At the start of a Simpsons episode, Bart writes on the blackboard, "My butt does not deserve a website." Of course, Bart's sage advice has fallen on deaf ears. Every ass with a computer thinks his blog or cyberspace rambling warrants public attention.
When a new medium for expression is created, one should expect a flood of misinformation and garbage as many become intoxicated by the allure of an open invitation to the marketplace of ideas.
All manner of illegal chatter takes place on the Internet. From the horror of watching terrorists behead a captive to the frivolity of unauthorized gambling, the Internet has it all. Child pornographers and white supremacists have found a safe haven in the digital world. Doing business on the Internet does not suspend the operation of criminal law, but it does place many obstacles in the path of effective law enforcement.
Despite its illegality, Internet gambling is all the rage primarily because cops can't be bothered sorting through the jurisdictional maze of multiple service providers and offshore companies operating out of jurisdictions with permissive gambling laws.
We are in the throes of a revolutionary change in mass communications, and it will take some time to purify the medium. Regrettably, last month the Supreme Court of Canada quietly released a decision that could stultify the medium.
In the Hamilton case, the accused, René Luther Hamilton, had sent teaser e-mails to more than 300 people on the Internet, promoting the sale of "top secret files" he had earlier purchased off a website. The teaser offered software that could generate valid credit card numbers for fraudulent use and files containing instructions for making bombs and breaking into homes.
Hamilton was charged with counselling others to commit crimes (none were actually committed) but was acquitted by the trial judge on the basis that he did not intend the recipients to act upon the information he provided. The judge concluded that his motivation was mercenary and not malevolent, in that he was just trying to make a fast buck without concern for what the purchasers would do with the information.
The Supreme Court ordered a new trial, ruling that it was not necessary for the Crown to prove that Hamilton intended others to commit a crime. The court concluded that all the state must prove is that the accused "consciously disregarded a substantial and unjustified risk" that others may act upon information the accused provided.
The court is basically stating that a person's speech will be criminalized if the person has some awareness that others may take action. Intent is not required; mere recklessness will suffice. The court was obviously worried about the dramatic growth in Internet crime, noting that "the Internet provides fertile ground for sowing the seeds of unlawful conduct on a borderless scale."
Like the court (and the Unabomber), I, too, have concerns about the dangers of technology, but I would not sacrifice free speech for fear of machines with a borderless reach. Traditionally, the law required that people charged with counselling must intend that their counsel be acted upon. The dividing line between distasteful speech and criminal speech was that the latter must have the capacity to incite imminent harm.
In order to respect fundamental freedom of expression, the government should not be able to criminalize distasteful speech simply because it could lead to some future risks of an indeterminate nature.
Not being in the military or the dam-building and demolition trades, I see little express value in Hamilton's sale of a bomb-making manual. He was so keen on making a fast buck that he didn't even bother to read the manual to see if it was comprehensible and authentic. But fools still have the right of free speech unless they are using speech as a tool to incite immediate lawless behaviour.
Freedom of speech sits on a shaky foundation if the speaker has to worry about what some crazy people may do with the information. Just last Friday, most newspapers ran an Associated Press story about the simplicity of the bomb-making process employed by the July 7 terrorist bombers in London. Thanks to this article, I now know that I can make a peroxide-based explosive called HMDT simply by blending "hydrogen peroxide (hair bleach), citric acid (a common food preservative) and heat tablets (sometimes used by the military for cooking)."
The papers were reporting on a press conference held by the New York police department to release information about the modus operandi of the London bombers. I'm sure the police and the reporters must have pondered for a moment whether someone out in cyberspace would use this information for deadly purposes. Nonetheless, they forged ahead, thinking it would be in the public interest to release this information into the marketplace of ideas.
Perhaps this is a foolish decision, but no one would suggest that we should prosecute cops and reporters for the crime of counselling. It's clear they didn't speak with the intent of sending others on a bombing spree. Although it looks like comparing apples and oranges, Hamilton's bomb-making zip-file and the NYPD's press conference are both protected as free speech, even though Hamilton's motives are crass and the cops' noble.
The Supreme Court of Canada appears to have let fears about the Internet overwhelm its appreciation for freedom of speech.
In the Hamilton case, it has set a rule that tells speakers that they must be accountable not only for the intended consequences of their speech but also for what others may do who listen. With over 600 million Internet users around the world, the court has placed an enormous responsibility on the shoulders of the modern speaker.