Last week, the Council of Europe approved an addition to a controversial computer crime treaty that would make it illegal to distribute or publish anything online that "advocates, promotes or incites hatred (or) discrimination."
The United States has supported the underlying treaty, which is designed to encourage other countries to enact computer crime and intellectual property laws, but opposes adding the "hate speech" . The ban is titled an "Additional Protocol to the Convention on Cybercrime."
"The important thing to realize is that the U.S. can't be a party to any convention that abridges a constitutional protection," said Drew Wade, a spokesman for the U.S. Justice Department.
According to a long line of U.S. Supreme Court rulings, "hate speech" is generally protected by the First Amendment. There are relatively narrow exceptions that allow the government to ban threats, words designed to "incite an immediate breach of the peace" that are directed at an individual, and words that are intended to provoke "imminent lawless action."
Wade noted that the "hate speech" ban is "not actually tied to the convention. It doesn't require countries to accept the protocol to accept the convention itself." In other words, the United States could sign the treaty but reject the "hate speech" prohibitions.
The U.S. Justice Department has participated in the drafting of the underlying treaty, which was approved by the Council of Europe last year and now is awaiting ratification by participating countries, including the U.S., Canada, Japan and European nations. Civil libertarians have opposed both the treaty and the "hate speech" additions.
Barry Steinhardt, director of the American Civil Liberties Union?s technology and liberty program, and a co-founder of the Global Internet Liberty Campaign (GILC), applauded the Justice Department's position. "I would be stunned and I would feel that we have been mislead if the U.S. government were now to sign this (additional) protocol," Steinhardt said.
Steinhardt said GILC will still seek to convince countries not to sign the computer crime treaty. "It's a blunt instrument when a scalpel is required," he said. "It covers any computer-related crime. If a bank robber uses a computer to commit a crime, it becomes a cybercrime."
Last week's proposed addition does say that nations who adopt it do not necessarily have to make publication of "hate speech" a crime if "other effective remedies are available."
It covers "distributing, or otherwise making available, racist and xenophobic material to the public through a computer system," defined as "any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion."
German law considers the publication of the Holocaust denials and similar material as an incitement of racial and ethnic hatred, and therefore illegal. In the past, Germany has ordered Internet providers to block access to U.S. Web sites that post revisionist literature.
France has similar laws that allowed a students' antiracism group to successfullyYahoo in a Paris court for allowing Third Reich memorabilia and Adolf Hitler's "Mein Kampf" to be sold on the company's auction sites. In November 2001, a U.S. judge ruled that the First Amendment's guarantee of free speech protects Yahoo from liability.