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Computer Undergroud Digest Vol. 08 Issue 34
Computer underground Digest Wed May 8, 1996 Volume 8 : Issue 34
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, #8.34 (Wed, May 8, 1996)
File 1--LAWSUIT: Battle of the Briefs 5/4/96
File 2--FLASH: FBI Reviewing CompuServe "Indecency"
File 3--(fwd) THE REGULATORS MEET THE INTERNET
File 4--censorship & FCC (fwd)
File 5--ACLU Update of State Net.Censorship Legislation
File 6--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Sun, 5 May 1996 22:44:51 -0800
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 1--LAWSUIT: Battle of the Briefs 5/4/96
Let the Battle of the Briefs begin!
As Mission Specialist Declan McCullagh explains in his latest CDA update,
the legal battle over the (un)constitutionality of the Communications
Decency Act has moved outside the courtroom. Lawyers from both sides have
now filed briefs with the court, and as you'll see below, the DoJ and their
cronies are trying to pull off a major snow job.
They would like us (and the court) to believe that the CDA's ban on
"indecency" amounts to nothing more than a straightforward ban on
pornography.
But remember this: indecent speech IS NOT necessarily pornographic.
Under the current definition of indecency upheld by the Supreme Court in
FCC v. Pacifica, George Carlin's infamous "Seven Dirty Words" qualify as
indecent speech. Indecent speech is not always polite, to be sure, but it
ain't porn either. Quite often it's material with important social,
artistic, or political value -- precisely the kind of stuff that the First
Amendment was designed to protect.
Also in this update:
Confusion in the ranks: What's indecent?
Theocratic right cites Rimm study in pro-CDA journal article
Broad coalition files pro-ACLU brief
What's next?
Myriad thanks go out to Declan for passing along this update.
Work the network!
--Todd Lappin-->
Section Editor
WIRED Magazine
---------------------------------------------------------
Fight-Censorship Dispatch #9
---------------------------------------------------------
The CDA Challenge: Battle of the Briefs
--------------------------------------------------------
By Declan McCullagh / declan@well.com / Redistribute freely
---------------------------------------------------------
In this update: Anti-porn groups egg on the Justice Department
Confusion in the ranks: What's indecent?
Theocratic right cites Rimm study in pro-CDA journal article
Broad coalition files pro-ACLU brief
What's next?
MAY 4, 1996 -- The CDA is a "work of art" that "is sensitive to the
First Amendment," Bruce Taylor and Cathy Cleaver argue in an amicus
brief supporting the DoJ filed in Philadelphia earlier this week.
The two longtime anti-pornsters submitted this weighty 85-page legal
document -- complete with over 100 pages of attachments including Jake
Baker's notorious snuff story -- on Monday, the same day the ACLU,
ALA, and the DoJ submitted their post-trial briefs, findings of fact,
and proposed conclusions of law.
I had asked Enough is Enough! to FedEx me the Taylor/Cleaver draft,
but The Brucester himself showed up at my office with a copy the next
afternoon, chipper and grinning and bouncing about. ("Hide your porn!"
he yelled as he walked in.) Taylor was in town for smut-research and
he clearly was proud of his completed legal object d'art.
What else could it be, with such delectable oeuvres as this:
Expecting children to locate hidden Easter eggs sounds reasonable
and enjoyable, unless those who have hidden the eggs are aware that
they are rotten. No reasonable person, who cares about the
well-being of children, would leave it up to children to find and
dispose of rotten eggs. In the world of online communications,
parents will be left as children, hunting frantically for thousands
upon thousands of rotten eggs in a cyberworld of indecency,
scurrying to find all of them before children are contaminated. [p35]
The arguments advanced in the brief -- a joint venture of Morality in
Media, the National Law Center for Children and Families, the Family
Research Council, Enough is Enough!, and the National Coalition for
the Protection of Children and Families -- center around one concept:
indecency means pornography.
That idea stinks like, well, a rotten egg. Their argument, which
mirrors the DoJ's, goes as follows:
1. The CDA merely "updates" and "amends" Federal obscenity statutes
and dial-a-porn laws.
2. All the CDA does is require adults who use "patently offensive"
sexual expression to "put electronic blinder racks" in front of
their "pornography."
3. The test for "indecency" is not vague or overbroad and does not
apply to "serious works of literature, art, science, and politics."
4. What is indecent "is well known to the public and the operators of
mass communications media facilities." (If "indecency" is too
vague, the CDA is unconstitutional.)
5. The court has an obligation "to interpret these sections
narrowly." That is, the three-judge panel should *reinterpret*
the CDA to affect only "prurient pornography." Taylor calls this
"judicial narrowing," and when I spoke with him he insisted that
it was what the court will do.
Equating "indecency" with "pornography" is misleading, since courts
have held that George Carlin's monologue and Allen Ginsberg's poetry
can be regulated as indecent. As cyberlibertarian attorney Harvey
Silverglate writes on the fight-censorship mailing list:
My objection to the current debate is that they talk of "smut." My
client, Allen Ginsberg, wants to broadcast some of the finest poetry
written this century in this country.
The "family values" brief concludes:
Purely selfish motivations based on one's desire to rebel against
the "government" and be free from society's code of conduct in
"cyberspace" is NOT a legal justification that should be accepted by
the courts...
Criminal laws against distributing pornography to children have
literally saved countless lives. These lives are needed not for any
threat posed by men of good will, but rather by those who would
exploit the vulnerable and impressionable for their personal gain...
Senators Exon and Coats deserve thanks from every family in America
and the CDA deserves to be upheld.
Do I detect some pride of CDA authorship from Taylor and Cleaver?
Though the Hon. Jim Exon *does* deserve our thanks -- for retiring.
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
CONFUSION IN THE RANKS: WHAT'S INDECENT?
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
The Justice Department and their anti-porn crusading allies can't even
agree on who should be locked up under the CDA.
On page 27 of his brief, Bruce Taylor cites the Amateur Action images
and Jake Baker's explicit rape-and-murder story as examples of
net.materials that are harmful to minors and that show "callous
disregard for public decency."
The EFF, a plaintiff in the ACLU coalition lawsuit, has Baker's story
on its web site and has made it clear in an affidavit that they
distribute such material online in the context of legal discussions.
But the DoJ says in their post-trial brief filed on Monday: "It can be
said that none of the plaintiffs' Web sites appear to engage in the
type of speech which Congress has targeted in the CDA."
So does Baker's story violate the CDA or not? Do you believe Taylor, a
former Cleveland city prosecutor, a former senior trial attorney in
the Child Exploitation and Obscenity Section of the Criminal Division
of the DoJ -- a guy who crows that he played "a central role in the
development and passage" of the CDA?
Or the DoJ attorneys, who are charged with enforcing it??
Even the DoJ's own witnesses can't come up with a good working
definition, as the ACLU illustrates in their post-hearing brief:
The responses offered by government witnesses Schmidt and Olsen to
the Court's questions illustrated just how freewheeling the
subjective, discretionary judgments of police and prosecutors would
be... Dr. Olsen opined that any of "the seven dirty words" made
famous by the Pacifica decision, or their synonyms, could be
subject to [the CDA] and should therefore be "tagged," as should
nudes even if displayed on a museum web site.
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
THEOCRATIC RIGHT CITES RIMM STUDY IN PRO-CDA JOURNAL ARTICLE
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
Thanks to the American Center for Law and Justice, Marty Rimm's bogus
cyberporn study just won't die.
The ACLJ is a legal advocacy group for the theocratic right -- Pat
Robertson's response to the ACLU. Says Robertson: "Someone has got to
stop the ACLU in court, and that's what we're going to do." They're
trying -- the ACLJ submitted Yet Another amicus brief over a week ago
supporting the Justice Department's defense of the CDA.
In the latest issue of the Journal of Technology Law and Policy, the
ACLJ defends the CDA and uncritically cites Rimm's discredited study.
A clue to the quality, honesty, and integrity of the ACLJ's
scholarship can be found in the way the group argues that Rimm's
"research" and TIME magazine's cover story provide evidence of "smutty
sex and scatologica" and justification for net-regulation:
{17} On June 26, 1995, Senator Charles Grassley spoke in support of
his legislation, the "Protection of Children from Computer
Pornography Act of 1995. [20] Speaking to the motivation for his
bill, which would have amended the federal criminal code, Senator
Grassley warned the Senate of "the availability and the nature of
cyberporn." He advised the Senate on a Carnegie Mellon University
study of visual images available on the Internet...
Note the ACLJ's convenient fiction of the "Carnegie Mellon Study." The
group never reveals that Rimm was an undergraduate passing himself off
as a faculty member, that his study has no credibility outside
theocratic right lobby groups, that the study itself is fraudulent,
and that CMU is investigating Rimm for ethical violations.
Somehow I'm not surprised that the authors of the ACLJ article, Jay
Alan Sekulow and James Matthew Henderson, overlooked those details.
Sekulow did not respond to email inquiries.
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
BROAD COALITION FILES PRO-ACLU BRIEF
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
Last month a broad coalition of professional groups, academics, ISPs,
and individuals opposed to the CDA submitted a Brief of Amici Curiae
in support of the ACLU lawsuit and motion for a preliminary
injunction. That brief is now online.
Represented by the Philadelphia law firm of Schnader, Harrison, Segal
& Lewis, the coalition includes the Authors Guild, American Society of
Journalists and Authors, Feminists for Free Expression, Palmer Museum
of Art, Philadelphia Magazine, Psinet, Inc., and the Reporters
Committee for Freedom of the Press.
Some of my favorite excerpts:
It is not only speakers on the Internet who feel the chill posed by
the CDA. The millions who access speech on the Internet feel it as
well. [...] Recipients of speech are equally entitled to protection
under the First Amendment. That protection is afforded "to the
communication, to its source and to its recipients both." Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748, 756 (1976).
Abuses involving "indecent" and "patently offensive" behavior also
are perpetrated today, and the Internet is the quickest and most
effective tool for exposing them. One wonders whether the
disappearances or indeed the Holocaust would have occurred so brazenly
if the Internet had been reporting on them twenty or sixty years ago.
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
WHAT'S NEXT?
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
The closing arguments for our case are scheduled for May 10, when the
plaintiffs and the DoJ will present an expected four hours of closing
arguments. The three-judge panel likely will issue a decision three or
four weeks later, and appeals from either side go directly to the
Supreme Court.
What happens if we lose? The ACLU's Ann Beeson said on HotWired's Club
Wired last week:
Losing the facial challenge would not by any means end the matter --
that is, we could still argue that the CDA is unconstitutional "as
applied" to particular defendants that DOJ decided to prosecute.
Of course, in the meantime we'd still see a huge chill on protected
speech...
It is clear that we have the facts on our side -- the much harder
question is the law itself, and unfortunately, it is a rare day that
a federal court will overturn an Act of Congress. (But I remain
cautiously optimistic.)
If you're near Philly, stop by the Federal courthouse at 7th and
Market Streets at 9:30 am on Friday. The courtroom will be packed.
Stay tuned for more reports.
--------------------------------------------------------
We're back in court on May 10 for closing arguments.
Mentioned in this CDA update:
Excerpts from DoJ and anti-porn groups' CDA briefs:
<http://fight-censorship.dementia.org/dl?num=2387>
Transcript of Olsen's "-L18" description and other testimony:
<http://www.cdt.org/ciec/transcripts/April_15_Olsen.html>
More on ACLJ and Rimm study:
<http://fight-censorship.dementia.org/dl?num=2328>
Jake Baker story on EFF's web site:
<http://www.eff.org/pub/Legal/Cases/Baker_UMich_case/baker.story>
ACLJ's "Cyberporn Alert Fact Sheet," dated December 14, 1995:
<http://fight-censorship.dementia.org/dl?num=485>
Harvey Silverglate on Allen Ginsberg and "indecency":
<http://fight-censorship.dementia.org/dl?num=390>
RFC -- Encoding indecent speech with a new MIME content-type:
<http://fight-censorship.dementia.org/dl?num=2301>
ACLJ journal article <http://journal.law.ufl.edu/~techlaw/>
ACLU post-hearing brief <http://www.aclu.org:80/court/cdaptbr.html>
Pro-ACLU amicus brief <http://www.shsl.com/internet/186619.html>
Fight-Censorship list <http://fight-censorship.dementia.org/top/>
Rimm ethics critique <http://www.cs.cmu.edu/~declan/rimm/>
Int'l Net-Censorship <http://www.cs.cmu.edu/~declan/international/>
This and previous Fight-Censorship Dispatches are available at:
<http://fight-censorship.dementia.org/top/>
<http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/>
<http://www.epic.org/free_speech/censorship/lawsuit/>
To subscribe to the fight-censorship announcement mailing list for
future Fight-Censorship Dispatches and related discussions, send
"subscribe fight-censorship-announce" in the body of a message
addressed to:
fight-censorship-announce@vorlon.mit.edu
Other relevant web sites:
<http://www.eff.org/>
<http://www.aclu.org/>
<http://www.cdt.org/>
<http://www.ala.org/>
------------------------------------------------------------
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution 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.
WARNING: This is not a test! WARNING: This is not a drill!
------------------------------
Date: Mon, 6 May 1996 17:40:03 -0700
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 2--FLASH: FBI Reviewing CompuServe "Indecency"
Brace yourselves: The Department of Justice has entered into an unholy
cabal with the American Family Association.
A few weeks back I told you how religious fundamentalists from the American
Family Association wrote a letter to Attorney General Janet Reno citing
CompuServe for "potential violations of the Communications Decency Act."
Now, as it turns out, the AFA has found a friend in President Clinton's
Department of Justice. As you'll read below, the AFA's letter was passed
along to Terry R. Lord, Acting Chief of the DoJ's Child Exploitation and
Obscenity Section.
Lord, in turn, referred the matter to the FBI "for further review."
Lord goes on to say, "With the passage of the CDA in 1996, we are turning
our attention to the distribution of indecency on the Internet... While
current litigation on the constitutionality of the CDA precludes certain
actions until the matter is resolved, rest assured that we will pursue all
other available options."
The cyberporn witch hunt is indeed gathering steam, DESPITE the Temporary
Restraining Order issued by U.S. District Judge Ronald L. Buckwalter in
February, blocking enforcement of the "indecency" provisions of CDA.
Spread the word!
--Todd Lappin-->
Section Editor
WIRED Magazine
=========================================
American Family Association
Washington D.C. Office
PRESS RELEASE
Contact: Patrick A. Trueman
(202) 544-0061
AFA Lauds Justice Department for Computer Porn Investigation
CompuServe/H&R Block Complaint Referred to FBI
For Immediate Release Thursday, May 2, 1996
The Justice Department has referred a complaint filed by the American
Family Association against H&R Block and CompuServe, a division of H&R
Block, to the FBI for review of possible violations of the Communications
Decency Act. The AFA had alleged in an April 1, 1996 letter to Attorney
General Janet Reno that H&R Block/CompuServe violated the CDA by offering
pornography and other sexually oriented material on it on-line service to
its users, including children. The FBI's involvement in this matter was
confirmed in a recent letter from Terry R. Lord, Acting Chief of the
Justice Department's Child Exploitation and Obscenity Section, in a letter
to AFA's Patrick Trueman, who filed the complaint. (A copy of this letter
is attached, below.)
Trueman lauded Attorney General Reno for taking quick action to investigate
H&R Block/CompuServe. "Every day that pornography is available on
CompuServe more and more children will be harmed," said Trueman.
-----------------------------------------------------------
U.S. Department of Justice
Criminal Division
Child Exploitation and Obscenity Section
310 Washington Center
1001 G Street NW
Washington, D.C. 20530
(202) 514-5760, FAX: 202-514-1793
April 29, 1996
Dear Mr. Trueman:
Your letters, dated April 1, and April 12, 1996, to Attorney General Reno
concerning potential violations of the Communications Decency Act (CDA) by
CompuServe, a division of H&R Block, Inc., has been forwarded to the Child
Exploitation and Obscenity Section (CEOS), and we are happy to respond.
CEOS has referred your letter and accompanying materials to the Federal
Bureau of Investigation for further review. As you well know, the Section
has overseen and personally conducted prosecutions of individuals and
companies for the distribution of child pornography and obscenity via
computer, and we have been very successful in this effort. Unfortunately,
even as prosecutions and investigations continue, individuals are
constantly looking for loopholes or alternative methods of distributing
illegal material or ways to harm children. Therefore, we are constantly,
and with the aid of federal law enforcement agents, reviewing the current
state of this activity to determine the best methods of identifying,
investigating, and prosecuting violators with the goal of deterring similar
conduct. Your information regarding CompuServe is helpful in this regard
and we appreciate your bringing it to our attention.
With the passage of the CDA in 1996, we are turning our attention to the
distribution of indecency on the Internet. As you correctly point out, the
distribution of these materials has a deleterious effect on minors. While
current litigation on the constitutionality of the CDA precludes certain
actions until the matter is resolved, rest assured that we will pursue all
other available options.
Please feel free to refer any additional information which you consider
relevant to this issue directly to us. We will review and forward it to
the appropriate federal investigative agency. We hope this information is
useful and we applaud your efforts on behalf of children and families.
Sincerely,
Terry R. Lord
Acting Chief
###
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution 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.
WARNING: This is not a test! WARNING: This is not a drill!
------------------------------
Date: Fri, 3 May 1996 14:01:02 +0100 (BST)
From: Richard K. Moore <rkmoore@iol.ie>
Subject: File 3--(fwd) THE REGULATORS MEET THE INTERNET
I'm forwarding this excellent article by Craig Johnson to several
lists. I hope you find it useful, and please accept my apologies if you
consider it off topic or if someone else already forwarded it.
My only nitpick with Craig is one of perspective... he describes
Internet as being free of regulation currently, and being under threat of
coming under the attention of the FCC, for the first time. I see this
differently. I'd say that the Internet has always been conciously
regulated by the FCC -- and in a very enlightened way.
The decision was made (in the late sixties, I believe) to allow
Tymshare, GE, GTE/Telenet, and others, to offer value-added communication
services, and to pay only standard rates for the leased or dial-up
communications facilities they required to provide their service (or their
customers required to access them). Internet was one of the natural
consequences of the existence of this open, value-added marketplace.
Thus Internet has been the intentional beneficiary of the
regulatory regime we've lived under prior to the so-called Reform bill.
From this perspective, it is the Reform-bill's _deregulation_ that
threatens Internet, in that it destabilizes existing arrangements, and
gives more leeway to the big operators to determine pricing structures.
Thus while Craig's interpretation seems to be that regulation -- of
any kind -- is the enemy, I claim that appropriate regulation has been our
safe-haven birthplace, and that appropriate regulation should be the
positive goal we pursue -- with a healthy appreciation of the benefits
we've derived from the previous regime.
But these are only philosophical nitpicks -- many thanks to Craig
for summarizing the situation and alerting us to the opportunity to
influence the FCC. Brilliant work, as usual.
Regards,
rkm
(please Cc: rkmoore@iol.ie if replying)
_________________| forwarded message follows |__________________
Date--Tue, 30 Apr 1996
From--"Craig A. Johnson" <caj@tdrs.com>
Subject--cr> Regulating the Internet
It is highly recommended that those who are concerned about the
coming communications regulatory regime read the FCC's recent NPRMs
on "universal service" and "interconnection."
--caj
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
ANALYSIS-- FREE NET TELEPHONY
+
by Craig A. Johnson
American Reporter Correspondent
Washington
4/29/96
net-regulation
1023/$10.23
THE REGULATORS MEET THE INTERNET
by Craig A. Johnson
American Reporter Correspondent
WASHINGTON -- Fears of Rambo-like regulation have spawned a sort
of spring fever in the online world, with presumptive alarms and bulletins
ricocheting all over the Net.
Will the Federal Communications Commission (FCC) choke the
Internet's wide-open pathways with regulatory underbrush? Will the
petition filed by the Americas' Carriers Telecommunications Association
(ACTA) on March 4 be granted, stopping Internet telephony or mandating
access charges? (AR, No. 245 ) Or, even more catastrophically, will the
Net somehow be swept under the FCC regime for telecommunications carriers?
The answers, according to sources both inside and outside of the
FCC, for the time being, are a qualified no. On April 19, the FCC gave
its tentative response on the Net telephony problem, partially assuaging
worries that new regulations will require access charges and tariffing for
long distance voice over the Internet. Although the soft no from the FCC
was reassuring, the wall protecting Internet voice as an "information
service" has scores of cracks and may still crumble under the blows of a
regulatory hammer.
The issue was addressed in the FCC's Notice of Proposed Rulemaking
(NPRM) on "interconnection," or more formally, "implementation of
the local competition provisions in the Telecommunications Act of
1996." The NPRM is as interesting for what it does not say as for
what it does.
Generally, it poses a lot of questions, on which parties will file
comments, and on the basis of which the FCC will finalize rules in August.
The agency sees the proceeding and the consequent rules as establishing
"the 'new regulatory paradigm' that is essential to achieving Congress'
policy goals."
The visible fractures in the old regulatory regime stood out
prominently in the interconnection notice. Two aspects of the proceeding,
in particular, directly relate to Internet access and pricing regimes.
First, the FCC made it clear that current access charges and
interconnection regulations are "enforceable until they are superseded."
The FCC said, in regulatory-ese, that it wanted comments on "any aspect of
this Notice that may affect existing 'equal access and nondiscriminatory
interconnection restrictions and obligations (including receipt of
compensation).'"
Translated, this means that Net telephone providers and users can
breathe a little more easily for the time being. But, the call for
comments on the existing "restrictions and guidelines" should not be taken
for granted. It is precisely these regulations -- which exempt "enhanced
service" providers, like Internet and online service providers from paying
access charges for their usage of the facilities and network components of
local exchange carriers (LECs) -- which are on the table in this
proceeding and related ones.
A second aspect of the interconnection proceeding relates directly
to definitions. The Commission asks for comment "on which carriers are
included under" the definition of "telecommunications carriers" offered in
the Telecommunications Act of 1996.
Critically, the agency asks: "How does the provision of an
information service [as conventionally defined in the law and prior
regulations], in addition to an unrelated telecommunications service,
affect the status of a carrier as a 'telecommunications carrier?'"
This is a call for commenters to address the issue of whether
"information service providers," such as ISPs, who also provide
"telecommunications services," should be treated as "telecommunications
carriers" and therefore be subject to all, some, or none of the
requirements of common carriers, including the payment of access charges
and the filing of tariffs.
In practical terms the FCC is asking the online community to
persuade them that ISPs who permit Internet audio streaming applications,
such as long distance voice, should not be considered under the same rules
applying to "telecommunications providers."
The FCC emphasizes that the interconnection rulemaking "is one of
a number of interrelated proceedings," and explains that the answer to
how, in which ways, and to what extent the Internet will be regulated will
be a product of "the interrelationship between this proceeding, our
recently initiated proceeding to implement the comprehensive universal
service provisions of the 1996 Act and our upcoming proceeding to reform
our Part 69 access charge rules."
This should be seen as a warning flag that issues concerning
access charges for the Internet have yet to be even taken up by the
Commission, and will be one of the outcomes of several complex
proceedings, with public comments invited from all consumer and business
interests.
The FCC NPRM and order establishing the joint federal-state
universal service board, issued on March 8, for example, emphasizes the
provision in the Telecommunications Act of 1996 which stipulates that
"[a]ccess to advanced telecommunications and information services should
be provided in all regions of the country." The FCC says that "commenters
may wish to discuss Internet access availability, data transmission
capability, ... enhanced services, and broadband services."
In both this and the interconnection notices, the agency
emphasizes its statutory authority to regulate the Internet. The news so
far is relatively positive. The FCC claims it doesn't want to prematurely
slap regulations on the Net which may stunt its remarkable growth and
vitality.
But the handwriting is on the wall -- in several different hands
and scrawled over cracks. Arguments for Internet volume-based or
per-packet pricing will be surely surface in comments in the FCC
proceedings. The old argument for the "modem tax," which says that data
bits should be priced differently than voice bits, will likely rear its
scarred head.
Internet access is on the charts and in the dockets at the
Commission. It should have the same pride of place for all Internet
activists and user group communities. The FCC is asking the Internet and
computer user and business communities to wake up to an emergent
regulatory regime in which the old comfortable dualities such as
"information services" and "telecommunications services" -- which in the
past have insulated the Internet from regulation -- may not be easily
parsed. In short, the agency is begging for help in drafting the
cyber-roadmaps for the future.
(Note: Both the universal service NPRM and order and the
interconnection NPRM can be accessed via the FCC's Web page --
http://www.fcc.gov. Many of the comments for the universal service
proceedings are also now available at the site.)
-30-
(Craig Johnson writes on cyber rights issues for WIRED.)
The American Reporter
"The Internet Daily Newspaper"
Copyright 1995 Joe Shea, The American Reporter
All Rights Reserved
The American Reporter is published daily at 1812 Ivar
Ave., No. 5, Hollywood, CA 90028 Tel. (213)467-0616,
by members of the Society of Professional Journalists
(SPJ) Internet discussion list. It has no affiliation
with the SPJ. Articles may be submitted by email to
joeshea@netcom.com. Subscriptions: Reader: $10.00
per month ($100 per year) and $.01 per word to republish
stories, or Professional: $125.00 per week for the re-use
of all American Reporter stories. We are reporter-owned.
URL: http://www.newshare.com/Reporter/today.html
Archives: http://www.newshare.com/Reporter/archives/
For more info on AR: http://oz.net/~susanh/arbook.html
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
~ CYBER-RIGHTS ~
~=-=-=-=-=-=-=-=~=-=-=-=-=-=-=-=-=~-~=-=-=-=-=-=-=-=~=-=-=-=-=-=-=-=-
Visit The Cyber-Rights Library, accessible via FTP or WWW at:
ftp://www.cpsr.org/cpsr/nii/cyber-rights/Library/
http://www.cpsr.org/cpsr/nii/cyber-rights/Library/
You are encouraged to forward and cross-post list traffic,
pursuant to any contained copyright & redistribution restrictions.
------------------------------
Date: Fri, 3 May 1996 13:36:47 -0500 (CDT)
From: Avi Bass <te0azb1@corn.cso.niu.edu>
Subject: File 4--censorship & FCC (fwd)
FCC Chief Backs "No Rules" On Internet Expression
LOS ANGELES - Federal Communications Commission chairman Reed Hundt
appeared to advocate freedom of speech over the Internet when he
addressed a Town Hall Los Angeles audience.
Asked how rulemakers might guarantee freedom of expression over the
Internet, he replied, "the best guarantee is to have no rules on that
topic."
Hundt, who was speaking broadly on U.S. communications reform and
educational technology and television, did not elaborate on the
Internet issue.
Copyright, Reuters Ltd. All rights reserved
------------------------------
Date: Wed, 1 May 1996 19:14:46 -0700 (PDT)
From: Declan McCullagh <declan@EFF.ORG>
Subject: File 5--ACLU Update of State Net.Censorship Legislation
---------- Forwarded message ----------
AMERICAN CIVIL LIBERTIES UNION
NATIONAL HEADQUARTERS
1/96 Update of State Bills to Regulate Online Speech
"If you think Congress is full of Luddites, just wait until you
read what your state legislators have been up to . . . "
BILLS THAT BECAME LAW IN 1995:
Connecticut: House Bill 6883
Creates criminal liability for sending an online message "with
intent to harass, annoy or alarm another person."
6/95 Signed into law.
Georgia: House Bill 76
Prohibits online transmission of fighting words, obscene or
vulgar speech to minors, and information related to terrorist
acts and certain dangerous weapons.
3/95 Signed into law.
Illinois: Senate Bill 838 (began as SB 747)
Prohibits sexual solicitation of a minor by computer.
7/95 Signed into law.
Kansas: House Bill 2223
Expands child pornography statute to include computer generated
images.
5/95 Signed into law.
Maryland: Senate Bill 21
Expands law that prohibits distribution of obscene material to
minors to include online transmission.
4/95 Signed into law.
Montana: House Bill 0161
Expands child pornography statute to prohibit transmission by
computer and possession of computer-generated child pornographic
images.
3/95 Signed into law.
New Jersey: Assembly Bill 38
Expands child pornography statute to outlaw "computer programs"
that depict child pornography.
Oklahoma: House Bill 1048
Prohibits transmission of obscenity, defined as harmful to
minors, through online networks.
4/95 Signed into law.
Virginia: Senate Bill 1067
Expands harmful to minors statute to criminalize electronic
transmissions of child pornography.
5/95 Signed into law.
BILLS CONSIDERED OR STILL PENDING:
Alabama: House Bill 100
Prohibits electronic transmission of obscene materials to minors.
California: Assembly Bill 295
Expands obscenity and child pornography statutes to prohibit
transmission of images by computer.
Florida: Senate Bill 238
Pornography Victims' Compensation Act. Creates private cause of
action for victims of crimes related to pornography, including
Florida's computer pornography statute.
Maryland: Senate Bill 22
Prohibits transmission of child pornography by computer and
sexual solicitation of a minor by computer.
Massachusetts: House Bill 1804
Adds "inducement by computer" to the law prohibiting the luring
of a minor for purposes of pornography.
New York: Senate Bill 210C
Prohibits the online dissemination of indecent materials to
minors.
1/96 Both houses approved the bill, but they have not yet sent it to the
governor's desk.
Oregon: House Bill 2310
Creates crime of electronically furnishing obscene material to
minors.
1/95 House Committe on Judiciary. Reported unfavorably.
Pennsylvania: House Bill 1727
Makes it a crime to use a computer network to transmit
information describing the production of explosives.
Pennyslvania: House Bill 841
Prohibits pornographic communications by computer to minors.
Washington: Senate Bill 5466
Prohibits electronic transmission of material deemed "harmful to
minors."
5/95 Governor vetoed the bill.
-----------------------------------------------------------------
For information on how to fight online censorship legislation in
your state, contact Ann Beeson, ACLU, beeson@aclu.org, (212) 944-9800 x788.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 6--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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