Date: Fri, 15 May 92 08:22:40 -0400
From: [email protected](SUSAN M. ROSS)
Subject: File 3--Freedom and Privacy in North American Cyberspace
((Moderators' note: Susan M. Ross is doing interesting research
comparing Canadian and U.S. rights in cyberspace. She recently
received a gtrant to pursue the topic, and we asked her to send a copy
of the original proposal along for those interested in the topic. If
you have ideas, bibliographic items or other information of interest,
you should contact her directly)).

     Freedom and Privacy in Cyberspace, Accessed Through North
     America: Comparing and Contrasting the Canadian Charter of
   Rights and Freedoms and the United States Bill of Rights with
            respect to Computer-mediated Communication.

                    Susan Mallon Ross
                   Clarkson University


                       BACKGROUND

    The Constitution of the United States of America (U.S.
Constitution, U.S. Bill of Rights), as originally adopted and
subsequently amended, does not explicitly extend constitutional
protections (e.g. First Amendment and Fourth Amendment rights) to
citizens who employ or are affected by technologies its framers could
not anticipate.  Indeed, Laurence Tribe of Harvard Law School is
promoting a Constitutional amendment (Tribe, 1991) specifically to
remedy this situation. It would read:

         This constitution's protections for the freedoms of speech,
    press, petition, and assembly, and its protections against
    unreasonable searches and seizures and the deprivation of life,
    liberty, or property without due process of law, shall be
    construed as fully applicable without regard to the technological
    method or medium through which information content is generated,
    stored, altered, transmitted or controlled.

    In contrast, the Canadian Charter of Rights and Freedoms
(Canadian Charter) does guarantee freedom of expression in using "all
media of communication" (Section 2-b). However, at least two other
sections of the Canadian Charter could undermine this guarantee:
Section 1, which makes the rights and freedoms the document guarantees
subject to "reasonable limits" that "can be demonstrably justified in
a free and democratic society," and Section 33, the "override " or
"notwithstanding" clause, which allows Parliament or any province to
override certain rights guaranteed by the charter. These
qualifications seem to mean that, for the time being, even the
"fundamental right" to freedom of expression is not inalienable.

                  FUNDAMENTAL QUESTIONS

    This work focuses on several questions:

1) What is "cyberspace" (Gibson, 1984) and what are some core issues
  related to communicative freedom and privacy in the "cyberspace
  age" (Tribe, 1991)?

2) What has been the United States experience with issues of
  communicative freedom and privacy in cyberspace?  (What legal
  issues have arisen? What other challenges to constitutionally
  protected rights seem likely? What cases have been tried and how
  have they been resolved?  How are the access to and the use of
  cyberspace regulated?  What governmental and private action is
  being taken to protect the rights of citizens who venture into
  cyberspace?)

3) What has been the Canadian experience with issues of freedom and
  privacy in cyberspace?

4) What are the major trans-border issues that have arisen (or are
  likely to arise) related to cyberspace, especially in the context
  of freer trade?  For example, how may freer trade be implemented
  with respect to the products of the burgeoning, computer-mediated,
  information industry (products that both provide and require access
  to cyberspace) while protecting the constitutionally entrenched
  rights both of Canadian and U.S. citizens? One such issue is
  balancing: a) promoting freer trade, b) maintaining Canadian
  Cultural Security, as protected by the Broadcast Act, an act
  recently revised to include "all types of transmission to the
  public of visual and sound programming, whether or not they
  included transmission over the airwaves.... [The wording of the
  revised Broadcast Act explicitly includes transmission by] 'wire,
  visual or other electromagnetic system or any other optical or
  technical system'" (Creery), and c) still guaranteeing "freedom of
  expression."

                       METHODOLOGY

    Cyberspace is a new frontier for a world that had perceived
itself already to have encountered its last frontier. This work
explores this new frontier to provide case-specific analysis focused
to contribute towards answering the ambitious and important questions
listed above. More specifically, the work involves the following tasks
and processes:

1) Reviewing the constitutional histories, including precedent setting
  cases, of the United States and Canada related to communicative
  freedom and privacy in cyberspace (computer-mediated
  communication).

2) Reviewing relevant scholarship and applying it to answering the
  major questions listed above.

3) Monitoring evolving issues in the Canadian and United States press
  as well as through Canadian and U.S. computer hotlines and
  publications concerned with computer-mediated communication.

4) Corresponding (usually by electronic mail) with key explorers of
  the electronic frontier from both Canada and the United States.

5)  Interviewing governmental officials in both nations.

           PROJECTED CONTRIBUTION OF THE WORK

      This project would provide a previously unavailable synthesis
and interpretation of Canadian and U.S. perspectives on the
application of constitutionally entrenched rights and freedoms to the
electronic frontier labelled "cyberspace." To Canadian-U.S. business
studies, in particular, it would contribute a comparative perspective
related to the computer-mediated information industry; specifically,
how North America's current partners in free trade constitutionally
deal with private, governmental, and commercial uses of computer
mediated communication. This study, therefore, would contribute
insight into the manifest and nascent issues these differences raise
in Canadian-U.S. relations, including our free trade partnership and,
perhaps, the trilateral negotiations to broaden that partnership to
include Mexico.

                      SOURCES

   Borella, M. (1991). Computer Privacy vs. First and Fourth
Amendment Rights. A paper presented at the annual meeting of the
Speech Communication Association, Atlanta.  (This paper resulted from
an academic project for which the author of this abstract was the
sponsor.)

    Creery, T. (1990). "The Burden of Broadcasting:  Becoming all
things to all political masters." Ottawa Citizen (22 May 1990, p.
A11).

    Gibson, W. (1984). Neuromancer. New York: Ace Books.

    Mandel, M. (1989). The Charter of Rights and the Legalization of
Politics in Canada, Toronto: Wall and Thompson.

   Tribe, L.H. (1991). "The Constitution in Cyberspace." Keynote
Address at the First Conference on Computers, Freedom and Privacy: San
Francisco.

                   AUTHOR'S BIOGRAPHY

    Susan Mallon Ross is a faculty member in Technical Communications
at Clarkson University in Potsdam, New York, U.S.A. Her doctorate in
Communication and Rhetoric is from Rensselaer Polytechnic Institute in
Troy, New York, U.S.A. This work is supported by a Faculty Research
Grant by the Canadian Embassy, Washington, D.C. and by a Research
Grant from Clarkson University.

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