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Computer Undergroud Digest Vol. 09 Issue 51
Computer underground Digest Sun June 29, 1997 Volume 9 : Issue 51
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
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.51 (Sun, June 29, 1997)
File 1--The Work Has Just Begun
File 2--The CDA and SafeKids.COM
File 3--Extinguishing the CDA Fire
File 4--AskAsia Covers Hong Kong Handover
File 5-- CyberWire Dispatch Award for Meeks (fwd)
File 6--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Fri, 27 Jun 1997 05:38:02 -0700 (PDT)
From: "Brock N. Meeks" <brock@well.com>
Subject: File 1--The Work Has Just Begun
Source - fight-censorship@vorlon.mit.edu
((Brock Meeks' work can also be found at:
http://www.msnbc.com/news))
Source - fight-censorship@vorlon.mit.edu
Here's my commentary filed with MSNBC yesterday:
The CDA is Dead, Now the Work Begins
WASHINGTON - As a plaintiff in the lawsuit charging the Communications
Decency Act was unconstitutional from jump street, I'm joining with
millions of other Net users in cheering the Supreme Court's decision to
strike down the law as a fundamental violation of First Amendment rights in
cyberspace.
And just as soon as everyone is finished patting themselves on the
back they should just as quickly give themselves a swift kick in the ass
because if you think the court's decision brings an end to this issue,
you're sorely misguided. There's a hell of a lot of work still ahead.
First let me toss out some congratulations:
To the Supreme Court justices for winning the judicial slam-dunk
contest. The wording of the court's opinion couldn't have been a more
stinging indictment of a gutless Congress and administration that passed
this bill simply because it was politically expedient. Here's part of the
court's "in-your-face" decision: "The CDA lacks the precision that the
First Amendment requires when a statute regulates the content of speech.
Although the government has an interest in protecting children from
potentially harmful materials the CDA pursues that interest by suppressing
a large amount of speech that adults have a constitutional right to send
and receive. Its breadth is wholly unprecedented. The CDA's burden on adult
speech is unacceptable if less restrictive alternatives would be at least
as effective in achieving the Act's legitimate purposes."
Second, love him or hate him, former Sen. Jim Exon, the father of
the CDA, deserves to be recognized for bringing a legitimate issue to the
national stage. He energized a host of forces, from advocates to industry,
and in the wake of turmoil he left behind, many good things have happened:
--Congress has become more hip to the Internet, though it still has a long
way to go.
--Advocacy in cyberspace has finally gelled in a way that was unthinkable
before the CDA came on the scene.
--Parents and educators are for the first time forced into looking at this
problem seriously rather than hiding their heads in the sand.
--Industry got off its lazy ass and began to find ways to solve a problem
it knew was there but hoped no one would notice.
BACK UP AND PUSH
But enough congratulations. All advocates opposing this bill,
including myself, should be ashamed that we let it get to this point in the
first place. We will suffer for our sins for a very long time.
Even as I type this column, Sen. Patty Murray, D-Wash., has
announced she will soon introduce the "Childsafe Internet Act." Murray said
that the court's ruling "leaves open a large vacuum. No one wants to return
home after work to find a child downloading pornographic material." To
solve this "dangerous" problem, as Murray puts it, she has a seven-point
plan that includes:
--Putting blocking software in the hands of every parent.
--Creating a parental warning alongside copyright protections on each home
page.
--Creating incentives for Web page creators to rate their own pages for
content.
--Making it a criminal offense to mis-rate a Web site.
--Making it a criminal offense to steal sites previously rated as
child-safe.
--Making it a felony for anyone to solicit or exploit child-safe chat
rooms.
--Creating an 800 number hot line where parents can rat out Web sites they
believe carry harmful material. If you're a parent and your kid has access
to the Internet you need to get involved in that process.
There is so much wrong with this plan that it makes my head hurt.
Seems to me there are First Amendment issues at risk in Murray's plan.
(Require warning notices?) What does "steal" a Web site mean? (Murray
provided no details to her announcement). And suddenly, stupidity - the
mis-rating of a Web site - is going to be a criminal offense? Please spare
me this kind of congressional "protection."
This is what I mean by saying there is still much work to be done.
Congress still doesn't get it. And if we all just sit back and rest on our
laurels after the court's decision, we will likely find ourselves back at
square one, fighting another unconstitutional bill. So everyone needs to
work at educating their congressional representatives. Let them hear from
you now and often.
THE PARENT TRAP
If you're a parent and your kid has access to the Internet you need
to get involved in that process. Period. End of discussion. Any parent from
this day forward who tries to use the excuse, "I can't even program my VCR
- how can I oversee my child's use of the Internet" should be upbraided on
the spot for abdicating their parental responsibilities.
Parents could get away with seeing that flashing "12:00" on the VCR
with no other ramifications other than some slight embarrassment. Not so
with the Internet. We're talking children here: Your kids. My kids. Learn
how to use the tools available that allow you to craft a reasonably safe
environment for your kids on the Net. I say "reasonably" safe because
nothing is perfect. In light of that, you'll have to take an additional
step: Talk to your kids.
Yes, talk. Get involved - they are your kids, after all. You didn't
give your kids bikes without teaching them to ride and telling them where
it was appropriate to ride. Same goes for the Internet. And it wouldn't
hurt to have an open and frank discussion with your kids about sex, either.
I realize this may be uncomfortable for a lot of people, but listen, folks,
we don't have a choice anymore. There is a lot of crap out there on the
Net. Talk to your kids about it; take the mystery out of it. If you get
really desperate, saddle your kids with a really slow modem and make
downloading porn more work than it's worth. (I'm only partially joking
there.)
HOLD INDUSTRY'S FEET TO THE FIRE
An entire industry has sprung up around protecting kids from porn
on the Internet. These are the so-called "blocking software" programs. Most
of these programs are heinous in that they block much more than porn,
including political speech, animal-rights activism sites and other sites
that have nothing to do with porn. These programs, with their built-in
political agendas ("we know what your kid should see, trust us") are a pock
mark on our software industry. Fortunately, most of these programs allow
parents to configure the software as it comes out of the box so that it
suits your own values.
The main problem is how these programs are constructed, blocking by
URL or keyword, which means that sites dealing with "sex education" might
be blocked because of the word "sex." A better approach is "direct address
blocking" (DAB), such as is found in a new program called "X-Stop." DAB
uses the numerical IP address of a site, instead of relying on the "word
filtering scam," says Mike Kangior, government relations director for
X-Stop. Now, X-Stop is no panacea, either: Someone in X-Stop's back room is
deciding for you what sites get blocked and which ones don't. But at least
these guys have a better software solution than simply blocking by the
ineffective method of keywords.
Finally, I believe that industry has missed a tremendous
entrepreneurial opportunity throughout this entire debate over the CDA to
create "family friendly" ISPs. These would be ISPs that promise to block
access to certain areas of the Internet right at the server level. Granted,
such services wouldn't be for everyone, but it's my guess that there is a
large number of parents that would find such a service to be an oasis in a
sea of uncertain content.
CDA supporter Donna Rice Hughes of the Enough is Enough anti-porn
activist group said that the court's decision "puts more of a burden on
parents." I think that's the first thing she has said since this debate
began two years ago that I've agreed with.
The burden and responsibility of your children's experience on the
Internet is now squarely in your hands. Rejoice in the extra work and
continue to fight for the right to keep your job as a parent and tell
Congress to stay the hell away.
Meeks out...
------------------------------
Date: Fri, 27 Jun 1997 10:04:55 -0700
From: Larry Magid <magid@latimes.com>
Subject: File 2--The CDA and SafeKids.COM
Safe Kids Online -- http://www.safekids.com
--------------------------------------------------
The Supreme Court's decision to strike down the Communications Decency Act
(CDA) is a clear victory for free speech on the Internet. Congress, in an
attempt to protect children from online pornography, passed a bill last
year that would have denied adults the right to post and read material that
is otherwise protected under our first amendment. With the court's
decision, the freedoms enjoyed by other media also apply to cyberspace.
Although Congress's response was overreaching and unworkable, most members
of Congress who voted for the CDA did so in a sincere effort to protect
children from potential dangers online. With or without the CDA, those
dangers must be recognized, put into context and dealt with in a manner
that maximizes child safety while continuing to protect adults.
Cyberspace -- like society as a whole -- is primarily a positive place for
children, adult and families, but like the rest of the world, it does have
its dangers.
These dangers, as well as positive steps that families can take are
outlined in the brochure "Child Safety on the Information Highway" which is
available in print (by calling 800 843-5678). It's also available several
places online including the National Center for Missing Children's Web Site
(www.missingkids.com) and my own child safety site, Safe Kids Online
(www.safekids.com).
SafeKids.Com also offers additional material about online child safety
including links to companies that make filtering software, additional
articles on this issue and links to organizations dedicated to protecting
children on and off the net. Feel free to link to it or mention it in any
upcoming stories on this issue. Also, please let me know if you have
information on this subject that I can link to from SafeKids.Com.
Best,
Larry Magid
------------------------------
Date: Sat, 28 Jun 1997 13:58:32 -0500
From: Jonathan D. Wallace <jw@bway.net>
Subject: File 3--Extinguishing the CDA Fire
((MODERATORS' NOTE: The following is from Jonathan Wallace of The
Ethical Spectacle. More information can be found on:
http://www.spectacle.org))
EXTINGUISHING THE CDA FIRE
The Supreme Court's Masterful Reno v. ACLU Opinion
Jonathan D. Wallace, Esq.
jw@bway.net
Jonathan Wallace is a New York-based executive and attorney who, as
publisher of The Ethical Spectacle, was a plaintiff in Reno v. ACLU.
He is the co-author, with Mark Mangan, of Sex, Laws and Cyberspace
(Henry Holt, 1996), a book about Internet censorship.
"As a matter of constitutional tradition, in the absence of evidence
to the contrary, we presume that governmental regulation of the
content of speech is more likely to interfere with the free exchange
of ideas than to encourage it. The interest in encouraging freedom of
expression in a democratic society outweighs any theoretical but
unproven benefit of censorship."
With these words, the Supreme Court closed its simple, clear and
masterful opinion affirming the District Court's decision in ACLU v.
Reno. The Communications Decency Act (CDA) is unconstitutional.
The Supreme Court's decision will stand as one of the most important
First Amendment decisions of the 20th century. The Court, whose
freedom of speech jurisprudence has so often recently been fragmented
and confusing, has issued a clear, logical and correct statement which
will be the cornerstone of free speech decision-making into the next
century.
In its ruling, the Court hits a number of extremely important bases.
The CDA is Unconstitutional
The Justices agreed that the CDA violates the First Amendment due to
its vagueness and overbreadth. Calling the CDA "a content-based
blanket restriction on speech", they also noted its ambiguity ("each
of the two parts of the CDA uses a different linguistic form") . They
were very concerned that serious speakers on issues like "birth
control practices, homosexuality," and "the consequences of prison
rape" would be chilled by the CDA. The severity of its criminal
penalties "may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas and images."
The government argued that the CDA was not vague, since its indecency
language overlaps part of the three-part Miller standard utilized in
obscenity prosecutions. Both the CDA and the Miller standard hold that
the material in question must be "patently offensive" under
contemporary community standards. (Generally, obscenity is the most
hard-core stuff; Reno v. ACLU leaves obscenity laws in place and deals
only with the issue of non-obscene "indecent" speech.) The Court
acerbly noted that a term which is not vague in context may be vague
when standing alone. In a memorably droll footnote (fn. 38), it
explained itself: "Even though the word 'trunk', standing alone, might
refer to luggage, a swimming suit, the base of a tree, or the long
nose of an animal, its meaning is clear when it is one prong of a
three-part description of a species of gray animals."
The Justices concluded that the CDA "unquestionably silences some
speakers whose messages would be entitled to constitutional
protection."
Caging the Pacifica Monster
Twenty years ago, the Supreme Court let a ravening monster out of its
cage in its Pacifica v. FCC decision, popularly known as the "Seven
Dirty Words" case. In Reno v. ACLU , the Court has put Pacifica back
in its cage.
Until Pacifica, the Court had always justified censorship of radio and
television based on a doctrine known as "spectrum scarcity". In other
words, the government's role in assigning frequencies in the scarce
broadcast spectrum led to a role in reviewing content as well. In
Pacifica, the Court unnecessarily resorted to a new, and
extraordinarily muddy, new rationale, "pervasiveness". The fact that
broadcast comes into the household, and that children turning a dial
may stumble on indecent programming, justifies censorship of indecent
speech, the Court said. Ithiel de Sola Pool, a prescient
communications scholar, wrote in 1983 that the pervasiveness doctrine
would someday be used to justify "quite radical censorship". This
prediction almost came true in 1996. The pervasiveness doctrine was
used by the religious right and their Congressional fellow-travelers
as a major justification for passage of the CDA. The Supreme Court
gave further grounds for anxiety by using pervasiveness as a rationale
for censorship of non-scarce cable television in its Denver Area
Educational Telecommunications Consortium v. FCC decision.
The Court has now emphatically declared that the Net is not pervasive.
(One attorney at the ACLU press conference on the day the decision was
issued commented that Reno v. ACLU is Justice Stevens' penance for
having written Pacifica.) The Court adopted the careful and thorough
findings of the District Court, which it summarized as follows:
"Though [indecent] material is widely available, users rarely
encounter such content accidentally....." The existence of warning
screens and document descriptions dictates that "'the odds are slim'
that a user would enter a sexually explicit site by accident." Unlike
radio and television, use of the Net requires "a series of affirmative
steps more deliberate and directed than merely turning a dial."
The Court specifically held Pacifica inapplicable to the Internet.
That case, it noted, involved a civil order directed to the timing of
an indecent program (after ten o'clock at night would have been
acceptable, mid-afternoon was not.) The CDA, by contrast, was a
criminal statute which would effectively chill much constitutionally
protected speech. Moreover, there was a long history of broadcast
regulation prior to Pacifica (here, the Court seems to be saying,
somewhat tautologically, that you can regulate something if you have
always regulated it.) "The Internet, however, has no comparable
history."
Using the word "invasive" in lieu of Pacifica's "pervasive", the Court
concluded: "[T]he Internet is not as 'invasive' as radio or
television." And, just in case anyone was in doubt, it added that the
Net is not scarce, either: "[T]he Internet can hardly be considered a
'scarce' expressive commodity. It provides relatively unlimited,
low-cost capacity for communications of all kinds."
The Power of Analogy
Until recently, courts analyzed new technologies by reference to
older, similar ones. For example, in the last century the courts
decided that the correct legal regime for the telephone could be
determined by regarding it as a kind of telegraph. A strong analogy
gives clear legal guidance and avoids messes; it saves everyone's
time. For example, the telegraph analogy would deter a legislator from
introducing a bill to apply rules to the telephone inconsistent with
treatment of the telegraph.
For the last quarter century, the Supreme Court has departed from the
road of analogy where new media are concerned. Instead, it has taken
the view that for freedom of speech purposes, every new medium is
unique and presents particular problems. At the same time, it has
issued a series of extremely muddy and fragmented decisions, from
Pacifica through last year's Denver, in which the plurality said
that selecting an analogy wasn't necessary and, in fact, would be of
no help. This was reminiscent of the famous scene in Treasure of the
Sierra Madre in which the bandits posing as federales exclaim, "We
don't need no filthy badges". The Court defiantly announced that it
don't need no filthy analogies to get its work done. This willful
blindness to the usefulness of technological precedent has enabled the
Court to trip all over itself , announcing that cable is not to be
treated like broadcast television (Turner v. FCC I) and then saying
that it is in fact to be treated like television (Turner II and Denver
). I worked with attorney Jamie Stecher to file an amicus brief in
Reno v. ACLU on behalf of Jon Lebkowsky and SiteSpecific
Incorporated urging the Court to cure its analogical deficiency and
declare that the Net should be treated like print media.
The dissenters, disturbingly, seem to adopt a geospatial analogy for
the Net (one promoted, of course, by the term "cyberspace" itself) and
discuss Net regulation as a "zoning" problem. I discuss the dissent
further below.
Unlike the District Court, which analogized the Net variously to print
and the telephone, the Supreme Court decision doesn't rely on analogy
to reach a result. However, the Court makes a couple of highly
significant off-hand references: "The Web is thus comparable, from the
readers' viewpoint, to....a vast library including millions of readily
available and indexed publications...." And again: "Through the use of
Web pages, mail exploders and newsgroups, [any Net user] can become a
pamphleteer."
The latter statement leads immediately to the Court's conclusion that
"our cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium." The "cases"
referred to are Pacifica and some other pro-censorship precedents
which the Court distinguishes as inapplicable to the Net. In the
complex dance of Constitutional litigation, the Court applies
standards of various strictness to determining the constitutionality
of laws. Its highest standard of review is so-called "strict
scrutiny", which says that to survive, a law must be based on a
compelling government interest and use the least restrictive means
of reaching the goal. Laws evaluated under a "strict scrutiny"
standard rarely survive, so the battle is mostly won when you get the
Court to agree to apply the "strict scrutiny" standard. By applying
its highest standard to the Net, after referring to the Net as a
library and Net users as pamphleteers, the Court is tacitly
acknowledging that the Net should be treated like print media, which
has always had the highest level of First Amendment protection.
Elsewhere in the opinion, the Court takes a slight step back from this
conclusion. It has long batted away almost every kind of restriction
on the content of non-obscene print communications; as the District
Court observed, Congress would not have been able to pass a "Newspaper
Decency Act" with a straight face. Judge Dalzell of the District Court
was emboldened to observe that the print-like nature of the Net led to
the conclusion that "Congress may not regulate indecency on the
Internet at all." The Supreme Court observes in its footnote 30:
"Because appellees do not press this argument before the Court, we do
not consider it." And the Court goes on in the footnote also to
re-affirm that the government has a "compelling interest" in
protecting minors from indecent, patently offensive speech. Thus, the
Court leaves open the possibility that it may still tolerate a higher
level of censorship for the Net than it has for print. Looked at this
way, Reno v. ACLU may say nothing more than that the scattershot CDA
fails where a more sniper-like approach may prevail.
Sarcasm
The Court is too polite to chastise Congress in plain language for
holding no hearings while hastily passing an unconstitutional bill.
Nonetheless, the opinion is full of hints of the Court's exasperation
at Congress for wasting the taxpayers' money and everyone's time. In
footnote 24, the Court quotes some un-named Representatives who
thought that the CDA "would involve the Federal Government spending
vast sums of money trying to define elusive terms that are going to
lead to a flood of legal challenges..." And it goes on to quote
Senator Leahy, who led the fight against the CDA: "The Senate went in
willy-nilly, passed legislation and never once had a hearing, never
once had a discussion other than an hour or so on the floor."
Ratings Systems and Censorware
As the euphoria induced by the Reno v. ACLU decision wears off, most
free speech advocates are aware that more legislation and more court
battles will follow. As noted above, the Court left the door open for
Congress to pass a more narrowly drawn statute--and the same day of
the decision, Senator Patty Murray (D-Wa.) announced legislation that
would make a Net-rating system mandatory. President Clinton
simultaneously called for "a V-chip for the Internet".
Although no universally accepted rating system exists for Net content,
the issue of ratings, and the related one of filtering software (I
will mischievously use the pejorative term "censorware"), were
constantly in the background at the ACLU v. Reno trial. Both sides
made as much use as possible of the existence of ratings platforms
such as PICS, ratings systems such as RSACi, and censorware such as
Surfwatch. Our side argued that these alternatives made government
intervention unnecessary, as parents could protect their children
through selective application of these technologies. The government
argued that the existence of these choices essentially rendered the
CDA harmless, as speakers could defend themselves from criminal
liability by giving an adult rating to their sites. The District Court
didn't buy it, and in her opinion Chief Judge Sloviter made an
oft-quoted statement that technology which doesn't yet exist cannot be
used to save the constitutionality of a statute.
The Supreme Court agreed. The CDA included a defense that the speaker
has taken "good faith, reasonable, effective, and appropriate"
measures to prevent indecent speech from reaching minors. Our side had
contended that it would be virtually impossible to prove that one had
met the four parts of this test, while the government rejoined that
almost any user of a self-rating system would be protected by this
provision. The justices noted: "It is the requirement that the good
faith action must be 'effective' that makes this defense illusory. The
Government recognizes that its proposed screening software does not
currently exist."
However, in its opening description of the Internet, the Court duly
noted the existence of censorware, as the District Court had before
it: "Systems have been developed to help parents control the material
that may be available on a home computer with Internet access."
Although the Court did not base any legal conclusions on this finding,
some advocates have argued that this mention supports the theory that
further government action is unnecessary due to the existence of these
products.
Some advocates of Net freedoms continue to promote the existence of
voluntary ratings systems and censorware as important protections
against further government intervention in our on-line rights. The
danger is that legislation such as that proposed by Senator Murray
will mandate ratings and the use of censorware. Once this happens, use
of such systems and products is no longer voluntary, but becomes part
of a system of government censorship. In all fairness, these advocates
mainly agree that they would draw the line at government imposition of
ratings or censorware. Their opponents argue that if you trumpet loud
enough and often enough that something is good for you, sooner or
later the government will attempt to make it mandatory.
This issue was not before the Court, and nothing in the opinion can
really be read as a comment on the constitutionality of such a scheme.
I believe that Murray's bill or Clinton's promise of a V-chip for the
Internet would fail due to prior case-law (most of it dealing with
MPAA movie ratings) that prohibits the government adoption of private
ratings systems. (For relevant case-law, see my paper on use of
censorware in public libraries.).
Community standards
The Miller standard defines obscenity in terms of "contemporary
community standards." This has led to results like the prosecution of
Amateur Action sysops Robert and Carleen Thomas in Tennessee for
posting materials on their California-based BBS which violated Memphis
community standards.
The CDA took a page from this book by defining indecent material
similarly in terms of "community standards." Though the CDA's
proponents claimed that it would create a consistent national standard
for Internet indecency, the CDA was ambiguous. There was no way to
determine from its language whether local standards were intended, as
in the obscenity law, or whether the statute really intended a
national standard , as in certain FCC regulations which refer to
"contemporary community standards" for the broadcast industry. There
was even disagreement among free speech advocates as to which kind of
standard the CDA intended.
The danger of applying local community standards to the Internet is,
of course, that the most restrictive community gets to set the tone
for the entire Net. (There is also the question of whether and how the
standards of a single U.S. community could be applied to the global
Internet.)
Though the Justices didn't need to face this question directly, they
drop some interesting hints. In their footnote 38, they state that the
CDA clearly intended to apply Miller's local community standards
approach, not set a national standard. (I agree with this finding; if
Congress had wanted to, it could have more closely mirrored the FCC
language by writing something like "contemporary standards for the
Internet community"). Later, they observe that the community standards
language "means that any communication available to a nationwide
audience will be judged by the standards of the community most likely
to be offended by the message."
This suggests pretty strongly that Congress should stay away from
community standards in any further Net legislation it considers. It
also indicates that the Court may be ready to review the applicability
of the Miller standard to prosecutions for Internet obscenity.
The Heckler's Veto
The overarching rationale of the CDA's supporters was that it was a
necessary measure to protect our children. I personally had the
questionable pleasure of debating Patrick Trueman of the American
Family Association on national television, and he accused me of trying
to promote the seduction of our children by pedophiles, simply because
of my anti-CDA stand.
Forty years ago, in the Butler v. Michigan case, the Court overturned
a state law which banned the sale of books unfit for children, using
the often-quoted phrase that such legislation burns down the house to
roast the pig. In other words, while the protection of children is an
extremely important goal, we will not do so by interfering with the
legitimate rights of adults to speak, or listen to, matters not fit
for children.
The Court again confirmed that the government has a "compelling
interest" in protecting children from indecency (a matter not
seriously disputed, though the ACLU did make an attempt in the
District Court to counter this on principle). Citing the Butler
language, the Court said that the CDA, "casting a far darker shadow
over free speech, threatens to torch a large segment of the Internet
community."
The CDA's ambiguous provisions included a section punishing anyone who
attempted to send indecent material knowingly to a minor, or to a
group knowing that a minor was included. While the CDA's advocates,
like Patrick Trueman, painted graphic images of individual pedophiles
sending indecent mail to susceptible targets, our side pointed out
that every chat room, every Usenet group and every Web page may
potentially be joined or viewed by minors, making the "knowledge"
requirement meaningless. While the two dissenters, Justices O'Connor
and Rehnquist, would have upheld the "specific child" provision of the
CDA for one-on-one communications like those imagined by Trueman, the
majority refused to rewrite the law to make it less vague. In so
doing, they hit on the striking image of the "heckler's veto": "[A]ny
opponent of indecent speech....might simply log on and inform the
would-be discoursers that his 17-year-old child....would be present."
The Dissent's Zoning Approach
Justice O'Connor, joined by Chief Justice Rehnquist, concurred with
the Court's overall holding on the CDA, but would have preserved the
"specific child" provision as it applied to one-on-one situations.
Their arguments in favor of preserving this one application of the CDA
relied on a "zoning" analogy. Justice O'Connor wrote that she regarded
the CDA "as little more than an attempt by Congress to create 'adult
zones' on the Internet. Our precedent indicates that the creation of
such zones can be constitutionally sound."
She then cites a long list of state statutes prohibiting minors from
entering pornographic theaters and bookstores, liquor stores, bars and
poolhalls. " [A] zoning law is valid if (i) it does not unduly
restrict adult access to the material; and (ii) minors have no First
Amendment right to read or view the banned material." She agrees that
applied to the Internet "as it exists in 1997", the CDA violates the
first part of this test, restricting adult access to material. As for
the second branch of the test, she holds that "the universe of speech
constitutionally protected as to minors but banned by the CDA....is a
very small one."
She describes cyberspace as an area not yet "zoned" but eminently
"zoneable": "[I]t is possible to construct barriers in cyberspace and
use them to screen for identity, making cyberspace more like the
physical world and, consequently, more amenable to zoning laws." But
she agrees that the law cannot be upheld based on technology not yet
available. "Until gateway technology is available throughout
cyberspace, and it is not in 1997, a speaker cannot be reasonably
assured that the speech he displays will reach only adults because it
is impossible to confine speech to an 'adult zone'." Thus, the two
partial dissenters hold hope out for a day in which laws like the one
proposed by Senator Murray can create "adult zones" or, as free speech
advocates would put it, "ghettoes" for disfavored speech.
Conclusion
The Reno v. ACLU opinion is a clear, strong statement which will serve
as a bulwark for Net free speech determinations for many years to
come. However, by stopping just short of a categorical statement that
cyberspace should be treated like print media, it exposes the Net to
at least one more battle, over mandatory ratings systems and
censorware.
------------------------------
Date: Mon, 23 Jun 1997 12:49:56 -0400
From: Peter Suciu <peter@connors.com>
Subject: File 4--AskAsia Covers Hong Kong Handover
After 155 years of British colonial rule, Hong Kong will return
to Chinese control as of July 1st. AskAsia will be providing
coverage of this historical event at: http://www.askasia.org
Join AskAsia to find out how this unprecedented historical event
will affect people, the economy and the future of Hong Kong.
Found in the Information/News section of AskAsia, Scenario92s for
Hong Kong92s Future is designed to get people thinking about the
transition, it92s potential outcome, and provide contextual and
historical information to foster discussions. In addition,
AskAsia provides Hong Kong related links to Asian newspapers,
newsmakers, historical and reference information and breaking
news stories.
If you would like any additional information on AskAsia, please
contact us via e-mail.
Best,
Peter Suciu
New Media Specialist
Connors Communications
212-807-7500
------------------------------
Date: Wed 18 Jun 1997 13:06:31 -0700 (PDT)
From: Brock Meeks <brock@well.com>
Subject: File 5-- CyberWire Dispatch Award for Meeks (fwd)
((MODERATORS' NOTE: James Warren, in his 29 June '97 column
in the Chicago Tribune, described Brock Meeks as "a mix of
gonzo journalist Hunter Thompson and investigator Jack Anderson."
Rather apt, and it's good to see the mainstream beginning to
appreciate Brock's writing)).
CyberWire Dispatch // Copyright (c) 1997 // June 17th //
Jacking in from the "Envelope Please" port:
New York--CyberWire Dispatch received the top award for "Best
Online Feature" from the Computer Press Association during its
12th annual awards ceremony for its investigative story "Keys to
the Kingdom" that exposed the hidden agendas hard coded into
so-called blocking software programs.
Dispatch immediately announced it was doubling its subscription
because, hell, let's face it, you strike while the iron's hot.
(Which is a saying I never understood. What difference does it
make whether an iron is hot or not? Does the burning add any
more to the displeasure of having a six-inch crater carved into
your skull from the iron? Ah, but I digress...)
The award makes Dispatch a back-to-back winner. Last year CWD won
the top honor in the "Best Investigative Story or Series"
category for its articles exposing the twisted story of Carnegie
Mellon University undergrad Marty Rimm's attempt to pass off a
flawed study of online pornography as a definitive case history.
Dispatch also exposed Rimm's calculated and deceptive
manipulation of Time magazine which resulted in the infamous
"Cyberporn" cover story fiasco.
The judges said CWD authors Brock N. Meeks and Declan McCullaugh
"produced an investigative piece on a serious and important
subject--a rare feat in any media. 'Keys to the Kingdom' revealed
that parental control software--which ostensibly filters out
pornographic Internet sites--actually restricts access to all
types of material both innocuous and important. Thus, software
users unwittingly restrict their rights of free speech and access
to information. This story, colorfully written and packed with
details, raised this important issue to the online community and
resulted in high profile follow-ups with mainstream media such as
the Washington Post, New York Times and the Wall St. Journal."
In other words, the judges got it. Of course, "colorfully
written" is a code word for "it was packed with profanity,
twisted tales of drug and alcohol abuse and flirtation with a
gender bending source." Kids, don't try this home...
The software blocking controversy continues to this day, with few
changes being made. One company, CyberPatrol, is now changing
the way its software handles the blocking of sites so that it
doesn't sweep in non-offending content. Currently, CyberPatrol
truncates a blocked site's URL without regard for any other site
that may be caught in that blocking net. For example, if
CyberPatrol wants to block a URL with "cybersex" in the domain
name, the company simply blocks on the word "cyber" meaning that
a site called "cyber-highschool" would be caught in CyberPatrol's
"CyberNot" list and therefore not accessible.
At least CyberPatrol is working to eliminate the problem.
Another nefarious software program, CyberSitter, refuses to
acknowledge any hidden agenda in its blocking patterns.
CyberSitter continues to block a host of sites that deal with
topics other than pornography, such as the National Organization
for Women and Peacefire.Org. The latter site has become a
leading critic of CyberSitter and that critical voice appears to
be the only reason why it's blocked by CyberSitter. Brian
Milburn, president of Solid Oak Software which developed
CyberSitter, continues to boast of how his program is being
heavily used by Christian groups such as Focus on the Family. At
the same time, Milburn is fond of sending out disparaging Email
to his critics. When Dispatch wrote about Milburn's failed
attempt to threaten this publication with legal action based on
the bogus claims of copyright violation, Milburn wrote that
Dispatch is "nothing more than a trickle of piss in the river of
life." I'm sure Focus on the Family would love to put that quote
in their brochures hawking Milburn's software to its membership.
The Real Heroes
===============
The real hero behind this award is "Red" our transvestite source
that passed CWD what was essentially the smoking gun: the lists
of block sites of several software programs. These lists of
blocked sites are essentially trade secrets and are therefore
encrypted. The lists are the ultimate "little black book" of
every naughty site on the Net, hence the "keys to the kingdom"
title of our piece. But Red was able to break the encryption and
read the lists in plain text. What Red saw there shocked and
dismayed him, er, her, er, whatever... and passed the lists on to
CWD.
The other hero here is Declan McCullaugh, currently the
Washington Correspondent for Time magazine's "the Netly News."
Declan did the majority of the reporting as I pointed him in this
direction and that and let him run with it. Meanwhile, I was
doing most of the heavy drinking, trying to grind out my copy on
a daily basis for HotWired's Netizen where I was covering the
most boring fucking presidential campaign since Rutherford B.
Hayes beat whomever back in whatever year. Declan ground away at
the story, dogging it like a crazed rat terrier. If not for his
efforts, the story might still be unwritten.
That the story might still be unknown had not CWD written it is a
sad commentary on the state of "computer journalism." Where is
all the hard nosed, down in the dirt investigative journalism
when it comes to the computer and online industry? You have to
look long and hard to find it.
The San Jose Mercury News took home this year's award for "Best
Investigative Story" for a story about how thieves are stealing
chips. "No longer content to hijack a truck or bribe employees
to look the other way, high-tech thieves have escalated into
kidnapping, coercion and brutality to get their hands on
components literally worth more than their weight in cocaine or
gold," the judges wrote of the Merc's story. The Merc also
walked away with the "Best Overall Coverage in a General Interest
Newspaper" so it's not a big leap to see them cop the
investigative award, as well.
[Side Note: CWD's "Keys" article was originally entered in the
investigative story category. Someone on the CPA committee
moved it to the online feature category because the investigative
category was for print only! Don't ask me why; CWD won in this
category last year. Not to take away from the Merc's story, but
boys, if CWD goes head-to-head with your chip story, CWD kicks
your ass. We'll see you next year, same time, same place.]
So where are all the investigative stories? The New York Times
was no where to be found last night, neither was the Wall St.
Journal or the Washington Post or Business Week. The fact is,
journalists covering this industry give it too much of a free
ride. Yes, there are scathing product reviews oooohhhh, now
there is some top notch muckraking journalism.
This industry is making profits that border on obscene. And when
there is that much money at stake there is dirt, big time dirt.
But few are looking. A concerted effort needs to be undertaken
to hold this industry's feet to the fire, hell, we need to burn
this industry down and rejoice in what rises from the ash.
Thanks to judges for their efforts; wading through the more than
1,000 entries received this year must have been a grueling task.
And thanks to the CPA committee for this award and for your hard
work in putting the awards ceremony together. (I got riled up
giving my speech last night and forgot to thank the CPA for the
award.) And a special nod to Adaptec who ponied up the money
for the whole event and to Dee Cravens, the company's vice
president for communications, who had a few choice things to say
about the shaky nature of "computer journalism" as well. Good on
you, Dee, as CWD's Aussie readers like to say.
Thanks to Declan for his hard work on the story and "fuck you" to
Josh Quittner, who is El Heffe for Pathfinder.com and the real
brains behind anything intelligent Time Inc. does in print or
online dealing with cyberspace, for stealing Declan away from me
before I made the jump to MSNBC as their chief Washington
Correspondent.
Thanks to Red for all his, er, her, er, whatever, efforts in
bring this story to the public's eye. And thanks to my
insightful and ballsy editors at MSNBC who continue to allow me
to write CWD without any restrictions or constraints.
Last but not least, a huge thanks to you, the CWD reader. You've
made CWD into a publication like no other on the Net. You've
supported Dispatch with your feedback, both positive and negative
and have helped create a brand name for CyberWire Dispatch that
is one of the most recognizable in Cyberspace. I owe you a lot
and try to live up to that with each Dispatch.
So, that said, when you get the bill in the mail doubling the
subscription price for CWD, remember, it goes to a good cause,
the furtherance of take no prisoners journalism in cyberspace.
Pay the bill promptly, CWD is going for a "three-peat" in next
year's awards.
Meeks out...
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 6--Cu Digest Header Info (unchanged since 7 May, 1997)
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End of Computer Underground Digest #9.51
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