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Equity and Access

There are at least two equity and access issues in the Machado case. First, does Machado's action of sending hate mail reduce the access to education for the Asian students he targeted? Second, does Machado have a right to free speech over electronic mail, even if that speech is hateful?

Restricting access by threat

The question on which the criminal trial of Machado hung was whether, by sending his emailed threats to the particular individuals he had targeted, he had interfered with their civil rights to access to public education. The jury and the court in his case answered "yes." They concluded that the fact that the email was specifically targeted at particular individuals, that it contained death threats that were at least credible, and that the intent of the email was to tell the Asians to stay away from the university, that Machado had indeed interfered with their civil rights.

But this issue, as interesting as it is, gets us away from specifically computing related ethical issues. It does leave us with an interesting social issue: why would people think that a thing that is illegal or immoral when done face-to-face or with unsigned letters in mailboxes would become acceptable (or at least tolerable) when done over email? And with this issue, we go back to the socio-technical analysis theme of a clash of cultures. In essence, Machado confused the cultural norms that were at least tolerable on some Internet newsgroups with what would be tolerated in direct mail to targeted individuals.

An ethical issue that this raises for designers of communications software is how they might make the context in which a person is sending a message more salient to the user. If it were more clear who the audience was for a particular communication, it might make it easier for individuals to adapt their communication to the rules of the community they were addressing.

Would this have helped in the Machado case? Likely not. But it might help in other instances, and seems worth exploring.

What about the right to free speech?

As the Supreme Court has made clear in its Brandenburg decision (see Legal Climate) the right to free speech needs to be balanced with other rights. There is a history of devotion to free and unfettered speech among computing professionals, and on Internet newsgroups and other forums. But few would argue that this right can never be trumped by another right. More helpful for a class discussion would be to ask "What values conflict at times with free speech?" Certainly speech that threatens the safety of others conflicts with our value for life.

Was the University obligated, because of its educational position as a forum for free speech, to provide Machado with a forum to express his views? Most college and universities think of themselves as valuing and encouraging free speech and open inquiry as a part of the academic enterprise. But personal electronic mail is not really "public" speech. The proliferation of electronic mail lists for discussion helps to confuse this issue somewhat. However, Machado was not using a mailing list -- he was sending electronic mail to particular individuals. A useful class discussion might consider whether Machado' speech would be more protected as "free speech" if it were done in a different forum.

Moving to the global level of analysis, in other countries many other values would be considered important enough to conflict with the right to free speech. In Canada and Britain some trials are closed to public reporting, because the concern that individuals receive a fair trial is valued more than newspapers' freedom to report on the trial. In other countries, any political speech that criticizes the government is viewed as too dangerous to be allowed. Often (though certainly not always) these policies restricting free speech have popular support.

But again, we are straying somewhat far from the Machado case. We can at least note that in some countries (and in our country before the passage of the Civil Rights Act) what Machado did would not be considered illegal. We may still ask whether it would be moral.