Computer underground Digest Sun Feb 18, 1996 Volume 8 : Issue 16 ISSN 1004-042X Editor: Ji

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Computer underground Digest Sun Feb 18, 1996 Volume 8 : Issue 16 ISSN 1004-042X Editor: Jim Thomas (TK0JUT2@MVS.CSO.NIU.EDU) News Editor: Gordon Meyer ( 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: CONTENTS, #8.16 (Sun, Feb 18, 1996) File 1-- Federal Court Partially Enjoins the CDA File 2--Judge Blocks Enforcement of CDA (2/16) File 3--FWD>Text of Judge Buckwalter's DCA Decision File 4--NYT: Compuserve ends Usenet newsgroup ban (2/14) File 5--China requires Internet users to register at police stations File 6--Re "Myths (?1)" in CUD 08.15 File 7--CNN's on why they didn't support "Darkness campaign" File 8--Cu Digest Header Info (unchanged since 16 Dec, 1995) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Fri, 16 Feb 1996 00:58:12 -0600 From: critcrim@SUN.SOCI.NIU.EDU(Critical Criminology - ASA) Subject: File 1-- Federal Court Partially Enjoins the CDA >From EPIC's homepage at: FEDERAL COURT PARTIALLY ENJOINS THE CDA U.S. District Judge Ronald L. Buckwalter of Philadelphia has issued a partial temporary restraining order prohibiting enforcement of the "indecency" provision of the Communications Decency Act (CDA). The judge declined to enjoin those provisions of the Act dealing with "patently offensive" communications. The court agreed with the plaintiffs' claim that the CDA will have a chilling effect on free speech on the Internet and found that the CDA raises "serious, substantial, difficult and doubtful questions." The Court further agreed that the CDA is "unconstitutionally vague" as to the prosecution for indecency. But the Court left open the possibility that the government could prosecute under the "patently offensive" provisions. The court has recognized the critical problem with the CDA, which is the attempt to apply the indecency standard to on-line communications. Nonetheless, online speech remains at risk because of the sweeping nature of the CDA. The entry of the court order is a strong indication that the "indecency" provision of the legislation that went into effect on February 8 will not survive constitutional scrutiny by a three- judge panel that has been impaneled in Philadelphia. The panel will fully evaluate the constitutional validity of the legislation and consider entry of a permanent injunction against enforcement of the new law. According to EPIC Legal Counsel David Sobel, one of the attorneys representing the coalition, "The court's decision is a partial victory for free speech, but expression on the Internet remains at risk. This is destined to become a landmark case that will determine the future of the Internet." Looking ahead to proceedings before the three-judge panel, Sobel said "we are optimistic that further litigation of this case will demonstrate to the court that the CDA, in its entirety, does not pass constitutional muster." ------------------------------ Date: Fri, 16 Feb 1996 22:52:14 -0800 (PST) From: Declan McCullagh Subject: File 2--Judge Blocks Enforcement of CDA (2/16) To amplify what's in the attached WP and NYT articles: both Dalzell and Buckwalter are U.S. District Court judges. Sloviter is the appellate judge. I've been informed that the DoJ also attached "general studies" on the Net -- and plenty of smut -- as exhibits. The ACLU isn't planning to put the government's 65-page answer brief (with 500 pages of exhibits!) online. I'm trying to track down a physical copy, and shall pass along sections when I get it. Some background on what's next with the court challenge is at: CMU's Committee of Investigation -- which is still considering Marty Rimm's case and which should report by this summer -- has been notified that the DoJ included the RimmJobStudy as an exhibit. It's important for the committee to realize that the study was not just a sloppy undergrad term paper. It was a crucial part of agenda-setting that permitted the passage of the CDA in its current form. Not surprisingly, Marty's gone to ground. I haven't heard from him in over a month. His Andrew mail is forwarded to Prodigy, which bounces it back. -Declan PS: More Marty articles are at: // // I do not represent the EFF // // Judge Blocks On-Line Indecency Enforcement January 16, 1996 By Mike Mills; John Schwartz Washington Post Staff Writers A federal judge in Philadelphia temporarily blocked the government yesterday from enforcing part of new legislation that prohibits making indecent material available to minors via computer. U.S. District Judge Ronald Buckwalter said that his order in the case, brought by the American Civil Liberties Union (ACLU) and other groups, applied only to enforcement of a provision of the law pertaining to "indecent materials," and not to another section of the law that proscribes distribution of "patently offensive" materials. The decision left civil liberties lawyers scratching their heads, since the Federal Communications Commission has used the two terms interchangeably in the past. The bill defines "patently offensive" as "depictions of sexual or excretory activities or organs." The apparent conflict within the order will have to be worked out at a later hearing on a request for a preliminary injunction, which has yet to be scheduled. [...] The Justice Department had no comment on the decision. The chief judge for the U.S. Court of Appeals for the Eastern District of Pennsylvania, Dolores K. Sloviter, named herself, Buckwalter and U.S. Judge Stuart Dalzell yesterday to a three-judge panel that will rule on the provision. [...] Conservative groups that support the law applauded the Clinton administration's stance. "I'm very pleased with what I know about it," said Cathleen Cleaver, director of legal studies for the Family Research Council, a group that favors regulating adult materials. [...] Opponents of the provision said that the government relied on suspect sources. They pointed to a footnoted reference in the government brief to a 1995 study published in the Georgetown Law Journal, "Marketing Pornography on the Information Superhighways." Broadly attacked within the Internet community, the study, written by an undergraduate student at Carnegie Mellon University, was accused of being incorrect in both its methodology and conclusions. Mike Godwin, staff counsel for the Electronic Frontier Foundation, a high-tech policy group, said that the Justice lawyers' "use of a study which is known to be profoundly flawed and even fraudulent" constitutes "a deliberate attempt to mislead the judge." A Justice Department spokesman said that the study was included only as "an initial reference" to the kinds of materials that could be found on-line. =========================================================== February 16, 1996 The New York Times Judge Blocks Law on Internet Smut By PETER H. LEWIS A federal judge temporarily blocked enforcement on Thursday of a new law that makes it a felony to send indecent material over the Internet or other on-line computer services if the material may be seen by children. The judge ruled that the term "indecent" was unconstitutionally vague and was not defined in the new law, the Communications Decency Act. But, drawing a semantic distinction that appeared to leave both supporters and opponents of the law uncertain of the eventual outcome, Judge Ronald L. Buckwalter of Federal District Court in Philadelphia upheld another part of the same law. That section makes it a felony to use computer networks to display, in a way accessible to minors, material that depicts or describes, "in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." While the law thus makes clear what "patently offensive" is meant to cover, the problem with the term "indecent," the judge ruled, is that in criminal trials it would "leave reasonable people perplexed in evaluating what is or what is not prohibited in this statute." [...] A spokesman for the Justice Department said on Thursday night that lawyers there would have to study the judge's ruling carefully before making a statement. [...] In a 60-page brief filed Wednesday in opposition to the ACLU's request for a restraining order, the Justice Department argued that opponents' concerns about overly broad interpretation and enforcement of the law were merely speculation. The benefits of protecting children from pornographic images and speech on-line was in the public interest, the Justice Department said. [...] ------------------------------ Date: 15 Feb 1996 21:44:51 -0500 From: "Dave Banisar" Subject: File 3--FWD>Text of Judge Buckwalter's DCA Decision This is the text version of Judge Buckwalter's decision, courtesy of the American Civil Liberties Union. An HTML version is available at EPIC's website: ========================================================== IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs v. JANET RENO, Defendant CIVIL ACTION NO. 96-963 MEMORANDUM BUCKWALTER, J. February 15, 1996 I. BACKGROUND Plaintiffs are providers and users of on-line communications. The affidavits filed in support of plaintiffs' request for a temporary restraining order (TRO) support the statement in plaintiffs' brief (page 2) that these communications deal with issues involving sexuality, reproduction, human rights, social responsibility, environmental concerns, labor, conflict resolution, as well as other issues, all of which have significant educational, political, medical, artistic, literary and social value. On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996. Title V of the Act includes the provisions of the Communications Decency Act of 1996 (CDA), codified at 47 U.S.C. Section 223 (a) to (h). Pertinent to the matter now before this court, Section 223 (a) (1) (B) provides: (a) Whoever -- (1) in interstate or foreign communications -- (B) by means of a telecommunications device knowingly -- (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; Section 223 (d) provides: (d) Whoever -- (1) in interstate or foreign communications knowingly -- (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communications that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under Title 18 United States Code, or imprisoned not more than two years, or both. In seeking a TRO with regard to the above provisions/1, plaintiffs claim that they will be irreparably harmed because their rights under the First Amendment will be infringed. They fear prosecution under the CDA because as a result of the vagueness of the crimes created by the Act, they do not even know what speech or other actions might subject them to prosecution. Thus, even attempts to self- censor could prove fruitless. There is also the concern by those plaintiffs who rely on on-line providers and other carriers that these providers will likely ban communications that they consider potentially "indecent" or "patently offensive" in order to avoid criminal prosecution themselves, thereby depriving plaintiffs of the ability to communicate about important issues. The defendant counters by stating that there must be a realistic danger of sustaining a direct injury as a result of the statute's enactment or enforcement, apparently suggesting that plaintiffs' fears of prosecution are imaginary or speculative. There is no evidence on the present record to suggest defendant's position is correct in the latter regard. Moreover, the defendant's brief quotes a portion of a Third Circuit case for the proposition that "the assertion of First Amendment rights does not automatically require a finding of irreparable injury." What the defendant failed to cite from that case was the sentence immediately preceding the above quote which was, "It is well established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Hohe v. Casey, 868 F.2d 69, at 72, 73 (3d Cir. 1989). The Hohe case goes on to explain that plaintiff must show "a chilling effect on free expression." That has been shown in this case by affidavits previously referred to. What likelihood is there that plaintiffs will prevail on the merits? In Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Section 2948.3, it is suggested that this concept of probability of success on the merits must be considered and balanced with the comparative injuries of the parties. As the Second Circuit put it, when the balance of hardship tips decidedly toward plaintiff. . .it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). I believe plaintiffs have, at least with regard to 47 U.S.C. Section 223 (a) (1) (B) (ii) and (a) (2) raised serious, substantial, difficult and doubtful questions which are fair grounds for this litigation. In explaining my reason for this conclusion, I will not go through a piecemeal analysis of the cases, all of which have been set forth in both plaintiffs' and defendant's briefs, except, perhaps, in passing while discussing the respective arguments of the parties. First of all, I have no quarrel with the argument that Congress has a compelling interest in protecting the physical and psychological well-being of minors. Moreover, at least from the evidence before me, plaintiffs have not convinced me that Congress has failed to narrowly tailor the CDA. Where do I feel that the plaintiffs have raised serious, substantial, difficult and doubtful questions is in their argument that the CDA is unconstitutionally vague in the use of the undefined term, "indecent." Section 223 (a) (1) (B) (ii). This strikes me as being serious because the undefined word "indecent", standing alone, would leave reasonable people perplexed in evaluating what is or is not prohibited by the statute. It is a substantial question because this word alone is the basis for a criminal felony prosecution. It is a difficult question, I think, because any laws affecting freedoms such as the ones here in question have spawned opinions which arguably support both sides. Finally, it is a doubtful question because it is simply is not clear, contrary to what the government suggests, that the word "indecent" has ever been defined by the Supreme Court. See Alliance for Community Media v. F.C.C., 56 F.3d 105 (D.C. Cir. 1995) p. 130, footnote 2: We note that the Supreme Court has never actually passed on the FCC's broad definition of "indecency". See Action for Children's Television v. FCC, 852 F.2d. 1332, 1339-39 (D.C. Cir. 1988) (acknowledging that in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the Supreme Court never specifically addressed whether the FCC's generic definition of indecency was unconstitutionally vague, but arguing that because the Court "implicitly" approved the definition by relying on it, lower courts are barred from addressing the vagueness issue on the merits. Parenthetically, I had reached the same conclusion as Judge Wald, author of the above footnote, before reading Alliance for Community Media. That, of course, does not mean that we are correct but it did reinforce my belief that the question of vagueness is a difficult and doubtful one. In connection with the vagueness argument, the government correctly states that plaintiffs face a most difficult challenge. That challenge has been stated as one in which "the challenger must establish that no set of circumstances exists under which the Act would be valid." Rust v. Sullivan, 500 U.S. 173, 183 (1990) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987). It is hard to imagine a set of circumstances where an act proscribing certain conduct could be rendered valid if the description of that conduct, the violation of which is a felony, is vague. Defendant seems to argue that an indecent communication means the same as a communication that in context, depicts or describes "in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. . . ." While I do not believe the patently offensive provision of Section 223 (d) (1), quoted above, is unconstitutionally vague, I do not see how that applies to the undefined use of the word "indecent" in Section 223 (a) (1) (B) (ii). Depending on who is making the judgement, indecent could include a whole range of conduct not encompassed by "patently offensive." The remaining considerations relative to a TRO request weigh in favor of plaintiffs. I have not overlooked or ignored the outstanding argument made by the government in part 1 of its brief. I particularly have pondered the oft cited quote: When a court is asked to invalidate a "statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Mistretts v. United States, 488 U.S. 361, 384 (1989), p. 17 of defendant's brief. It is, of course, impossible to define conduct with mathematical certainty, but on the other hand, it seems to me that due process, particularly in the arena of criminal statutes, requires more than one vague, undefined word, "indecent." It is a most compelling constitutional reason to require of a law that it reasonably informs a person of what conduct is prohibited particularly when the violation of the law may result in fines, imprisonment, or both. An order follows. n1/ Plaintiffs have also sought relief as to 18 U.S.C. Section 1462, but at this early stage of the litigation, it seems clear that no irreparable harm will befall plaintiffs. (See Gov't Ex. 13). ======================================================================== IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs v. JANET RENO, Defendant CIVIL ACTION NO. 96-963 ORDER This case is before the court on plaintiffs' motion for a temporary restraining order against enforcement of both 47 U.S.C. Section 223 (a) (1) (B) (as amended by the Telecommunications Act of 1996, Section 502), and 47 U.S.C. Section 223 (d). The court having considered plaintiffs' submissions in support of their motion, and defendants' submission in opposition thereto, IT IS HEREBY ORDERED THAT plaintiffs' motion for a temporary restraining order is GRANTED, in part, as follows: The defendant, her agents, and her servants are hereby ENJOINED from enforcing against plaintiffs the provisions of 47 U.S.C. Section 223 (a) (1) (B) (ii), insofar as they extend to "indecent", but not "obscene". The plaintiffs' motion is in all others respects, DENIED. Unless previously ordered by this court, pursuant to 28 U.S.C. Section 223 Section 2284 (b) (3), this order shall remain in force only until the hearing and determination by the district court of three judges of the application for a preliminary injunction. SO ORDERED this 15th day of February, 1996 BY THE COURT: __________________________ RONALD L. BUCKWALTER, J. cc: Counsel of record via FAX by chambers 2/15/96. ------------------------------ Date: Wed, 14 Feb 1996 15:28:26 -0500 (EST) From: "Declan B. McCullagh" To: Fight Censorship Mailing List Subject: File 4--NYT: Compuserve ends Usenet newsgroup ban (2/14) [I enjoyed the Family Research Council hissing: "We will encourage the Justice Department to prosecute Compuserve." -Declan] --- February 14, 1996 Compuserve to End Ban on Internet Sex Materials By PETER H. LEWIS Citing a desire to leave Internet censorship to individual tastes rather than government decree, the on-line company Compuserve Inc. said Tuesday that it would restore worldwide access to most of the 200 sex-related computer data bases it had recently blocked under pressure from German prosecutors. Instead of barring all of its 4.3 million subscribers from access to the controversial sites, Compuserve said it would provide subscribers with software that could be employed to selectively block any material the user finds offensive. [...] Compuserve said, however, that it was maintaining a ban on five of the computer sites suspected by German, U.S. and other law enforcement officials of carrying child pornography. [...] Another major legal challenge may come as soon as next week. A coalition of commercial on-line services, telecommunications companies, librarians, and civil liberties groups is considering filing its own federal suit, seeking less restrictive means to protect minors than the broad ban called for in the new law. Compuserve has been asked to join that group. "The introduction of parental controls lets us put the power to control and restrict content access where it belongs, with the individual user," said Robert J. Massey, the president and chief executive of Compuserve, which is based in Columbus, Ohio. [...] "By this action, Compuserve is intentionally providing obscene material to its subscribers by making it available to them on their service, and they do so at their peril," said Cathleen A. Cleaver, director of legal studies at the Family Research Council, a conservative group in Washington. "We will encourage the Justice Department to prosecute Compuserve for violating the federal obscenity distribution statute." [...] But until Tuesday, Compuserve lacked selective controls. Before that, the only way Compuserve could satisfy the German prosecutor was to shut off access to the designated computer sites in all 147 countries where it does business. [...] ------------------------------ Date: Fri, 16 Feb 1996 22:31:20 -0800 (PST) From: Declan McCullagh Subject: File 5--China requires Internet users to register at police stations Reports from Germany say that the Chinese government will require all 40,000 Chinese Internet users to register at their local police station. In the last few months, China has launched a horrific crackdown on pornography, the Internet, and even foreign economic news. Related back messages are at: -Declan // // I do not represent the EFF // // CHINA PUTS MORE CLAMPS ON INTERNET China has ordered all those who use the Internet and other international computer networks to register with the police within 30 days. The order, the latest move to control the flow of information, came in a circular issued by the Ministry of Public Security, the state-run Xinhua News Agency reported. Xinhua did not give a date by which current users must register, but said new users and those switching or terminating services must notify police within 30 days. Those who do not will be punished according to regulations on computer networks approved last month by the State Council, the Cabinet, Xinhua said. It was unclear how foreigners would be affected by the decree. Free Speech Newspaper ------------------------------ Date: Fri, 16 Feb 1996 17:26:33 +0100 From: Klaus Brunnstein Subject: File 6--Re "Myths (?1)" in CUD 08.15 Concerning your message "Myths about our mirrors ..." published in CUD Vol.8 #15, your report about T-Online is wrong. T-Online is the 100% subsidiary of Deutsche (German) Telekom which is so far 100% owned by the Federal government. Privatisation is being prepared to start later this year (depending on finance market conditions). It is the offspring of Bildschirmtext (Btx) being offered since more than 10 years but without much success. Concerning actual market shares, T-Online claims to have al- most 1 million customers (by far most of which have been Btx users), with CompuServe being 2nd with less than 250.000. AOL only recently joined this market with a European partner. Concerning your role in the Zundel case, I just wish to ask you what justification you have to enforce your US-constitutional rights upon citizen from countries with different constitution and values? Though some Germans may not care for Nazi propaganda flowing into Germany, broad agreement here (based on our historical experiences) is that we do NOT wish such inflow; did you observe how non-German media react when another house with people seeking asylum is burning, whether ignited by Nazi racists or as consequence of an incident (as recently)? Could you please instruct me how our society may cope with racist material if not by making import of such material a criminal offense (as in our Penal code)? I agree with you that such flow may hardly be technically controlled, but law formulates (at least in this case) a general consensus and is their of educational help. Generally: would you understand that enforcing your US-constitutional rights upon non-US citizen may be understood as an act of agression, more clearly "network imperialism"? Dont you regard non-US citizen as "network Indians" whom you must baptize at your prize? Btw: do not misunderstand me. I am in favour of as free information flows as possible, but within given constraints which derive from culture, history and other elements of national consensus. Klaus Brunnstein (February 16,1996) ------------------------------ Date: Tue, 13 Feb 1996 07:47:14 -0600 (CST) From: David Smith Subject: File 7--CNN's on why they didn't support "Darkness campaign" ---------- Forwarded message ---------- If you're a regular user of CNN Interactive's three Web sites, you'll notice no difference in the pages you're seeing today. But in contrast to many other sites on the Web, the appearance of our pages may stand out. CNN Interactive is not participating in the protest against the Communications Decency Act which has prompted many Web publishers to use black backgrounds on their sites today. CNN's primary mission as a news organization is to present accurate, unbiased reporting in a timely fashion. All other objectives are secondary to this journalistic principle. While parts of the "Communications Decency Act" may appear to threaten the free exchange of information through electronic means, CNN will not fight a battle to overturn this legislation on its Web pages. CNN has established its global reputation by being the one broadcaster to give nothing but the facts the way we see them. This has enabled us free access at one time or another to almost every nation on the planet. This has allowed us to talk to oppressed people who had known only government broadcasters, often run by the state solely to protect the state's interest. This has transformed CNN into the confidant of the world -- a place where all views are created equal and where the words and ideas of those people making the news are of far greater importance than of those reporting it. The Communications Decency Act is not going to go away no matter what color we make our home page. And the story it evokes is not going to go away either. We at CNN Interactive must be free to report this very important story to you, our users, without the fear of a perception of bias. This point can not be stressed strongly enough. By taking a stand, even if it appears only to be a stand supporting the First Amendment, we have compromised our objectivity and neutrality on this story. That cannot happen if we are to remain the Internet's premier news source. Scott Woelfel Editor in Chief ------------------------------ Date: Sun, 16 Dec 1995 22:51:01 CDT From: CuD Moderators Subject: File 8--Cu Digest Header Info (unchanged since 16 Dec, 1995) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: Or, to subscribe, send post with this in the "Subject:: line: SUBSCRIBE CU-DIGEST Send the message to: DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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