Well, let's first say that information about the production, use, and sale of MDMA, GHB, and LSD -- just to mention some of the drugs -- is widely available on the Internet. Young persons who use "club drugs" or are contemplating their use can readily access information about them on Internet websites, including explanations of drug terminology, methods of use, and dangers associated with use. Because most drugs are Schedule I/II controlled substances, their sale is not often advertised on the Internet. However, suppliers and customers often meet through Internet bulletin boards and chat rooms and arrange the sale of drugs or chemicals, which are then shipped to the customer for an agreed price.

Advocates of an expanded freedom of expression are purveyors of information. These individuals and groups publish information on the Internet to push the boundaries of self-expression and the First Amendment. The information they provide may induce minors and young adults to break drug laws or to become a danger to themselves or to others by abusing illegal drugs. Anarchist individuals and groups, who protest against or seek to abolish current legal, social, or economic structures, disseminate drug information on the Internet to advance their cause by promoting counter-cultural behavior. They may induce others to disobey drug laws as a part of their worldview, or drug abuse may be an implied undercurrent of their lifestyle. The presence of these individuals and groups on the Internet is a known fact. Other actors use drug websites to encourage minors to perpetrate activities unrelated to drugs.

There are at least three physical points on the Internet where the location of potentially harmful information can be pinpointed:

- At the insertion point, where the website's creator originates the information and uploads it to the World-Wide Web. This insertion point usually corresponds to the personal computer system where the author designed the website.

- At the point where the website is stored, or hosted --typically, at the web server of the user's ISP, or at a third-party web hosting company.

- At the point where the end user receives the information --typically, at the end user's personal computer, Internet appliance, or other Internet-ready device.

Identifying the insertion point and the hosting point can be difficult, because geographical addresses and Internet addresses of websites can be obscured through a variety of software or hardware techniques. However, if a website containing potentially harmful information is open and accessible to all Internet users, then the geographical location of the router supporting the website can be pinpointed by tracing the path the information stream follows between its origin and destination points. This trace will yield the specific location of the router nearest to the web server hosting the website that contains the potentially harmful information. The router's location therefore will indicate the general geographical vicinity of the web server, since routers support servers in designated geographical regions. Identifying the point where the end user receives the information would involve more intrusive means of information collection, and even then results may vary according to how the user accesses the Internet. If a PC were used, its location could be ascertained by examining the ISP's customer records (which would require a subpoena) or by using a Title III wiretap (which would require a court order). Establishing that the end user's system had been the recipient of such information could be done using computer forensic searches (which would require a search warrant). However, identifying the right system, at the right place, and at the right time using any of these methods would in most cases require a human intelligence tip or a security lapse on the part of the end user.

Drug offenders are now using the same encryption and security technology that protects Internet commerce to keep drug activities hidden from investigators' eyes. New software and hardware tools recently developed by the computer industry allow individuals and groups to impede law enforcement attempts to penetrate their communications. These developments include anonymous e-mail remailing, encryption software, and Internet telephony. Most individuals maintaining pro-drug websites provide a disclaimer, which they believe shields them from law enforcement scrutiny. In many cases, drug offenders operate websites on sub-domains, space which registered domain owners give or lease to others for personal use. Drug offenders also operate on domains that are registered in another country, which means their websites are not subject to U.S. law. However, individuals and groups that operate websites on their own registered domains often can be identified. To acquire a registered domain, a person must provide some personal information that may include name, business, address, phone number, and credit card number. This information, which is posted publicly on the Internet, can help law enforcement identify or physically locate a person, assuming the information is not fictitious. Registered domains have to be paid for, usually on an annual basis, and payments usually provide a direct link to a person.

Legal drugs are widely advertised on the Internet and can be ordered through websites. Controlled substances are openly advertised less often, but suppliers often arrange sales with customers via bulletin board discussions carried on in coded language, and then ship drugs to the customer by mail for an agreed price. Law enforcement reports indicate that the source of much of these illegal drugs is foreign. Wholesalers sometimes, and perhaps often, act as middlemen between customers and suppliers in these transactions, and because the customer, supplier, and wholesaler usually never meet, the threat of exposure and risk is reduced. Minors and young adults searching for user or wholesale quantities of drugs can easily find suppliers on the Internet. Drug production equipment, chemicals, and other paraphernalia are readily obtained through online stores.

First Amendment, U.S. Constitution

Any government effort to restrict individuals from using the Internet to disseminate information that assists others in illegally producing, using, or distributing controlled substances must respect the First Amendment of the Constitution. The First Amendment strongly protects an individual's right to freedom of speech and can be infringed only in limited situations. Whether the government can prohibit an individual from disseminating such information over the Internet depends on factors such as the type of information disseminated, how it is disseminated, and the intent with which it is disseminated. The 1997 Report on the Availability of Bombmaking Information addresses a number of legal issues involved in limiting the dissemination of bombmaking information. Although the subject of the report was the dissemination of a different type of information, its legal analysis can be applied to the dissemination of information that facilitates drug crimes. The first issue to be discussed is whether the government can restrict the dissemination of information simply because it advocates the production, use, or distribution of controlled substances. This issue has been addressed by many courts including the U.S. Supreme Court, which clearly have ruled that any attempt to prohibit the dissemination of such information would violate First Amendment rights.

A second issue is whether the government can restrict the dissemination of lawfully obtained information that could be used by others to illegally manufacture, use, or distribute controlled substances. The answer to this issue is not as clear. However, courts often have held that if such public information is widely distributed to a large, unidentified audience, it cannot be restricted by the government without infringing on First Amendment rights. The rationale behind this decision is that even legitimate publications could be used to assist individuals to illegally manufacture, use, or distribute controlled substances. Legitimate publications might include textbooks on chemistry or agriculture, encyclopedias, or even government manuals.

By contrast, if the individual's dissemination of such information is directed towards a specific person or audience who acts on the information, the dissemination can rise to the level of "aiding and abetting" another in committing a crime. Such "aiding and abetting" is considered a "speech act" and is not constitutionally protected simply because it is speech. Whether an experienced methamphetamine producer provides an apprentice with face-to-face assistance or with help over the Internet, the instructions can still rise to the level of aiding and abetting a criminal act. Such activity is not protected by the Constitution because, unlike disseminating information to a wide audience that may or may not engage in the illegal activity, this dissemination is directed at a person or persons to assist in committing illegal activity. Even if the recipients of the information act upon it at some later date, the disseminator can still be prosecuted.

A closely related issue is whether the government can prohibit an individual from disseminating information with the intent of assisting another person in the illegal manufacture, use, or distribution of controlled substances, even when the recipient does not actually act on the information. The Department of Justice has referred to this issue as "attempted aiding and abetting." Court decisions seem to allow prohibition of such dissemination if the government can prove that the individual disseminated the information with the specific intent of assisting another individual in committing a drug crime. Individuals prosecuted in cases with similar issues have argued that they did not know how the recipients were going to use the information and that they provided the information for legitimate purposes, such as scientific research, law enforcement purposes, or general public interest. However, prosecutors have been able to prove intent in some situations by showing that the disseminated information contained declarations demonstrating a purpose to facilitate drug crimes, or that the disseminated information had no use other than to facilitate drug crimes.

Another closely related issue is whether the government can constitutionally prosecute individuals who disseminate information with the knowledge that a specific recipient intends to use it to illegally manufacture, use, or distribute a controlled substance. Whether such a restriction is valid under the Constitution is not clear. According to analysis in the Department of Justice's bombmaking report, such a prosecution would probably survive a constitutional challenge as long as the government was required to prove that the individual had reasonable cause to know that a specific recipient of the information intended to use the information to commit a crime.