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Computer Undergroud Digest Vol. 08 Issue 25
Computer underground Digest Wed Mar 27, 1996 Volume 8 : Issue 25
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.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, #8.25 (Wed, Mar 27, 1996)
File 1-CONGRESS: Online Parental Control Act of 1996
File 2-Review of ROAD WARRIORS
File 3-Internet Book
File 4-CDA Frequently Asked Questions
File 5-Cu Digest Header Info (unchanged since 25 Mar, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Thu, 14 Mar 1996 11:47:33 -0800
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 1--CONGRESS: Online Parental Control Act of 1996
Today in the House of Representatives, legislation was introduced to
encourage parental empowerment on the Internet and eliminate the vague and
overbroad "indecency" standard that became law under the Communications
Decency Act.
The new legislation, called the "Online Parental Control Act of 1996," was
introduced by Rep. Anna Eshoo (D-CA), whose district includes much of
California's Silicon Valley. Representatives Pelosi (D-CA), Dellums
(D-CA), Farr (D-CA), Gejdenson (D-CT), and Woolsey (D-CA) are co-sponsors
of the bill.
(The full text of Rep. Eschoo's press release on the new legislation
follows below.)
The Online Parental Control Act of 1996 seeks to replace the "indecency"
standard (which is mainly used to regulate speech in BROADCAST media) with
the more narrowly-drawn "harmful to minors" standard which has already been
upheld as constitutional in 48 states.
My understanding is that "harmful to minors" is a PRINT-based standard, but
I'll research this and send out a more detailed evaluation as soon as
possible. In the meantime, I can say this: "harmful to minors" is viewed as
a middle-of-the-road standard, and as such, it remains *highly*
controversial. There are many who would argue that *any* attempt to
restrict access to content other than obscenity (which does not enjoy First
Amendment protection) is unwarranted.
Stay tuned.
All of this, by the way, comes on the heels of a bill (S 1567) Patrick
Leahy introduced in the United States Senate last month in an effort to
repeal the Communications Decency Act altogether.
Spread the word!
--Todd Lappin-->
Section Editor
WIRED Magazine
============================================================
FOR IMMEDIATE RELEASE
Lewis Roth
CONTACT: (202) 225-8104
March 14, 1996
Eshoo Introduces Online Parental Control Act
Legislation Strengthens Parental Control Of Online Materials,
Eliminates "Indecency" Standard
Washington, D.C.--Rep. Anna Eshoo (D-CA) today introduced the Online
Parental Control Act of 1996 (OPCA) to strengthen the control parents
have over their children's access to online materials, eliminate the
"indecency" standard from the Communications Act of 1934, and provide
additional defenses against liability for publishing online materials.
Representatives Pelosi (D-CA), Dellums (D-CA), Farr (D-CA), Gejdenson
(D-CT), and Woolsey (D-CA) are original cosponsors of OPCA.
When the Telecommunications Reform Bill was signed into law earlier
this year, it made sweeping changes to America's telecommunications
policy. Among those changes was the establishment of a ban on using
telecommunications devices to provide "indecent" materials to minors, as
well as defenses against being held liable for a violation of that ban. For
example, people could avoid liability by using software that blocks the
access of minors to such materials or restricts access through the use
of credit card numbers or adult access codes. Some U.S.
Representatives, including Rep. Eshoo, opposed the "indecency"
standard because the range of material it would ban was so broad that it
violates the right to freedom of speech.
The "indecency" standard is currently being challenged in court by a
large coalition of free speech advocacy groups and high technology
companies.
"The Online Parental Control Act will encourage an open dialogue in
Congress about the best way to both give parents control over what
their children see online and protect the First Amendment rights of
Internet users," said Rep. Eshoo. "My proposal builds on last year's
efforts to reach a compromise on this issue by offering more incentives
for the online community to provide families with better parental control
technologies.
"I'm supportive of efforts to address this issue in the courts, but I believe
Congress also needs to offer a legislative solution. Given the political
realities of the current Congress, I think OPCA offers the most realistic
way to settle this dispute in a timely and effective manner."
The Online Parental Control Act of 1996:
Replaces the "indecency" standard with a "harmful to minors"
standard;
Establishes a definition for "harmful to minors;"
Maintains the Communications Act of 1934's legal defenses
against liability for people who choose to give parents technology that: 1)
blocks or restricts access to online materials deemed obscene or harmful
to minors, and 2) restricts access to such materials through adult access
codes or credit card numbers;
Adds two new defenses: 1) the use of labeling or segregating
systems to restrict access to online materials, such as systems
developed using the standards designed by the Platform for Internet
Content Selection project (PICS), and 2) the use of other systems that
serve the same function of the other defenses if they are as reasonable,
effective, and appropriate as blocking, adult access code, and labeling
technologies; and
Protects providers or users of interactive computer services,
information content providers, and access software providers from civil
or criminal liability under state law for making available to minors materials
that are indecent or harmful to minors if they take actions to qualify for
the defenses mentioned above.
"I'd rather have Mom and Dad monitoring their children's online viewing
habits than the government," concluded Rep. Eshoo. "Technology offers
the best opportunity for parents to manage what their kids have access
to, and the Online Parental Control Act encourages those technologies to
be developed more fully."
The "indecency" standard is a vague term that has been subject to legal
challenge by a wide range of free speech advocates and high
technology companies. The broad nature of the "indecency" standard
means that it could lead to a prohibition on material such as classic art
like Michelangelo's David, classic literature like "Catcher In The Rye," and
frank discussions about birth control, sexuality, or disease transmission.
"Harmful to minors," on the other hand, already works successfully in 48
states, more directly addresses speech that actually harms children, and
passes constitutional muster.
PICS is a cross-industry working group assembled under the auspices of
MIT's World Wide Web Consortium to develop an easy-to-use content
labeling and selection platform that empowers people worldwide to
selectively control online content they receive through personal
computers. The Recreational Software Advisory Council recently
announced that it will soon implement a detailed voluntary ratings system,
using PICS standards, that will let computer users filter out varying
degrees of sex, violence, nudity, and foul language. Companies and
groups supporting PICS include Apple, America Online, AT&T, the Center
for Democracy and Technology, CompuServe, IBM, France Telecom,
Prodigy, Providence Systems/Parental Guidance, Surf Watch Software,
and Time Warner Pathfinder.
For more information about the Online Parental Control Act of 1996,
please contact Lewis Roth at (202) 225-8104 or look on the Internet at
http://www-eshoo.house.gov/opca.html.
###
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated mailing list providing
up-to-the-minute bulletins and background on efforts to overturn the
Communications Decency Act. To subscribe, send email to
<majordomo@wired.com> with "subscribe cda-bulletin" in the message body.
------------------------------
Date: Wed, 27 Mar 1996 22:51:01 EDT
From: Jim Thomas <jthomas@well.sf.ca.us>
Subject: File 2--Review of ROAD WARRIORS
ROAD WARRIORS: Dreams and Nightmares along the Information Highway.
By Daniel Burstein & David Kline. New York: Dutton. 466 pp. $24.95
(cloth). Reviewed by: Jim Thomas (cudigest@sun.soci.niu.edu).
I was conceived in 1941, the result of my father's ability to zip
and unzip his fly quickly and with adroitness. This may explain why
I wasn't born, say, in 1936, when only six percent of summer suits
had zippers. By 1940, I learn from ROAD WARRIORS, nearly 90 percent
of Princeton students had zippers. Therefore, I am.
That's what I like about ROAD WARRIORS--hundreds of tiny factoids
strewn about the text to spice up the prose and around which more
profound points are made. The zipper anecdote, for example, is used
to illustrate the relationship between technology, capitalism, and
entreprenerial endurance (p. 15). It, and dozens of others,
illustrate points and prod our thinking about computer technology,
history, culture, and politics.
ROAD WARRIORS has been hyped as a business text. The cover jacket is
over-represented with admirable comments by CEOs and other business
types, the book's promos focus on the business motif, and in the
Chicago area, it can be found in the computer/business section of
the chain bookstores. Bad marketing move: Burstein and Kline have
strung together a fact-filled, intellectually eclectic, and
insightful tome that fulfills like a text book, but reads like a
novel.
The authors argue that, underlying the computer technological
revolution, lies an array of economic, political, ideological, and
cultural processes reflect greed, vision, creativity, conflict, and
courageous intelligence (p. 22). The volume draws both its title
and its primary organizing metaphor from Mel Gibson's Road Warrior
films, in which a futuristic society becomes fragmented and chaotic.
Lacking strong centers of control or authority, individuals and
groups vie for power and scrap for resources in staking-out and
protecting their fiefdoms. In the Information Age, life imitates
art:
In the war rooms of the world's major business empires, a who's
who of corporate generals are plotting their strategies,
forging Machiavellian alliances and conspiring to outflank each
other in an epic struggle for supremacy in these emerging
Information Age markets (p. 35).
Telecommunications and computer industry competition, mergers,
innovation, commercialization, and transition in and among
established companies and new or would-be entrpreneurs lock modern
techno-economic road warriors in a battle for control of the
Internet, information technology, and political and economic
advantage in a war of capital, not just technology. Drawing from
the Sony Betamax v. VHS video recorders as an example, the authors
note that it's not necessarily who has the best product, but who is
most adept at marketing. This is hardly a startling revelation. What
is new is how the authors illustrate the marketing processes and
trace out the social and political implications for the information
age.
There is no doubt that the Internet is a hot multi-billion dollar
property.
But what is far less certain is whether it can be effectively
molded to serve corporate America's key financial and
business-to-business requirements (p. 126).
The authors map out the chapters in thematic sequence. Beginning
with a brief summary of the impact of technological innovations in
general and digital technology in particular, they lead us through
the mergers of telephone, visual, and computer technology. The
second section, "A Kingdom of Riches," describes the potential of
the Internet both as an information medium and commercial gold mine.
In a typically memorable twist of phrase, the authors note that the
Internet's original near-invulnerabity to nuclear or other concerted
attack is partly what makes bringing it under economic or political
control so difficult: "...trying to make all the Internet's
disparate parts work together smoothly and efficiently would be akin
to trying to herd five million cats" (p. 127). Who, they ask
rhetorically, would bet $10 billion on smooth herding? Yet, this
challenge poses both problems and rewards for those willing to try.
Drawing from the example of the struggle over digital media between
telecoms and cable companies, the authors argue that companies that
adopt the most creative and aggressively far-sighted policies will
succeed, and those with the slows will lose market share or
ultimately disappear into mergers and bankruptcies (p. 173). The
broader implication, only hinted at but still obvious, is that the
next round of change on the information highway, which the authors
liken to a dirt road rather than an expressway, will be influenced
more by capital than technological innovation. Failure to recognize
this clouds analysis of the trends and directions of the
techno-revolution, which in turn jeapordizes planning for a smoother
transition in a period of dramatic social change.
Who cares? We should. The authors cite Whtehead's observation that
"The major advances in civilization are processes that all but wreck
the societies in which they occur" (p. 317). They draw from the
Industrial Revolution to illustrate the ironies of progress that
simultaneously disrupts and disenfranchizes over the short term.
Real and potential problems are the result of more than simply
material changes--they also result from ideological and political
conflicts, as they argue in describing how some health policies, for
which remedies exist, are not implemented:
Our society has become the first to be paralyzed in the face of
a public health threat not from lack of scientific knowledge or
equipment, but by absurd extensions of the concept of
individual rights (p. 321).
One can disagree with their their conclusion, as I do, but it
doesn't change its value: Burstein and Kline 1) correctly insist on
grounding an understanding of pressing Net issues in a broader
socio-historical context, and 2) provoke the reader's thinking with
well-reasoned observations that, even when we disagree, engage us in
an intellectual exercise of response.
ROAD WARRIORS is particularly valuable for playing on the ironies
and contradictions of social change. Rather than simply laud the
good and condemn the bad, they take the next step and work through
the dialectical processes at play. Best of all, they avoid academic
jargon, political buzzwords, and ideological ax-grinding (almost).
As one (of many) examples, they summarize the dreams on the
information highway, and then note:
On the other side of the ledger, though, the nightmare scenarios
are as frightening as the dream scenarios are inspiring:
dehumanization in the face of so much technology; overdependence
on systems and networks vulnerable to hacker and terrorist
attack--or "only" to the vagaries of software bugs, power
outages, and squirrels chewing up fiber-optic lines; governments
and corporations increasingly able to play Big Brother in
monitoring home activities; economic anarchy bred by a new order
that doesn't respect intellectual poperty rights and steals
usable "bits" at will; a society rendered irrational and
illiterate by its infatuation with the image and the soundbite;
teledemocracy that turns into Rush Limbaugh-style mob rule;
global, generational, and class wars between info-rich and
info-poor (p. 324).
Rather than summarize the tensions between the good, the bad, and
the ugly, they provide a cogent analysis in which they conclude
that:
At the heard of the political-economy of the Digital
Revolution lies a troubling, foreboding enigma: we are taking a
leap toward a society where the historic correlation between
wealth creation and the input of labor power is severed--or at
least becomes less highly correlated than it used to be (p.
325).
From such a simple, single, sentence comes the generation of a
myriad of hypotheses and theoretical revisions that could keep Phd
students busy for the next decade.
The authors have no answers to the problems of transition into the
Information Age, but they argue strongly for a coherent, flexible,
and non-fettering set of government policies. They conclude with
eight "early-state ideas and provocations" (pp 357-359) to stimulate
dialogue. These include: 1) Government strategies and policies that
include economic incentives to preserve and stimulate domestic
Info-technology; 2) Goverment articulation and stimulation of
"social virtue," including educational and public service programs;
and 3) Staying out of the business of regulating the content of
Internet traffic.
For about a nickel a page, relatively inexpensive by publishing
standards, readers receive not only a compendium of insights, but a
valuable reference resource. The inclusion of substantial interviews
with CEOs John Malone and Ray Smith, and Reed Hundt, Chair of the
FCC, are a nice touch. The thorough index makes retrieving
information relatively easy.
Some potential readers might avoid ROAD WARRIORS in the belief that
it's simply another volume about business on the Internet. That's
unfortunate. "Business" is only the hook that grabs other topics and
issues, and the volume is not only useful for those with an interest
in Cyberspace, but also for those interested in political economy,
social change, and social policy. The paper back version would make
an valuable class room supplement, and it's unfortunate that the
publisher's marketing people seem not to recognize the significance
of the volume.
------------------------------
Date: Fri, 22 Mar 1996 17:13:03 -0500 (EST)
From: Charles Platt <cp@panix.com>
Subject: File 3--Internet Book
A New Book Investigating Sex on the Internet
is Pre-Published, Free, via the World Wide Web
-------------------------------------------------------------
While the fate of online freedoms is being determined by
federal judges in Philadelphia, a contributing writer to
Wired magazine has decided to give away his investigative
book on the subject.
Charles Platt spent six months gathering data about netporn
for a book to be published later this year by HarperCollins.
According to Platt, "My publishers hoped to rush the book
into print. When their plans changed as a result of factors
outside my control, I decided the material was so topical and
so important, it should be placed freely on web sites."
Titled ANARCHY ONLINE, the book is divided into two parts.
The first deals with net crimes such as hacking, viruses, and
data piracy. Platt includes first-hand descriptions of
hackers and pirates and debunks myths created by melodramatic
press coverage.
Part Two of the book explores free speech online and examines
netporn more frankly and in greater depth than has been
achieved elsewhere. Platt concludes that although a genuine
problem does exist, a "war on porn" will be as unwinnable,
expensive, and divisive as the "war on drugs."
Part Two of the book contains about 65,000 words and is being
placed online in its entirety. It includes transcripts from
pornographic IRC chat sessions and sexually oriented Usenet
news groups; a look at pedophilia on America Online; a new,
damning investigation of Martin Rimm (whose porn study was
immortalized in Time magazine); and a reassessment of issues
raised by Jake Baker (who faced years in jail after he placed
sadistic stories on Usenet). Platt also examines federal
attempts to control encryption; the Guardian Angels;
anonymous remailers; repressive laws at the state level;
content-filtering software; and content rating schemes. There
are exclusive interviews with Scott Charney at the Department
of Justice, Ann Beeson of ACLU, Louis Rossetto and Kevin
Kelly of Wired magazine, anti-child-porn crusader Barry
Crimmins, David Chaum of DigiCash, and Phil Zimmermann,
creator of PGP. Many other industry figures and commentators
make cameo appearances.
Platt concludes that net fears have been exaggerated and
demands for censorship are unwarranted. "Most people who want
to censor the net don't use it and are willfully ignorant of
it. They tend to be religious extremists and opportunistic
legislators looking for a hot-button issue. I question their
right to inflict laws on a community that they don't live in
and know nothing about."
Platt feels that if widely available methods are used to
control access by children, the net can be safer than a day-
care center. "My daughter started net surfing when she was
15. Even if children have totally unrestricted access, the
net is still more benign than most real-world environments. I
believe this is thoroughly substantiated by my book."
ANARCHY ONLINE is freely available at
http://anarchy-online.dementia.org/book/
Charles Platt is the author of 40 books, ranging from
computer guides to science fiction. His novel PROTEKTOR was
published this year by Avon Books. He is a contributing
writer to Wired magazine and has an article on net censorship
in the current issue, dated April.
Platt can be contacted at (212) 929 3983 or via email at
cp@panix.com.
------------------------------
Date: Wed, 13 Mar 96 22:44:37 PST
From: jblumen@interramp.com
Subject: File 4--CDA Frequently Asked Questions
The Internet Censorship FAQ
The Internet Censorship FAQ was created by Jonathan Wallace and Mark
Mangan, co-authors of Sex, Laws and Cyberspace, a new book on
Internet censorship from Henry Holt. (See
http://www.spectacle.org/freespch/ for more information.) Some of
the material in the following is taken from the book.
Please redistribute this FAQ freely in relevant forums.
Q: What threats of censorship exist for the Internet?
A: The principal threat of Internet censorship today is the
Communications Decency Act, a law passed by Congress and signed by
the President in January, 1996 which would apply quite radical
regulations to speech on the Internet.
Q: What is the Communications Decency Act (CDA)?
A: The CDA criminalizes "indecent" speech on the Internet. One
section of the CDA defines indecency as speech depicting or
describing sexual or excretory acts or organs in a patently
offensive fashion under conetmporary community standards. Each of
these clauses--indecent, depicting or describing, patently
offensive, and contemporary community standards--hides a landmine
threatening the future of freedom of speech in this country.
i."Indecent"
"Indecency" is a vague standard long used to prosecute explicit,
outspoken speech in the Western world (for example, Radcliffe Hall's
pathbreaking but actually very restrained lesbian novel, The Well of
Loneliness, was indecent because of the phrase, "And that night,
they were not divided.") Indecency laws are completely
unconstitutional as applied to print media, while broadcast spectrum
scarcity has been used as a rationale to continue applying such
laws to broadcast media. Indecency laws in general, the CDA in
particular, contain absolutely no exception for speech with
scientific, literary, artistic or political value.
ii. "Depicting or describing"
The word "describes" confirms that pure text can be illegal under
the CDA. Courts in recent decades have tacitly acknowledged that
sexually explicit text cannot be held illegal under obscenity laws.
Books such as Henry Miller's Tropic of Cancer and James Joyce's
Ulysses, which were held years ago to be significant literary works
and not obscene, could fall prey to the broader, vaguer CDA language
if posted online.
iii. "Sexual or excretory acts or functions"
While the reaction of some observers to this, the core of the CDA's
prohibition, may be "So what?", pause for a second to imagine that
you enter your neighborhood bookstore and wave a magic wand.
Immediately, all books infringing this definition vanish from the
shelves. The shelves are now half or two thirds empty! Not only
trashy bestsellers, but 19th century classics such as Zola's La
Terre and Flaubert's Madame Bovary, modern literature such as Joyce,
Miller, Nabokov and Burroughs, nonfiction works on health, aids,
rape, and sexual fulfillment, and even
all vanish from the shelves! All serious human discourse sooner or
later touches on earthy topics, as history, metaphor or information.
Under the CDA, speech which is quite legal in a book or magazine
should be banned from the Internet.
iv. "Patently offensive"
This wording, which the CDA picked up from the Supreme Court's
so-called Miller standard of obscenity, allows a jury to decide that
material is illegal based on how the jury feels about it. Patent
offensiveness is an extremely subjective standard; coupled with the
contemporary community standard provision, below, it is a recipe for
disaster. In a case called Eckstein v. Melson, the owner of a
bookstore was threatened with prosecution if she continued carrying
obscene, patently offensive materials. But when she asked the
prosecutor, the police and numerous other public officials to tell
her what she was carrying which was "patently offensive" (FBI agents
raiding her shop had seized novels by John Updike, among other
materials) no-one would tell her. A "patent offensiveness" standard
means that you engage in explicit speech at your own peril.
v. "Contemporary community standards"
The 1973 Miller case on obscenity held that local communities could
apply their own standards to determining whether material is
obscene. This approach barely makes sense for works such as movies
or magazines, which distributors can refrain from showing or selling
in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas
(known as the Amateur Action case) upheld the conviction of two
California sysops under Tennessee standards. Their crime had been to
place obscene material on their California BBS which offended the
ncommunity of Memphis, Tennessee. This result, now codified by the
CDA's use of the "community standards" wording, means that material
placed on the Internet anywhere must satisfy the standards of every
community that has Internet access anywhere in the U.S. In other
words, the standards of the most conservative community now apply to
the entire Internet.
Q: Is the CDA unconstitutional?
A: Yes. The basic U.S. rule on freedom of speech is the First
Amendment to the U.S. Constitution, which says:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof, or abridging the freedom
of speech, or of the press, or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.
Supreme Court cases, notably including Butler v. Michigan (1957),
have held that indecency standards cannot be applied to printed
matter (that case overturned a law which banned books unfit for
children). The extremist rationale of the CDA is that censorship
which would be impermissible for the printed word is appropriate for
the electronic word, and that works which are protected on paper are
subject to censorship on a computer screen.
There is no justification for treating the printed and electronic
word differently. The consequences of doing so will become most
apparent in the next century, as printed books and magazines
continue to decline in importance compared to the sheer volume of
words available online. If the full protection of the First
Amendment applies only to books and magazines printed on paper, then
the First Amendment will become a historical curiousity.
Q: What rationales are advanced by the supporters of the CDA?
A: The CDA's supporters advance two significant reasons for the law:
it is necessary to protect children; it is constitutional because
the Internet is no different than the telephone or broadcast media
and may be regulated similarly. We will deal with each of these
individually.
Q: Is the CDA necessary to protect children?
First, and as a dispositive matter, the constitutionality of the CDA
cannot turn on whether it protects children, despite the emotional
appeal of this issue. The Supreme Court in Butler v. Michigan did
not spend a lot of time considering the state of youthful minds and
the measures available to protect them; it held, instead, that
setting all public discourse in Michigan at the level acceptable
for children would be "burning down the house to roast the pig." A
law banning books by Miller, Joyce, Burroughs and Nabokov might also
protect children who might get hold of them, but would be completely
unconstitutional under the First Amendment.
Proponents of the CDA have completely ignored the fact that no child
can connect to the Internet without the help of an adult. Signing
up for an Internet account typically involves presenting a credit
card to an ISP. Adults who wish to allow their children to surf the
Net unsupervised can sign them up through a child-safe service like
Prodigy. Childhood specialists universally criticize parents who
allow their children to vegetate in front of the TV unsupervised;
the Net raises the same issues of parental responsibility.
Ironically, the same Congress that mandated the V-chip--which would
allow parents to stop undesirable broadcasts at the TV--passed the
CDA which addresses the same problem by eliminating undesirable
speech from the entire Internet.
A mature, measured approach to the problem of explicit online speech
would involve parental supervision and local screening, not
wide-ranging censorship. See the Voters' Telecommunications Watch
Parental Control FAQ.
Q: Is regulating the Net similar to regulating the telephone, radio
or or TV?
A: Not at all. The telephone and the broadcast media are all
government-supervised monopolies, and Congress and the courts have
recognized the government's right to supervise content as a result.
However, the right of government intervention to ban indecent
language recognized for these other communications media, though
cited as a precedent for the CDA, is actually far less than the
profound censorship the CDA envisions.
The government and the phone company itself can play no role in
regulating the contents of private conversations. In fact, the
phone company, as a common carrier, is legally required to carry any
kind of private communications without making any distinctions. In
the 1980's, disturbed by the growth of adult 900-line services,
Congress tried banning them; the Supreme Court held that indecent
speech could not be banned from phone lines. Instead, Congress
passed a law, which the Court upheld, mandating that 900-line
services require credit cards or, if billed by the local phone
company, be "reverse blocked" (you can't get access unless you
request it from the local phone company in writing.) These
regulations have allowed 900 line services to exist, while
significantly blocking access to minors.
By contrast, government involvement in radio and television is based
on the "scarcity" doctrine, which holds that government censorship
of content is justified by the government's role in assigning
broadcast frequencies on a scarce spectrum. The Supreme Court, in
the famous Pacifica (seven dirty words) case, held, as with the
telephone, that indecent language cannot be completely banned from
radio and television. Current FCC regulations allow indecent speech
on broadcast media after ten o'clock at night.
The Internet is not a "scarce" resource and anyone can attach a
computer to it without asking the government's permission. Nor is it
a government-licensed common carrier like the phone company.
Moreover, the regulations which have been held constitutional for
telephone, radio and TV merely seek to shift ("channel") explicit
speech to a time or place where children cannot access it, but not
to ban such speech entirely.
Q: Doesn't the CDA merely attempt to channel indecent speech on the
Internet?
A: The CDA is extremely ambiguous on this point--with the result
that the only safe thing to do is to avoid controversial speech
entirely, as many users are already doing.
Unlike laws pertaining to telephone, TV and radio, which clearly
spell out what is safe (take a credit card, broadcast after ten
p.m.), the CDA as written gives absolutely no guidance.
None of the methods of channeling decreed for other media works
well, or at all, on the Net. The only rational solution for
channeling speech on the Net is the parental control solution the
Congress rejected even as it was mandating the V-chip: promote the
use of child-safe ISP providers and local software to screen
undesirable speech.
Q: What about the argument that the Internet is "pervasive"?
A: Ithiel de Sola Pool, who in 1983 published a really prescient
book called Technologies of Freedom, predicted that the doctrine of
"pervasiveness" would someday be used to justify quite "radical"
censorship. That day has arrived.
"Pervasiveness" is an ill-thought out doctrine that has been around
since the 1880's, when a court allowed a local phone company to deny
service to a subscriber on the grounds that he used foul language.
The court's reasoning was that the wires might get crossed, and
another family might pick up its telephone to hear this man cursing!
The "pervasiveness" of radio was frequently cited by Herbert Hoover
and others to justify the FCC's role in the 1930's in censoring the
contents of radio broadcasts. The concept simply describes the fact
that a communications technology reaches into the home; radio, said
Hoover, must be "clean and safe for home consumption". However,
courts, which have frequently mentioned the pervasiveness argument
in media cases, have never used it as a basis for upholding a scheme
of censorship unless "scarcity" (see above) was also present.
If pervasiveness, standing alone, justifies censorship, then it is
hard to see why the Supreme Court overturned the state law in Butler
v. Michigan, which outlawed books unfit for children. One would hope
that books are also pervasive, with at least one or two of them
invading most houses.
Proponents of the CDA would argue that books must be brought into
the house, while the Internet somehow comes in unbidden. The courts
have given some credence to this argument, holding that broadcast
waves pass the walls of your house whether you want them to or not.
However, the Supreme Court has most recently suggested that the
"pervasiveness" argument would not be valid for cable televsion,
which it characterized as an invited guest in the home. This
suggests that the Court would also find (as it should) that the
Internet is also invited into the home and is not "pervasive."
Q: What is being done to combat the CDA?
A: The American Civil Liberties Union, Center for Democracy and
Technology, and other organizations have filed lawsuits to hold the
CDA unconstitutional. One of these lawsuits is scheduled for a
hearing in federal court in Philadelphia at the end of March 1996,
during which a three-judge panel will determine if the CDA is
unconstitutional under the First Amendment. One of the authors of
this FAQ, Jonathan Wallace, is a plaintiff in that lawsuit. (See
http://www.spectacle.org/cda/cdamn.html for more information.)
Q: Has a federal court restrained enforcement of the CDA?
A: Only in part. The Philadelphia court said that one section of the
CDA, which refers to indecency without defining it, is vague.
However, upon a first look, the court did not think that the
companion section, referring to "sexual or excretory acts or
organs", was too vague. The court will take a more detailed look at
the constitutionality of the CDA after the preliminary injunction
hearing, which begins on March 21.
In the meantime, the government has agreed not to bring any
indictments under the CDA--but behavior that is occuring now may
still be prosecuted after the court reaches its decision, assuming
it leaves the CDA alive.
Q: What is the relationship between the CDA and obscenity laws?
A: Prior to the CDA, federal obscenity law already applied to
material distributed on the Internet, as the Amateur Action case
illustrates. Under that law, as interpreted by the 1973 Miller case,
obscene materials are those which are (i)prurient and (ii)patently
offensive under contemporary community standards and which (iii)
lack significant scientific, literary, artistic or political
("SLAP") value. Cases in recent decades have indicated that only
visual images--photographs and films--will be held obscene under
this standard, as pure text is always found to have at least minimal
literary value.
The CDA makes illegal a large zone of speech which obscenity laws
don't touch--material depicting or describing sexual or excretory
acts or organs, which is not prurient, but is patently offensive to
somebody, even though it has SLAP value.
Q: Is it true that the CDA outlaws putting abortion information on
the Internet?
A: Its true. One section of the CDA confirms that the federal postal
obscenity law, first passed in 1873, applies to cyberspace. That law
included a section which hasn't been enforced in decades, but which
is still on the books, making it illegal to pass abortion
information across state lines. Congressional backers of the CDA
claim they didn't intend to outlaw the communication of abortion
information on the Internet, and President Clinton has said that he
will not allow the Justice Department to enforce it. Nevertheless,
the law is on the books, and could be enforced in a future
presidential administration, if it is not thrown out by the federal
court.
Q: Where can I go for more information?
A: Check out the following organizations:
The American Civil Liberties Union http://www.aclu.org
Voter's Telecommunications Watch http://www.vtw.org
Electronic Frontier Foundation http://www.eff.org
Center for Democracy and Technology http://www.cdt.org
The Internet Censorship FAQ was created and distributed by Jonathan
Wallace,jblumen@spectacle.org, and Mark Mangan, markm@bway.net.
-----------------------------
Jonathan Wallace
The Ethical Spectacle
http://www.spectacle.org
Co-author, Sex, Laws and Cyberspace
(Henry Holt, 1996)
http://www.spectacle.org/freespch/
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
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