fought a long war to prevent the spread of various encryptionrnprograms, to the extent that posting them on the hiternet hasrnbrought charges of exporting mihtar}’ technolog}’. hi 1995, thernFBI and other federal agencies demanded that so-called “clipperrnchips” be installed in all computers, fax machines, and otherrnforms of electronic communicaHon, giving federal agenciesrnthe capabilitv’ to examine encrypted communicahons. hi effect,rnthis would have required all users of encryption to handrnover their keys to the government, and the proposal was withdrawnrnafter widespread protests. Nevertheless, similar effortsrnensued over the next few years, notably in attempts to dumbrndown telecommunications technolog)’ to allow wiretapping, orrnto create “surveillance-friendly” e-mail systems (a wonderfulrnphrase: Wlio can criticize friendship?). Since police agenciesrnrarely possess the most advanced electronic technology, suchrnproposals potentially open private communications to surveillancernby other unauthorized groups and individuals. Currently,rnthe FBI is clamoring for a proposed Cyberspace ElectronicrnSecuritv’ Act to give police access to codes that would unscramblernencrypted communications, with few or no restraints fromrnjudges. At a minimum, these proposals appear to trample notrnjust the First Amendment but also the Fourth, Fifth, Ninth, andrnFourteenth. Put more succinctly: American police agenciesrnhave decided that the Constitution does not apply to electronicrncommunications. To quote the stunningly frank declaration ofrnScott McNealy, CEO of Siui Microsystems, ‘Ton already havernzero privacy—get over it.”rnIf you want to see where such policies are leading, take a lookrnacross the Atlantic, where Great Britain has just constructed arnnew sur’eillance system called CTAC, the Government TeehnicalrnAssistance Centre. In theory, GTAC is intended to detectrnand defeat international criminal activit)’, such as terrorism,rnnarcotics, and child pornography. Under the Regulation of InvestigativernPowers Act currentiy under discussion, all Internetrnservice providers would be required to connect their scr’ers tornthe monitoring center. The new network would have the powerrnto access all e-mail and Internet communications sent inrnBritain. Police would need government permission to searchrnfor e-mails and Internet traffic, but they could apply for generalrnwarrants that would enable them to intercept all communicationsrnto and from a particular organization. These connectionsrn”will allow anyone to watch the websites you are browsing inrnreal time,” and authorities could monitor one in 500 telephonernconnections to tiie Internet.rnWe can only imagine the furious reaction if authoritiesrnsought the same powers to open all letters or read all diaries.rnThe argument seems to be that the newer technologies are notrnserious means of communication, like good old-fashioned paper,rnand are thus “within the outer ambit” of protected speech.rnWorse, they lend themselves to abuse by all sorts of bad people;rnhence, it is only proper to regulate Internet communication.rnThat such restraints have no chance of succeeding is indicatedrnby the astonishing upsurge of illegal obscene materials on thernWeb, to the extent that knowledgeable observers have spoken ofrna de facto legalization of child pornographv’ over the past fivernyears. The restrictions are not working—so let’s redouble them.rnAs a rhetorical tactic, the argument made by the FBI andrnother federal agencies is brilliant, since it suggests thatrnthose who oppose restrictions on encrption must, innocentlyrnor otherwise, favor the interests of spies, terrorists, and childpornrnmerchants. The problem with this line of reasoning becomesrnapparent if we apply the same principles to communicationsrnsystems that the judges recall from their distant vouth, includingrnthe printing press and the telephone. Of course, bothrndevices lend themselves to extraordinar}’ evils, but these have tornbe tolerated to some extent in order to permit the exercise ofrnfree communication: The printing press allowed people to readrnShakespeare and the King James Bible, as well as Mein Kampf.rnOliver Cromwell argued that trying to ban religious ideas becauserna few people fell into heresy was as foolish as prohibitingrnwine because some individuals become drunkards. The argumentrnembarrassed his many Victorian admirers, who did, ofrncourse, believe that alcohol should be restricted for that veryrnreason. But as Cromwell knew, freedom carries a price.rnCourts and legislatures really do not understand the Internetrnand other forms of electronic communication. To grasp this,rnwitness the debates in the niid-90’s over the CommunicationsrnDecency Act, which, in the name of defending public moralit,rnwould have reduced all Internet content to that fit for viewingrnby a ten-year-old girl from a particularly sheltered family.rnOr take the recent case in which a court decided that an anti-rnMormon site violated church copyright by displaying certainrnLatter Day Saints v’ritings. This decision was not terribly controversialrnin itself, but the judge then proceeded to prohibit an’rnother site from linking to the offending page: Without the freedomrnto link, the Internet dies.rnFor 250 years after the printing press entered common use inrnEurope, people fought and died to establish the principle of thernfree use, distribution, and exchange of information, and ultimately,rnsuch rights were wrung from existing elites. Given thernaccelerating pace of technological change, the struggle for freerncommunication on the Internet is taking place in a period ofrnyears, rather than centuries; the underlying principles, however,rnare identical. These are by far the most pressing issues facingrncourts in the United States and other advanced countries today.rnIf the courts are prepared to pay attention to the minutiae ofrnundergarments, they should be at least as enthusiastic about defendingrnrights far more central to the freedom to speak andrncommunicate ideas. The Founding Fathers would never haverndreamed that freedom of speech might one day be taken to includernnude dancing, although I think many of them hadrnenough sense of humor to be wryly amused by the development.rnTheir humor, however, would not have extended to thernfailure of courts to defend the right of free communication simplyrnbecause it happened to be in a new mediimi: Was ever arngeneration of American leaders more sympathetic to technologicalrnchange than that of the 1780’s? This was the generationrnthat had evaded British censorship by ever-more ingeniousrnmethods of pamphleteering and committees of correspondence.rnThe view that free-speech protections should only applyrnto the forms of communication that prevailed in 1790 is analogousrnto the notion of anti-gun lunatics such as Rosie O’Donncllrnwho believe that the Second Amendment gives citizens onlyrndie right to bear flintiocks to defend against sudden assaults byrnRedcoats or Indians. Circumstances change; technologiesrnchange; principles do not.rnI can only imagine what the Founding Fathers would havernmade of the argument that communications must be subject tornconstant police surcillance, lest people use them for seditiousrnand dangerous purposes. I can almost hear their inevitable reply:rnDamn it, sir, tiiat is how we made this countr’ in the firstrnplace. c-rn18/CHRONICLESrnrnrn