University Affairs
February, 1998
pages 6-8

Free speech and the Internet

When free speech runs foul, some want to close
the university on-ramp, while others cry censorship

by Tim Lougheed,

More than four years have passed since Canadian universities first confronted the reality of just how much - or how little - control they have over the Internet. In fact, the exact date might be given as July 5, 1993.

That was the day Ontario Court of Justice Judge Francis Kovacs imposed a publication ban on the trial of Karla Homolka in the Ontario city of St. Catharines. Homolka was accused of participating in a series of grisly murders with her husband, Paul Bernardo. The judge defended the ban as a necessary measure to ensure a fair trial by an impartial tribunal.

Despite much controversy and complaint, most Canadian radio, television, newspapers, and magazines scrupulously observed the terms of the court's order. But the Internet became a clearinghouse for uninhibited discussion about the case.

A potential audience of hundreds of thousands of Canadians with access to the Internet could look up entries in an on-line forum dealing with the Homolka trial. The contents ranged from items that were little more than rumours and speculation to authoritative reports that had supposedly been filed by individuals attending court each day.

Many university administrators were horrified to discover that it was computer equipment on their own campuses that was making it possible for the court's ban to be circumvented. The culprits were devices known as servers, which allow computers to transform a campus' telephone connections into a node on a global communication network. Such nodes are the essence of the Internet, providing links for people to interact with anyone else using similar link anywhere else in the world.

It is practically impossible to estimate how many people now employ this new communications medium, but over the last decade the number has likely skyrocketed into the tens of millions. In Canada, the Homolka case became an object lesson in the subtle mechanics of this massive system.

Universities stopped storing the Homolka discussion group on their servers. At the same time, computer users could simply direct those same servers to contact servers in the United States, where the ban had no force, and where the discussion continued unabated. Universities had observed the terms of the ban - absolving themselves of legal responsibility - but they had no effective means for denying access to the banned material, short of shutting down their servers altogether, and denying all access to the Internet.

"In terms of a ban, it was absolutely ineffective", says Roger Watt, a director of the University of Waterloo's information systems and technology group. "There was nothing the institutions could do about that."

The courts subsequently convicted Homolka and Bernardo. But the jury is still deliberating on the matter of the Internet. Academics, politicians, and a variety of other interested parties continue to ponder the network's impact on censorship, freedom of speech, and privacy.

In November 1994, while the Homolka controversy was still hot, the late Supreme Court Justice John Sopinka cautioned universities against an extreme reaction that might exceed their authority and compromise their educational goals. Speaking at a University of Waterloo symposium on free speech and privacy, he wondered "whether it is not preferable to permit the expression and allow the criminal or civil law to deal with the individual who publishes obscene, defamatory, or hateful messages rather than prevent speech before it can be expressed. Otherwise, individuals may be putting themselves in the positions of courts to determine what is obscene and what is acceptable." [1]

As recently as this fall, Justice Sopinka was still publicly mulling over this contentious issue, noting that any legislative protection of privacy on the Internet would also protect individuals who might use electronic anonymity to violate obscenity, hate, and defamation laws.

Protest at Waterloo

For administrators at Waterloo, such tension between privacy and control came as no surprise. Even before the Homolka case drew attention to the growing importance of the Internet on Canadian campuses, the university had been dealing with the effects of the growing network.

In 1990, complaints about a series of Internet discussion groups dealing with graphic sexual topics had prompted the university provost to bar those discussions from the Waterloo server. After a great deal of protest from individuals who dubbed the move nothing but censorship, some of the discussion groups were restored a few months later. A year later, all the previously banned discussions were restored. But then, just a few months before the Homolka controversy in 1994, the provost declared that five of the discussion groups should be banned once more.

J. P. Black, the university's current associate provost of information systems and technology, acknowledges that the wholesale banning of the groups was a mistake. He says they were banned mainly because of the strain some of these discussion groups - which feature many large data files containing images - were placing on the computing facilities. When the university finally established a policy that prohibited servers from carrying any image-intensive discussion group, the move prompted neither an appeal nor criticism, says Dr. Black.

However, Waterloo computer science professor Jeffrey Shallit sees the university's on-again, off-again bans as more than a question of technical limitations of computing hardware. He argues that this inconsistency of action reflected an even more troubling inconsistency of opinion. [2]

"I was ashamed to be associated with a university that had thought the position through so poorly, devoted so little effort to analyzing it, and was so intransigent in responding", he says. "I feel it constantly, like I'm talking to people from another planet. They don't understand the issue, and the worst thing about it is they're not even interested in debating the issue."

For his part, Dr. Black worries that many of the subtle responsibilities associated with computer skills aren't being examined at the university. "We've never done a good job of even verbalizing to ourselves the social issues, let alone teaching them in any concentrated way to the students."

The most basic issue, insists Dr. Shallit, does not hinge upon a particular court case or a pornographic exchange: what is really at stake is the question of the university's traditional role as a defender of free inquiry and expression.

Inhibiting free speech

Dr. Shallit and David Jones, a computer science professor at McMaster University, felt strongly enough about the matter to form an independent organization in 1994 to deal with its many facets. Called Electronic Frontier Canada, the organization now has several hundred members. It is devoted to shedding light on how technology associated with the Internet is being used or abused in ways that inhibit free speech and threaten privacy.

"In Canada, the last bastion of free speech should be the universities", says Dr. Jones. "As evidence of that, you wouldn't think of taking books out of the library just because they were controversial or the government didn't want them in print. If anything, you'd protect them so they were there for people to see."

An associated Web site ( documents cases that illustrate the depth and breadth of the Internet's influence, as well as the ways some authorities have attempted to restrict that influence. As far as Dr. Shallit is concerned, universities have no business telling faculty, staff, or students what to do with their access to the network.

"If you're trying to encourage a place where there's lots of free intellectual inquiry, then you should make the ability to have your own home page available", he says. "It's a way to express yourself. It's the electronic equivalent of having things on your dormitory door."

But if a student's dormitory door display were to include racism or extreme pornography, counters Roger Watt, Waterloo's director of information systems, the matter would be very much the university's business. The same applies to Web sites and other network activities.

He points to a 1991 University of Waterloo "institutional directive" that is the cornerstone for the computer use policy. The directive says the university's computing and communication facilities exist to meet the university's research, administrative, and instructional goals.

"The university has no policy on what its students or its employees can or cannot put in their personal Web spaces", says Mr. Watt. "On the other hand, whatever they put in there could easily be looked at in terms of the directive. In what way, shape, or form does my personal Web space further the university's administrative objectives, research objectives, or instructional objectives? In what way does it interfere with them? If I put something in there that the university considers reflects poorly on it, then as far as I'm concerned, that's a misuse of university resources."

Strong-arm tactics

Electronic Frontier Canada members say they understand the need for universities to keep an eye on the negative implications of the new medium, but Dr. Jones criticizes the heavy-handed tactics to which they sometimes resort. He cites a 1995 case at the University of Guelph, when the university argued that a student who set up a discussion group featuring "tasteless" jokes had violated the Ontario Human Rights Code and subsequently subjected her to an arbitrary tribunal on those grounds. [Although the university initially made it clear they wished to expel the student, the university ended up dropping its case.] [3]

Ron Elmsie, Guelph's director of computing and communications services, responds that the implications of the situation were blown out of proportion. This kind of intense dispute, which centres on principles of free speech and censorship, remains the exception, he says. More typical are clear-cut abuses of the system.

"We have more problems with hackers and spoofing [disguising one's identity] and that sort of thing", he says. "Most complaints we have are very specific, say an e-mail that's focused on an individual and could be harassing. I can't recall anybody that's gone out to the Internet and then become offended by what they've seen and tried to make an issue of it."

Offending an Internet user is by no means the only societal issue at stake here: others include libel, copyright violation, and outright plagiarism. The free-for-all environment of the Internet does make it possible for individuals to appropriate material from a particular researcher or institution without respecting copyright or giving due credit. Plagiarism of this sort is nothing new, but electronic networks have made it easier than ever before.

In once instance, some agricultural research information belonging to the University of Saskatchewan was appropriated without permission by a Texas company that was publishing a CD-ROM for retail sale. Bob Kavanagh, associate vice-president at U of S, says the example is fare from unusual.

Computer administrators like Dr. Kavanagh are increasingly feeling the pressure of trying to keep up with this kind of threat introduced by the rapid and dynamic growth of networks. He estimates that U of S now invests the equivalent of two full-time employees investigating network and electronic security issues. Even in the midst of staff cutbacks, the time and effort are necessary, though the outcome has little to do with the university's academic mission.

"At the end of the day", he says, "any work you expend in this area hasn't helped any students in any way advance their learning objectives, hasn't helped anyone do their jobs more efficiently. In many cases, all we're doing is reacting - you're mopping up after something."

Despite the expense and headaches, universities would be loathe to shut down their Internet capabilities, even if that were a realistic option. Stealing or misappropriation of information will persist, but so too will the useful sharing of data between researchers who may be thousands of miles apart. Students will find obscene or illicit material in various corners of the network; so too will they discover more substantial entries, such as entire texts of classical literature and accompanying discussions.

After years of reflecting on the matter, Justice John Sopinka seemed to have resigned himself to evolution of the Internet into an intractable combination of the good, the bad, and the downright ugly. He had concluded that the underlying structure of the network prevents it from being any other way.

"I predict that only partial success will be achieved in eliminating the abuses", he said this past fall. "Some will remain. Some members of society will be left without redress. While this is to be regretted, it is the price we pay for the right to enjoy freedom of speech and the price we pay for the many benefits that we derive, and will continue to derive, from this powerful new medium."

Related documents online:

Supreme Court Justice offers cautions on university censorship of electronic speech (13dec94)

EFC concerned about Waterloo censorship (04feb94)

Humour police crack down on tastelessness at U of Guelph (12jan95)

Copyright © 1998 by Tim Lougheed. All Rights Reserved. Reprinted with permission.