With arm-twisting or without, FBI exposes government’s penchant for censorship

Friday, December 3, 1999

Regardless of whom should be believed, the recent Crowded Theater affair is a
palpable threat to Internet free-speech rights.

The story told by a Web-site creator and his Internet service provider is
downright scary: A seemingly innocuous Web site. A visit from paranoid FBI
agents. Demands that the material be removed from the Web site … or else. A
refusal. An FBI visit to the online host. More threats. The Web site is closed.
What First Amendment?

The story told by the FBI, on the other hand, is frighteningly predictable:
We don't monitor the Web. Concerned citizens asked us to investigate. We weren't
concerned with the site's content, only with whether laws had been broken. We
didn't order the site closed. The ISP shut the site down voluntarily. God bless
the First Amendment.

The flashpoint for this dispute is a six-minute video that performance artist
Mike Zieper made and posted on the Crowded Theater Web site. The video, which
featured grainy footage of Times Square, suggested that the U.S. government
might try to incite a race riot and paramilitary action on New Year's Eve.
Zieper intended the work as fiction, and most observers apparently interpreted
it that way.

The FBI, however, did not. According to Zieper, agents went to his home on
the evening of Nov. 18 and suggested – perhaps strongly – that he remove the
video from his Web site. After Zieper refused, the FBI and the U.S. attorney's
office contacted BECamation, Zieper's Internet host. BECamation President Mark
Wieger said that agents demanded that Zieper's entire site be closed.

According to the Village Voice, which initially reported the story,
the FBI threatened BECamation's existence if the company did not comply. “I had
no choice but to pull the site down completely, or I would have lost my
business,” Wieger told the Voice.

The FBI, however, has denied threatening BECamation or ordering that the site
be closed. An FBI spokesman said that:
“No specific request was made to discontinue the site or disable the site. The
way our people were viewing the shutdown was that the people operating the site
did so voluntarily.”

Even if “no specific request” was made to close the site, the threat to the
First Amendment is real. The Internet is based on the fundamental premise that
small hosts, entirely independent from the government, will collectively form
the backbone of an unshakable computer network. The government's efforts to
legislate rules for the Internet and its content have been resisted in large
part because they threaten this independence. Attempts to regulate the Internet
through intimidation and scare tactics are even more dangerous because they fly
below the radar of public scrutiny.

In some cases, of course, the FBI justifiably requests that newspapers and
broadcast stations withhold details of criminal investigations or otherwise
cooperate with law enforcement efforts. There's a considerable difference,
however, between requesting a newspaper to refrain from publishing information
that might tip off a criminal and suggesting to an Internet host that posting
certain material is irresponsible. A newspaper or broadcast station, for
example, knows that, even if it refuses the request, an angry law enforcement
official cannot load the printing press or broadcasting equipment into the trunk
of his car. Internet host providers like BECamation, however, know that their
complete operation can be dismantled and carried away within minutes.

Host providers and Web site owners also, in many cases, lack the common goal
that links reporters and publishers. Host providers and Web site developers are
not necessarily on the same team. Instead, they are more like landlords and
tenants. And when tenants cause problems, landlords usually find it easiest to
look for new tenants.

In general, the Internet is a less sophisticated publishing environment than
printing or broadcasting, which in some ways causes it to be more fragile.
Requests from FBI agents, even if innocent, might be misinterpreted as demands.
Bluffs by FBI agents might not be perceived as bluffs. Situations which might
inspire a crusty old newspaper editor to tell the FBI to go to hell might lead a
relatively inexperienced Internet host to accede to the FBI's wishes.

In other ways, however, the dispersed nature of the Internet makes it less
susceptible to governmental intimidation. When a host like BECamation removes
material from the Internet, other hosts appear to ensure that the information
remains available. Within a few days of BECamation's removal of Zieper's Web
site, for example, a mirror site had reposted the video. BECamation then also
reposted the site after it determined that the FBI had no legal authority to
order the site closed.

Not surprisingly, word of this controversy spread quickly throughout
cyberspace, and both the mirror site and crowdedtheater.com were deluged with
traffic. As a result, many more people saw the video after the FBI attempted to
censor it than ever would have had the FBI not intervened.

Regardless of whether this story of FBI intimidation is true, it has an
important moral: Attempts at censorship rarely succeed. Governments,
unfortunately, didn't learn this lesson before the explosion of Internet. Maybe
the message will start sinking in now.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach
Badger & Lee and a legal correspondent for the First Amendment