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Computer Undergroud Digest Vol. 08 Issue 66
Computer underground Digest Sun Sep 15, 1996 Volume 8 : Issue 66
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, #8.66 (Sun, Sep 15, 1996)
File 1--Vinton Cerf's National Geographic Society Lecture
File 2--Re: CuD #8.62 - "US Army Private Faces Spying Charge"
File 3--Condat plagiarizes Crypt Newsletter in recent CuD
File 4--** BERNIE S. RELEASED!! **
File 5--Microsoft lies, damned lies, and statistics
File 6--CITA
File 7--EPIC Testifies on Children's' Privacy Bill
File 8--It's all in the Game: Who Owns "Real-time" Sports Information?
File 9--"Freedom on Trial," from October 1996 Playboy
File 10--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: Mon, 9 Sep 1996 17:37:53 -0400
From: russ@NAVIGATORS.COM(Russ Haynal)
Subject: File 1--Vinton Cerf's National Geographic Society Lecture
Hello DC-ISOC,
We are looking into the following topic for our next meeting:
Domain Names (policy, issues, trademark, etc.)
We also continue to be interested in suggestions for meeting locations that
can handle several hundred people. (If you have a "connection" with any
such facility, please reply to this email)
In the mean time, I thought this meeting sponsored by the Internet Society
and National Geographic would be of interest to you. Questions about Vint
Cerf's lecture should be directed to the phone number in the announcement
below.
Thanks,
Russ Haynal
Subject--Vinton Cerf's National Geographic Society Lecture
Here's the information concering Vinton Cerf's National Geographic Society
lecture. ISOC members should mention their affiliation to get the lower
ticket price, which is available with advance ticket purchase only.
"The Internet and Society"
Although Vinton Cerfs' official title at MCI Communications Corporation is
senior vice president for data architecture, he is also known worldwide as
the "Father of the Internet." Experts say that his tireless efforts to
develop global standards for transmitting date have been indispensable to the
Internet' s amazing growth. Join him as he discusses this flourishing
technology and the legal and social issues arising from its presence in our
daily lives. Then see what lies ahead as Dr. Cerf speculates about the
future of this revolutionary communications medium.
This program is co-sponsored with the Internet Society.
When: Wednesday, Oct. 9 at 7:30 p.m.
Tickets:
National Geographic Society and Internet Society Members: $10 with advance
purchase only.
General admission: $13
(ISOC members should mention their affiliation)
Where:
The National Geographic Society
The Gilbert H. Grosvenor Auditorium, 1600 M Street NW, Washington, D.C.
Free parking is available in the Society's underground garage.
Information: 202-857-7700
-----------------------------------------------------------
Individuals who are interested in becoming members of DC-ISOC can do so
by joining the Internet Society. See the ISOC's web site at
http://www.isoc.org for more information.
The Washington DC Chapter of the Internet Society also maintains its own web
site at: http://www.dcisoc.org Please feel free to pass this announcement
message along to other interested individuals. If this message was
forwarded to you, you can join our announcement mailing list through
our web site ( http://www.dcisoc.org )
_________________________________________________________
Russ Haynal - Internet Consultant, Instructor, Speaker
"Helping organizations gain the most benefit from the Internet"
Author:"Internet; A Knowledge Odyssey" (Top-rated CD-ROM Tutorial)
Available from MindQ Publishing: http://www.mindq.com
russ@navigators.com http://www.navigators.com 703-729-1757
------------------------------
Date: Mon, 26 Aug 1996 12:08:05
From: sysop@VISUCOMM.COM(---)
Subject: File 2--Re: CuD #8.62 - "US Army Private Faces Spying Charge"
I have but a few comments on this case, not knowing the specifics.
But, in my experience, it could very well be the case that this
Private was just trying show the system was unsecure.
When I was in the US Air Force in the late 1980s, I discovered a
security problem with some of our computers and communications
systems. I informed my supervisor, who apparently informed his. I
was then instructed to do nothing, that the security problem DID
NOT exist. When I offered to prove it DID exist I was told I would
be charged with any manner of serious UCMJ and security violations.
So, I naturally dropped the subject. Later, some of those very same
security problems were exploited, for personal reasons, by another
Sgt and Airman. They were disciplined, after being discovered
quite by accident, but no measures were taken to insure resolution
of the security problems. They may have been taken care of after I
left that AirBase though.
Now, for the Private giving some "unclassified" password to this
Chinese friend of his. BIG NO NO. That is completely outside any
realm of responsible action. He deserves to be, hauled in for
that. Classified or unclassified, he had NO business giving ANY
passwords from his Military affiliations to someone like that.
Fred Brandli
sysop@VisuComm.com
j66r@Probe.net
------------------------------
Date: Sat, 14 Sep 1996 20:17:20 -0500 (CDT)
From: Crypt Newsletter <crypt@sun.soci.niu.edu>
Subject: File 3--Condat plagiarizes Crypt Newsletter in recent CuD
It's said imitation is the sincerest form of flattery. However,
plagiarism should be held in contempt.
Jean Condat, "Senior Business Consultant for the Smart Card Unit,
Informix" in France posted an article on computer virus troubles
during the US Army's Bosnian deployment in CuD 8.65 that plagiarized
Crypt News.
Instead of paraphrasing, citing or synthesizing the news, Condat cut
and pasted my words directly from Crypt Newsletter while cleverly
stripping my by-line and Web URL from the original. Too bad I read
CuD, huh?
"Information wants to be free" is a quaint bromide that's much
too often an excuse for this ersatz trick. Stop thief! Crypt Newsletter
is watching.
For the original, "US Army troubled by computer viruses in
Bosnia," check the Website:
http://www.soci.niu.edu/~crypt
George Smith, Crypt Newsletter
------------------------------
Date: Tue, 17 Sep 1996 02:34:13 -0400
From: Emmanuel Goldstein <emmanuel@2600.COM>
Subject: File 4--** BERNIE S. RELEASED!! **
As of Friday, September 13th, Bernie S. was released from prison on
an unprecedented furlough. He will have to report to probation and
he still has major medical problems as a result of his extended tour
of the Pennsylvania prison system. But the important thing is that
he is out and that this horrible ordeal has finally begun to end.
We thank all of you who took an interest in this case. We believe
it was your support and the pressure you put on the authorities that
finally made things change. Thanks again and never forget the power
you have.
emmanuel@2600.com
www.2600.com
------------------------------
Date: Mon, 16 Sep 1996 20:54:41 +0000
From: David Smith <bladex@bga.com>
Subject: File 5--Microsoft lies, damned lies, and statistics
Jim,
Microsoft has been touting heavily the statistic that 4 out of 5
users prefer Explorer 3.0 over Navigator 3.0. This is touted on
their websites, press releases, and has been cited in articles by
independent publications.
> EXPLORER 3.0 VASTLY PREFERRED TO NETSCAPE 3.0
>
>
> Microsoft says Usability Sciences Corp., an independent
> research firm, has found that four out of five users (79 percent)
> preferred Explorer 3.0 over Navigator 3.0 in all 14 categories
> tested, including ease of use, efficiency in completing assigned
> tasks, and ease of learning.
I just couldn't believe it was true.
I went to the Microsoft home page, and found that the entire study by
Usability Sciences Corporation is available online. I was looking at
their research methodology --- do you know what their sample
population was? *NEW* users. That is, people who had never used an
Internet browser before.
By dropping the qualifer that these were new users, Microsoft is
being intentionally misleading and deceitful.
Is it just me who feels this way? I haven't heard or read a single cry
of outrage from the media, which is surprising given the amount of
heat granted the Time-Rimm study.
Perhaps you and/or the readers of CuD could shed some light and/or
blood about this issue.
------------------------------
Date: Tue, 30 Aug 1994 16:10:00 -0600
From: Tim Harris <maxexpo@saskmaple.net>
Subject: File 6--CITA
www.saskmaple.net/citc
For Immediate Release
C.I.T.A. -- Canadian Information Technology Association Declares War on
SaskTel
SASKATOON, August 30, 1996 -- The C.I.T.A. -- Canadian Information
Technology Association has officially declared war on SaskTel. An
official investigative report released by the provincial government
August 27, 1996 indisputably shows that SaskTel is deliberately pushing
private sector Internet Service Providers (ISPs) and federal government
subsidized Community Access Program communities out of business.
According to the report, 100 Internet users, each operating a 28.8 k/sec
modem would be able to concurrently use a single 56 k/sec line. "You do
not have to know anything about computers to do the math." says Lyndon
Holm Vice Chairman of the C.I.T.A. "This is technically impossible."
The C.I.T.A. confronted Robert Hersche, Senior Advisor on
Telecommunications for Saskatchewan Intergovernmental Affairs, about
some of the comments made in his report. Mr. Hersche acknowledged that
he is not familiar with Internet technology and that the report was
constructed from the statements made from the SaskTel Engineering
Department. Mr. Hersche indicated that he "took their word for it." When
asked if any independent consultants were used for the investigation he
replied that they did not have the budget for that.
"This assault on private business by this crown corporation grossly
violates the Competition Act." says Tim Harris, Chairman of the C.I.T.A.
"Unfortunately, as we can see with this provincial government report,
the private business owners can not even get a fair investigation to
determine wrong doing. SaskTel is judge and jury on every issue."
Since the private sector has been challenging SaskTel on these issues of
unfair competition, SaskTel insists they are bound by tariffs. These
tariffs are not federal but from the Provincial Cabinet. The role of
Saskatchewan Intergovernmental Affairs is to advise the Minister about
policy issues concerning SaskTel. It is the position of the C.I.T.A.
that the Provincial Cabinet is just as ignorant as their advisors and
are passing tariffs "taking SaskTel=92s word for."
The C.I.T.A. will be releasing an official challenge to SaskTel and
provincial government representatives to have an on-camera debate later
next week. "We don't expect them to show up." says Harris "To this point
they have backed out of every request to meet this organization."
------------------------------
Date: 12 Sep 1996 18:15:29 -0500
From: "Dave Banisar" <banisar@EPIC.ORG>
Subject: File 7--EPIC Testifies on Children's' Privacy Bill
From -- EPIC: Volume 3.16 September 12, 1996
--------------------------------------------------------------
Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.
http://www.epic.org/
=======================================================================
[2] EPIC Testifies on Children's' Privacy Bill
=======================================================================
EPIC Director Marc Rotenberg testified today before the House
Judiciary Committee Subcommittee on Crime in support of the Childrens
Privacy Protection and Parental Empowerment Act of 1996. The bill
would establish basic privacy standards for organizations that collect
personal information on children and curb recent abuses in the
marketing industry. The bill is sponsored by Rep. Bob Franks (R-NJ)
and has 46 cosponsors in the House of Representatives. A similar
measure has been introduced in the Senate by Senator Diane Feinstein
(D-CA).
Rotenberg said that "current practices pose a substantial threat to
the privacy and safety of young people." He described a recent
incident where a reporter posing as the murderer of Polly Klaas was
able to obtain the ages and address of young children living in the
Pasadena area. Rotenberg also cited editorials from USA Today and the
Economist favoring privacy legislation as well as public opinion polls
which show that 9 out of 10 Americans object to the sale of personal
data where explicit consent is not obtained.
Recalling the passage of the Family Educational Right to Privacy Act
of 1974, which protects the privacy of student records, Rotenberg said
there was already Congressional recognition of the need to protect
personal information about young children. "No universities have been
shut down because of the Act, but the privacy of children's
educational records is more secure because Congress did not fail to
act when it had the opportunity to establish privacy protection for
young people." #011#Also testifying in support of the bill were Rep. Bob
Franks, children rights advocate Marc Klaas, and Miriam Bell of Enough
is Enough. Marc Klaas also heads the Klaas Foundation for Children
which launched the Kids Off Lists campaign.
Testifying against the bill were representatives from the Direct
Marketing Association, a list broker, a book publisher, and a police
officer from San Bernadino.
More information on the Childrens Privacy bill and kids privacy may be
found at:
http://www.epic.org/privacy/kids/
The Klaas Foundation for Children is on the web at:
http://www.klaaskids.inter.net/
------------------------------
Date: Mon, 26 Aug 1996 17:40:10 -0500 (CDT)
From: pkennedy <pkennedy@IO.COM>
Subject: File 8--It's all in the Game: Who Owns "Real-time" Sports Information?
**********************************************
** LEGAL BYTES **
**********************************************
Summer 1996, Volume 4, Number 2
----------
George, Donaldson & Ford, L.L.P.
Attorneys at Law
114 West 7th Street, Suite 1000
Austin, Texas 78701
(512) 495-1400
(512) 499-0094 (FAX)
gdf@gdf.com
http://www.gdf.com
----------
Copyright 1996, George, Donaldson & Ford, L.L.P.
(These articles may be re-distributed electronically,
without editing and with proper attribution)
----------
David H. Donaldson, Jr., Publisher, dhdonald@gdf.com
Peter D. Kennedy, Editor, pkennedy@gdf.com
----------
2. IT'S ALL IN THE GAME: WHO OWNS "REAL-TIME" SPORTS
INFORMATION?
If information can't be copyrighted, that means anyone can
copy it, right? Wrong.
A recent ruling from a New York federal judge has startled
many lawyers and sports fans alike. On July 19, 1996, U.S.
District Judge Loretta A. Preska declared that the National
Basketball Association "owns" the "essence" of its professional
basketball games, and therefore the NBA can prohibit the
unauthorized publishing of "real-time" basketball scores and
statistics -- even though that information cannot be copyrighted,
and even though the games are being broadcast live on television or
radio.
The case is called The National Basketball Association v.
Sports Team Analysis and Tracking Systems, Inc. (STATS), 1996
Westlaw 435031 (S.D.N.Y. July 22, 1996). In ruling for the NBA,
Judge Preska did not rely on the most common intellectual property
doctrines -- trademark, copyright, patent, or trade secret law. In
fact, she specifically held that neither the NBA games nor their
scores and statistics could be copyrighted. However, in a decision
that is leaving some intellectual property lawyers scratching their
heads, Judge Preska ruled that the old pliable common law doctrine
of "unfair competition" gives the NBA a monopoly over the
dissemination of "real-time" information about its games.
The actual contestants in Judge Preska's courtroom were the
NBA, the communications giant Motorola, and an innovative company
called STATS. While Judge Preska's ruling might be an anomaly
limited to the unique arena of sports law, it might just be the
first skirmish of a potentially wide-ranging new intellectual
property war: high-stakes battles to own the economic value of the
"freshness" of otherwise public and legally unprotected
information. Many companies considered this case to be very
important: "friend of the court" briefs were filed by The National
Football League, Major League Baseball, the National Hockey League,
The Associated Press, America Online, and The New York Times.
STATS and "SportsTrax." Time is money. Information has value
-- or at least timely information has value. Stale information can
be worth less than zero. What good is hours-old stock price
information? Know up-to-the-minute stock prices, and you can make
informed investment decisions; old stock prices information is just
a history lesson. What real sports fan can wait for the morning
paper to read the box scores? And what bookie can monitor the
current status of his "investments" by reading the paper or
watching the evening news?
Sensing a lucrative niche market, Motorola and STATS first
teamed up to deliver scores and statistics for ongoing professional
baseball games. Under a license with Major League Baseball, STATS
hired "reporters" to watch the ball games and transmit to STATS
play-by-play information. STATS processes the information and
transmits it to Motorola. (STATS also provides the information to
news outlets and America Online.) Motorola then broadcasts the
information to special pagers marketed under the name "SportsTrax";
these pagers could display, in practically real time, the status of
all ongoing Major League games.
When STATS and Motorola started a similar service for
professional basketball, they did not obtain a license from the
National Basketball Association. The NBA, which had plans to
develop its own similar service, quickly sued to shut down
SportsTrax's coverage of NBA games. In the lawsuit, the NBA
accused STATS and Motorola of a host of legal violations, from
copyright and trademark infringement to state law "commercial
misappropriation." The NBA lost every claim except one, but that
one claim was enough for the court to enjoin the entire SportsTrax
business. Judge Preska's opinion runs over 100 pages, but her
decision gives answers to two key questions: Can a sports contest
itself be copyrighted? And if it can't, does New York law still
protect the NBA's ownership of the "essence" of that game?
Sporting events -- and facts describing them -- cannot be
copyrighted. The NBA made the somewhat novel argument that a
basketball game can be copyrighted just like a poem or a song. Not
too surprisingly, Judge Preska decided that the Copyright Act's
protection of "original works of authorship fixed in any tangible
medium of expression" did not apply to the basketball game itself.
(A broadcast of the game, in contrast, incorporates a creative
choice of camera angles and commentary and can be copyrighted.)
The court went on to conclude, again not too surprisingly,
that the scores, statistics and other facts pertaining to the
sporting events also were not copyrightable. The Copyright Act
protects the expression of ideas or facts, not the underlying facts
or ideas themselves. And even though the SportsTrax service was
delivering information contained in copyrighted broadcasts, the
NBA's copyright in the broadcast was not being infringed because
SportsTrax was only transmitting uncopyrightable facts.
Does state law protect the "essence" of live sporting events?
Often, a ruling that the Copyright Act does not apply ends the
hunt. Not here. Judge Preska went on to rule that the SportsTrax
service violated New York state law and that the NBA was entitled
to an injunction shutting it down. At first blush, Judge Preska's
conclusion that distribution of public, uncopyrighted facts can be
enjoined seems contrary to fundamentals of intellectual property
law. However, although the legal precedent is old (pre-dating
digital pagers and the Internet by quite some years) there is
support for her ruling.
The key precedent is the seventy-eight-year-old U.S. Supreme
Court case of International News Service v. Associated Press, 248
U.S. 215, 39 S. Ct. 68 (1918). Wire news services were the cutting
edge communication technology at that time. The INS and the AP
were battling to become the nation's preeminent wire service. The
INS had been taking AP wire stories from early editions of East
Coast newspapers and transmitting them to its West Coast
newspapers. Although the INS often didn't infringe the AP's
copyright in the stories, the Supreme Court ruled that INS, as a
competitor of the AP, could not even use the facts in the AP
stories to write its own stories -- at least while the news was
still "hot." In those days, the Supreme Court was less careful
about the source of law for its ruling; it apparently decided the
INS v. AP case based on the common (judge-made) law of unfair
competition. Subsequent courts have interpreted the INS v. AP
ruling as incorporating some notion of a property right that arises
under state, not federal, law.
Although INS v. AP involved news stories, it became the
foundation for a series of rulings from the 1930s through the 1950s
prohibiting unauthorized broadcasts of sporting events. In 1938,
a Pennsylvania federal trial court enjoined the unlicensed radio
broadcast of Pittsburgh Pirates games from a rooftop overlooking
Forbes Field. [fn.1] Between 1937 and 1955, New York courts
prohibited unlicensed broadcasts or depictions of boxing matches,
hockey contests and baseball games. [fn.2]
Judge Preska found these old cases to be good law in New York.
Three factors appeared to be key: (1) the NBA took various steps,
such as licensing broadcasts and placing restrictions on the media
and spectators, to control the commercial use of information about
its games; (2) STATS and Motorola were commercially using the
information to directly compete with the NBA in providing
information about basketball games; and (3) STATS and Motorola were
"reaping where they have not sown" -- gaining commercial advantage
from the efforts of the NBA, not their own. The court concluded
that the defendants had "misappropriated the essence of the NBA's
most valuable property -- the excitement of an NBA game in
progress." The "quantity and contemporaneous nature of the
information" convinced the court that SportsTrax went far enough
beyond permissible "mere media coverage."
Each of the factors the court found persuasive are open to
question, and this decision is likely to be the subject of serious
debate. While the NBA does restrict through various licenses how
its games are depicted or broadcast, neither Motorola nor STATS
were subject to such a license. The information they carried was
already public. Whether the SportsTrax service directly competes
with attendance at games or television coverage is questionable; no
computer statistical display can substitute for the joy of watching
Michael Jordan actually play the game. And STATS and Motorola
certainly contend they are reaping what they have sown -- that the
efforts of collecting, sorting, organizing and distributing the
information in a manner that consumers want is not a trivial
matter; the SportsTrax system is not simply a "pirate" broadcast of
NBA games.
Open Questions. Lots of open questions remain after this
ruling. If the NBA "owns" the "essence" of its games, for how long
does it own that right? The NBA itself releases to news services
game statistics twice a quarter -- would SportsTrax be free to
transmit the information then? If the NBA chooses to hold back
those statistics, can it extend the length of control it has over
game information?
Has Judge Preska recognized a new type of intellectual
property -- the "essence of live entertainment" or perhaps the
"freshness of information"? What is the line that distinguishes
permissible news reporting from "commercial misappropriation"? Or
is the "ye shall not reap where ye have not sown" principle broader
than that? In 1991, the U.S. Supreme Court decided that the
Copyright Act did not prevent someone from simply copying the
information in another publisher's telephone book, even though that
information was originally collected at great effort and expense.
Facts like names, addresses, and phone numbers can't be
copyrighted. [fn.3] Under New York law as applied in the NBA case,
would the result be different? Would it be different if the
original publisher required purchasers of the book to agree not to
compete?
The NBA v. STATS lawsuit is another example of the tension
between developing communications technology and the limits of
traditional intellectual property protections. This century, each
time a significant new means of communication is developed --
telegraph, radio, television, and now digital pagers and the
Internet -- this same type of dispute has arisen. When copyright
and trademark are found wanting, those who produce entertainment or
information turn to state law to expand their control; those who
assemble, sort and transmit information seek to narrow the
doctrines that restrict their ability to compete. History has
shown -- at least in New York cases involving sporting events --
that courts may be receptive to favoring producers over those who
gather and disseminate information. Whether this will continue to
hold true may turn into a high-stakes legal battle fought in
courtrooms throughout the nation.
Footnote 1: Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24
F. Supp. 490 (W.D. Pa. 1938).
Footnote 2: Twentieth Century Sporting Club, Inc. v. Transradio
Press Serv., Inc., 300 N.Y.S. 159 (N.Y. Sup. Ct. 1937) (boxing);
Madison Square Garden Corp. v. Universal Pictures Co., 7 N.Y.S.2d
845 (N.Y. App. Div. 1938) (hockey); National Exhibition Co. v.
Fass, 143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955) (baseball). Judge
Preska found the latter decision especially relevant; it involved
a service that monitored broadcasts of baseball games, rewrote
descriptions of the ongoing games, and then sent the descriptions
to other radio stations via teletype. The entire process took only
minutes, so the stations receiving the teletypes could "broadcast"
the game while it was still in progress. The court held that this
activity could be stopped by the owners of the baseball team.
Footnote 3: Feist Publications, Inc. v. Rural Telephone Serv.
Co., 499 U.S. 340, 111 S. Ct. 1282 (1991).[ALL CAPS]
------------------------------
Date: Thu, 22 Aug 1996 13:07:03 -0500
From: Declan McCullagh <declan@well.com>
Subject: File 9--"Freedom on Trial," from October 1996 Playboy
[Some excerpts follow. Pick up the October issue for the full article. --Declan]
Playboy, October 1996
"Freedom on Trial: how the communications decency act played in court"
By Declan McCullagh (declan@well.com)
Day 1 (March 21)
In the shadow of the Liberty Bell in downtown Philadelphia, the future of
online liberty is being decided. A panel of federal judges has gathered
to hear a challenge to the Communications Decency Act, which bans
"indecent" or "patently offensive" material from being transmitted or
displayed online where minors might access it. That means just about
anywhere online.
[...]
Day 2 (March 22)
A key witness today is Robert Croneberger of the Carnegie Library of
Pittsburgh. The judges are pleased with his description of the
Internet as a library -- finally, someone who isn't using technobabble.
Croneberger testifies about the difficulties and expense of implementing
the CDA, noting that his library would have to hire 180 people to review
and censor the 2 million listings in its catalog. Russotto, the
government lawyer, is skeptical. During her cross-exam, she tries to make
the case that the job wouldn't be so difficult as Croneberger portrays it.
Q: Can you do a keyword search through your catalog for words related to
sex or for the seven dirty words [to find material to restrict]?
A: It depends.
Q: But a keyword search on sex wouldn't turn up books about physics,
would it?
A: I doubt it.
Q: And a search on sex isn't going to turn up books about gardening?
A: Obviously plants proliferate and flowers grow, but it depends on the
words you're using.
Q: Would a search on sex turn up a biography of Abraham Lincoln?
A: I've read many articles about his supposed sex life, or lack thereof.
Q: Would a search on sex turn up any books about geology?
A: Only if "rock" is put together with "roll."
Croneberger's point is subtle but clear. Sex can't be taken out of a
library any more easily than it can be separated from life.
[...]
Day 4 (April 12)
The government witnesses take the stand. First up is Howard Schmidt,
an Air Force special agent who says he has conducted 30 to 50
investigations of online porn. The judges are growing weary of
demonstrations and sex, so when Schmidt offers to download provocative
images from Usenet groups, the panel asks for G-rated animals instead.
After the second or third waterfowl image, Judge Sloviter rules, "I think
we've seen enough ducks."
[...]
Beyond its sheer stupidity, [Carnegie Mellon University computer scientist
Dan Olsen's -L18 self-labelling scheme] seems to be built with prudery
rather than technology. During cross-examination, the judges didn't appear
to take him seriously:
Q: If you thought about posting a centerfold from Playboy, would you
think the image might be indecent or patently offensive for persons under
18?
A; If we consider the local community that consists of Dan, Dan would be
offended.
Q: And how about the seven dirty words.
A: Dan would be offended.
Judge Buckwalter: Who's Dan?
Judge Sloviter: Yes, who's Dan?
A: That's me. I'm sorry.
Judge Dalzell: Oh, he's the community. He is an expert on what would
offend him.
A: It's a relatively small community, but it's the one I know best.
Buckwalter: I thought Dan was an acronym.
A moment later, our lawyers show Olsen a list of Internet addresses and
ask if they appear to be porn sites deserving of unsuitable-for-children
tags. He hesitates, then says, "I don't know, but I wouldn't go there."
Looking over the list, Judge Dalzell adds the punch line. "Chick of the
Day could be poultry," he suggests.
"You really are in for ducks and poultry," says Judge Sloviter.
"It's a leitmotif."
Bruce Ennis, counsel for the ALA, asks Olsen how content providers would
verify the ages of those who visit their sites. Olsen stammers a bit and
then hits on an idea. Ask the Social Security Administration! It keeps
records of such things.
Big Brother couldn't have said it better.
Day 5 (April 15)
The government has a tough road ahead. It has to convince three skeptical
judges that enforcing the CDA would not become a boondoggle. Olsen, at least,
believes it can be done. When asked if his rating system would slow the
growth of the Net, he quickly responds, "Absolutely not!"
But everyone in the courtroom seems to feel Olsen is being a weasel.
Judge Dalzell, the most Net-savvy judge and the only one with young kids
(I'm guessing the two are related), helps pin the inventor down. "Assume
a chat group -- say, students from 13 to 18 -- is talking about the CDA.
In the course of the chat, an 18-year-old is exasperated and types in
'Fuck the CDA.' Is it your proposal that before he types the message, he
should tag it -L18?"
Dalzell is paraphrasing Cohen v. California, a First Amendment case in
which the Supreme Court overturned the conviction of a teenager who wore
a jacket that read "Fuck The Draft."
Some of Dalzell's other questions were equally astute. "If in one issue of
The Economist the word 'fuck' appears," he asks Olsen, "the library
putting it online would have to go through the entire issue?"
"Somebody would have to make that judgement," Olsen replies. He suggests
that librarians band together to censor material. He insists his plan is
"flexible." To that, Bruce Ennis reponds testily, "Is it flexible if you,
the librarian, risk going to jail for two years if you make the wrong
judgment and put material online that is found to be patently offensive
for a minor?"
[...]
Sloviter isn't finished. After Olsen claims that a voluntary rating
system developed at MIT is unfeasible because it will "slow the flow"
online, she asks how an adult could show -L18 tagged materials to a
mature teenager. Olsen replies that a "teacher or parent could log on."
"Wouldn't that slow the flow?" the judge asks.
Flustered, Olsen suddenly discharges a series of staccato high-pitched
giggles. It's the damnedest thing that I have ever heard -- it sounds
like a rabbit being tortured to death. The galley stares in horror.
Thus ends the testimony of our best witness -- and we didn't even call
him to the stand.
Day 6 (May 10)
During closing arguments, Justice attorney Tony Coppolino dances around
providing a legal definition for indecency. He hints that it would
include only hard-core porn but concedes the government can't guarantee
that an ambitious prosecutor somewhere wouldn't take on an absurd case.
Judge Sloviter is growing impatient: "I've been taking the position for
17 years that people should know what they can be prosecuted for," she
says "I still don't understand" what indecency means under the CDA.
"We've been trying to get at this for 40 minutes," grumbles Judge
Dalzell.
[...]
EPILOGUE
We have won -- for now. The government's appeal will reach the Supreme
Court during the next few months. If the Court upholds the lower court
decision, outraged right-wing groups will demand action. Congress will
spring to attention. Bills will be drawn up, campaign funds raised, and
porn once again waved in the Senate chamber.
Censorship is often championed by adults who want to protect children
from a world the adults do not understand. During the hearing, Judge
Buckwalter raised this issue while discussing the computer gap between
parents and children that helps fuel fears of online dangers. "In another
generation that will fade from the picture, don't you think?" he asked.
Archaic restrictions over what we can share online, however, may not.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 10--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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