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Computer underground Digest Fri Feb 2, 1996 Volume 8 : Issue 11
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.11 (Fri, Feb 2, 1996)
File 1--ACLU Denounces Passage of Telecom Bill
File 2--EFF Response to Telecommunications Bill
File 3--Telecomm Bill may criminalize some Abortion Discussion
File 4--Abortion Research FOLLOW-UP
File 5--Comments on CDA Analysis
File 6--Mike Godwin: Letter to President Clinton
File 7--New grassroots campaign - please adopt
File 8--Cu Digest Header Info (unchanged since 16 Dec, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Thu, 1 Feb 1996 20:31:27 -0500
From: beeson@PIPELINE.COM(Ann Beeson)
Subject: File 1--ACLU Denounces Passage of Telecom Bill
AMERICAN CIVIL LIBERTIES UNION
________________________________________________________________
News from the ACLU National Washington Office
ACLU Denounces Passage of Telecom Bill
and Prepares to Challenge Online Censorship Provisions
FOR IMMEDIATE RELEASE
Thursday, February 1, 1996
WASHINGTON -- Citing grave free speech and privacy concerns, the
American Civil Liberties Union today denounced the passage of the
Telecommunications Deregulation law, and announced immediate plans to
file a lawsuit on behalf of more than a dozen plaintiffs challenging
the online censorship provisions of the bill unless President Clinton
vetoes the measure.
The ACLU also criticized the swiftness with which Congress acted.
Both houses had less than 24 hours to consider the bill, leaving little
time for debate or measured reflection on a massive and complex bill
that would implicate one-eighth of the national economy. The margin
in the House was 414 to 16; the Senate voted 91 to 5.
"This law restructures the entire telecommunications industry and
places the free speech and privacy rights of all internet users in
permanent jeopardy," said Ira Glasser, Executive Director of the ACLU.
"It will criminalize otherwise protected speech in cyberspace, impose
new censorship controls on television, and destroy the diversity of
media ownership. For a Congress that says it wants to get big
government out of people's lives this law represents the most extreme
hypocrisy."
In a January 29th letter sent to members of Congress, the ACLU
summarized three major provisions of the bill that cause concern and
urged its rejection on free speech and privacy grounds:
-- it would establish a big government censorship regime for
criminalizing speech on the Internet, effectively restricting
expression to that appropriate only for children and subjecting
all Americans to the standards of the most socially
conservative communities.
-- its V-Chip requirement would give the government, rather than
parents, the power to decide which programs are appropriate for
family viewing.
-- it would allow the concentration of the media in fewer hands,
thwarting access by smaller companies and frustrating diversity
and competition. (A copy of the letter is available upon
request.)
After its passage today, ACLU Legislative Counsel Donald Haines
said, "Congress has abandoned its commitment to free speech, privacy
and a marketplace free from communications monopolies. By rushing headlong
to pass this bill, Congress is leaving us no choice but to turn to the
courts."
------------------------------
Date: Fri, 2 Feb 1996 22:33:19 -0600
From: jthomas@SUN.SOCI.NIU.EDU(Jim Thomas)
Subject: File 2--EFF Response to Telecommunications Bill
((MODERATORS' NOTE: The following is the EFF's response to the
Telecomm Bill))
YOUR CONSTITUTIONAL RIGHTS HAVE BEEN SACRIFICED FOR POLITICAL EXPEDIENCY
EFF Statement on 1996 Telecommunications Regulation Bill
Feb. 1, 1996 Electronic Frontier Foundation
Contacts:
Lori Fena, Exec. Dir.
415/436-9333 * lori@eff.org
Mike Godwin, Staff Counsel
510/548-3290 * mnemonic@eff.org
Shari Steele, Staff Counsel
301/375-8856 * ssteele@eff.org
----------------------------------------------------------------
The Electronic Frontier Foundation (EFF), decries the forfeiture of free
speech prescribed by the sweeping censorship provisions of the
telecommunications "reform" legislation passed overwhelmingly by the
House and Senate Feb. 1, 1996, almost immediately after being reported
out of committee, before the public was able to read, much less comment
upon this bill.
Congress demonstrates once more their willingness to abandon their most
sacred responsibilities - the protection of the US Constitution and
Bill of Rights - in order to expedite legislation that sacrifices
individual, family and community rights in its rush to win the support
of telecom industry giants as well as the religious right, during an
election year.
The consolation offered by our elected officials to those concerned about
abridging free speech, is that there is a high probability that the
censorship provisions in this bill would not stand up to court challenges
based on constitutional grounds.
Consider this a wake-up call. Our elected officials have spoken, and
with the passage of the most sweeping US telecommunications legislation
in over 60 years, our Constitutional rights in the new medium
of computer networking have been usurped. As the 21st century draws near,
our elected representatives have chosen to take us back to the close of
the 19th.
EFF is dismayed by the process and substance of this legislation, as
well as by the immediate and far-reaching negative impact it will have on
individuals, society and commerce.
Impact
------
This latest version of the "Communication Decency Act", originally proposed
by Sen. James Exon (D-NB), contains a deadly combination of a vague and
overly broad definition of what speech is unacceptable online, criminal
prosecution, and large monetary fines, which will set off a tidal wave of
censorship to avoid real and perceived liability.
Although the bill provides for some protection for service providers, this
shelter only exists if the provider takes an active roll in censoring
public and private messages. We have already felt the industry foreshocks
when AOL and CompuServe responded to recent government censorship
requests. The censorship wave will begin with the largest online
services, and flow rapidly through the whole U.S. community of service
and content providers.
The result will be a crippling of free society and commerce in the U.S., and
damage to the global Internet.
Individual participants in this medium stand to lose the freedom that has
characterized the Internet since its beginning.
Providers of online content, such as authors of World Wide Web documents,
or hosts of AOL forums, will find themselves forced to "dumb down" all
information and entertainment that they provide into little more than a
cleansed, thin collection of "G-rated" material suitable for children.
If the Internet is one vast, global library of information, this
legislation will have reduced the public spaces of the Net to the
"children's room" of that library.
System operators and access providers will divert resources to censorship
mechanisms and programs to avoid exposure to felony-level criminal liability
for the actions and posts of users over whom they can exercise no control.
New multi-billion dollar industries currently based in the U.S., such as
Internet service, online publishing, and digital commerce, face
economic uncertainty just as they begin to hit their stride, as investors,
stockholders, and customers evaluate the negative impact of censorship on
the value of their product and their company.
The telecom bill unwisely encourages states to follow suit, defining and
legislating online censorship and liability their own ways. These
aftershocks, already working their way through state legislatures all
over the country, will subject individuals and companies to legal mayhem
as they run into contradictory local regulations enforced from afar against
providers and users in other jurisdictions.
The long-term effects could reach other media as well. As traditional
content providers such as publishers, newspapers, television shows and
talk radio, increasingly merge with online communications, it will
become prohibitively expensive to produce two versions of the content,
one for the Net, and one for everywhere else - a single, censored, version
for all formats would be produced, chilling expression in print and
other currently freer media.
Process
-------
A quick review of the political process which produced this bill
demonstrates how bad legislation occurs when the content of a bill is kept
from public scrutiny, allowing only staffers and lobbyists to participate.
* There have been no public hearings on this legislation. Neither the
CDA, nor the larger Telecom Bill have been presented openly to the
public. As a result, Congress has neither heard expert testimony about the
medium and industry, nor allowed constituents to review and comment on what
their "representatives" are doing.
* No conference committee report or final bill text was made available for
review, except to committee staffers and innermost lobbyists until after
passage. Despite repeated promises from House Speaker Newt Gingrich,
Congress has failed to provide online public access to committee reports
and "live" bills.
* Congresspersons voted for passage of this regulation without even having
time to read, much less consider the impact of, the bill - less than
one day after it is voted out of conference.
* The sponsors of the bill and its fundamentalist supporters have, with no
public participation or oversight, thrown away more rational proposals,
including the Cox/Wyden bill, which would have actually helped parents
and teachers control the online access of their children and students.
EFF, along with Taxpayer Assets Project and several other public interest
organizations, have repeatedly asked that current Congressional information
be immediately provided to the public, not just to lobbyists, and that
that the Telecom Bill be put on hold, pending full public participation
in this debate. Voters may wish to express to Congress how they feel
about being denied the right to read or have a say in legislation
that threatens their freedom of expression.
Substance
---------
A brief summary of the problems inherent in the Telecom Bill's censorship
provisions illuminates the magnitude of the issues. The CDA would:
* subject all online content to the interpretation of ill-defined
"indecency" law;
* irrationally equate Internet communications with radio and TV broadcasting,
and unconstitutionally impose on computer networks indecency restrictions
that are more severe than those applied to any other medium;
* actively hinder the on-going development and refinement of real
solutions to problems such as online harassment and parents' needs to
supervise their own children's online access;
* in all probability will establish broad FCC regulation of the Internet,
with all of the attendant problems that will entail;
* create a new "access crime", equating the posting of material on a web
site, or even the provision of basic Internet access, with willful
transmission of indecent material directly to minors - harming the online
service industry, and retarding the development of the electronic press;
* afford no effective legal protection for system operators, creating a
speech-chilling liability no more sensible than holding librarians and
postmasters responsible for the content on bookshelves and in parcels.
* weaken the privacy of all Internet users by turning system operators
into snoops and censors.
* would criminalize even classic works of literature and art, or medical
and educational materials on breast cancer or sexually transmitted
disease. Obscenity law, not the indencency law used in the Telecom Bill,
considers literary, artistic or scientific value. Indecency law makes
no such exceptions.
Many reasonable adults might be surprised to find that the Telecom Bill's
indecency restrictions could ban:
* the online distribution of the King James Bible, which quite prominently
features the word "piss" (in II Kings) - a word already specifically
defined by the Supreme Court to be indecent;
* the text (or video, for that matter) of a PG movie that any child may
attend without parental supervision, not to mention the R-rated content
available on any of a number of cable TV stations;
* a _Schindler's_List_ WWW site, which could earn an Internet service
provider prison time;
* anything featuring nudity, in any context, including breast cancer
information or photos of Michelangelo's Cistine Chapel paintings, which
could result in the poster have to pay hundreds of thousands of dollars
in fines, if the material happened to seem "patently offensive" to an
excitable prosecutor.
This is the grim reality of censorship through indecency regulation: It
makes no allowances for artistic merit, social value, or medical necessity.
It is without reason, and without conscience.
Court Challenge
---------------
Fortunately, there is a very good chance that the courts will refuse
outright to uphold the Communications Decency provisions of the Telecom
Bill. EFF, along with other civil-liberties groups, will be mounting a
legal challenge to the bill's censorship provisions, on First Amendment and
other Constitutional grounds. Among the bases for challenging the act:
* Unconstitutional expansion of federal authority. It is inappropriate
for the Federal Communications Commission or any other federal agency to
dictate standards for content in a medium where there is no independent
Constitutional justification for federal regulation, as there has been in
the broadcast arena and in certain narrow areas of basic telephone
service. Like newspapers and bookstores, the Internet is fully protected
by the First Amendment.
* Vagueness and overbreadth. The terms the act relies on -- "indecency"
and "patently offensive" -- have never been positively defined by the
courts or the Congress, and so create uncertainty as to the scope of the
restriction, necessarily resulting in a "chilling effect" on protected
speech. Moreover, these terms criminalize broad classes of speech that are
understood to be protected by the First Amendment, including material that
has serious literary, artistic, political, or scientific value.
* Failure to use the "least restrictive means" to regulate speech. The
First Amendment requires that speech regulation laws must pass the "least
restrictive means" test. That is, if government censorship is not
the least restrictive possible means of ensuring the goal (protecting
an unwitting or under-age audience from unsolicited indecency), then
the restriction is unconstitutional. In the case of the Internet,
government control is demonstrably not the least restrictive means,
as filtration, ratings, and labeling technology and services are already
available and operational - from software tools to help parents shield
their children from inappropriate material, to special filtered
Usenet service for entire schools, in which all information has been
checked for indecent content.
An indecency restriction must pass all of these tests to be constitutional.
The Communications Decency Amendment fails every one of them.
EFF, together with a wide range of civil-liberties groups and
organizations that would be affected by the legislation, has already
joined preparations for a massive legal challenge to the CDA should
it pass - an effort that should enjoin enforcement of this legislation,
and, we hope, prevent the darker scenarios outlined above. The entire
process will be very costly in time, human resources and money, but is
necessary to protect what remains of our rights to free speech, press, and
association.
Launching of the Blue Ribbon Campaign
-------------------------------------
A blue ribbon is chosen as the symbol for the preservation of basic civil
rights in the electronic world.
EFF asks that a blue ribbon be worn or displayed to show support for the
essential human right of free speech. This fundamental building block of
free society, affirmed by the U.S. Bill of Rights in 1791, and by the U.N.
Declaration of Human Rights in 1948, has been sacrificed in the 1996 Telecom
Bill.
The blue ribbon will be a way to raise awareness of these issues, and for
the quiet voice of reason to be heard.
The voice of reason knows that free speech doesn't equate to abuse of
women and children, or the breeding of hatred or intolerance.
**************
For more information on the Blue Ribbon Campaign, including blue ribbon
graphics we encourage Net users to prominently display on their WWW pages
with links to the URL below, please see:
http://www.eff.org/blueribbon.html
gopher.eff.org, 1/Activism/BlueRibbon
ftp.eff.org, /pub/Activism/BlueRibbon/
For more information on the Communications Decency legislation and other
Internet censorship bills, see:
http://www.eff.org/pub/Alerts/
gopher.eff.org, 1/Alerts
ftp.eff.org, /pub/Alerts/
------------------------------
Date: Fri, 2 Feb 1996 15:16:51 -0800 (PST)
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 3--Telecomm Bill may criminalize some Abortion Discussion
Here's what I've found out about the limitations on the dissemination of
abortion materials contained within the telecom reform bill:
(The amended text of the Telecom Bill follows below, along with U.S.C. 18,
Section 1462.)
Basically we're talking about a provision that extends a section of the US
Code (The Comstock Act) prohibiting certain kinds of "obscene" speech to
include "interactive computer services."
Schroeder's office (202-225-4431) faxed me their position... they say that
the changes "will criminalize a wide array of public health information
relating to abortion, including discussion of RU-486 on the Internet."
Perhaps, but...
Sam Stratman from Rep. Hyde's office (202-225-4561) insists subsection (c)
of Section 1462 has already been invalidated by the courts (although it
remains on the books), so the extension of 1462 to include "interactive
computer services" would have no bearing on abortion-related materials.
According to the Center for Reproductive Law & Policy (212-514-5534), the
last time ANY court has ruled on subsection (c) was in 1919... long before
Roe v. Wade. They say the statute remains on the books, although it has
long gone unenforced.
Steven Lieberman from the NY State Bar clarified things even further.
Lieberman says that the prohibitions in subsection (c) against the
dissemination of information about abortion were invalidated by the Supreme
Court in Bigelow v. Virginia in 1975. (This was a case concerning the
availablity of out-of-state abortion materials in the state of Virginia.)
As for the prohibitions against any "drug, medicine, article, or thing
designed, adapted, or intended for producing abortion"... these were
invalidated by Roe v. Wade.
So, as Lieberman summarized the situation, "A prosecution under subsection
(c) of Section 1462 would be doomed from the outset." Nevertheless, from a
strictly formal standpoint, it appears that the prohibitions on abortion
information are indeed in place... even if they are toothless.
--Todd Lappin-->
WIRED Magazine
------------------------------------------------------------------------
Sec. 507 of the Telecom Bill Ammends Section 1462 of title 18 of the U.S.
Code (Chapter 71), in ways which may make sending the following over the
Internet illegal:
o any text, graphic, or sound that is lewd, lascivious, or filthy
o any information telling about how to obtain or make abortions and
drugs, or obtaining or making anything that is for indecent or immoral
use
Here is Section 1462 as Ammended:
(Telecom bill chnages in "<" and ">"):
Section 1462. Importation or transportation of obscene matters
Whoever brings into the United States, or any place subject to the
jurisdiction thereof, or knowingly uses any express company or other common
carrier <or interactive computer service (as defined in section 230(e)(2) of
the Communications Act of 1934)>, for carriage in interstate or foreign
commerce -
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture,
motion-picture film, paper, letter, writing, print, or other matter of
indecent character; or
(b) any obscene, lewd, lascivious, or filthy phonograph recording,
electrical transcription, or other article or thing capable of producing
sound; or
(c) any drug, medicine, article, or thing designed, adapted, or
intended for producing abortion, or for any indecent or immoral use; or any
written or printed card, letter, circular, book, pamphlet, advertisement, or
notice of any kind giving information, directly or indirectly, where, how, or
of whom, or by what means any of such mentioned articles, matters, or things
may be obtained or made; or Whoever knowingly takes <or receives>, from such
express company or other common carrier <or interactive computer service (as
defined in section 230(e)(2) of the Communications Act of 1934)> any matter
or thing the carriage <or importation> of which is herein made unlawful -
Shall be fined not more than $5,000 or imprisoned not more than five
years, or both, for the first such offense and shall be fined not more than
$10,000 or imprisoned not more than ten years, or both, for each such offense
thereafter.
-----------
Here is the text which addes the interactive computer service part
in the Telecom Bill:
SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.
(a) Importation or Transportation.--Section 1462 of title 18, United
States Code, is amended--
(1) in the first undesignated paragraph, by inserting ``or
interactive computer service (as defined in section 230(e)(2) of the
Communications Act of 1934)'' after ``carrier''; and
(2) in the second undesignated paragraph--
(A) by inserting ``or receives,'' after ``takes'';
(B) by inserting ``or interactive computer service (as defined
in section 230(e)(2) of the Communications Act of 1934)'' after ``common
carrier''; and
(C) by inserting ``or importation'' after ``carriage''.
-----------
Media Notes:
USAToday 02/01/96 - 07:37 PM ET http://www.usatoday.com/news/washdc/ncs16.htm
Telecommunications deregulation breaks down electronic walls
"At one point, the debate veered off on abortion.
Seeing a ''high-tech gag rule,'' Rep. Nita Lowey, D-N.Y., joined by Pat
Schroeder, D-Colo., and several other women lawmakers, asserted the
anti-pornography provisions would outlaw discussions about abortion over
the Internet, the global computer network.
Rep Henry Hyde, R-Ill., a leading abortion foe, assured members that
nothing in the bill suggested any restrictions on discussions about
abortion."
Well, Henry Hyde was right - nothing in the bill suggests restrictions on
abortion discussion - the restrictions are in Title 18 of the U.S. Code,
which now includes computer networks.
-----------
Thanks to the Cornell Law School Legal Information Institute
(http://www.law.cornell.edu/) and the Alliance for Competitive Communications
(http://www.bell.com/) for source text.
------------------------------
Date: Fri, 2 Feb 1996 19:18:26 -0800 (PST)
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 4--Abortion Research FOLLOW-UP
A follow-up to my earlier post:
I just got off the phone with Simon Heller, Staff Attorney for the Center
for Reproductive Law & Policy (212-514-5534). Heller provided some further
detail about subsection (c) of the Comstock Act, U.S.C. 18, Section 1462.
Heller went to great lengths to point out that subsection (c) has NEVER
been ruled unconstitutional by a U.S. court. In addition, he said that
because both the House and the Senate amended the bill as part of the
telecommunications reform bill, from a legal standpoint this suggests to
the court that the Comstock provisions have gained "renewed currency" -
depite the fact that they date back to 1909.
"Until a court specifically says a law is unconstitutional, it remains in
effect," Heller said. "The constitionality of the limitations on speech
about abortion contained within Section 1462 have never been adjudicted.
For 25 years people have assumed that the law is unconstitutional. But
that idea remains untested."
One final note to make things even more confusing...
This from an article by RORY J. O'CONNOR in today's San Jose Mercury News:
Shortly after House members discovered the telco bill included language
that would have made it a crime to even discuss abortion on the Internet,
the Merc reports that, "the sponsor of the language, Rep. Henry Hyde,
R-Ill., and pro-choice Rep. Nita Lowey, D-N.Y., took the floor in a
scripted exchange to clarify that Hyde didn't intend the language to impose
such a ban."
There's a special name for these kinds of "scripted exchanges," but it
escapes me for the moment. Nevertheless, legally, such exchanges serve to
provide the courts with some insight into legislators' intent at the time
when legislation is adopted. In this case, the exhange was meant to
indicate that the revisions to the Comstock Act are *NOT* intended to serve
as a prohibition against discussion of abortion online.
It goes without saying that significan uncertainty and ambiguity surrounds
the last-minute changes to the Comstock Act that were inserted into the
telco reform bill. It also seems safe to say that the possiblity exists
for some individual or organization to be prosectuted under the revised
law. Such a prosecution probably would not pass constitutional muster (in
light of Bigelow v. Virginia and Roe v. Wade), but regardless; until the
courts rendered a final decision, the measure -- or any attempt to
prosecute under it's provisions -- would have the effect of (further)
chilling free speech on the Net.
Ugh.
Next stop... President Clinton's desk.
--Todd Lappin-->
WIRED Magazine
------------------------------
Date: Fri, 2 Feb 1996 11:39:08 -0500
From: Tim King <timk@cybercom.net>
Subject: File 5--Comments on CDA Analysis
Groups like the Center for Democracy and Technology (CDT) and the
Electronic Frontier Foundation (EFF) have been a great source of
information regarding the Communications Decency Act (CDA), recently
passed by congress. As a critic of this act, I'd like to make some
comments regarding the CDT's analysis of the latest CDA, which can be
found at <http://www.cdt.org/policy/freespeech/12_21.cdaanal.html>.
Related materials can be found at <http://www.cdt.org/cda.html>.
The CDT's analysis is similar to others put forth by the EFF and ACLU.
I would be very interested to hear from one of the EFF staff lawyers
concerning the comments I make here.
Please note that I am not a lawyer. Even if I were, the opinions
expressed herein might be wrong. I am merely a concerned citizen who
is intently interested in how the law applies to him and to his
family.
----------------------------------------------------------
According to the CDT, the CDA "relies on the vague and blatantly
unconstitutional 'indecency' standard"
This has been repeat ad nauseum, and was at one time true. But it does
not appear to be true anymore. The amended 47 U.S.C. 223(a), which
uses the word "indecent," does not appear to apply to the Internet. It
applies, rather, to telephones and "telecommunications devices." A
telecommunications device "does not include the use of an interactive
computer service." [223(h)(1)(B)]
ISPs are interactive computer services: "The term 'interactive
computer service' means an information service, system, or access
software provider... including specifically a service or system that
provides access to the Internet..." [230(f)(2), see sec 509 of the
act] Since Internet communication can only occur through an ISP, I
should think that the use of the Internet is not covered by this
provision. Someone please correct me if I'm wrong.
Meanwhile, "the indecency standard" is currently applied by the law to
telephone communications in general. Currently 223(a)(1)(A), which the
CDA amends, applies to anyone who "makes any comment, request,
suggestion or proposal which is obscene, lewd, lascivious, filthy, or
INDECENT." [emphasis mine] To extend this law to include fax machines
and direct modem-to-modem communication does not in itself seem
unconstitutional.
--------------------------------------------------------------
Allegedly, the CDA "contains weaker protections [than the Cox/Wyden
bill] for content providers who label content and enable others to
block it..."
230(c) contains the good-Samaritan provision, which seems to be,
word-for-word, as it appears in the Cox/Wyden bill.
---------------------------------------------------------------
The CDA "would allow states to impose additional restrictions on
non-commercial activities such as freenets, BBS's, and non-profit
content providers."
I fail to understand how 223(g)(2) gives any power to the states that
they didn't otherwise have. It appears to say only that states can
make laws regarding INTRAstate commerce, so long as these laws don't
conflict with federal law. This is guaranteed by the Constitution, is
it not?
--------------------------------------------------------------
They say that the CDA "prohibits sending 'indecent' material directly
to a minor or making indecent material available for display in a
manner available to a minor (including world wide web pages, ftp
sites, or usenet newsgroups)."
In this case, our beloved commentators have evidently failed to
actually read the bill. Section 223(d) applies to "whoever...
knowingly uses an interactive computer service to send to a specific
person or persons under 18 years of age, or... to display in a manner
available to a person under 18 years of age, any... communication
that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs..."
Now, there are problems with this, but "the indecency standard" is not
one of them. A "patently offensive" standard may be one of them, but
this is indeed something different.
I do have concerns, however. Firstly, it's difficult to tell to
exactly which works this paragraph applies. And I don't know precisely
which works are excluded. Furthermore, I don't know whose "community
standards" are to be used to make the judgement. (The publisher's? The
ISP's? The reader's?) Is pornography alone restricted? Or does the
provision also apply to adult-oriented literature and sexual
discussions and advice?
Moreover, I am unclear on exactly what I must do in order to abide by
this law, if I should want to publish content that falls under it.
There are two ways for a web publisher, for example, to protect
himself. He can use an account-based service with credit-card
authorization. Or he can take "in good faith, reasonable, effective,
and appropriate actions under the circumstances..., which may involve
any appropriate measures to restrict minors from such communications,
including any method which is feasible under available technology."
[223(e)(5)(A)]
So, do I have to verify the age of each potential user and issue them
an account on my web page? This would necessitate not only a
potentially large administrative overhead but also that my service
provider would have to provide me with the ability to implement this.
As an individual, with limited hours and dollars, this would seem
quite an imposition, to say the least.
What if I merely issue a warning, requiring the user to take some
affirmative step, such as following a link, to access the questionable
content? This is what many people do currently, as a matter of
courtesy. But is this "effective" enough to comply with the CDA? If
not, isn't the provision, then, an infringement on free speech? I
would simply choose not to publish rather than be criminally liable.
And how does this apply to USEnet news? It's technologically
impossible for a poster to a newsgroup to limit access to only certain
individuals. Can he simply assume that there are no minors floating
around alt.sex.wizards? Or will he have to post anonymously? In either
case, the law will have done little for minors, as will have only
stopped articles from those who wish to, rightfully so, take credit
for their own work.
And if a minor happens to read a post someone submitted to
alt.sex.wizards, it would appear that the poster is legally
responsible. The ISP isn't responsible, as per 223(e)(1). The minor
himself isn't responsible, right? And does the originating ISP, under
(d)(2) and (e)(2)-(3), have a responsibility to cancel the offending
article?
Frankly, I don't see how the courts could, in good conscience, support
this provision without limiting its apparent scope substantially. But,
then again, I can't imagine how this bill could possibly pass. That's
what I've said from the start: It's just gonna die.
-----------------------------------------------------------------
"CDT believes that this proposal threatens the very existence of the
Internet as a means for free expression, education, and political
discourse."
Frankly, I think this warning is overblown. Of all the speech on the
Internet, only a relatively small portion could possibly become
criminal. That's not to say that the legislation is okay. Rather, it
is to say that freedom on the Internet will survive enough for us to
discuss the invalidity of the CDA, for example.
In my estimation, for the most part, this bill will have little
effect, good or bad, on the Internet as applied to children. Enough
people will post pornography anonymously and enough questionable
material will be available from foreign sites to make the act's affect
moot.
I fear that ISPs, if sufficiently alarmed, may get spooked into taking
censorial or intrusional action. But I pray that they resist the urge.
It will only be bad for business. The objectionable provisions of this
bill will hopefully be appropriately scrutinized by the courts. And I
support the ACLU and other organizations in their effort to bring this
act to court.
------------------------------
Date: Fri, 2 Feb 1996 17:20:11 -0800 (PST)
From: Declan McCullagh <declan@EFF.ORG>
Subject: File 6--Mike Godwin: Letter to President Clinton
Feb. 2, 1996
A LETTER TO THE PRESIDENT: VETO THE TELECOM BILL
By Mike Godwin
Staff Counsel
Electronic Frontier Foundation
Phone numbers:
510-548-2976 or
510-548-3290
Dear Mr. President,
I know you've been awfully busy for the last four years. But if you'd
had time, and the inclination to surf the Internet, you might have
come across some of the things I've written about you there.
You see, I've been one of your boosters and defenders on the Net ever
since I watched your campaign from close up, back in 1992 when I
lived in Nashua, New Hampshire. I even attended the rally in a high
school gym where you spoke, powerfully, of your commitment to lead
the United States into the next century. I shook your hand there.
And when I got back home, I wrote to my friends on the Internet and
on the WELL about how I thought you were the candidate who had the
most to say about the future. I certainly hoped it was true, because
even then I spent a large part of every day worrying about one
special part of the future --the Internet.
On the Net, you see, the First Amendment's promise of freedom of the
press is not limited to Time Warner or Gannett or the New York Times.
Suddenly, every American citizen is potentially a publisher who can
reach a large audience and take full part in the public and private
colloquies of American life.
Which is why I work for an organization dedicated to ensuring that
the First Amendment protections apply as strongly to digital
discourse as they do to words printed in ink on the pulp of dead
trees. The Internet levels the First Amendment playing field -- it
makes Justice Holmes's "marketplace of ideas" something more than a
metaphor. I'm excited about the Internet, because it could mean a
Golden Age of American democracy.
But not everyone is as excited as I am. Lobbyists for some
religious-right groups have managed to persuade the Congress, and a
significant segment of the American public, that the Internet is rife
with pornography, not to mention other "dangers." They see in the
Internet a future in which it will be a lot harder to impose a
fundamentalist cultural agenda because when everyone is a publisher
you need a lot more thought police.
So they want to nip freedom of speech on the Net in the bud. And
their tactic has been to add language to the Telecommunications
Reform Act, now passed by both houses of Congress, that would
restrict "indecent" or "patently offensive" speech on the Net.
They like to say this is about pornography, Mr. President, but it's
not. As you know, it's already illegal under state and federal law
to distribute obscene materials either on the Net or off. And there
are already laws protecting children from exposure to obscene
materials or other materials deemed "harmful to minors."
Their real agenda is not to protect children -- it's to silence
adults. Their goal is to take the great library of the Internet and
restrict us all to the children's room of that library. They've
forgotten that the First Amendment was crafted precisely to protect
disturbing, controversial, "offensive" speech -- after all, no one
ever tries to ban any other kind.
And tactically they have been very effective -- they got their
restriction on "indecency" (a term the Supreme Court has never
defined, despite what they say about FCC v. Pacifica) added to the
very telecommunications bill that you and Vice President Gore were so
eager to pass. The bill passed the House and the Senate by huge
majorities on Thursday.
Which is why I think you must veto it, Mr. President, on the grounds
that its "indecency" restrictions violate the First Amendment. You
were a professor of Constitutional Law once -- you know that
"indecency" can't be constitutionally banned from any medium, and
that there's no constitutional authority for Congress to have this
degree of control over the content on the Internet.
If you take this stand on principle, you won't have killed the
telecommunications bill -- it's clear that Congress truly wants to
pass it, and they'll surely pass some version of it shortly. And you
won't win the support of the anti-"indecency" crowd -- they hate you
and they're already working toward your defeat in November.
But here's what you will do. First, you'll give Congress a chance to
reconsider whether it truly wants to cripple freedom of speech on the
Internet with ill-crafted, ill-considered, ill-justified restrictions
on constitutionally protected speech. Second, and more important to
me personally, you'll have proved that I was right to talk you up on
the Internet in 1992. And you'll have proved to millions of Internet
users that you're worth voting for again.
------------------------------
Date: Fri, 2 Feb 1996 15:33:44 -0800 (PST)
From: Stanton McCandlish <mech@EFF.ORG>
Subject: File 7--New grassroots campaign - please adopt
EFF's launched a Blue Ribbon Campaign for Online Free Expression. See
http://www.eff.org/blueribbon.html
The goal is to have an identifiable symbol of resistance, and to
raise awareness among the general populace. Wear a blue ribbon, and
put blue ribbon graphics on your homepages and such, please.
I hope you'll all participate. It's also been proposed to turn
(Netscape) WWW pages to a black background. No reason not to do both
I guess.
------------------------------
Date: Sun, 16 Dec 1995 22:51:01 CDT
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 8--Cu Digest Header Info (unchanged since 16 Dec, 1995)
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End of Computer Underground Digest #8.11
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