transformations in the technological and economic structure of the communications industry, there has been an increasing

convergence of what might be labeled “media”

and “nonmedia."27

ZeDun & Bradstr~t, Inc. V. Greenmoss Builders, Inc., 472

U.S. 749 (1985). In a recent State court decision, Culh”ton v.

Mize, 403 N.W.2d 853 (1987), the court held that the First

Amendment privileges recognized in New York Times v. Sullivan apply to nonmedia defendants.

27472 U.S. 749 (1985) at 34.

GLOBAL NETWORKS AND THE INTERNATIONAL PRESS

Electronic publishing may blur distinctions of worldwide communications protocols, makes

between “domestic” and “foreign” press. In- the concept of a “purely domestic” electronic

ternetworking (communicating between two publisher an anachronistic term. Except with

or more networks), in combination with global respect to cost, geography is largely irrelevant

communications satellites, the emergence of to modern telecommunications systems.

“metanetworks,” and the eventual conformance
24

Congress and the courts may eventually

have to confront the question of whether First

Amendment rights extend to the foreign press

publishing in the United States. The question

may take many forms—whether standards of

liability will apply to foreign-originated transmissions, whether domestic regulations apply,

whether import/export laws conflict with First

Amendment rights, or whether control, even

if permitted under the First Amendment, is

possible.”

The First Amendment status of the foreign

press, and foreign speakers in general, is one

of the least understood areas of First Amendment jurisprudence. A case involving deportation of aliens for allegedly subversive speech

under the McCarran-Walter Immigration Act

of 1952 is currently pending before a Federal

court.29 In the only case on point, Times

Newspapers Ltd. (Of Great Britain) v. McDonnell Douglas Corp.,30 the court held that The

Sunday Times of London, an English newspaper with offices and a small circulation in

the United States, was protected from having

its publication suppressed. The court said that

freedom of the press is not limited to what is

published in America for American readers,

but was also “designed to protect the rights

of readers and distributors of publications no

less than those of writers or printers.”31

Congress and the courts may eventually have to confront the question of

whether First Amendment rights extend to the foreign press publishing

in the United States.

‘8These issues belong to a class of emerging issues concerning “transborder data flows”; the movement of data between

countries. For an overview of the legal and policy issues surrounding transborder data flows, see: A. Branscomb, “Global

Governance of Global Networks: A Survey of Transborder Data

Flow in Transition, ” 36 Vanderbilt Law Review 985 (1983).

‘

g

’’ Federal Judge Declines To Rule on Free Speech Rights of

Foreigners, ” New York Times, May 21, 1987. The case of Margaret Randal is still pending as of December 1987.

~0387 F. Suppo 189 (C. D. Cd. 1974).

~1 Id Quoting Qu~tjty of Copies of Books v. State of

Kansas, 378 U.S. 205 (1964).

Though the right of foreign journalists to

publish in the United States is not yet firmly

established in constitutional law, the right of

readers, viewers, and listeners to receive news

and information has been established in other

contexts, and may be indirectly available to

nonresident electronic publishers. Even this

rationale, however, is tenuous; relying as it

does on cases involving very specific circumstances and court dicta.32 The fact that section 310 of the Communications Act requires

that broadcast licenses be held only by citizens

of the United States, and that a recent Supreme Court decision upholding registration

and labeling requirements for Canadian made

films,33 suggests that the foreign press may

have lesser First Amendment rights, if they

have any.

Short of monitoring all international

data traffic, there may be no way to

stem news and information from foreign sources, even if it were desirable.

The political and legal impetus for recognizing First Amendment rights for the international press may not necessarily come from judicial interpretations of the Constitution; it

may come from international authority, and

from the interconnectedness of nations that

has accompanied technological change.34 For

l~In R~ Ljon Broadcast@ C’O. V. FCC, 395 U.S. 367 (1969).

in the context of the constitutionality of the fairness doctrine,

the Court said that “the people as a whole retain their interest

in free speech . . . [it] is the right of viewers or listeners, not

the right of the broadcasters, which is paramount. ” See also

Vir@”nia State Board of Pharmacy v. Vir@”nia Citizens Consumers Council, 425 U.S. 748 (1976), Board of Educ. v. Pico,

457 U.S. 853 (1982); which are commonly cited as constitutional

foundations for a right of the public to receive information under the First Amendment. See, e.g., Mark Nadel, “A Unified

Theory of the First Amendment: Divorcing the Medium From

the Message, ” 11 Fordham Urban )aw Journai 163, 187 (1982),

and Emerson, “Legal Foundations of the Right to Know, ” 1976

Washington Um”versity Law Quarterly 1,

:n~=se “. Clmkson, 55 U. S.L.W. 4586 (Apr. 28! 1987)”

34This topic will be developed in a forthcoming OTA special

bicentennial report on Science, Technology, and Constitutional

Governance.
25

example, Article 19 of the Universal Declaration of Human Rights proclaims that:

Everyone has the right to freedom of opinion and expression; this right includes freedom

to hold opinions without interference and to

seek, receive and impart information through

any medium regardless of frontiers. 3 5

This does not have legal effect, but it is

widely recognized as the basis for international

law. Whether the foreign press may avail itself of First Amendment rights or not may become an academic exercise. Short of monitoring all international data traffic, there may be

no way to stem news and information from foreign sources, even if it were desirable. A hoax

on April Fools Day in 1984 on a computer network named USE NET may be a harbinger of

things to come—"kremvax! kgbvax!chernenko”

joined the network.36 (The notation is the

name, address, and routing message used on

‘r’(Jniversal Declaration of Iluman Rights, G.A. Res. 217

(11 I) U.N. Dec. A81O, at 71, art, 19 (1948) {emphasis added);

as quoted in John Eger, “The Global Phenomenon of Teleinforma tics: ,4n Introduction, 14 Cornell international I,aw Journal 203, 20’7 ( 19!31 ),

‘(’” N-otahle Computer Networks, ” (’ornmunications of the

.4(’.11, \ol. 29, october 1986, p. 967.

the network.) As Leonard Marks, a former director of the U.S. Information Agency, couched

the issue,

Global electronic networks . . . will be effectively beyond the reach of the traditional

forms of censorship and control. The only way

to “censor” an electronic network moving. . .

[at] 648 million bits per second is literally to .

pull the plug.37

In other words, the only effective means of controlling foreign speakers speaking in the

United States may be to disable the communications abilities of American citizens,38 an

action that would directly raise First Amendment rights.

‘“L. hf-arks, International Conflict and the Free Flour of information in Control of the Direct Broadcast Satellite, I’alues

in Conflict (Palo Alto, CA: Aspen Institute Program on Communications and Society, 1974); as quoted in J. Pelt, on, ‘“I’he

Technological Environment, ” Toward a I.aw of Global Cmnmunications Networks, Science and Technology Section of the

American Bar Association, A. Branscomb (cd. ) (New York, N1’:

Longman, 1986), pp. 37, 44-45.

.~~Though not in the context of foreign speech, this stip is not

unprecedented; computers and communications were confiscated

from a s}”stem operator in 1984 whose communications facilities were used for telephone credit card fraud. “Free Speech

Issues Surround Computer Bulletin Board Use, ” A’ew I’ork

7’ime.s, Nov. 12, 1984, p. Al, CO1. 1.
Chapter 3

New Technologies for Publishing

and Disseminating News and Information

THE CONVERGENCE OF THE MEDIA

Of all the First Amendment issues concerning the press and new technology, none is more

contentious than Federal regulation of the

means of publishing and disseminating news

through electronic media. The seemingly absolute prohibition on abridgments of press freedom enunciated in the First Amendment

(“Congress shall make no law. . .“) has nevertheless been found compatible with a threetiered system of communications freedom:

print media, broadcast media, and common

carrier. This separation was at first a product

of market economics and agreements between

key players in the communications industry,1

rather than being mandated by technology.2

It was nevertheless embodied in the regulations of the Federal Communications Commission (FCC). 3 Today, technology is ushering in

a convergence of forms of press publishing that

were once partitioned by technology: print publishing, mail, broadcasting, and telephone.

)

” In ~926 AT&T abandoned broadcasting in return for

RCA’S commitment to use AT&T’s lines rather than Western

Union’s for networking. The agreement provided for exchange

of patent licenses, and WEAF was sold to RCA, where it became WNBC, the flagship station for the National Broadcasting Co. ” Ithiel de Sola Pool, Technologies of Freedom (Cambridge, MA: Belknap Press, 1983), p. 35. See also Lynn Becker,

‘‘Electronic Publishing: First Amendment Issues in the TwentyFirst Century, ” 1,3 Fordham Urban Law Journal 801, 818-820

( 1984).

“’Other approaches were proposed and tried. For a quarter

of a century from 1893 phones carried music and news bulletins to homes in Budapest, Hungary. Thomas Edison thought

that the main use for the phonograph he had invented would

be for mailing records as letters. “. . . The fact that different

technologies were consecrated to different uses protected media enterprises from competition from firms using other technologies. ” Pool, Teclmo]o&”es of Freedom, op. cit., p. 27.

‘Congress provided for three distinct regulatory schemes: for

bro~dcasters (47 U.S.C. j$ 301-332), common carriers (47 U.S.C.

! j201-224), and for non-broadcast users (47 U.S.C. I! 351-362).

Print media, which do not travel by ‘I wire or radio, are be>rond

the jurisdiction of the FCC to regulate, 47 U.S.C. !151.

The seemingly absolute prohibition on

abridgments of press freedom enunciated in the First Amendment has

nevertheless been found compatible

with a three-tiered system of communications freedom: print media, broadcast media, and common carrier.

Print media4 occupy the first tier of constitutionally protected communication, and are

subject only to laws concerning injurious

speech (like defamation and negligence), constitutionally unprotected speech (obscenity

and “fighting words”), and those laws regulating the press as a business, without regard

to the press’ communicative functions (e.g.,

corporate, labor, and antitrust laws).5

The broadcasting media occupy the second

tier. Under the Communications Act of 1934,

the FCC has the task of:

. . . regulating interstate and foreign commerce

in communication by wire and radio so as to

make available, so far as possible, to all the

people of the United States a rapid, efficient,

nationwide and worldwide wire and radio communication service with adequate facilities at

reasonable charges for the purpose of the national defense, for the purpose of promoting

safety of life and property through the use of

wire and radio communication.6

“’Print media” refers not only to all paper and ink publications; it is coextensive with any “work fixed in a tangible medium

of expression, ” as defined under the Copyright ,Act, 17 (J, S. C’.

\ 102(a), and thus includes motion pictures, paintings, sculpture,

photographs, computer-processible information (including programs and databases), and sound recordings.

~~fiam; }{er~d Co. k,. Tornilo, 418 U.S. 241 11974), has

reaffirmed the premier position occupied b~ the print media,

so far as freedom from goy’ernment interference in editorial control is concerned.

“47 IJ.S.C, 1151.

27

8(1-(,/1’, - }j’{ - -j
28

In carrying out this responsibility, the FCC

must conform its actions to those ‘consistent

with the public interest, convenience [and] necessity.”7 Under this authority, and based on

a rationale that “the electromagnetic spectrum

is simply not large enough to accommodate

everybody, the FCC licenses broadcasters

and conditions the grant and renewal of

licenses on compliance with a variety of content and structural regulations. These regulations include:

●

●

Cross-Ownership Restrictions: In the interest of promoting diversity, the FCC imposes three general types of restrictions

on multiple ownership of broadcasting facilities: those limiting ownership in a single community,9

those limiting ownership of broadcast facilities by single

entities nationwide,10 and those forbidding newspapers from owning television

stations in the same community in which

they publish.11

The Fairness Doctrine: Under FCC decisions construing a 1959 amendment to the

Communications Act of 1934, broadcasters were obligated to “operate in the

public interest and to afford reasonable

opportunist y for the discussion of conflicting views on issues of public importance.” 12 The FCC added a further gloss

to this statutory language in the Report

Concerning General Fairness Doctrine

Obligations of Broadcast Licencees, 102

F.C.C. 2d 143, 146 (1985): licensees must

“provide coverage of vitally important

controversial issues of interest in the community served by licensees . . . [and] provide a reasonable opportunity for the presentation of contrasting viewpoints on such

issues. ” The codification of the Fairness

Doctrine in the Communications Act

7

47 U.s.c. j307. ‘~~~io~~ ~ro~~c~s~~~g CO. v. Vn.i”ted States, 319 U.S. 190,

213 (1943). The scarcity rationale was reaffirmed as the basis

for broad FCC authority to regulate in Red Lion Broadcasting

V. FCC, 395 U.S. 367 (1969).

947 CFR jj 73.35 (AM), 73.240 (FM), ~d 73.636 ‘W)+

‘“Ibid.

“see Second Report and Order, Docket No. 18110,50 F.C.C.

2d 1046 (1975).

’

2

47 U.S.C. $315(a).

●

●

●

(H.R. 1934) was recently vetoed by the

President, and the FCC voted to repeal its

fairness regulations on the ground that

they offended the First Amendment.*

The Equal Time Doctrine: “If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall

afford equal opportunities to all other such

candidates for that office in the use of such

broadcasting station.”13

Reasonable Access: Broadcasters must allow “reasonable access . . . for the use of

a broadcasting station by a legally qualified candidate for Federal elective office

on behalf of his candidacy."14

Indecency: Under criminal law and FCC

regulations, broadcasters are held to a

higher standard than other publishers, insofar as they are prohibited from broadcasting not only “obscene, but also “indecent” programming.15 The rationale for

this higher standard is that the broadcast

audience, and particularly children, are

‘‘captive."16

FCC regulations, and indeed, much of the

rationale under which the FCC regulates, have

come under attack in recent years, largely as

a result of technological challenges to the notion of scarcity .17

*5G u.siL.w. 2112 (Aug. 25, 1987).

’

3

47 U.s.c. 5315.

“47 U.S.C. j312(a)(7).

IsBroadcast of ‘‘obscene, indecent, Or prOf~e’ l~~age ‘r

images is a criminal violation, 18 U.S.C. $1464, for which the

FCC may revoke a license, 47 U.S.C, 312(a)(6). This power was

upheld in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The

FCC recently recommended expanding the operative definition

of “indecency” beyond seven particular words to include the

generic definition of broadcast indecency advanced in l%cifica,

which is: “language or material that depicts or describes, in terms

patently offensive as measured by contemporary community

standards for the broadcast medium, sexual or excretory activities or organs. ” The Commi ssion added that “in certain circumstances, innuendo or double entendre may give rise to actionable indecency. ” 52 FederaJ Reg”ster 16386-01 (Tuesday,

May 5, 1987).

16* e.g., Cohen v. C~”fo~”a, 403 U.S. 15 (1971)

ITFor’exmple, ~ U.S. Congress, 98th Cong., 1st Sess.! senate Committee on Commerce, Science, and Transportation, Print

and Ekctrom”c M&”a: The Case for First Amendment Parity,

printed at the direction of Hon. Bob Packwood, Chairman, for

the use of the Committee on Commerce, Science, and Transportation, Senate (Washington, DC: U.S. Government Printing Office, 1983).
Whether broadcasting is a

depends to a great degree on

scarce resource

how “scarcity”

is defined. Absolute numerical comparisons of

te number of media outlets maybe misleading measures of scarcity. If scarcity is measured by the number of organizations or individuals wishing to broadcast as compared with

the number of available frequencies, then scarcity is still the rule for broadcasting. There are,

for example, no open broadcast television channels in the top 50 markets in the United States.

If, as one First Amendment scholar suggests,

scarcity occurs in situations where ‘one utterance will necessarily displace another, ” then

scarcity takes on yet another meaning:

. [the] opportunities for speech tend to be

limited, either by the time or space available

for communicating or by our capacity to digest or process information. . . . The decision

to fill a prime hour of television with Love Boat

necessarily entails a decision not to broadcast

a critique of Reagan’s foreign policy . . . during the same hour.18

The development of cable television (which

typically carries anywhere from 34 to 120 stations), the direct broadcast satellite, other

microwave communications systems, low

power television, and other new technologies

cast doubt on scarcity as the premise for government regulation. The broadcast medium far

exceeds the print medium in sheer number of

outlets. 19 Broadcasting has become more

ubiquitous and far more diverse than newspapers in many metropolitan areas. Multiplex180wen Fiss, “Free Speech and Social Structure, ” 71 Iowa

>aw Review 1405, 1412 (July 1986).

lgAt the end of 1985, there were 9,871 radio and 1,220 television stations operating in the United States, compared to 1,676

hily and 6,600 weekly newspapers, and more than 10,000 maga-

~ines. Broadcasting Yearbook 1986, and E&”tor and Fubh”sher

Yearbook 1986, as cited in Christopher Bums, Freedom of the

Press in the Information Age, OTA contract report, Apr. 21,

1987, p. 20. In 1986, A.C. Nielsen counted 86 million television

lomes and a total of 157 million television sets in use, compated

;O 63 million daily newspaper subscribers. Television Bureau

]f Advertising, “Trends in Television, 1986, ” as cited in Bums,

op. cit. In 1985, the average home had the television on 7 hours

md 10 minutes per day, compared to an average of 34 minutes

per day spent reading the newspaper (of course, the time spent

watching television was probably for entertainment, rather than

news; the comparison may thus be misleading). National Reader-

~hip Study conducted in 1971 by Audits & Surveys, Inc., for

the Newspaper Advertiser Bureau, as cited in Burns, op. cit.

29

ing and compression techniques may further

overcome physical limitations of the electromagnetic spectrum, the limitations on time

and space inherent to the broadcasting

medium.

Whether broadcasting is a scarce resource depends to a great degree on

how “scarcity” is defined.

In this context, the FCC has now rejected

the scarcity rationale-at least as the basis for

the fairness doctrine.20 Many in Congress are

seeking to legislate the fairness doctrine out

of concern over the scarcity and high cost of

broadcast outlets. The FCC has in other instances suggested an alternative rationale having to do with the broadcasting industry’s

“power to communicate ideas through sound

and visual images in a manner that is significantly different from traditional avenues of

communication because of the immediacy of

the medium.”21

Yet even these constraints on the broadcasting media are being overcome by technologies,

the videocassette recorder, for instance, that

permit an audience to select among and store

programs of its choosing. The element of viewer

selection and timing was a principal reason for

the Supreme Court’s finding that “time-shifting’ television programs constituted ‘fair use’

and is not a violation of copyright law.22

Common carriers, finally, are subject to yet

different treatment under Federal law and the

First Amendment. Under Title II of the Communications Act, communications common

carriers are subject to franchise, rate, service,

and reporting requirements, and “must hold

themselves out to all comers” on a nondiscriminatory basis.23 Thus common carriers are not

Zom Ort conce~ng Genel-~ Fairness Doctrine Obli@iom P

of Broadcast Licensees, 102 F.C.C. 2d 143 (1985); see also

Meredith Corp. v. FCC, 55 U. S.L.W. 2391 (1987).

zl~port ~d Order, 53 Rad. Reg. 2d (P&F) 1309 at 132A

(1983), as quoted in Tekcornmum”cations Research and Action

Center v. FCC, 13 Med. L. Rptr. 1881, 1883 (D.C. Cir. 1986).

22Sony v. Um”versaJ Stuch”os, Inc. 464 U.S. 417 (1984). Electronic publishing, also illustrates the way in which technology

is overcoming time and space scarcity.

2347 USC. 201-224 (1982).
30

generally liable for the content of the messages

they transmit.

Drawing on the precedent of the postal system, the telegraph, and the railroads, the FCC

defined communications common carriers as

‘‘any person engaged as a common carrier for

hire. ’24 This circularity causes a number of

conceptual problems, particularly in questions

of whether and how to regulate new media. The

Supreme Court has defined common carrier in

a less circular fashion, as “one who makes a

public offering to provide [communications facilities] whereby all members of the public who

choose to employ such facilities may communicate or transmit intelligence of their own design and choosing . . . "25 but this does not

solve the problem of when common carrier

status may be mandated and imposed by the

government. 26 The decision that a communication system is or is not a “common carrier’

is a political rather than a technical decision.

Legislatures tend to decide to regulate a system as a common carrier if it appears to have

at least some of the characteristics of a natural monopoly .27 Until recently, there has been

2447 USC. 153(h) .

“’FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979).

‘hBroadcasters may not be treated as common carriers. 47

U.S.C. $153(h). Notwithstanding this, Direct Broadcast Satellite owners are permitted to choose between broadcast and common carrier type regulation. National Association of Broadcasters v, FCC 740 F.2d 1190 (D.C. Cir. 1984).

‘7’’When ‘natural’ monopolies are recognized and entry is

prohibited to all but the designated monopolist, the monopolist is normally required to provide universal service as a common carrier, ” Mark Nadel, “A Unified Theory of the First

Amendment: Divorcing the Medium From the Message, ” 11

Forchm Urban Law Journal 163, 193, n. 109 (1982). “The rate

and service requirements imposed on these carriers under the

Communications Act reflect the view that their natural monopoly status justifies government control of their business activities. ” Lynn Becker, “Electronic Publishing, ” op. cit., p. 855.

See also flni’ted States v. RCA, 358 U.S. 334 (1959). Cable television was initially proposed as a candidate for common carrier

regulation by the FCC, but the plan was abandoned.

no interaction between common carrier status

and First Amendment concerns.28 However,

since the 1982 consent decree between AT&T

and the Justice Department, AT&T has been

denied the right to disseminate its own messages over its lines until 1989 because of the

potential for anti-competitive behavior.29 The

The First Amendment issues concerning the relationship between media

ownership and control over the content that flows through that medium

have been joined.

First Amendment issues concerning the relationship between media ownership and control

over the content that flows through that

medium have been joined. Among these issues

are whether common carriers can also be publishers, who–as publishers-have the right to

exclude other publishers from their fora;

whether a monopoly common carrier can also

do some publishing; and whether the government can compel some access over monopoly

controlled facilities. The controversies over cable television and information services that

might be available over telephone wires are illustrative of this issue, which promises to be

the focal point of much First Amendment litigation for years to come.

‘“In the case of the telegraph, for example, the reason for the

“dim perception [of First Amendment concerns] was that the

early telegraph carried so few words at such a high cost that

people thought of it not as a medium of expression but rather

as a business machine. The computer suffered the same misperception a century later. Pool, Technolo~”es of Freedom, op.

cit., p. 91.

‘

gConsent decree in U.S. v. Western Electric, 552 F. Supp.

131, 180-86 (D.C. Cir. 1982).

CABLE TELEVISION

When cable television entered the scene in tion area. Since that time, however, cable

the 1940s it was called Community Antenna television has multiplied channel capacity

Television (CATV), carried only existing broad- many fold. Systems that run two coaxial cacast channels, and was intended merely to pro- bles into the home can now provide up to 120

vide better signals to homes in a bad recep- different channels. Initially, the FCC declined
jurisdiction over cable TV, but throughout the

1960s and 1970s, the Commission imposed a

variety of access, content, and distant signal

importation requirements. The Commission’s

authority to do so was based on the rationale

that its regulations were “reasonably ancillary

to . . . the Commission’s various responsibilities for the regulation of television broadcasting, "

30 and broadcast television was “placed

in jeopardy by the unregulated growth of

CATV." 31

Then, in the late 1970s and early 1980s, a

series of Federal appeals court rulings struck

down a variety of programming content regulations, based on either the First Amendment

or statutory grounds.32 Finding first that the

FCC had failed to show that cable systems are

‘‘public forums’ (i.e., common carriers), the language of one appeals court decision went on

to frame the issue thus:

The First Amendment rights of cable operators rise from the Constitution; the public’s

‘‘right’ to ‘‘get on television’ stems from the

Commission’s desire to create that “right.”33

In the Cable Communications Policy Act of

1984; 34 Congress created such a right, albeit

in limited fashion. It requires cable operators

to provide “leased access channels” for commercial use “by persons unaffiliated with the

“’U.S. f. Southwestern Cab/e Co., 392 U.S. 157 ( 1968)

‘1 Ibid.

‘iFor example, in Home Box Office, Inc. J“. FCC, 567 F.2d

9 (DC. Cir, 1977), overturned, on First Amendment grounds,

rules restricting movies that could be shown over subscription

television. [n Midwest Video Corp. ~’. FCC, 440 U.S. 689 (1979)

(Midwest Video II), the Supreme Court struck down Federal

(though not necessarily state) cable access requirements as beyond FCC jurisdiction; if access rules could not be imposed on

broadcasters, they could not be imposed on cable operators on

an ‘‘ancillary to broadcasting’ rationale. In 1985, the Court of

Appeals for the D.C. Circuit decided that “must carry” rules,

which required cable systems to carry local broadcast signals,

were unconstitutional under the First Amendment. Quinc.y Cable TV v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert denied, 106

S. Ct. 2889 (1986). The court suggested, moreover, that even if

the “must carry” rules had furthered a significant governmental

interest, they might nevertheless be contrary to the principle

announced in Miami Herald Co. v. Torrdlo, &“cta of some portent for categorization of cable for First Amendment purposes.

‘‘The language is from the appeals court ruling in Midwest

Video II, Midwest Video Corp. IF. FCC, 571 F.2d 1025, 1054

(D.C. Cir. 1978).

“47 U.S.C. ~ \ 601-639, Public 1,. No. 98-549, 98th Cong. 2d

sess., 98 Stat. 2779-2806, 1984.

31 —

[cable] operator,"35 and it permits local franchising authorities to reserve public, educational, and government channels.36 But cable

operators take the position that because they

do not suffer the physical limitations inherent

in broadcasting, they are in the position of

other publishers, and ought to have absolute

editorial discretion. It seems likely, therefore,

that even the limited content regulations set

forth in the Cable Act will be challenged on

First Amendment grounds.

But, as Ithiel de Sola Pool pointed out, “[the

problem of access] may become the Achilles

heel of what could otherwise be a medium of

communication every bit as free as print."37

Though many have argued that cable television is not a “natural monopoly, one cable

franchise per municipality is nevertheless the

rule and not the exception. ” This suggests to

some that cable operators ought to be treated

in the same way as any other essential facility

with substantial power to exclude others. Several commissions have come to this conclusion,

but have still accepted the argument that treating cable as a common carrier would not provide adequate economic incentives for operators to build cable systems.39 Even if cable

systems are not treated as total common carriers, the question remains whether the government, to promote diversity, can require access to a certain portion of the available

channels.

The delicate equilibrium that exists today

between cable operators and television publishers will likely be disturbed as technology

1“47 U.S.C. j612

’647 U.S.C. $611

jTIthiel de Sola Pool, Technologies of Freedom (Cambridge,

MA: Belknap Press, 1983), p, 166,

‘hCable is often called a “natural monopol~’” because, as a

practical matter, only one operator ma~~ use rights of way over

poles or through conduits to connect with subscribers’ houses.

Where these physical limitations are not present, or where there

is sufficient excess physical capacit-y, a cable operator ma~’ raise

First Amendment objections. Los Angeies t’. Preferred Communications, Inc., 106 S. Ct. 2034, 54 U. S.L. W. 4542 ( 1986).

~gTwo ealy stu~es of the cable industry, the Sloan Foundation (On the Cable (New York: McGraw-Hill, 197 1) and the

Whitehead Report (Cabinet Committee on Cable Communications, Cable–Report to the President (Washington, DC: U.S.

Government Printing Office, 1974). The Whitehead report

reached the conclusion that when cable reached 50 percent

penetration, it should change to carrier status.
32

—

again brings new interests into play. Although

cable is today primarily an entertainment

medium, it may not necessarily remain so. Because it is a “broadband” medium (meaning

that it has capacity for handling high volumes

of all sorts of electronic traffic), cable is a suitable carrier for computer data, electronic mail,

videotex, databases, security monitoring,

home banking and shopping, teleconferencing,

and other interactive services. If cable systems

are publishers under the First Amendment,

and allowed to choose the content of what goes

through their lines, they may well discriminate

against content that is competitive to their

own, or which do not yield as large a profit as

entertainment products, such as Home Box Office (HBO) and other movie channels. In the

future (perhaps the mid-1990 s), fiber optic teleThe delicate equilibrium that exists

today between cable operators and

television publishers will likely be disturbed as technology again brings new

interests into play.

phone connection to the home may make the

telephone company a broadband highway for

all information (with cable operators perhaps

becoming customers of the telephone company), but for now, the tension between cable

operators as First Amendment speakers and

as forums for other would-be speakers will

heighten.

INFORMATION SERVICES DELIVERED OVER TELEPHONE LINES

Technology has also blurred distinctions between computers and communications, between those who create a message (or data) and

those who transmit it. This confounding of

roles has raised First Amendment issues similar in kind to those raised by cable television;

that is, how to reconcile the First Amendment

interests of communications companies as

speakers with the First Amendment interests

of those who seek access to these companies’

communications facilities. While the tension

in the cable industry concerns whether cable

operators will be required to grant a limited

form of access to other would-be program providers, the issue here is whether telephone companies will be permitted to provide information services, using their own facilities, in

competition with independent providers of the

same or similar services.

Companies offering stock quotations, sports

scores, airline schedules, and news retrieval

services, among others, are concerned that the

telephone companies could offer these same

services themselves. Even more significant is

the fear of the American Newspaper Publishers

The issue here is whether telephone

companies will be permitted to provide information services, using their

own facilities, in competition with independent providers of the same or

similar services.

Association that telephone companies would

provide electronic yellow pages and draw away

a substantial chunk of newspapers’ classified

ads. Given the evidence of past discriminatory

actions by AT&T against competitors, the

modified final judgment (MFJ) settling the

AT&T lawsuit barred the telephone company

from entering the electronic publishing

business.

It is unclear whether the First Amendment

permits such an absolute prohibition. Cable

operators have been charged with discriminating by favoring their own affiliated pay networks over those of their competitors, yet they

are not barred from carrying any of their own
33

services. One could argue that cable television

systems are different from telephone companies because the former are not natural monopolies, but in The Geodesic Network,40 a consulting report prepared for the Department of

Justice, Peter Huber argued that local telephone companies are not natural monopolies

either. He concluded that technology has

changed the nature of communications from

“’[J. S. Department of tJustice, Antitrust Division, The Geodesic ,N”etwork 1987 Report on Competition in the Telephone

Industr~, ,January 1987.

that of a hierarchical pyramid to that of a geodesic ring, so that the threat of dominance by

one or a few industries is no longer possible.

Meanwhile, the FCC appears to believe that

information services will not become widely

available until the telephone companies offer

information services. The agency, in its Computer III decision, argues that requiring all

competitors to grant comparable efficient interconnection would be sufficient to ensure

nondiscriminatory treatment.
Part II

Scientific Communications

and the First Amendment

Reconciling the maintenance of constitutional liberties with the requirements

of national security poses an arduous challenge to democracy. Granted that a balance must be struck, where should the line be drawn? That is the puzzle for all

who would presume to lead a free people. It implicates perhaps our most cherished

contribution to social intercourse: Separation of Powers . . . . It is the undisputed

responsibility of Congress and the Courts to maintain and regulate the right balance between measures necessary for the invulnerability of national security and

the preservation of free expression.

–Martin L.C. Feldman, U.S. District Judge for the Eastern Division of Louisiana, Jan. 14, 1987
Chapter 4

National Security

and Scientific Communications

SCIENCE, FREE SPEECH, AND NATIONAL SECURITY

Science and technology were recognized by the Founding Fathers as indispensable to the “common Defense

and general Welfare.”

The U.S. Constitution empowers Congress

to regulate commerce, to fix the standard of

weights and measures, to establish post offices

and post roads, and to secure for authors and

inventors the exclusive right to their respective writings and discoveries in order to “promote the Progress of Science and useful Arts.”1

There is nothing else in the Constitution

directly related to science and technology. It

was assumed that the States would have primary responsibility for the useful arts such as

agriculture, manufacturing, construction, and

medicine. But the few provisions in Article I

are significant, because they clearly indicate

that science and technology were recognized

by the Founding Fathers as indispensable to

the “common Defense and general Welfare”

and an appropriate subject of attention and

support for Congress.

The men who wrote the Constitution were

well educated in the science of their day and

enthusiastic about advances in technology.

James Madison avidly studied and wrote about

natural history and agriculture science. Benjamin Franklin was one of the world’s leading

scientists. Hamilton studied medicine, chemistry, and mathematics.

‘Article 1, Sec. 8 also provides authority for Congress to

‘‘make all I.aws which shall be necessary and proper for carrying into Execution’ these and other powers derived from the

Constitution.

Scientific activity or communications

have not in practice enjoyed the special status given political comment.

They understood well the importance of scientific freedom, as is shown by their writings.

But even with the addition of the first Ten

Amendments to the Constitution, in 1791, scientific freedom was not singled out for special

protection; it was presumed to be included with

other areas-politics, religion, philosophy, economics--in the broad protections given to

speech, publication, assembly or association,

exercise of religion, petition and protest, all

included within the First Amendment.2

None of these First Amendment protections

is absolute under prevailing constitutional doctrine. There are times and conditions when the

interests of the Nation as a whole override the

right of the individual to say and do as he or

she wishes. Both Congress and the Supreme

Court have treated political speech as that

speech most strongly protected by the First

Amendment. Commercial speech-that is, advertising—is least protected; and may be regulated as to time, place, and manner.3

Scientific activity or communications have

not in practice enjoyed the special status given

political comment, although some constitu2

Steven Goldberg, “The Constitutional Status of American

Science, ” University of Illinois Law Forum, vol. 1979, No. 1,

1979. pp. l-6ff.

~Before Vir~”m”a State Board of Pharmacy v. Vir@”m”a Citizens Consumer Council, Inc., in 1976, the Supreme Court did

not treat commercial speech as protected speech; it was fuily

subject to State police power. The extent of, or limits on, protection for commercial speech are somewhat uncertain at this

time.

37
38

Is there a potential constitutional conflict between the rights of free speech

and press guaranteed by the First

Amendment, and government restrictions on the communication of scientific information in the interest of national security?

tional scholars argue that this was the clear

intent of the First Amendment separation of

church and state.4 It is not, indeed, clearly

established that there is “a right to do research, ” nor have the limits of governmental

authority to restrict speech and press (publication) in the area of science and technology been

clearly defined, by either Congress or the

Courts.

Representative George Brown, in 1982, warned

Congress:

Recent administration actions . . . sharpen

the conflict between constitutional protections

and the requirements of national security. . . ,

The issues at stake stem from the conflicting

demands of the most fundamental matters in

national policy: the security of the Nation and

its economic well-being, versus the rights of

citizens to privacy, assembly, free speech,

travel, and freedom from unwarranted Government interventions.5

Is there a potential constitutional conflict

between the rights of free speech and press

guaranteed by the First Amendment, and government restrictions on the communication of

scientific information in the interest of national

security? Is the balance between these two

interests—both of critical importance to American constitutional government—being maintained, or is it endangered?

A fundamental tenet of scientific methodology is that basic scientific research results or

new scientific theories should be published,

‘Goldberg, op. cit., says that the Founding Fathers, as “men

of the Enlightenment, ” saw established churches as having been

the enemy of free scientific investigation.

‘Congressional Record, vol. 128, No. 16, Feb. 25, 1982, p.

H511.

One issue addressed in this report is

the extent to which national security

and foreign trade interests have converged and perhaps in some respects

may even have been confused.

widely disseminated, and thoroughly argued,

and the results replicated. In part this is in order to share knowledge with other scientists

for the ultimate benefit of people in general.

More immediately, it provides a test and means

of validation.

Science gets at the truth by a continuous

process of self-examination which remedies

omissions and corrects errors. The process requires free disclosure of results, general dissemination of findings, interpretations, conclusions, and widespread verification and

criticism of results and conclusions.6

The First Amendment

The Supreme Court has recognized in numerous cases that Congress (or State legislatures)

may make laws that limit freedom of speech

or press. Government must, however, sustain

a substantial burden of proof to justify an interference with speech or press. As a general

rule, expression may not be restricted because

of its content, although some categories of expression are given less protection than others.’

Government restrictions on free speech may

however be valid under a “balancing of interests test when those restrictions are incidental to legitimate government purposes not

directly related to speech or press.8

The protection of freedom of speech and freedom of press is therefore not absolute. Many

GHuold c. Relyea (~.), “shrouding the Endless FrOntier—

Scientific Communication and National Security: The Search

for Balance, Str&”ng a Balance: National security and Scientific Freedom (Washington, DC: American Association for the

Advancement of Science, 1985), p. 76. TPoh.m ~eptiment o~c~”c%o V. hfos(z?~y, 408 U.S. 92 (1972)

“Fighting Words” and obscenity are generally not protected.

~Adderly v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana,

383 U.S. 131 (1966); Kovacks v. Cooper, 336 U.S. 77 (1949);

Breard v. Alexandria, 341 U.S. 622 (1951); O’Brien v. United

States, 391367 (1968).
restrictions are placed on scientific communication in the interests of national security. National security may be defined as the military,

defense, and foreign relations objectives of this

Nation. This definition has implicitly been

broadened over time to include protection of

economic and trade objectives. One issue addressed in this report is the extent to which

national security and foreign trade interests

have converged and perhaps in some respects

may even have been confused.

Where government action involves a “prior

restraint, that is, a prohibition prior to rather

than a punishment after the communication,

the constitutional test is much more severe.

There is a “heavy presumption’ against the

constitutional validity of any prior restraint.9

The seminal Supreme Court decision is Near

v. Minnesota where it was held that with certain limited exceptions prior restraints were

constitutionally impermissible.’”

Threats to national security can make it necessary to limit free speech. The court ruled in

Schenck v. United States, ” that impingement

on freedom of speech in certain circumstances

‘‘appears to be a reasonable exercise of sovereign power . . . in the interest of the common

defense and security. ”

In recent years not only has scientific exchange or publication been limited in the interest of national security, but it arguably has

also been limited in the interest of national

trade balances. Thus the question: As we enter the third century of constitutional government, have these restrictions taken together

burdened the exercise of free speech and press

to a degree that may violate the First Amendment, and by so doing threatened the future

advancement of science and technology?

‘Bantam 1300ks ~’. SulIi\ran, 372 U.S. 58, 70 ( 1973); Vance ~.

[ /nj\er.saj .~musement Co., 445 U.S. 308, 317 ( 1980); Organization for a Better ,4 ustin t’. Keefe, 402 U.S. 415, 419 ( 1971).

1“293 U.S. 697 (1931). Exceptions for example include obstruction of military recruiting, publication of the sailing dates

of military transports or of the number and location of troops;

publication of obscene matter, and incitements to violent or forcible o~erthrow of the go~ernment,

‘ ] 249 us. 47 ( 191 9).

39

The real question is whether taken together, the effects of these restrictions

place a limitation on scientific freedom so as to contravene the intent of

the First Amendment.

What Activities Are Restricted

and How?

Scientific information includes not only publishing in professional journals or the public

media, but also:

presentation of papers or giving of lectures

in professional meetings or other fora,

distribution of unpublished papers or

reports,

participation in workshops or working

sessions,

discussions among colleagues, and

classroom or laboratory instruction.

These activities have been restricted in the interest of national security:

Ž under Executive Orders;

Ž by or under legislation, including:

–the Atomic Energy Act,

–the Invention Secrecy Act, and

–Export Administration and Arms Export Control Acts;

Ž by contractual agreement between researchers and government agencies; or

Ž by self-restraint agreements of researchers and professional societies.

Each of these means is to be considered in

the context of judicial precedents as to their

constitutional standing. However, as already

noted, the real question is whether taken together, the effects of these restrictions place

a limitation on scientific freedom so as to contravene the intent of the First Amendment and

its declaration of the rights of free speech and

press.

The Background of the Issue

At least since World War II, it has been generally accepted that national security requires
40

After the war, the growing centrality

of science-based technology both for

industry and for national defense was

clear.

that secrecy be imposed on some research.

Government has been able without serious

challenge to restrict dissemination or results

of research conducted by Federal employees,

even in peacetime. Beginning in 1940, a series

of Executive Orders established criteria and

classifications for assuring the secrecy of government documents. The first War Powers

Act, immediately after Pearl Harbor, also gave

the President the power to censor all communications with foreign countries.12 Later this

power to censor direct communications across

national borders was expanded to encompass

publication of information that would prejudice our military/defensive interests or aid an

enemy.

There has been only slightly more questioning of restrictions on the dissemination of research paid for by the Federal Government but

done in universities and other nongovernment

institutions. Scientists have also voluntarily

withheld scientific information in the interest

of national security. Even before the United

States entered the Second World War, a special coremittee of the National Research Council, working cooperatively with editors of

professional journals, reviewed papers for possible defense-related information that should

not be published. This self-restraint, it should

be emphasized, applied to information with a

clear tie to offensive or defensive weapons.

The Federal Government exercised tight

security over scientific research during the war,

most notably over the Manhattan Project and

other activities related to development of

atomic weapons. After the war, the growing

centrality of science-based technology both for

‘2U.S. Congress, Office of Technology Assessment, The Regulatory Environment for Sa”ence-A Twhm”cal Memorandum,

OTA-TM-SET-34 (Washington, DC: U.S. Government Printing Office, February 1986).

industry and for national defense was clear.

As political tension grew between the Western allies and the Soviet bloc countries, there

were early signs that traditional assumptions

about science and the First Amendment would

be challenged. In 1948, scientist and statesman Vannevar Bush noted that:

. . . the critical point [where fundamental science gives rise to applications] may well be

reached far earlier in the process than we are

accustomed to think, and. . . we must be alert

to it and ready at once to erect the defenses

of protection and security which it demands. 13

Even during the 1940s other leading scientists complained about excessive secrecy. They

argued that restricting access to scientific

knowledge might do more harm than good for

America’s continued leadership in science and

technology. Determined collection of information by hostile nations can seldom be effectively blocked, they said, but internal flows of

ideas and research results may be unintentionally obstructed.

By the mid-1970s, there was strong concern

over international competitiveness in both

world markets and domestic markets. The

United States was no longer the unquestioned

leader in all areas of advanced science and technology, as it had been in the 1950s and 1960s.

Increasingly, scientific leadership translates

directly into military advantage. Thus trade

and technology policy clearly overlaps national

security policy. Congressman Don Bonker,

chairman of both the House Foreign Affairs

Subcommittee on International Economic Policy and Trade and the House Export Task

Force in 1986, says flatly:

Our defense strategy rests on qualitative

technical superiority over the Warsaw Pact

countries, and we must insure that the Western alliance maintains this technological

edge. 14

13u s cOnwess, HOuge Gmunit,tee on Governmen t . .

tions, “Availability of Information From Federal Departments

and Agencies, Part 8,” Hearings, 85th Cong., 1st sess., Washington, DC, pp. 2159-2160.

1

4 Don Bonker, “Protecting Economic Interests, ” Issues in

Science and Technology, fall 1986, p. 97,
41

The boundary between traditional categories of “basic” and “applied” research has blurred, making it harder

to restrict only the latter.

The tension between scientific free speech

and national security protections has become

increasingly troublesome in this decade. One

reason is that there has been a significant expansion in the meaning of national security.

The term no longer applies merely to direct military threat. It also means the long-term risks

of change in the military, economic, and political balance of power between nations. To this

balance, relative scientific and technological

capabilities are deemed critical.

Many or even most areas of advanced industrial technology have potential military applications. Most nations potentially hostile to the

United States and its allies make no real distinctions between government, military, and

scientific institutions. Any data exchanged between U.S. scientists and scientists of those

nations has also been communicated to and

between government institutions of those

countries.

The scope of national security restrictions

has been significantly broadened in the past

decade. These restrictions apply to a growing

proportion of scientific activity. The high cost

of research at the leading edge of science and

technology has led to more of it coming from

government funding. A growing proportion of

that funding comes from the Department of

Defense (DoD).15 The boundary between

traditional categories of “basic” and “applied’”

research has blurred, making it harder to restrict only the latter. There is interdependency

between government research and that done

in universities and independent laboratories

even without government funding.

DoD statements about national security restrictions on scientific communications are

sometimes misunderstood by the unwary because of the tendency of many DoD officials

to make a sharp, but sometimes unspoken, distinction between “scientific information” and

‘‘technical data, ” to associate the former only

with “fundamental research, ” which by DoD

definition is unrestricted, and to associate the

latter with applied research and development,

or with technology. Thus “scientific information’ is by a truism, unrestricted. With regard

to most areas of advanced scientific research,

and particularly those that have to do with

computers and communications technologies,

it is increasingly difficult to understand, to defend, or to make such a distinction between

scientific information and technical data.

l~The Feder~ Government supported about 48 Percent of ~1

R&D in the United States in 1986 (industry support accounts

for another 48 percent). The average annual rate of growth in

constant dollars is 5.9 percent for all R&D spending, 5.8 percent for industry, and 7.3 percent for the Federal Government.

DoD’s R&D obligations increased by 13 percent annually from

1982 to 1986, and by 20.9 percent for 1986 to 1987. Government provided 63 percent of funding for academic research in

1986. Defense R&D in 1986 probably accounted for 73 percent

of all Federal R&D support. National Science Foundation, Science and Technology Data Book, NSA 86-311 (Washington, DC:

National Science Foundation, 1986).

THE EXECUTIVE BRANCH AND CLASSIFICATION OF

DOCUMENTS

The classification of information, in categories ranging from “confidential” up through

increasingly stringent classes of ‘secret” and

“top secret, ‘’16 is done under a series of Presi-

‘GWithin the Secret and Top Secret categories there are many

“compartments’ or “special access programs” or subcategories

to further restrict access to information to those with a need

to know, defined with appropriately varying degrees of rigor.

These special access programs may be set up by designated

dential Executive Orders. It is intended to apply to information that would create or increase

agency heads (primarily DoD, the intelligence agencies, and the

Department of Energy [DOE]) to provide greater protection for

certain kinds of information or to conceal the means and channels through which information is acquired, or for similar reasons. See Sec. 4.2 of Executive Order 12356, Apr. 2, 1982. Access to restricted information defined by the Atomic Energy

Act, as described later, is governed by DOE Q Clearance and

is also compartmentalized.
42

a military risk to the United States or prejudice its foreign policy objectives. The President, as Commander-in-Chief, is considered to

have full authority to classify information generated by the government.

In 1970, a Defense Science Board task force

concluded that too many documents were classified.17 It recommended revision of the security classification process to declassify as much

as 90 percent of classified information. As a

general rule, the task force said, basic research

should never be classified. Even “confidential”

or special access limitations were inappropriate for basic research and likely to seriously

impede technical programs. Security is most

essential for information at the applied end of

the spectrum, that is, close to design and production. Throughout the 1960s and most of the

1970s, the trend was toward classifying less

material.18

Executive Order 12356 and

the Corson Panel

Executive Order 12356,19 issued in April

1982, reversed a 30-year trend toward narrowing the scope of classification and the discretion

of bureaucrats in assigning secrecy classifications. 20 It eliminated an explicit provision,

which appeared in earlier classification orders,

forbidding classification of information in

which the government has not acquired a property interest. It lowered a standard, adopted

in 1978, that required an identifiable harm to

national security from disclosure. It added two

new categories, for cryptology and for information bearing on systems vulnerability .21 The

order instructed classifiers, when in doubt, to

err on the side of classification,22 whereas the —- —

ITU.S. Department of Defense, Report of the Defense Board

Task Force on Secrecy (Washington, DC: July 1970).

IHHarold C. Relyea, National Secw”ty Controls and Scientific

Information, Congressional Research Service Issue Brief

B82083, updated June 17, 1986, p. 6.

19A7 Fed. Reg. 14sTA.14w4 (Apr. G, 1982).

‘

i

’ Harold C. Relyea, National Security Controls and Scientific

Information, Congressional Research Service Issue Brief

B82083, updated June 17, 1986, p. 6.

~lThese categorie9 were lisbd explicitly in Executive Order

12356; some national security experts had argued for some time

that such information was implicitly subject to classification.

~~~. . 1 1 (c) say9: If there is reasonable doubt about the need

to classify information it shall be safeguarded as if it were clasMany researchers argue that the possibility of classification has a strong

“chilling effect” on scientific communications in general.

policy of several preceding Administration

had been to lean toward not classifying or

toward a lower classification. For these reasons, and because the order had been developed in a particularly closed and secretive manner, it was widely criticized in Congress. 23

The number of decisions made in one year

to classify documents probably hit an all-time

peak in 1982 of over 1 million. By comparison,

there were approximately 900,000 new classifications in 1985.24 In the Department of Defense, 2,300 officials now have the authority

to make classification decisions.25 The total

volume of classified documents is huge and

growing rapidly.

Most of these are not from university-generated information. A DoD study in 1984 sursified pending a determination by an original classification authority, who shall make this determination within thirty (30)

days. If there is reasonable doubt about the appropriate level

of classification, it shall be safeguarded at the higher level of

classification pending a determination by an original classification authority, who shall make this determin ation within thirty

(30) days.

WJ.S. Congress, House of Representatives, Committee on

Government Operations, Executive (h-cler on Security Classification, Hearings, 97th Cong., 2d sess., Mar. 10 and May 5, 1982.

Also House Report 97-731. Representative Glenn English, Chairman of a House Subcommittee on Government Information and

Individual Rights, said, “The basic message to bureaucrats

would be: When in doubt, classify. ” Morton Halperin, director

of the Center for National Security Studies, said that the order

would eliminate key provisions intended to prevent national

security concerns from encroaching on scientific research.

“According to Steven Garfinkel, the chief of the U.S. Information Security Oversight Office, in a talk at the annual meeting of the American Association for the Advancement of Science, Feb. 18, 1987, as reported in The Institute, a publication

of the Institute of Electrical and Electronic Engineers, Inc.,

vol. 11, No. 4, April 1987, p. 1.

25The count was made by the Security Review Commission,

a group created by the Secretary of Defense in 1985 and headed

by General Richard G. Stilwell; according to information provided to OTA by the Office of the Secretary of Defense, May

7, 1987, citingS.F.311. For further discussion see “Espionage

and Security Leaks: Diagnosis and Therapy, by Harold P.

Green, of the National Law Center and the Graduate Institute

for Policy Education and Research, The George Washington

University, 1986.
—

veyed over 123,000 DoD research reports. Only

19 percent came from university researchers;

3.5 percent of these fell under distribution limitations, and only 1.3 percent were classified.26

Many universities will not do classified research, which explains the low volume. Some,

however, do permit classified research if approved by the school’s administration. An

unknown number of papers are probably “sanitized” before publication, and many researchers argue that the possibility of classification

has a strong “chilling effect” on scientific communications in general.

A special panel of the National Academy’s

Committee on Science, Engineering, and Public Policy was formed in 1982, before Executive Order 12356, at the request of DoD and

intelligence agencies. The panel, chaired by

Dale R. Corson, president emeritus of Cornell

University, conceded that there had been much

“involuntary technology transfer” from the

United States to potentially hostile countries.

But the panel also said that relatively little

of the deleterious leakage came from universities or from open scientific literature.

The panel recommended that there be no

restrictions limiting access to any area of

university-performed basic or applied research,

unless:

●

●

●

●

the area is developing rapidly, and the

time from basic science to application is

short;

the information has identifiable, direct

military applications or is dual-use, involving process and production techniques;

the information would give the U.S.S.R.

a significant near-term military benefit;

and

the United States, or other friendly nations with secure control systems, is the

only source of the information.

2GMitchel B. Walierstein and Lawrence E. McCray, “Scientific Communication and National Security: Issues in 1984, ”

NAS News Report (Washington, DC: National Academy of Sciences, April 1984). The study did not say what proportion of

university research is restricted.

43

The power of government to protect

State and military secrets has always

been regarded as inherent and fundamental.

Information that meets all of these criteria

should be classified. But since most universities will not do classified research, the Panel

recommended as an alternative, written agreements between the university and the government that (a) prohibit participation by nationals

of some foreign countries in such research, and

(b) require pm-publication review of articles by

the Federal agency.

DoD concluded that the Corson panel criteria

were ‘too difficult to translate into operational

considerations’ and decided simply to “retain

its black/white policy towards university

research-i. e., if not classified, then no restriction. ’27

The present Administration continues to emphasize classification of government documents. It has, in addition, made increasingly

explicit and forceful use of other means of restricting scientific communication.

The Authority for Presidential

Classification of Documents

The power of government to protect State

and military secrets has always been regarded

as inherent and fundamental. Although military and State secrets have been protected in

the United States at least from the time of

Washington’s Presidency, there is little clear

statutory authority, aside from the atomic

energy area, for classification of information.” The closest approach to a statutory

basis is probably Section 161 of Revised Stat2TThe quotations are from a review of an OTA draft of this

report by officials in the Office of the Secretary of Defense, May

1987.

yuconstitution~ 1mph”cations of Federal Restrictions on Scientific Research and Commum”cation, March 1987, by Harold

P. Green, The George Washington University National Law

Center, Washington, DC.
44

utes,29 dating back to the early days of the

Republic. As originally written, it authorizes

the head of each government department:

to prescribe regulations . . . for the distribution and performance of its business, and

the custody, uses, and preservation of the

records, papers, and property appertaining to

it.

The basic authority for classification of information has been the President via a series

of Executive Orders—not grounded on explicit

statutory authority but on the authority

vested in the President by the Constitution and

laws of the United States. The first of these

Executive Orders was No. 10290, promulgated

by President Truman in 1951, which limited

‘‘classified information’ to “official information,”30 assumed to be information in which

the government has some kind of proprietary

interest. In President Eisenhower’s Executive

Order 10501,3’ use of the word “official”

again connoted that classification was limited

to information that in some way belonged to

the government. President Carter’s revision,

in Executive Order 12065,32 made this explicit by specifying that a product of nongovernment research and development accomplished without access to classified information

was not subject to classification ‘until and unless the government acquires a proprietary interest. . . "

President Reagan’s Executive Order 12356,33

however, includes no such limitation, but

brings within its ambit any information that

“is owned by, produced by, produced for, or

is under the control of the United States Government” (emphasis added). This provides

some “color of authority” for classification of

information that is privately developed without any involvement or funding by the government. 34

———

subsequently incorporated into 5 U.S.C. 22; and since 1966

found at Sec. 301 of Title 5.

J016 Fed. Reg. 9795, et seq. (Sept. 27! 1951)”

:31 18 Fed, Reg. 7049, et seq. (Nov. 101 1953)”

‘Z47 Fed. Reg. 14874, et seq. (Apr. 6, 1982).

3s47 Fed. Reg. 14874, Sec. 6.1(b)

~~These ExWutive Orders all provide that authority under

the Atomic Energy Act pertaining to Security regulation of private information (discussed below) is not affected by Executive Orders.

The Atomic Energy Act of 1946 added

a new concept to traditional classification procedures—the idea that some

information was “born classified.”

Troubling First Amendment issues are presented if government attempts to restrict the

freedom of scientists to do independent, private research or to communicate information

that is privately generated. Except in the area

of atomic energy, however, the government has

not generally attempted to extend classification to scientific endeavors conducted without

government involvement, although recent actions to be described below have introduced

some uncertainty about this policy.

The Congress and Legislated Secrecy

The Atomic Energy Act

The Atomic Energy Act of 1946, modified

in 1954,35 added a new concept to traditional

classification procedures —the idea that some

information was “born classified. ” The 1946

Act included provisions, frankly headed “Control of Information,”36 which established a

category of information called “Restricted

Data, ” defined to mean” . . . all data concerning (1) design, manufacture, or utilization of

atomic weapons; (2) the production of special

nuclear material; or (3) the use of special nuclear material in the production of energy . . . ;"

except when such data has been expressly

declassified. Misuse of Restricted Data was

subject to heavy criminal penalties that

paralleled the more universal provisions of the

Espionage Act.37

——.

‘bThe fi54 Act, 68 Stat. 919; 42 U.S.C. 2011-2296, relaxed

the provisions of the 1946 Act in some regards to allow private

sector development of atomic energy.

~G42 USC. 2004 (y). The Atomic Energy commission (AEC)

was given explicit authority to promulgate regulations and issue orders for the protection of Restricted Data. The Act required, or at least was interpreted as requiring, that no person

could be given access to Restricted Data without a prescribed

investigation into his/her character, associations, and loyalty

on the basis of which Security clearance was to be granted.

‘T42 U.S.C. 2275-2277. Unlike the situation with respect to

ordinary classified information, there is an explicit nexus between Restricted Data and those special espionage-type provisions.
—

45

A provision of the Act authorized the issuance of court injunctions to restrain any threatened violation of any provisions of the Act or

its implementing rules or regulations. Since the

injunction provision was applicable to the information control provisions, it can be read as

encompassing prior restraints on the communication of Restricted Data.

These provisions are unique in a number of

respects. No other Federal statute has ever

purported to control information in this way.

The definition of Restricted Data is extremely

broad and could embrace a great deal of information contained in conventional textbooks

on physics and chemistry. Normally, classification of information requires an affirmative

determination that it needs security protection,

but Restricted Data is “born classified”38 if it

falls within the statutory definition. While ordinary classified information (at least until

issuance of President Reagan’s Executive Order) has always been limited to “official” information, the definition of Restricted Data

includes ‘‘all’ data, thereby raising the question of whether it includes data generated

wholly in the private sector without any government support or involvement.39

The answer to this question is not entirely

clear. Legal arguments can be constructed for

both positions. Under the Atomic Energy Act

of 1954, Congress accepted at least implicitly

the proposition that Restricted Data included

some data generated wholly outside the government, since one provision of the Act explicitly treats information developed in other

countries as Restricted Data.40

Moreover, the authors of the 1946 Act seem

to have intended that the information controls

‘“Richard Hewlett, “ ‘Born Classified’ in the AEC: A Historian’s View, and Harold Green, “A Legal Perspective, Bu.U+

tin of Atomic Scientists, December 1981, pp. 20-27 and 28-30,

3gOne provision, 42 U,S. C. 2201(i), authorizes regulations “to

protect Restricted Data received by any person in connection

with any activity authorized pursuant to this Act. ” This is probably not sufficiently broad to reach privately generated information. Another provision, 42 U.S.C. 2201(p) authorizes regulations “necessary to carry out the purposes of this Act. ” It

is this latter authority that the AEC relied on for the proposed

Part 26, to be discussed.

’

0

42 U.S.C. 2162(e).

extend to privately developed information;

Senate staff members who played a major role

in drafting the 1946 Act41 later wrote:

It does not matter whether these (Restricted) data are discovered or compiled in a

government laboratory or in connection with

the private research of an individual scientist.

On July 21, 1947, the Attorney General wrote

the Chairman of the Atomic Energy Commission (AEC) stating that there was “considerable indication” that Congress meant the information control provision of the Act to apply

to nongovernment information, but recommending a‘ ‘simple amendment “of the Act to

remove any doubt. 42

Nevertheless, there is no statutory provision

that explicitly authorizes restrictions on privately developed information. Some experts

hold that merely inferring such authority from

statutory provisions would not pass constitutional muster.43

The AEC and its successors, the Energy

Research and Development Administration

(ERDA) and later the Department of Energy

(DOE), have proceeded on the assumption that

privately developed information is subject to

the full array of controls.44 The information

control provisions have been invoked for regulatory purposes— such as retarding activities

in the United States that could lead to proliferation of nuclear weapons in other countries .45

. —.

4*J. Newman and B. Miller, The CorItrof of Atomic Energ~’.

(New York: Whittlesey House, 1948), p. 15 ff. Newman and Miller

were on the staff of the Senate Special Committee on Atomic

Energy when the Act was drafted. Newman and Miller wrote, 4,

. . . if the Act does not restrict the liberty of scientific thought,

it without question, abridges freedom of scientific communication. The controls on information were deliberately designed

to regulate the interchange of scientific ideas . . .” (p, 208).

42 Accor&ng t. professor Harold P. Green, of the ~;eorge

Washington University National Law Center; documentation

is available in Department of Energy Archives.

43 Greene v. McElroy, 360 U.S. 474, at 506-608 (19591.

4JDraft memorandum, “Authority To Control Dissemination

of Privately-Developed Restricted Data, ” Feb. 28, 1966, from

Franklin N, Parks, AEC Assistant General Counsel, to Joseph

F. Hennessey, AEC GeneraI Counsel, available in DOE Archives.

4hRichard Hewlett, “ ‘Born Classified’ in the AEC: A Historian’s View, ” Bulletin of Atomic Scientists, December 1981,

p. 22.
46

The AEC on several occasions declared

wholly private scientific information to

be Restricted Data.

In congressional hearings in 1955,46 the AEC

General Counsel asserted that a scientist working in his own laboratory, with no government

connection, could be compelled to submit to

AEC security requirements, including classification and personal clearance, if he was creating data that would be regarded as Restricted

Data if created in an AEC facility.

The AEC on several occasions declared

wholly private scientific information to be Restricted Data.47 In these cases the applicability of atomic energy information control provisions has affected primarily profit-seeking

business organizations rather than universities. Although in each case the affected company sustained real economic injury, there has

been only one judicial challenge. The corporations apparently concluded that private business interests would not prevail in court over

government’s national security claim.

In the only case in which a court has considered the constitutional issue,48 the Court of

Claims rejected a contention that the classification of an industry process was a “taking

of property” entitling the corporation to just

compensation under the Fifth Amendment.

d6Hewings on s. J. Res. 21 to Estabh”sh a COm~”SSiOn on

Government Security, Subcommittee on Reorganization, Senate Committee on Government Operations, 84th Cong., 1st sess.

(1955), pp. 240-241, 267-271.

47 Richard Hewlett, “ ‘Born Classified’ in the AEC: A Historian’s View,” and Harold Green, “A Legal Perspective,” Bulk

tin of Atom”c Scientists, December 1981, pp. 22,27 and 29. One

example involved a corporation attempting to use gas centrifuge

technology for separating uranium isotopes. The most explicit

assertion by the AEC of the right to control private information came in 1967, when the AEC proposed a new regulation,

Part 26, dealing with “Private Restricted Data, ” whereby in

effect private research and development in the fields of nuclear

explosives and gas centrifuge technology for producing nuclear

fuel, was totally prohibited. Eventually, this AEC proposal was

withdrawn. Proposed 10 CFR Part 26, App. A, 32 Fed. Reg. 6707.

A~Ra&”oPtics, Inc. v. Um”t~ States, 621 F. 2d 1113!223 Ct.

Cl. 594 (1980).

Where government action involves a

“prior restraint” on communication,

the constitutional test is most severe.

The Court said that classification did not absolutely prohibit the plaintiff use of the concept but only regulated its use, and was thus

not a taking. Further, when the purpose of a

regulation is to prevent injury to the public,

compensation is generally not constitutionally

required.

The Federal Government bases the restriction of privately generated information on the

Schenck v. United States49 finding that impingement on freedom of speech “would appear to be a reasonable exercise of sovereign

power . . . in the interest of the common defense and security.”50 The provisions of the

Atomic Energy Act taken together seem to authorize a Federal court to issue an injunction

restraining a defendant’s communication or

publication of even privately developed information, which would be prior restraint.51 Is

this authority constitutional?

As already noted, where government action

involves a “prior restraint” on communication,

the constitutional test is most severe. The government sought an injunction to restrain publication of the Pentagon Papers by The New

York Times and The Washington Post. In The

New York Times Co. v. United States,” the

Supreme Court held in a 6-3 decision that this

burden was not met.

In 1950, the AEC ordered Scientific American not to publish, without specified deletions,

4

’249 U.S. 47 (1919). 50 Accor&ng t. Richwd Hewlett, “ ‘Born Classified’ in the

AEC: A Historian’s View, ” Bulletin of Atomic Scientists, December 1981, pp. 23-25. Hewlett notes that this reasoning wasplied to AEC’S proposed “Part 26” (see footnote above) in 1966.

The Atomic Energy Committee of the Bar of the City of New

York sent the AEC a detailed brief challenging the constitutionality of the proposed rule.

blsuch ~ injunction was in fact issued in the ~ro~essive

case, to be discussed. 467 F. Supp. 990 (W.D. Wise. 1979).

52403 Us. 713 (1971).
47

an article on thermonuclear weapons. The article, which had already gone to press, was by

Dr. Hans Bethe, an eminent theoretical physicist long involved in the nuclear weapons program. The publisher protested that all of the

technical information in the article “was well

known to physicists . . . and had been widely

published. ” The AEC insisted that Bethe’s

authorship confirmed the authenticity y of previously published information. Scientific

American capitulated under the AEC’s threat

to seek an injunction, and AEC security

officers supervised the destruction of the type

and plates and the burning of 3,000 copies of

that issue.53

Until 1979, 33 years after the enactment of

these information control provisions, there was

no litigation challenging the constitutional

validity of prior restraint on publication of Restricted Data. United States v. The Progressive (1979)54 made a weak case for the challenge. The Progressive proposed to publish an

article55 in which a journalist purported to describe how hydrogen bombs are made and

work. The intent was to alert the public to the

“false illusion of secrecy” created by the government and the necessity for decisive action

to halt the proliferation of nuclear weapons .

The information was derived entirely from the

public domain. The government held that:

When drawn together, synthesized and collated, such information acquires the character of presenting immediate, direct, and irreparable harm to the interests of the United

States.

The court found “no plausible reason why

the public needs to know the technical details

about hydrogen bomb construction to carr y

on an informed debate’ on the issue of proliferation. With respect to prior restraint, the court

returned to Near v. Minnesota, in which the

Supreme Court had spelled out certain situations in which restraints on expression might

be constitutionally permissible; and said that

publication of technical information on the

“~Scientific American, May 1950, p. 26. M467 F. &Ipp. 990 (w.D. Wise. 1979)-

35 The article, not published, was Howard Morland, “The HBomb Secret: How We Got It, Why We’re Telling It. ”

hydrogen bomb was “analogous to publication

of troop movements or locations in time of

war, ” thereby falling within the “extremely

narrow exception to the rule against prior restraint. ’56

The decision was never subjected to review

by higher courts, since it was mooted by publication of essentially the same information in

another journal. According to Congressman

George Brown:57

. . . [because] the Supreme Court had ruled in

the Pentagon Papers case that prior restraint

was not tenable, it is not clear what would have

happened to the The Progressive case if it had

been reviewed by the Supreme Court.

Professor Harold Green of the National Law

Center says:

[T]he case stands as vivid testimony to the

potential impact on scientific freedom of the

information control provisions of the Atomic

Energy Act.

The Invention Secrecy Act

The Invention Secrecy Act passed in 195158

allows the Federal Government (through the

Commissioner of Patents) to block the granting of a patent or the disclosure of technological information by an inventor, when this disclosure “would be detrimental to national

security, ” even where the government has no

property interest or right in the invention.59

In the 1970s the National Security Agency

(NSA), for example, frequently asked for

‘‘secrecy orders” for cryptographic inventions,

but this decreased sharply in the late 1970s

5’Um”t~ States v. The Progressive, Inc., 467 F. Supp. 990

(W.D. Wise. 1979), 996.

s?conpession~ Record, vol. 128, No. 16, Feb. 25, 1982,

H511.

“Invention Secrecy Act of 1952 (35 U.S.C. 181-188).

‘gThere are two categories of inventions subject to this act.

In the first, government has a property interest, and the invention is therefore already subject to classification; in the second,

government does not have a property interest. Patent officials

estimate that roughly 4,800 inventions are the subject of invention secrecy orders at any one time; that about 1,000 of them

are foreign inventions covered under reciprocal agreements with

various friendly nations; and that of the remainder, approximately 20 percent fall into the second (nongovernmental property interest) category.
48

when the procedures for requesting secrecy

orders were changed and made more rigorous.

Secrecy orders are effective for only one year,

but may be renewed. However, although this

limitation was written into the Invention

Secrecy Act when it was passed in 1951, for

the next 27 years it was inapplicable. The law

contained an “exception” clause to the effect

that the yearly renewal requirement was not

operative for the duration of a war or national

emergency, and for some months thereafter;

and the National Emergency proclaimed during the Korean War was not officially terminated until 1978. The annual renewal cycle has

been in effect since that time, but has been protested by national security officials, at least

as it applies to inventions already subject to

periodic reexamination for classification downgrading (i.e., those in which government has

a property interest).

Many secrecy orders are issued in connection with already classified patent applications.

Sometimes, however, the patent application has

been filed by persons who developed the invention without any government involvement.

In February 1987 the Army requested and

the Patents Commissioner granted a secrecy

order on an application for an American patent in the field of ‘zero-knowledge proofs, ” by

an Israeli mathematician, working in an Israeli

institute. 60 While such proofs are used in

cryptology, they are generally regarded as advances in theoretical or “pure” science. The

applicant was ordered to ‘recover and destroy’

all related materials. The secrecy order was

quickly withdrawn, since the government cannot classify work done by foreigners in their

own country, but not before there were many

protests from mathematicians. This episode

was taken to indicate that American achievements of the same kind might be restricted.

The constitutionality of the Invention Secrecy Act has never been tested. Since the

grant of a patent secures a property right conferred by the government, a patent applicant

‘“’’ Brief U.S. Suppression of Proof Stirs Anger, ” New York

Times, Feb. 17, 1987, p. C3.

The constitutionality of the Invention

Secrecy Act has never been tested.

is subject to the conditions established by the

government. Some experts have held that constitutional objections are further obviated by

the statutory requirement that the patent applicant receive just compensation for any loss

that might be suffered by reason of the secrecy

order.

However, a House of Representatives Report in 198061 noted that:

No secrecy order ever underwent judicial review for appropriateness. There has been no

First Amendment judicial test of the Invention Secrecy Act, and the statutory right of

an inventor to just compensation for secrecy

order damages appears more illusionary than

real.

The report noted that from 1945 to 1980

there had been 29 claims for compensation, one

claim for every 1,000 secrecy orders; 6 were

settled before or during litigation by DoD and

1 by a private relief bill, 10 were terminated

by denial, and the rest were still pending. As

the report also noted, “Agencies have little or

no incentive to settle a claim, and claimants,

frustrated, often drop the matter. The House

Committee on Government Operations, which

prepared the report, found “little judicial guidance on First Amendment questions. ” It quoted

an official of the Department of Justice on the

question but was told that the Department

“has thought it wise to follow a rule of selfrestraint in expressing public views on constitutional questions presented by the statutes

we are called upon to enforce."62

“The Government Classification of Private Ideas, ThirtyFourth Report by the (House of Representatives) Committee

on Government Operations, House Report No. 96-1540, 96th

Cong., 2d sess., Dec. 22, 1980, p. 2.

“Ibid., p. 27.
49

-.

This authority must be considered as

part of the total burden on the exercise of free speech.

Restricted Data or under export controls.)

Nevertheless, imposition of a secrecy order

does operate as a restriction on traditional freedom of scientific communication. This authority must therefore be considered as part of the

total burden on the exercise of free speech.

Imposition of a secrecy order can be avoided

simply by not seeking a patent. (The information may nevertheless be subject to control as

EXPORT CONTROLS

Export controls are also a form of legislated

restraint on scientific communication. They are

considered separately because national security is only one objective of these controls.

The Arms Control Act

This Act provides authority for restricting

or prohibiting export of technical data related

to defense articles.63 It applies to blueprints,

drawings, photographs, plans, instructions,

software, and documentation. This Act is one

of the U.S. Statutes used to restrict unclassified information.

Under the Arms Control Act, International

Traffic in Arms Regulations (ITAR) are developed and a U.S. Munitions List is maintained

by the Department of State, with the help of

DoD. The regulations” operate in much the

same way as regulations under the Export

Administration Act, discussed below. ITAR,

does not specifically exclude ‘fundamental research, ” but it does exempt general mathematical and engineering information that is

only indirectly useful to military purposes. It

is not clear whether any information exempted

from Export regulations is restricted under

ITAR.

The Export Administration Act

In 1976 a Defense Science Board panel

headed by Fred Bucy reexamined the need for

——

‘“{22 U.s, c. 2751.

‘“A revised version of ITAR became effective Jan. 6, 1985.

secrecy in scientific research, with special attention to the problem of “involuntary technology transfer” to hostile or competitive

nations. The Bucy panel argued that the knowledge most vital to protect is not embedded in

military weaponry per se, but knowledge that

conveys design and manufacturing know-how.

The export of technological information contained in scientific publications in some areas

is harmful to the United States. These areas

were “arrays of design and manufacturing

know how, ” “ keystone” manufacturing processes, inspection and test equipment, and products requiring sophisticated operation, application, and maintenance.

This recommendation was a significant expansion of the term “militarily useful. ” The

transfer of design concepts and manufacturing processes can relate directly to the manufacture of weapons.” But a further, and ultimately more important point, may be the

recognition that modern concepts of national

security depend at least as much on the

strength of the Nation’s industrial base as on

the stock of military weapons. There is a close

tie between scientific information and industry strength and competitiveness.

—

““’A high government official noted to OTA, “The information used in- manufacturing high-tech products used in weapons systems diffused into the civilian private sector and could

no longer be controlled by DoD, at least to the extent that it

once was. This recognition, above everything else, forced us to

redefine what was militarily useful. (Private communication,

June 19, 1987. )
50

There is a close tie between scientific

information and industry strength

and competitiveness.

The Bucy panel recommendations set in motion more vigorous efforts to control dissemination of technical knowledge related to militarily useful advanced technology, and led to

the strengthening of export control laws in the

following years.66

The Export Administration Act had already

been passed in 1969, and was amended in 1979,

1981, and 1985. It controls the export of “goods

and technology which would make a significant contribution to the military potential of

countries which would prove detrimental to the

national security. . . "67 Technology is defined

to include “information and know how,

whether intangible form. . . or intangible form,

that can be used to design, produce, manufacture, utilize, or reconstruct goods, including

computer software and technical data . . "68

The Export Administration Act not only applies to information passing across our borders,

but also limits access of foreign nationals to

information in this country.

Regulations for administering and enforcing

the Export Administration Act are promulgated by the Department of Commerce (DOC),

and the products or areas covered are identified in a Commodity Control List, which is

maintained by DOC with the help of DoD and

DOE. The list specifies the countries to which

each of about 100,000 items (in 1984) cannot

be exported without a validated license. All

export of unpublished technical data to Communist bloc countries requires a license. The

United States is also a founding member of

the multinational Coordinating Committee on

66s~Ph~~ B. GO~d, “secrecy: Its Role in National Scientific

and Technical Information Policy, ” Library Trends, summer

1986, p. 72. Gould was until rnid-1987 Director of the Project

on Scientific Communication and National Security, of the Committee on Scientific Freedom and Responsibility of the American Association for the Advancement of Science.

’750 U.S.C. 2402(2)(A) App.

G850 U.S.C. 2415 APP.

Multilateral Export Controls (CoCom), which

under multilateral agreements and procedures

provides for cooperative control of exports to

the Soviet bloc with restrictions on munitions,

nuclear energy, and some other dual-use technologies. Many but not all of the items on the

U.S. Commodity Control List are also on the

International (CoCom) List.

The early use of export controls emphasized

products more than information as such. Thus,

when the Commerce Department halted shipment of magnetic computer tapes to Eastern

bloc countries in 1982, “the action was taken

to ban the medium, not the message.”69 Although these were standard IBM computer

tapes, DOC said that Eastern European countries could not manufacture such high-quality

tape and should not learn how from U.S.

products.70

For U.S. exporters, restrictions on trade with

the Eastern bloc nations may be less important than the effects of unilateral restrictions

on trade with other Western nations. The

Administration insists on such restrictions to

curb the indirect flow of technology to the Soviet Union, because once information is outside the country it is outside of our control.71

This imposes costs on U.S. exporters and

causes friction with our trading partners. Some

‘gRoland W. Schmitt, “Export Controls: Balancing Technological Innovation and National Security, ” Issues in Science

and !l’echnology, vol. VI, fall 1984, p. 117. Schmitt is head of

the General Electric Research and Development Center.

ToIbide Sm ~so cheml”c~ & Engineering News, ‘‘U.S. B~s

Tape Exports to East Bloc,” Sept. 20, 1982, p. 6. As a result,

Chenu”cal Abstracts, which had supplied its bibliographic tapes

to Warsaw Technical University since 1974, did not get its export license renewed. The Institute for Scientific Information,

a commercial firm providing bibliographic services, could no

longer send its standard tapes to customers in Poland, the

U. S. S. R., and Hungary, but could send the same information

on low-quality tapes.

71 Export Administration Regulations require priOr authorization from the Office of Export Licensing in certain situations

before foreign products that incorporate parts, components, or

materials of U.S. origin, can be exported from one foreign country to another. Until recently, all foreign companies needed permission from DOC before reexporting a product that contains

any U.S. components, even a microchip. New regulations effective in 1987 somewhat simplified the procedure for requesting

such authorization and exempted foreign-manufacturer products destined for some countries when the U.S. content is no

more than 20 percent by value. (15 CFR Parts 376 and 385;

Federal Register 51, No. 129, July 7, 1986, 24533.)
51

foreign companies have notified their U.S. sup- tecting the ability of scientists and other

pliers that they are “designing out” U.S. parts scholars freely to communicate their research

to avoid this additional effort; others consider findings in accordance with applicable provithis additional cost in deciding on suppliers.72 sions of the law, by means of publication,

Many U.S. industry leaders have protested ex- teaching, conferences, and other forms of

scholarly exchange. 76

port controls.73

Export controls apply not only to commercial products but to technical data, research

reports, and some other kinds of information

as well. A Defense Science Board Task Force

on University Responsiveness to National

Security Requirements, in early 1982, found

that the shift in emphasis in export controls

from products to technological information

was seriously disturbing the relationship between the government and universities.74 The

Task Force recommended that “clearer guidelines,” not overly restrictive, be formulated for

DoD-funded university research with the help

of universities. This recommendation however

led to new confusion and dispute over the basis for applying either classification or export

controls. In theory, they involve quite different objectives, standards, and procedures, but

in practice they are often seen as alternatives.

When the 1979 Export Administration Act

was about to expire in 1983, efforts to rewrite

the bill revealed sharply divergent concerns.

Some in Congress sought to strengthen export

controls, while others argued that excessive

controls reduced the competitiveness of U.S.

companies and contributed to our trade deficit.75 There were hearings in both the Senate

and House. The House accepted a provision

proposed by the Committee on Foreign Affairs,

which read:

It is the policy of the U.S. to sustain vigorous scientific enterprise. To do so requires pro-

‘zDon Bonker, “Protecting Economic Interests, ” Issues in

Science and Technology, fall 1986, p. 100.

‘

qAccording to officials in the Department of Commerce Export Administration Program Review Staff, “The possibility

of reverse engineering [indirect leakage of useful information

as a result of West-West trade] has been discounted by many

exporters who claim that their manufacturing techniques cannot be derived by examining the finished products. ” (Direct communication to OTA project staff, June 19, 1987. )

‘JU.S. Department of Defense, Report of the Defense Science

Board Task Force on University Responsiveness to National

Security Requirements (Washington, DC, 1982).

‘

; Don Bonker, “Protecting Economic Interests, ” Issues in

Science and Technology, fall 1986, p. 100.

Although the House wished to avoid “overly

broad interpretation” of the Export Administration Act, the Senate Committee on Banking

added a provision making academic institutions subject to requirements of the commercial agreements provision. This meant that

university agreements with certain foreign

countries must be reported to the Department

of Commerce. Some believe that this gives government a “ready opportunity to regulate,

through the application of export controls, the

content of lectures, conference presentations,

teaching, and publications by U.S. academics

in certain foreign countries. “77 Others insist

that there is no necessary connection between

“recording commercial transactions after the

fact, ” and “controlling scientific information

before the fact. ”

The House and Senate failed to agree on reauthorization of the Act in conference. The

President then issued Executive Order 12470

(Nov. 14, 1983), declaring a national emergency

and activating the same powers under the International Emergency Powers Act.

The Export Administration Act was finally

reauthorized in April 1985. The new law attempted to streamline its procedures but did

not reduce the number of items covered. GAO

has said that “The government continues to

require export licenses for more dual-use items

than is necessary to protect national security." 78 Dual-use items are devices, systems,

or “know-how” that have both military and

nonmilitary applications.

Revisions to the implementing regulations

under the Act in 1986 exempted ‘‘fundamen7’50 U.S.C. 2402 (12) App.

‘THarold C. Relyea, National Security Controls and Scientific

Information, Congressional Research Service Issue Brief

B82083, updated June 17, 1986, pp. 12-13.

“U.S. Congress, General Accounting Office, Export Control

Regulation Could Be Reduced Without Affecting NationaJ Securituv, May 26, 1982.
52

.

In January 1987 the National Academy of Sciences and the National

Academy of Engineering issued a report sharply critical of the implementation of export controls.

tal research” from export controls, using the

definition of fundamental research introduced

in NSDD 189, September 1985, which is discussed below.79 University research is normally considered “fundamental’ unless scientists have accepted prior restrictions on

publications through contract agreements.80

The DoD Appropriations Act for fiscal year

1984 gave the Secretary of Defense authority

to withhold from public disclosure, under the

Freedom of Information Act (FOIA), any technical data with military or space application

already under control of DoD, if that data

would fall under Export Acts. DOE policy is

to use this authority only if the data has “military centrality, and requires the recipient to

promise not to reveal the information to the

public. This avoids releasing the data from effective government controls.8l

In January 1987 the National Academy of

Sciences and the National Academy of Engineering issued a report sharply critical of the

implementation of export controls. It said that

the Administration had “tended to focus on

tightening controls while giving little atten-

—-

7915 CFR 379, May 16, 1986. The regulations say that infor-

- —

mation resulting from fundamental research qualifies for unrestricted export to any destination under a General License

GTDA, that is, a “general license for technical data available

to all destinations. ”

“

)Unclassified contract research funded by DoD under budget category 6.1 is considered fundamental research, and most

unclassified research at universities funded under budget category 6.2 is also considered fundamental research. Contract research done in off-campus university facilities and not supported

under budget category 6.1 is however generally not automatically considered fundamental research, but may still be free

of restrictions. Research done by business or industry is considered fundamental research only if the researchers are free

to make it available without pay or restrictions (i.e., it is not

proprietary) and it is not classified.

“communication to OTA from officials in the Office of the

Secretary of Defense, May 1987.

The Export Administration Act has

a legitimate government purpose other

than restricting speech.

tion to their effectiveness and cost”; by trying to impose its own export restrictions on

countries that import U.S. technology, the

Administration had injured both U.S. competitiveness and relations with our allies. The Department of Defense has been given too large

a role in export policy, the panel implied, being more concerned with national security than

with the competitive strength of American industry.”

Many question the effectiveness of export

controls. One expert has been quoted as saying that ‘the avenues for transfer open to Russia are so broad that they are almost impossible to control,” adding that the primary avenue

is probably through Western plant workers

and junior executives recruited over the past

30 years in the United States and Western

Europe. 83

The Constitutionality of

Export Controls

It is assumed that any impingement on First

Amendment rights under the Arms Export

Control and Export Administration Acts is incidental, because these regulations have a

legitimate government purpose other than to

restrict speech and press.84 The Court might

‘zNational Academy of Science, Panel on the Impact of National Security Controls on International Technology Transfer, Balancing the National Im.%xwst: U.S. National Secun”ty Export Controls and Global Econoxm”c Competition, Washington,

DC, 1987. The report was prepared by a panel chaired by Lew

Allen, Director of the Jet Propulsion Laboratory. The panel recommended that the United States rely on, and seek to improve,

the Multilateral Export Controls Coordinating Committee (CoCorn) consisting of the NATO countries plus Japan and France.

~Frederick Kempe, “Losing Battle: Keeping Technology Out

of Soviet Hands Seems To Be Impossible, ” Wall Street Jourmd, July 24, 1984, p. 1.

~Adder~y v. ~]ofl”da, 385 U.S. 39 ( 1966); Bro~ v. Lom”si~a~

383 U.S. 131 (1966); Kovacks v. Cooper, 336 U.S. 77 (1949);

Breard v. Alexandria, 341 U.S. 622 (1951); O’Brien v. United

States, 391 U.S. 367 (1968).
tend to give them the benefit of the doubt, as

in the only case85 so far that directly challenged the applicability of the Arms Export

Control Act to unclassified data. This case involved business rather than scientific interests.

Edler provided technical assistance to French

companies on tape-wrapping techniques that

had both commercial and military applications,

despite rejection of Edler’s application for an

export license. The U.S. Court of Appeals said

that Edler had some First Amendment rights

with respect to the transaction, but concluded

that the Arms Export Control Act was a‘ ‘general regulatory statute, not intended to control

the content of speech but incidentally limiting

its unfettered exercise,"86 and might, therefore, be constitutionally permissible.

Observing that a broad interpretation of

“technical data” would “seriously impede scientific research and publishing and the international scientific exchange, the court adopted

a narrow construction that limited technical

53

data to that which “relates in a significant fashion to some item on the Munitions List, ” as

opposed to being “merely vaguely useful fo r

the manufacture of arms. Moreover, it is nec -

essary that the relationship to that item be

clear and that the defendant know or have reason to know that the data was intended for

a prohibited use .

8 7

The court explicit sensitivity y to the necessity for protecting open dissemination of scientific knowledge offers hope that the statute

cannot be applied in a manner that interferes

with traditional modes of scientific communication. The Office of Legal Counsel of the Department of Justice addressed this issue in separate communications to the Secretaries o f

Defense and Commerce in July 1981, asserting that export control regulations may no t

impinge on scientific communication unless the

‘‘ speech" is directly related to

action.88 Nevertheless, some

that this distinction has not

in the ensuing 6 years.

—

“Ibid.. ~D. 520 and 521

a business transcritics maintain

been adhered to

‘HHarol~ ~. Rel~Tea (cd.), “Shrouding the F;ndlms 12rontier -

Scientific Communication and National Securit~:: The Search

for Balance, Striking a Balance: Nationai Secur]t? and S’ciem

tific Freedom (Washington, DC: American Association for the

Ad\rancen~ent of Science, 1985), p. 90-92.
Chapter 5

The 1980s: Converging Restrictions

on Scientific Communications

CONTRACTUAL RESTRICTIONS ON COMMUNICATIONS

Most universities are reluctant to undertake classified research, but many

are willing to accept contractual restrictions that have the same effects.

Dissemination of scientific information or

technical data’ can be and often is restricted

by the terms of written agreements between

government funding agencies and nongovernment researchers. Most universities are reluctant to undertake classified research, but many

are willing to accept contractual restrictions

that have the same effects. In some cases, indeed, refusal to accept such contracts is considered by faculty to be an infringement on

their academic freedom. Some civil Libertarians, on the other hand, object to such contracts. While a contract, freely entered into,

is assumed to benefit both parties to it, this

does not provide for consideration of the public interest (and investment) in scientific knowledge, which may not entirely coincide with or

be limited to national security interests.

The government often requires that contractors and grantees agree to submit publications

resulting from nonclassified government-sponsored research for prepublication review. This

raises the question of prior restraint. There are,

however, no reported court decisions involving prepublication review clauses in contracts

and grants to universities.

‘As already noted, national security officials tend to make

a sharp distinction between 4 ‘scientific’” communications and

technical, technological exchanges that is not always either clear

or acceptable to researchers in an area.

National Security Decision Directive 84

(NSDD 84),2 issued on March 11,1983, requires

all present and future government employees

to sign a lifetime nondisclosure agreement as

a condition for access to classified information,

or to “Sensitive Compartmented Information”

(SCI). Federal classifying agencies have the

right of pre-review of public statements, lectures, and speeches. Contacts between media

representatives and agency personnel are controlled. This directive was aimed primarily at

Federal employees, but secrecy agreements can

also be required of government contract researchers under the directive.3

According to a recent study supported by

the Fund for Investigative Journalism, by the

end of 1985 more than 290,000 individuals had

signed lifetime prepublication review agreements (Non-disclosure Agreements Standard

Forms 189 and 189A) under NSDD 84, and

more than 14,000 speeches and articles had

been submitted for review.’ There have been

strong protests against the requirement for

lifetime agreements. However, the Federal

Government takes the position that the contractual obligation of an employee overrides

First Amendment protections.

In Snepp v. United States5 the Supreme

Court found no constitutional impediment to

enforcing such an agreement. This case, however, involved CIA employees, and the intelli2The nature of National Security Decision Directives is discussed below.

3Secrecy agreements or contracts used within the intelligence

community were found to be a proper enforcement device in

1980 by the Supreme Court (Snepp v. U. S., 444 U.S. 54)

4Donna DeMoc, “Sworn to Silence, ” The Progressive, May

1987, p. 29. The study presumably covered SF 189s: SF 189A

was approved for inclusion in the Industrial Security Manual

in late April 1987.

’444 Us. 507 (1980).

55
56

gence community is generally conceded to have

particularly strong interests in internal security. Two Circuit Court decisions, one before

and one after Snepp,6 indicate that such an

agreement might not be enforceable if classified information is not involved. These cases

did not involve research results or scientific

information.

NSDD 84 also sought to expand the use of

“lie detectors” by Federal agencies. Executive

branch employees can be required to submit

to polygraph examinations for access to certain classified information, or in the course of

investigations of unauthorized disclosure of

‘The first was United States v. Afarchetti, 366 F.2d 1309 (4th

Cir., 1972). cert. den., 409 U.S. 1063 (1972). The second was

McGehee v. Casey, 718 F.2d 1137 (D.C. Cir., 1983).

classified materials. The threatened expansion

of polygraph use brought strong protests. In

the fall of 1983, Congress temporarily prohibited implementation of the polygraph provision, and President Reagan agreed not to pursue this policy immediately.7 In effect, the

provisions of NSDD 84 dealing with polygraphs

have been rescinded, except as they pertain

to DoD, where polygraph tests are widely used

not only in investigations but for routine screening of recruits, promotions, etc.

‘Harold C. Relyea, National Security Controls and Scientifi(

Information, Congressional Research Service Issue Briel

B82083, updated June 17, 1986, p. 69. See also National Acad

emy of Sciences, Committee on Science, Engineering, and Pub.

lic Policy, Panel on Scientific Communication and National Sew

rity, Scientific Communication and National Security, 1982.

RESTRICTIONS ON INFORMAL COMMUNICATIONS

Classification, legislative mandates,

contract agreements, and export controls have all been used in the last decade to restrict informal communications among scientists.

Classification, legislative mandates, contract

agreements, and export controls have all been

used in the last decade to restrict informal communications among scientists. By informal

communications is meant modes of communication other than formal publishing: speaking,

classroom teaching, participation in professional meetings and seminars, and similar

activities. Restrictions on campus teaching are

particularly irksome to many scientists. Since

the 1970s, there has been a steady influx of

foreign students to U.S. universities. Any restrictions on who may be taught what in a

university are of profound importance, infringing on academic freedom, on institutional

responsibility, and on the prestige and economic viability of the institution.

In 1980, the Department of State informed

Cornell University that a visiting Hungarian

engineer would have to be limited to classroom

pursuits and could not participate in certain

professional seminars or receive prepublication

copies of research papers. Rather than abide

by these restrictions, the university canceled

his visit. Later that year, the Department of

State, acting under export restrictions, asked

universities to prohibit visiting Chinese students from engaging in certain studies.8 There

were reports of a few instances in which universities, in ill-considered, hasty responses, listed

short courses or seminars “for U.S. citizens

only;” such decisions were apparently few, and

were soon terminated.9

On February 27, 1981, the presidents of five

leading universities (Stanford, the California

Institute of Technology, the Massachusetts Institute of Technology, Cornell, and the Univer-

‘HRelyea, op. cit., p. 4.

There were references in the press at that time to university

courses or seminars so advertised, but recent discussions with

a number of education association officials identified only one

specific incident of a course listed ‘‘for U.S. citizens’ at a university, and that decision was said to have been quickly overruled.
57

Scientific exchange is a primary purpose and role of professional societies.

sity of California) sent a letter of protest to

the Secretaries of Commerce, State, and Defense. The university presidents said that the

government had resorted to measures that

could ‘‘irreparably harm university-based research."10

Scientific exchange is a primary purpose and

role of professional societies. These organizations depend on their members to judge whether

communication of research results or other information violates national security restrictions, and they can be faced with dilemmas

when their members either intentionally or inadvertently transgress. In February 1980 there

were strong efforts by the Carter Administration to regulate the communication of scientific information by professional societies.

When the American Vacuum Society organized an international meeting on magnetic

bubble memory devices, the Department of

Commerce notified the society that the expected presence of nationals of certain foreign

countries subjected the proceedings to compliance with export licensing. The Association

promptly rescinded invitations to scientists

from Hungary, Poland, and the U.S.S.R. Chinese scientists, already en route, were allowed

to attend after signing an agreement not to

"re-export" to nationals from 19 countries

what they learned. 11

In August 1982, 4 days before a meeting of

the Society of Photo-Optical Instrumentation

Engineers (S PIE ), DoD learned that four Soviet scientists were to attend. DoD confiscated

of dozen papers from DoD employees who were

to present them at the meeting, and notified

] “(; ina Ilara Kolata, “ Attempts To Safeguard Technology

)raw K’ire, .Scienc(j, ~ol. 212, No, 4494, hla~’ 1981, p. 523. The

etter also said: ‘“’[’here is no eas~r separation in any engineering curriculum. Furthermore, producing graduates with no

hands on’ experience in these areas would he of little \ralue to

\merictin high technology industries.

Ibid., p, 3.

Under current DoD directives, unclassified papers containing export-controlled information cannot be presented at professional and academic

meetings unless dissemination and access controls are “equivalent to those

used for distributing the data directly

by DoD.”

the organizers that other papers were sensitive. DoD representatives were present as the

meeting began and questioned participants as

to whether their papers resulted from work

sponsored by DoD and whether they had received clearance. One hundred papers were

withdrawn. A SPIE official later said that government officials had overreacted to the presence of Soviet citizens, and that SPIE members themselves had probably panicked at the

sudden crackdown. Many of the papers that

had been hurriedly withdrawn were later cleared

and published or presented, although others

were found to deal with classified research. 12

Under current DoD directives, unclassified

papers containing export-controlled information cannot be presented at professional and

academic meetings unless dissemination and

access controls are “equivalent to those used

for distributing the data directly by DoD"13

--

so-called unclassified/limited access presentations.14 This rule was applied on an ad hoc basis during another meeting of the Society for

Photo-Optical Instrumentation Engineers in

April 1985. Two weeks before the meeting, organizers were notified by DoD that a special

session, organized by one of its members at

a military base, with 43 papers scheduled,

—

1’This account is based on discussion with S1)l l’: dire(tor

Joseph Yaver in May 1987; for a contemporar~. account, see

Joel Greenberg, “Science’s New Cold War, ” Science ,VeWrs, ~o].

123, Apr. 2, 1983, p. 218. Also see Relyea, op. cit., 1986.

‘‘Statement supplied for (3TA by DoD officials, office of the

Secretarv of Defense.

11[) s fiepartment of Defense, C) ffice of the Under Secretary .

of Defense for Research and Engineering, ‘‘Policy and Guidelines for the I’resentation of DoD Sponsored Scientific and Technical l)apers, draft proposal. oct. 24, 19H5.
would have to be canceled because the papers

could not be given in open sessions. The meeting organizers and an official from the DoD

Office of Research and Advanced Technology

worked out a compromise designed to salvage

as many presentations as possible. After hectic review and revisions, 28 of the papers were

presented in “closed” sessions, at which attendees were screened and required to sign the

agreement used to control distribution of export-controlled DoD technical data.15

SPIE officials emphasize that the compromise

was worked out in a friendly spirit and in good

faith by both sides, but the society insists that

the compromise was a “one-time necessity”

and not a precedent. SPIE now dissociates itself from classified, controlled-access meetings

or sessions that may be arranged by its members, but acknowledges that such meetings are

held in parallel or immediately following societ y meetings and are regarded by many members as desirable and necessary.

Other professional societies admit uncomfortably to similar situations. They officially

oppose and disclaim closed or limited access

sessions that do not serve all members (especially when only non-U.S. citizens are excluded,

since most identify themselves as international

societies); yet recognize that such meetings are

organized by members in parallel with society

meetings— ‘‘a bit of a fiddle, one society official says. In 1984 the American Association

for the Advancement of Science compiled a list

of 12 events in which professional societies

limited their traditional information dissemination function or activities to comply with

security policies. For example, one session at

a professional association meeting required

participants to bring to the session proof of

citizenship. 16 However, on September 17, 1985,

a Joint Communication was sent to the Secretary of Defense from the elected presidents of

12 scientific and engineering societies, protesting DoD actions. It stressed the value to the

‘This account was developed from discussions with both SPIE

and DoD officials in May 1987 and differs in some details from

accounts in the general and specialist media at the time (1985)

and soon thereafter.

‘

8 Relyea, op. cit., 1986.

Nation of open exchange of scientific information, pointing out that such exchange is necessary to validate findings, to cross-fertilize

scientific knowledge and activity, and to avoid

duplication of effort. The society president

argued that secrecy hurts the national position in science, technology, and industrial competitiveness more than it strengthens national

security. They notified the Secretary of Defense that they will not “be responsible for,

nor will sponsor, closed or restricted-access sessions” in the future.17

DoD again, in April 1986, issued clarification of its procedures in screening papers on

unclassified DoD-sponsored research for presentation at meetings. DoD says it will review

papers under specific time frames (10 to 30

days) to help avoid last minute pressure for

withdrawals. However, the statement also

made clear that information deemed classified

could be presented only on DoD premises, and

unclassified information would still be subject

to export control laws. Furthermore, the sponsors of scientific meetings are responsible for

limiting access to authorized individuals

(which societies say they cannot do).18 Some

DoD officials, and some “neutral observers,"

say that these actions have effectively alleviated professional concerns; a number of

professional society officials consulted by OTA

report that this issue remains one of active and

strong concern to their societies and to most

of their members. A nongovernmental science

policy specialist asserts that DoD, in practice

has been far less strict and less restrictive than

their official policy guidelines and directives

indicate they will be or should be. On the other

hand, a scientist and society administrator argues forcefully that DoD policies have an

“extraordinarily chilling effect” on scientific

communication because scientists, fearful of

prejudicing the essential source of funding for

future research, lean over backwards and probably restrict themselves more than is absolutely required.

“American Association of Engineering Societies, Policy and

En@”neering Priorities, 1986, Washington, DC, 1986.

“Ibid.
59

——

The constitutional issue has not often

been explicitly raised, possibly because Congress has appeared to add

its authority to that of the executive

agencies.

The export control statutes appear to provide a legal basis for restricting economic activities and scientific communication-formal and

informal—within the United States as well as

across its borders, since publication in U.S.

journals is tantamount to worldwide publication. As already discussed, however, their constitutionality has not really been tested. The

constitutional issue has not often been explicitly raised, possibly because Congress has

appeared to add its authority to that of the

executive agencies. Scientists instead have

tended to try to minimize the opportunist y for

government intervention through a strategy

of “self -restraint.”

SELF-RESTRAINT

The strategy of self-censorship could

be a significant limitation on dissemination of scientific thought and on the

exercise of constitutional freedoms.

The strategy of self-censorship poses an interesting ethical question. The objectives in

self-censorship may be the exercise of reason,

self-control, and patriotism, and the desire to

avoid provoking authoritarian restrictions; but

the end result could nevertheless be significant

limitation on dissemination of scientific thought

and on the exercise of constitutional freedoms.

In 1982, at the annual meeting of the American Association for the Advancement of Science (AAAS), CIA Deputy Director Admiral

Bobby Inman said in a public address:

A potential balance between national security and science may lie in an arrangement to

include in the peer review process (prior to the

start of research and prior to publication) the

question of potential harm to the nation. ’g

Earlier, as Director of the National Security

Agency (NSA), Inman had tried to take control over government-funded cryptography research from the National Science Foundation

‘gltelyea, op. cit., June 1986, p. 2.

(NSF) .20 Having failed, he urged the American

Council on Education to form a public cryptography study committee, which then recommended a voluntary system for prepublication

review by NSA of manuscripts on cryptography. In 1981, NSF adopted a policy of requiring such prepublication review on “potentially classifiable results” coming from its

research grants.

In his AAAS speech, Inman included not

only cryptography but other areas in his argument for self-monitoring or self-censorship:

computer hardware and software, electronic

gear and techniques, lasers, crop projections,

and manufacturing processes. He warned bluntly

that if this was not done voluntarily, “public

outrage’ would produce laws further restricting publication of scientific work that government considered sensitive. Inman repeated this

warning 3 months later at a congressional hearing held by two subcommittees of the House

Science and Technology committee,21 and said

—.—

‘°Competing scientific, industry, and national security interests in the development of encryption and related techniques

and technologies for safeguarding data in computer and telecommunications systems has made this scientific technology particularly troubled by the tensions between national securit y restrictions and other societal priorities, as described in this

chapter.

*’U.S. Congress, House of Representatives, Committee on Science and Technology, Subcommittees on Science, Research, and

Technology, and Investigation and Oversight, Impact of National Secun’ty Considerations on Science and Technology Hearings, 97th Cong., 2d sess., Mar. 29, 1982.
60

that unless Soviet access to American science,

technology, and industrial information was

voluntarily controlled, there would be a move

by the government to further regulation.

Inman directly recognized that:

. Science and national security have a symbiotic relationship. . . . In the long history of

that relationship, the suggestion is hollow that

science might (or should somehow) be kept

apart from national security concerns, or that

national security concerns should not have an

impact on “scientific freedom."22

Protests were immediately raised about Admiral Inman’s new call for self-restraint. The

Executive Director of AAAS said:

He has asked that research scientists submit voluntarily to open-ended censorship by

the CIA or face the likelihood of being forced

to do so by Congress. Even in wartime, such

a demand would be an extreme one, and in the

absence of national security emergency it is

incongruous. It raises troubling questions involving both scientific freedom and the force

of constitutional provisions against arbitrary

government. 23

221nman, a statement in Aviation Weeh % Space Technology,

“ClassifyingS cience: A Government Proposal. . . And a Scientist’s Objection, ” Feb. 8, 1982, p. 10. “Ibid., statement by William Carey, Executive Officer, AAAS.

NATIONAL SECURITY DIRECTIVES AND THE

ROLE OF THE NATIONAL SECURITY AGENCY

National Security Directives

NSDD 84, in 1983 (discussed above), marked

the first general public knowledge of National

Security Decision Directives (NSDD) as a form

of Presidential directive distinct from Executive Orders and Proclamations.24 Executive

Orders and Proclamations are always published. About 200 NSDDs have been issued

by President Reagan since 1981, but only 5

have been publicly disclosed, the rest being

classified. Between 1947 and 1981, other presidents had issued “National Security Action

Memorandums” and “Presidential Directives”

which like NSDDs were kept secret, from both

the public and from Congress. They are all

thought to be associated with the National

Security Council, created within the Office of

the President in 1947.

NSDD 189

In late 1982, after the recommendations of

the Corson panel, President Reagan had ordered his Office of Science and Technology Policy (OSTP) to coordinate an interagency review ——

“Harold C. Relyea, Congressional Research Service specialist in American National Government, testifying before the

House Con-u-m“ttee on Government Operations on H.R. 145, Mar.

17, 1987. CRS press release.

“It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted.”

of the issue of government secrecy (National

Security Study Directive 14-82). The review

was itself classified, so that there was no input from universities or other nongovernment

sources. OSTP’s report was due on March 1,

1983, but did not appear. There were rumors

and stories in science policy newsletters that

the Administration was about to announce new

formal controls over “sensitive fundamental

research, ” i.e., a fourth category of classification below that of “confidential.” But such a

strategy would involve both monetary and political costs. Classified information requires

special procedures, controlled facilities, etc.

Contractual agreements between researchers

and funders are less expensive, legally defensible, and less likely to evoke protests.25

“DoD was in fact considering a fourth security classification

at this time, according to sources in the Pentagon, to protect

‘‘military operational data and high tech data—not fundamental research. ” (Communication to OTA May 1987.)
61

Instead of the long-delayed report from

OSTP, in May 1984, DoD’s Deputy Under Secretary for Research and Advanced Technology,

Dr. Edith Martin, unexpectedly released a

draft Decision Directive that was to become

NSDD 189. Signed on September 21, 1985,

NSDD 189 said:

It is the policy of this Administration that,

to the maximum extent possible, the products

of fundamental research remain unrestricted.

... Where the national security requires control, the mechanism for control of information

generated from federally-funded fundamental

research , . . at colleges, universities, and laboratories is classification. . . . No restrictions

may be placed on conduct or reporting of [such]

research that has not received national security classification, except as provided in applicable U.S. Statutes.

It was not clear what was encompassed in

the term “fundamental research, ” a term not

until then in common use. Since the “applicable U.S. Statutes” include the Export Administration and Arms Export Control Acts,

critics said that this directive did not materially change the existing situation, except that

either more Federal agencies would have power

to classify, or DoD’s scope of authority would

broaden. More scientists would become subject

to NSDD 84 and be required to sign lifetime

nondisclosure contracts. National security officials on the other hand deny this because “fundamental research” is excluded from export

controls and there is no evidence that DoD is

overusing classification procedures.

NSDD 189 was interpreted by some as an

effort to “cool the campus secrecy issue” by

dropping the idea of further controls in “gray

areas’ (between classified and unclassified research).26 But in a memo accompanying NSDD,

the White House stressed that it “preserves

the ability of the agencies to control unclassified information using legislated authority provided expressly for that purpose in applicable

U.S. statutes. ”

“Science and Government Report, “White House Decides To

Cool Campus Secrecy Issue, “ vol. XIV, No. 11, June 15, 1984;

Colin Norman, “Universities Prevail on Secrecy, ” Science, vol.

226, No. 26, October, 1984, p. 418.

A memorandum written by Under Secretary

of Defense Richard DeLauer on October 1,

1984, to reassure the universities, again specified that no restriction would be put on publication of fundamental research sponsored by

DoD. It defined fundamental research to include virtually all of that done on university

campuses, with rare exceptions “where there

is a likelihood of disclosing performance characteristics of military systems, or of manufacturing technologies unique and critical to defense.” In these cases, restrictions must be put

into the research contract.

The Role of the National

Security Agency

The Brooks Act of 1965 gave the National

Bureau of Standards authority for developing

technical standards for computer systems. Private firms were developing an interest in this

market, and commercial security devices meeting NBS standards were developed for computers. During the mid-1970s, a governmentcertified cryptographic algorithm and a‘ ‘public-key” algorithm were announced (in the open

literature), and inexpensive security devices

were developed commercially.

Presidential Directive/National Security

Council 24 (PD/NSC-24), issued by President

Carter in 1977, said that nongovernmental

telecommunications information “that would

be useful to an adversary” would be identified,

and the private sector informed of the problem and encouraged to take appropriate actions.27 This was a clear sign that the Federal

Government, DoD in particular, would take a

stronger hand in telecommunications security.

The Secretary of Defense was to be responsible for protecting government communications, both classified and now “unclassified but

sensitive” communications. The Secretary of

Commerce would be responsible (through

NTIA) for government-derived unclassified

data not related to national security, and would

“National Telecommunications Protection Policy (unclassified), Feb. 9, 1979, unclassified excerpts from Presidential Directive/NSC-24, Nov. 16, 1977, classified.
62

-.

NSDD 145 worried civil libertarians

because of the broad scope of nonclassified information to be protected and

because of the central role given to

NSA, an agency outside of the usual

modes of accountability.

deal with the private sector to “enhance their

communications protection and privacy. ” The

Defense and Commerce Departments attempted

to develop a joint proposal for a national policy on cryptography but were unable to reach

agreement, They submitted separate proposals which, however, were never acted on by the

President’s Science Advisor.28

NSDD 145 and HR 145

National Security Decision Directive 145

(NSDD 145), September 17, 1984, superseded

PD/NSC-24, and made NSA the central agency

(“Executive Agent”) for development and

choice of cryptography-based technology for

the security of unclassified, but sensitive information in telecommunications and computer systems of all government agencies.*

This seems to apply whether the information

concerns national security or not, and regardless of whether the technology is to be used

for security or for authenticating transactions.

In short, NSDD 145:

• broadened NSA protection to encompass

unclassified information in telecommunications and automated information systems;

• assigned to NSA the full responsibility for

developing and advising of safeguard tech-

..—.— l~For ~ more det~led treatment of the Government’s role in

computer and communications security, see U.S. Congress, Office of Technology Assessment, Defending Secrets, Sharing

Data: New Locks and Keys for Electronic Information, OTACIT-31O (Washington, DC: U.S. Government Printing Office,

October 1987).

*The Nation~ Security Agency was established by Executive Order in 1952, during the “Cold War, ” to carry out “signals intelligence’ against hostile countries (i.e., to intercept and

decode information they were sending through electronic communications) and to safeguard U.S. classified information

against similar actions by those countries.

nology and for making decisions about

technical standards, ignoring the role of

NBS under the Brooks Act; and

● established an interagency group to implement and enforce NSDD 145 policy.

This announcement worried civil libertarians

because of the broad scope of nonclassified information to be protected and because of the

central role given to NSA, an agency outside

of the usual modes of accountability. From the

time it was issued, there have been conflicting interpretations and official pronouncements about the details of what it means. At

first, “sensitive information” was defined as

“unclassified but sensitive national-securityrelated information. ” In June 1985, Donald

Latham, Assistant Secretary of Defense and

Chairman of the National Telecommunications

and Information Systems Security Committee (NTISSC) established under NSDD 145,

said that “sensitive” information might include anything from crop forecasts to personnel records.29 Three months later, in testifying

before the Committee on Government Operations, September 18, 1985, Mr. Latham said

specifically that “non-national-security-related

information was not included in the purview

of NTISSC. But in October 1986, an NSA

memorandum, NTISSP No. 2,30 extended this

purview to:

Other government interests . . . related but

not limited to the wide range of government

or government-derived economic, human, financial, industrial, agricultural, technological,

and law enforcement information, as well as

the privacy or confidentiality of personal or

commercial proprietary information provided

to the U.S. government by its citizens (Section II, Definitions).

The NSA policy announcement also said:

The NSDD-145 Systems Security Steering

Group has established that sensitive, but un-

“U. S. House of Representatives, Committee on Science and

Technology, Subcommittee on Transportation, Aviation, and

Materials, Hearings on Computer Security Policies, June 27,

1985, statement of Donald Latham.

‘“National Policy on Protection of Sensitive but Unclassified

Information in Federal Government Telecommunications and

Automated Information Systems, NTISSP No. 2, Oct. 29, 1986,
63

classified information that could adversely

affect national security or other Federal Government interests shall have system protection

and safeguards; however the determination of

what is sensitive but unclassified information

is a responsibility of Agency heads.

It now appears that the definition of "sensitive" could be applied to almost any information, or at least a very broad range of information, even if it is already published or available.

NSDD 145 applies not only to Federal agencies but also to their contractors who electronically transfer, store, process, or communicate

sensitive but unclassified information. It gives

NSA the dominant role in developing the technology to be used, or deciding which technology will be used, by private sector organizations affected by the directives. NSA and DoD,

however, emphasize that “protection’ in this

context literally means guarding against unauthorized access and malicious misuse by

‘hackers. ”

This new role for NSA would have gone beyond development of technology to involvement in decisions about the content of infornation, in order to prescribe what kind of

security is appropriate. In late 1985 there had

been signs of renewed government concern

about the “leakage’ of information from campuses and through commercial databases. The

Pentagon released a CIA report, Soviet Acquisition of Militarily Significant Western Technology: An Update, based on Soviet documents.

It listed 62 American universities “targeted

for scientific and technical espionage” aimed

at information about applied technology and

engineering but also including “fundamental

research for both Soviet military- and civilianrelated science developments. ” This scientific

and technological data is often in commercial

electronic databases providing services to business and the public:

The individual abstracts or references in

government and commercial data bases are unclassified, but some of the information, taken

in the aggregate, may reveal sensitive information concerning U.S. strategic capabilities

and vulnerabilities. . . .31

1‘Science and Got’ernmen t Report, Oct. 1, 1985. The report

eleased by Secretary of Defense Weinberger was an “update”

There is a strong concern that DoD

may require private sector database

operators, at a minimum, to provide

the government with lists of their subscribers, to place limits on foreign subscribers, and to increase the use of

password protection and encryption.

The report went onto say that “One solution

appears to be to thoroughly screen all candidate

database entries and keep sensitive government information out of the public databases

. . . “ but added, “Unfortunately, this may also

inhibit the United States’ own national research effort by resisting the ready availability of such information. ”

It was clear that NSDD 145 had already

given NSA the decisive role in prescribing security measures for government’s automated

databases, as well as telecommunication systems, but its authority over commercial databases is still in dispute. Diane Fontaine, director of information systems in the office of the

Assistant Secretary of Defense, reportedly said

at a meeting of the Information Industry Association, November 11, 1986: “The question is

not should there be limits [on information in

commercial databases] but instead what those

limits should be.”32 Ms. Fontaine has since

stated that she was misquoted and was referring only to government databases, but many

auditors understood the reference as being to

commercial databases. There is a strong concern that DoD may require private sector database operators, at a minimum, to provide the

government with lists of their subscribers, to

place limits on foreign subscribers, and to inof a declassified Central Intelligence Committee report originally released in 1982 by the Senate permanent subcommittee

on Investigations. Dan Morgan, “Stolen U.S. Technology Boosts

Soviet Strength, Report Says, ” Washington Post, Nov. 15, 1982.

“Quoted by Johanna Ambrosio, “Attempts To Restrict Private Data Bases Vex Industry, Government Computer News,

Dec. 15, 1986. Another reporter’s version was “The question

is not whether we are going to protect information; the question is where the controls will be applied. ” Irwin Goodwin, “Making Waves: Poindexter Sails Into Scientific Data Bases, Ph&Ysics

Today, January 1987, p. 52.
64

crease the use of password protection and encryption.

In 1986 there were 3,200 electronic databases available worldwide through 486 online

information services; 70 percent of these databases are produced in the United States, and

all but two of the 20 largest database companies are American corporations.33 Throughout

much of 1986, a U.S. Air Force team visited

commercial database owners to inquire about

the extent of foreign access to these databases. 34

Nonclassified government databases, even

those specifically set up to provide better public access to information that is in the public

domain, are in some cases already restricting

access. An internal NASA memo of September 29, 1986, labeled “The So-called ‘No-No’

list,”35 provides names of 33 organizations or

individuals who are not to be “provided with

subscriptions to NASA Tech Briefs, technical

support packages, or other Technology Utilization documentation. ” The memo adds that

“all embassies and consulates in the U.S. and

representatives of foreign companies or organizations are to be included in this list. ” NASA

‘

g

Information supplied by Information Industry Association,

See Potential Government Restrictions on Um”ted States Unclassified Commercial Databases, Mar. 9, 1987, available from

the association.

9iIbid., s= ~So: Michael SChrage, “U.S. f%king TO Limit Access of Soviets to Computer Data, ” Washington Post, May 27,

1986; and “Are Data Bases a Threat to National Security, ” Business Week, Dec. 1, 1986, p. 39. But DoD officials describe this

as “data gathering with no purpose related to immediate actions. ” (In communications to OTA, May 1987.)

9SSi@~ by Walter M. Hefl~d, Manager, Technology Utilization Office, and addressed to “All TU Officers, IAC Directors and Other Members of the TU Family, ” and reprinted by

Translational Data and Cornmum”cations Report, February

1987, p. 21.

Technology Utilization is a service to disseminate technical information to the public. Its

information is not classified.

As major opposition to the thrust of NSDD

145 developed within Congress, a new National

Security Advisor, Frank Carlucci, who had succeeded Mr. Poindexter, decided to review

NSDD 145. His “key objective [was] finding

a mechanism to eliminate any possible ambiguity regarding the role of the National Security Advisor in connection with the System

Security Steering Group, ” and Carlucci instructed his staff “to initiate the procedure

and prepare the papers necessary to rescind

NTISSP 2.36

H.R. 145

NSA had expanded its role into areas legislatively assigned to the National Bureau o

Standards (NBS). H.R. 145, the Computer Security Act of 1987, was accordingly introduced

It would assign to NBS the responsibility for

developing and promulgating standards and

guidelines for safeguarding unclassified sensitive information in Federal systems, and for

helping both civilian agencies and the private

sector in using computer security safeguards.37

This bill was passed by the House in July 1987

but had not been taken up by the Senate a

of early January 1988.

Wetter from Frank C. Carlucci, National Security Advisol

The White House, to the Hon. Jack Brooks, Chairman, Corr

mittee on Government Operations, U.S. House of Represent

tives, Mar. 12, 1987.

“Hearings on HR 145 were held on Feb. 26 by the Subcom

mittee on Legislation and National Security, Committee on GOT

ernment Operations, U.S. House of Representatives. The Whit,

House accepted this measure and the bill was passed by th

House in July 1987, and is still waiting to be introduced in th

Senate as of early January 1988.
Chapter 6

Constitutional Issues: An Overview

The U.S. Constitution says little about what

s a major force in our society: the development

and use of science and technology. Yet in spite

of its silence about science, the constitutional

framework has proved remarkably hospitable

to the flowering of scientific research in this

century. There has been a strong mutual dependence and respect between government and

scientific enterprise that is only rarely threatened. But challenges to the constitutional

status of science have occurred in the past, and

will surely occur in the future.

The right to free dissemination or communication of scientific research results or other

scientific and technical information is not unlimited. It is and has always been limited in

the interests of national security.

In spite of its silence about science,

the constitutional framework has

proved remarkably hospitable to the

flowering of scientific research in this

century.

Existing restrictions on the flow of scientific

information may be administrative, statutory,

contractual, or voluntary. The nature of information deemed to be sensitive from the standpoint of national security goes far beyond that

related to weapons and includes almost any

kind of scientific or technological data that

may bear on our industrial capability or competitive position in world trade.1 National secu-

‘Section 1.3 of Executive Order 12356 says that information

lay be classified “if it concerns military plans, weapons, or opertions; the vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security; forign government information; intelligence activities (including

pecial activities), or intelligence sources or methods; foreign

elations or foreign activities of the United States; scientific,

echno]ogical, or economic matters relating to the national secuity; U.S. Government programs for safeguarding nuclear maerials or facilities; cryptology; a confidential source; or other

ategories of information that are related to the national secuity . . . .” It also says that such information “shall be classiied . . [when] its unauthorized disclosure, either by itself or

1 the context of other information, reasonably could be expected

o cause damage to the national security. ” (Emphasis added. )

Only a few civil libertarians would disallow any restriction on the dissemination of scientific information, but

others believe that the burden created

by existing controls is excessive.

rity restrictions on scientific communication

apply not only to documents, reports, and publications, but to informal modes of communication, such as talks at professional meetings

and participation in scientific seminars. Although primarily applied to information in

which government has a “property-type’ interest—which results from research carried out

by, or contracted out by, government–national

security restrictions may also apply in some

cases to research done under a government

grant for support of basic research, or even,

at least in the case of nuclear science and engineering, to information generated entirely

without government funding or involvement.

Almost all of the people and groups that have

spoken out on this issue acknowledge that freedom of speech and press are not absolute and

must be balanced against the competing interest of national security. They disagree on

where that balance should be struck.

Some people take the middle position that

while the current Administration defends a

strong position on national security protections and particularly emphasizes the need for

strong technology export controls and a dominant role for the military in defining those controls, nevertheless there has been no obvious

abuse of authority. The Department of Defense

has not pushed dramatically to the theoretical limits of its power to restrict communications.

Others argue that even stronger controls

over information are needed to limit the ‘ ‘unwanted transfer’ of American science and technology to countries that are very ready to use

it against us. The courts have long recognized

65
66

the need of private parties for protection of

their trade secrets. Some urge that a comparable right of protection be granted the government to protect sensitive knowledge generated

by government-sponsored research. Thus one

can defend a proposition that scientific interchange should, in general, be encouraged; but

it is inherently limited by the proprietary nature of scientific knowledge and therefore, unlike political speech, is not protected by the

First Amendment.

Critics of this position point out that the information in which government has a propertytype interest is exactly the information that

should be freely communicated; because government authority to support scientific experimentation flows from its power to spend in order to promote general welfare, and funding

that produces that property-interest is generated through taxation of the public.

Only a few civil libertarians would disallow

any restriction on the dissemination of scientific information in the interests of national

security, but others believe that the burden

created by existing controls of several kinds,

taken together, is excessive. It has become,

they argue, counterproductive in its effects on

science and industry, and more importantly,

an erosion of constitutional rights and liberties.

There have been only a few direct challenges

to the constitutionality of these limitations on

the cherished freedom of speech and press. The

President as Commander in Chief is considered

to have full authority to order classification

of government-generated information. Although

the constitutionality of some aspects of the

Atomic Energy Act and Invention Security

Act might be questioned-especially their prior

restraint provisions and their applicability to

privately generated information—only a few

particularly weak challenges have been brought.

Ironically, or so it may seem to the layman,

restrictions on speech and press under export

controls may be less subject to challenge,

rather than more so, because their infringement on freedom of speech and press is considered incidental to another legitimate purpose. Yet some critics argue that in this area,

the overlapping of national security objectives,

rather loosely defined, and economic or industrial objectives, acts to confuse and prejudice

the justification of government actions to limit

constitutional rights.

Among those who are concerned with preventing the “chilling’ effects of excessive restrictions on freedom of speech and press, there

is a further difference of opinion. Some argue

that science was intended by the Founding

Fathers to enjoy a special position and special protection under the First Amendment;

and that the courts must recognize and implicitly have recognized that special position.

Other scholars deny this special protection and

emphasize that the courts have always applied

to First Amendment challenges on behalf of

scientific communication a “balancing of interests.”

Some argue that science was intended

by the Founding Fathers to enjoy a

special position and special protection

under the First Amendment.

Professor Steven Goldberg of The Georgetown University Law Center is among those

who argue that science enjoys, under the Constitution, possibly more protection than even

political or literary speech. He argues that

those who participated in drafting the U.S.

Constitution, particularly Jefferson, Madison,

Hamilton, and Franklin, were men of the Enlightenment, with broad interests in science,

who regarded scientific freedom from constraint by church and state as essential to

democracy and constitutionalism.2 Goldberg

argues that the Constitution contains an ‘implied science clause”: that Congress may legislate the establishment of science but not prohibit the free exercise of scientific speech.

‘Steven Goldberg, “The Constitutional Status of American

Science, ” University of Illinois Law Forum, No. 1, 1979, pp.

1-6 ff. Unless otherwise attributed, discussion of Goldberg’s

views throughout this section is based on this article. Other

scholars share the view that scientific communication enjoys

an especially protected position under the Constitution. See for

example, John A. Robertson, “The Scientist’s Right to Research:

A Constitutional Analysis, ” 51 Southern CA”fornia Law Review 1203 (1977); and Delgado & Millen, “God, Galileo, and Government, Toward Constitutional Protection for Scientific Inquiry, ” 53 Washington Law Review 349 (1978).
67

Under the provisions of Article 1, Section

8, which authorizes Congress to spend money

for the general welfare and therefore for scientific research, Goldberg says, “Science is established in the sense that religion cannot be

established. ” The First Amendment was intended to prevent “the suppression of enlightened science by the Church.”3 The “free exercise” and establishment clauses are, Goldberg

says, complementary. Science enjoys a protected status.

“A meaningful questioning of the

value to the national security of restrictions on scientific expression will,

however, come about only if the question is pressed by a vigilant scientific

community that will consider and act

on these issues creatively and constructively.”

He also argues that modern constitutional

decisions support this thesis. In Roth v. United

States,’ concluding that obscenity is outside

of First Amendment protection, the Court said

that discussion of “sex in scientific works is

not itself sufficient reason to deny material the

constitutional protection of freedom and

press. ” In Miller v. California5 the Court said

that the “First Amendment protects works

which, taken as a whole, have serious literary,

artistic, political, or scientific value. ” When

the Court invalidated an Arkansas statute

barring the teaching of evolution in public

schools, 6 the Court’s scrutiny of the statute

(according to Goldberg) “was more intense

than in the usual establishment case because

the competing value at stake was science.’”

‘Goldberg points (p. 5) to Madison’s “Memorial and Remonstrance Against Religious Assessments’ and to comments on

Galileo by Jefferson, saying, “The Jeffersonian wall between

church and state was designed in part to protect American

Galileos. ”

4

354 U.S 476 (1957).

“413 Us. 15 ( 1973).

‘Epperson v. Arkansas, 393 U.S. 97 (1968).

‘The Court said, “The State’s undoubted right to prescribe

the curriculum for its public schools does not carry with it the

right to prohibit . . . the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that \,iolate

the First Amendment. Ibid. at pp. 1 I 2-113.

Goldberg maintains that while “The Courts

have had little occasion to define precisely the

limits of the government’s power to classify

scientific material, ” a reading of those decisions that exist and of the opinion of constitutional scholars shows that science “is fully protected by the speech and press clauses. ” He

says:

As leading first amendment scholars have

long recognized, suppression of scientific information is inconsistent with the democratic

political process . . . . Even when scientific

work is not immediately applicable to political controversies, it plays an important role

in maintaining a free and informed society.

Such was the view of the framers, and it has

been the consistent view of the courts (p. 16).

Other scholars, such as Professor Harold

Green of the National Law Center, discount

this thesis. Green says, “There have been Supreme Court and lower court decisions that

have involved or have referred to science in protective terms, but the involvement of science

in these cases has usually been collateral to

some other issue. ” For example, in the Arkansas case concerned with the teaching of evolution, Green maintains that it was the religious purpose of the statute rather than the

restriction on teaching science that was held

to violate the First Amendment.

Congress, therefore, has an essential

role to play in preserving the balance

through the formulation of public policy and the oversight of executive

agencies.

Green, like Goldberg, points out that there

have been few challenges to the constitutionality of government restrictions on scientific

communications. The critical question, he says:

. . . is the degree of protection that will be afforded against government encroachments in

the name of national security, [and] the answer

to this question depends on a case by case

balancing of the respective interests.

A meaningful questioning of the value to the

national security of restrictions on scientific

expression will, however, come about only if
68

the question is pressed by a vigilant scientific

community that will consider and act on these

issues creatively and constructively. It is not

enough merely to proclaim the shibboleth that

science is a sacred preserve entitled, by its very

nature, to special constitutional protection.

It may not be adequate for citizens or Congress

to rely on scientists to provide the watchful

eye and determined protests that will maintain

a healthy balancing of interests in safeguarding First Amendment rights. Scientists, after

all, are often wrapped up in their immediate

scientific pursuits and reluctant to involve

themselves in policymaking-at least until

their own activities are threatened. Moreover,

those scientific pursuits may be entirely dependent on government funding and access to

government scientific data.

Congress, therefore, has an essential role to

play in preserving the balance through the formulation of public policy and the oversight of

executive agencies. The courts nearly always

defer to Congress when it presents a consistent, thoughtful position on the constitutional

rights of citizens. Moreover, in the absence of

congressional action, the executive branch

must act. Its daily pressures to assure national

security may make it less careful in preserving the essential balance. As Justice Marshall

noted in the Pentagon Papers case, unilateral

executive efforts to restrain communications

without following careful criteria established

by Congress may run afoul of the constitutional rule that the executive is not free to legislate.8

Gerard Piel, former President of the American Association for the Advancement of Science, argues that there is a social contract

embedded in the Constitution through which

our society attempts to foster science. Piel

points out that Thomas Jefferson, in justifying the First Amendment, argues that “to preserve the freedom of the human mind . . . and

freedom of the press” is a cause worthy of martyrdom. 9

%eNew York ~“mes Co. v. Uru”t-ed States, 403 U.S. 713, 74(

(Marshall, J., concurring).

‘Gerard Piel, ‘‘Natural Philosophy in the Constitution, Sci

ence, vol. 233, No. 5, September 1986, p. 1056.
Appendix
Appendix A

Acknowledgments

Science, Technology, and the

Constitution in the Information Age:

The Future of the Press and the First

Amendment Workshop–Mar. 26, 1987

Vivian Arterbery

Executive Director

U.S. National Commission on Library and

Information Science

Joseph Bremner

Database Development, Inc.

Lisa Carlson

Director

Networking Services

Metasystems Design Groups, Inc.

Michael F. Cavanagh

Executive Director

Electronic Mail Association

Mike Greenly

Mike Greenly Consultants

Reed Irvine

Accuracy in Media, Inc.

Richard P. Kleeman

Director

The First Amendment Center

Patrick Maines

President

The Media Institute

Phil Moore

President

Networking & World Information

Richard Neustadt

Private Satellite Network, Inc.

Kendrick Noble, Jr.

Payne Webber, Inc.

David Peyton

Information Industry Association

Monroe Price

Benjamin Cardozo Law School

Judith Roales

Vice President

Independent Newspapers, Inc.

Richard Schmidt, Jr.

Cohn & Marks

Bob Smith

Executive Director

Videotext Industry

David Thurm

Counsel

New York Times

Jane Wilson

Assistant Director

Association

Telecommunications Affairs

American Newspaper Publishers Association

Scientific Communications, National

Security, and the First Amendment

Workshop–Mar. 11, 1987

Allan Adler

American Civil Liberties Union

Kenneth Allen

Information Industry Association

Jerry J. Berman

Director, Project on Privacy and Technology

American Civil Liberties Union

Daniel DeSimone

Executive Director

American Association of Engineering Societies

Diane Fountaine

Director, Information Systems

U.S. Department of Defense

Harlow Freitag

Chairman, Technology Transfer Committee

Institute of Electrical and Electronics

Engineers

Stephen Gould

Committee on Scientific Freedom and

Responsibility

American Association for the Advancement of

Science

Harold P. Green

National Law Center

George Washington University

Richard Kleeman

Association of American Publishers

Jonathan Knight

American Association of University Professors

71
Harold C. Relyea

Specialist in American National Government

Congressional Research Service

Frank Sobieszczyk

Chief, Research Programs Office (DTAG)

U.S. Department of Defense

Paul Stephan

University of Virginia

School of Law

Tom Suttle

Institute of Electrical and Electronic Engineers

Mitchell B. Wallerstein

National Academy of Sciences

Additional Contributors and Reviewers

Part I

Lee Burdick

The Media Institute

Henry Geller

Telecommunications Research and Action

Committee

David Littlejohn

University of California, Berkeley

David Peyton

Information Industry Association

David Thurm

New York Times

David Walsh

Electronic Information Services Development

Within OTA:

Richard Dalbello

International Security and Commerce Program

David Margulius

Communications and Information Technologies

Program

Mark Nadel

Communications and Information Technologies

Program

Part 11

Ronald Calinger

The Catholic University

Steven Goldberg

Georgetown University Law Center

Stephen Gould

American Association for the Advancement of

Science

Daniel O. Hill

U.S. Department of Commerce

Richard Kleeman

Sigma Delta Chi Foundation

Jonathan Knight

Association of University Professors

Frank Sobieszczyk

U.S. Department of Defense

Mitchell B. Wallerstein

National Academy of Sciences

David Whitman

U.S. Department of Defense

Within OTA:

Richard Dalbello

International Security and Commerce Program

Lisa Heinz

Science, Education and Transportation

Program

Nancy Naismith

Science, Education and Transportation

Program

Peter Sharfman

International Security and Commerce Program

Chuck Wilk

Communication and Information Technologies

Program

72 U.S. GOVERNMENT PRINTING OFFICE: 1987 - 80-465