From George Orwell to The Hunger Games, Americans have a history of equating censorship to state power. Even our revered First Amendment speaks only in terms of limiting Congress’ ability to abridge freedom of speech.
The Sony hack and its continuing developments show that is no longer the case, even at the national level. Based on their objection to the subject of the movie, “The Interview,” hackers have severely damaged a major company. Further, through the threat of expanded attacks they intimidated movie theaters into dropping the film, leading to the complete cancellation of its theatrical release. We will never see a clearer example of the suppression of free speech, not through sovereign power but through sheer thuggery, than we see now.
Few would regard these acts as acceptable or fair game. Yet, there is a persistent strain of the view that the Internet must be a place of absolute freedom and that the application of rule of law to the online environment is somehow “censorship.”
Americans cling jealously to the freedoms that define the greatness of this country. At the same time, we understand that our freedom to make a fist extends only as far as another person’s chin. No one has a right to the freedom to do harm to others. And while we do not normally equate freedom with censorship, we see in current events that the anarchy of absolute freedom is the opportunity to bully or even assault those with whom we disagree.
There are, of course, already laws in the United States against hacking, theft of private information, copyright infringement, and threats of physical harm, all of which we have seen perpetrated against Sony and its employees. But the enforcement of those laws is made more difficult by tools used by hackers to conceal their identity, and harder still when the crimes are perpetrated from outside the jurisdiction of U.S. law, at the instruction of a foreign government, no less.
Some say that we shouldn’t even try; that enforcement of law online is too hard and so we should give up. Sony, feeling backed into a corner by the siege of the attacks, the absence of public support from the Administration, and in the face of widespread concern from theaters, essentially took that approach when it pulled the movie. That outcome left a bad taste in our mouths.
As is the case in any area of law, it can be taken too far. We all know that there are countries that still do apply their sovereign power to censor certain opinions, including online. Some try to blur the line between that and the application of long-standing U.S. laws, such as defamation or intellectual property protection, to the online environment.
A critical distinction between the de facto censorship perpetrated by the hackers and the application of traditional American rule of law to the online space is viewpoint neutrality. American law is viewpoint neutral; the First Amendment demands it. In contrast, the hackers are specifically motivated by their opposition to the ideas expressed in “The Interview.” The Sony hack and its fallout is real censorship, unlike the exaggerated use of that term by absolutists.
The same fundamental question permeates many public policy issues including free speech, cyber security, privacy, net neutrality, and intellectual property – what are the right rules for the Internet environment and how do we enforce those rules so that people are reasonably safe and secure when they make use of the Internet?
Each of these issues is complex and deserves careful and thoughtful consideration. To the extent those discussions can be guided by unifying principles reflective of our values, it will produce policy decisions that are respected and sustain our society. The Sony hack reminds us that the first of those principles ought to be rule of law over anarchy.
Tepp is the president & CEO of Sentinel Worldwide, a company offering protection services for intellectual property.