Computer underground Digest Fri Mar 22, 1996 Volume 8 : Issue 23 ISSN 1004-042X Editor: Ji
Computer underground Digest Fri Mar 22, 1996 Volume 8 : Issue 23
Editor: Jim Thomas (email@example.com)
News Editor: Gordon Meyer (firstname.lastname@example.org)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.23 (Fri, Mar 22, 1996)
File 1--CDA hearing--day 1
File 2--Cleveland BBS lawsuit, in response to raids
File 3--CONGRESS: "The Rogues Gallery"
File 4--CWD -- The Hyde Factor (Brock Meeks/CyberWire reprint)
File 5--Cu Digest Header Info (unchanged since 22 Mar, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
Date: Fri, 22 Mar 96 23:35:37 PST
Subject: File 1--CDA hearing--day 1
Here's a blow-by-blow on the first day of the
CDA hearing. A report on day 2 will follow by the
end of the weekend.
March 21, 1996
ACLU V. RENO REPORT
>From Philadelphia's Ceremeonial Courtroom in the U.S. Federal
Courthouse, March 21, 1996---Its a huge courtroom,
with three judges looking puny and isolated in the
center of twenty-three judges' chairs in two elevated
rows at the front. In front
of them are two huge terminals, echoed by two projection
screens flanking the courtroom.
Plaintiffs--there were four of us in the courtroom today--
were forced to wait outside, standing first on one leg, than
the other, while attorneys and the press were admitted to
the courtroom for an 8:30 a.m. photography session. The
U.S. marshalls appeared terminally confused as they scratched
their heads, trying to figure out who to let in. Saying "I'm
on the list," didn't work; the list was six names written
down on the back of a business card, and included only
the attorneys for co-plaintiff American Library Association.
Today's session was a very unusual proceeding in several other
respects. There were more reporters around, including TV crews,
than have been seen in a courtroom since the Simpson trial.
There was a live Internet hookup in the courtroom--probably the
first time this has ever been done. And most witnesses appeared
only for questioning by the judges and cross-examination by
the government--their primary or "direct" testimony was
submitted by affidavit.
Only two ACLU plaintiffs
took the stand. Kiyoshi Kuromya and Patricia Nell Warren
are both remarkable people--and I will come back to them.
Declan McCullough and I also showed up (Woody Allen:
"Ninety percent of life is just showing up").
The Communications Decency Act mandated that any challenge
to it be heard by a three judge panel and appealed directly
to the Supreme Court, by passing the intermediate appeals
court. The three judges hearing the most important free speech
case in sixty years are:
Dolores K. Sloviter, chief judge of the Eastern District of
Pennsylvania. She is friendly, easy-going and humorous, and
has a tendency to ask long, involved questions.
Stuart Dalzell, a thoughtful, intellectual judge whose questions
seemed to reveal him as sympathetic to our side.
Ronald Buckwalter, the judge who originally granted the partial
TRO against the CDA. Buckwalter only asked a couple of questions
in the course of the day, and not very good ones--he seemed the
least involved of the three.
The first witness was Scott Bradner, senior technical consultant
at Harvard University and a member of the Internet Engineering
Task Force. He laid the groundwork for the judges to understand
the workings of the Net, explaining terms such as World Wide
Web, HTML, URL, browser, and Usenet. he also gave a forecast of
the next generation Internet Protocol-- 128 bit addresses, a
domain name scheme where every router no longer has to know the
name of every other network in the world, and better metrics.
When asked if all IETF documents were open to the public,
he said "Yes--we used the paradigm to build the paradigm."
Jay Baron of the Department of Justice lobbed Bradner some
apparent softball questions--but with a hidden agenda. For
example: The Web's graphical user interface makes it easy for
users with minimal experience to access information,
soesn't it? New generations of HTML authoring software
make it really easy for anyone to do their own Web pages,
doesn't it? The implication was that the technology allows
content providers to shovel out smut and children to shovel
it in--as the government will likely argue in its summation.
Bradner testified, rather confusingly, about rating systems
such as PICS. First he described a feature under which
you can embed a rating into a link. For example, you
create a link to my pages but rate them "NC-17." A child
using a browser configured not to show adult material
would not be able to jump from your pages to mine. Bradner
then testified that I, as the publisher, can also add rating
tags to my own pages. But it was unclear whether the
judges really sorted out his rather tangled presentation.
However, Judge Dalzell was very interested by the idea of
rating systems. "This is a very important issue
for the case." He tried to compare the Internet to the
online card catalog of a library. Was it possible to
assign ratings to each of the entries in the catalog, or
only to the Harvard library as a whole? Bradner's answer
was unnecessarily complex and it wasn't clear if Dalzell
really understood that each HTML page can receive
its own rating.Judge Sloviter also struggled
with a complicated question--
suppose someone rated all of Shakespeare? How would you
disseminate these ratings on the Internet?
Assuming that the judges are convinced that ratings
systems work,both sides appear ready to argue that
this conclusion supports their position. The government
appeared to be implying
that the CDA isn't really dangerous, since you can evade it's
provisions by rating your pages to keep children out.
The ACLU is arguing that the CDA is not "narrowly tailored",
as the Constitution requires, because self-rating is
sufficient to protect minors without the need for
Judge Dalzell pointed out to Baron of DOJ that many of the
ACLU plaintiffs didn't want to have to rate their Websites
and block out minors from information about AIDS or safe
sex. Baron tapdanced, responding that this was a legal issue
for the judges to decide--he was only asking technical
questions of Bradner. Dalzell would come back to this
point with Kiyoshi and Patricia.
At noon, we heard the "P" word for the first time--
Baron got Bradner to agree that the Internet was "pervasive".
radio and television has been used as a secondary argument
to justify broadcast censorship, with spectrum scarcity as
the government's main excuse for getting involved. Ithiel
de Sola Pool, a communications visionary, wrote in his 1983
book Technologies of Freedom that "pervasiveness" would someday
be used to justify quite radical censorship. That day has
However, the courts have never upheld regulations based on
pervasiveness where spectrum scarcity did not also exist.
Hopefully, they will not start now.
baron used Bradner to introduce another key issue:
technological convergence. Bradner opined that
by the year 2000, there will
be a single "pipe" into the house, carrying voice, video and
data, and at the same time the phone, tv and computer will
have converged. The significance of convergence is:
When two regulated media converge with an unregulated one,
what happens? The government answer: the third becomes
unregulated. The freedom of speech answer: they all
Bradner concluded by saying that the Internet is being hyped as
a threat to government control. "I personally would rather
focus on the promise."
Bradner had to leave for an important meeting in DC, and will
be back Friday morning for additional testimony.
Court adjourned for ninety minutes for lunch and resumed at
1:35 with Ann Duval, CEO of Surfwatch, as the next witness.
There is a rule of the universe--a corollary of Murphy's
Law--which says that any software demo presented to enough
people under sufficiently important conditions will break
down. This one was no exception. Duval experienced one fatal
memory error, requiring her to reboot her portable
Mac, and the Net froze twice while she was trying to
show the court the Web and her Surfwatch product.
Every witness assumed that the judges didn't know very much
about computers (though Judge Sloviter remarked that two
out of three of them were Mac users). Duval began by explaining
that "Just because a parent has bought a computer doesn't
mean they're connected to the Internet automatically."
After bombing out of a Philadelphia Web site, Duval bravely
attempted to show the court the Louvre pages--but the Net
froze. She loaded a list of London museums
instead. Using the Infoseek engine, she then demonstrated
the steps her daughter had followed to research a term paper
on "Fragile X syndrome". Dalzell was very interested by the
Web page of the Fragile X Foundation. "How would you cite
this is a paper?" Sloviter, whose questions frequently
revealed she was thinking hard yet sounded like nonsequiturs,
asked: "Did someone compile this or could it be word for
word from some published reference?"
Duval then visited Yahoo's new kids page, "Yahooligans".
By an amazing coincidence, there was a Surfwatch ad
at the bottom of the page. Duval followed the link to the
Surfwatch site and we were in fullscale product demo.
After describing the genesis of the product--she is a mother
and wanted to protect her kids--Duval typed the URL of
Playboy's Web page into her browser--and absolutely nothing
happened, after four tries. Apparently, you have to access a site
successfully before Surfwatch will block it. She tried again
with Penthouse, and this time, got the "Blocked by
Surfwatch" dialog box she was seeking.
Amazingly, the current version of Surfwatch doesn't allow you
to add or delete your own sites--but the next one will.
Duval also showed Surfwatch's pattern matcher, which
won't let a child do a search on "sexy" in Infoseek,
"The Web," said Duval, "is a place where you make
an affirmative choice to go places....it doesn't just come
ACLU lawyers sprang up to lift the judge's two monitors to
the ground after Judge Sloviter complained she felt hemmed in.
The demo was over but another DOJ guy cross-examined
Duval. She testified that she employe ten college students
who spend 20+ hours as week looking for offensive sites
Surfwatch doesn't block.
Q: "Are they over the age of 21?"
The government established that new indecent sites are constantly
being added on the Net and that there is a 28 day lag from the
time Surfwatch discovers a site to the date it distributes
an update to its subscribing customers blocking the new site.
DOJ had also asked Bradner earlier about the "window of
vulnerability" during which children may be
exposed to indecency before it
was blocked. Judge Dalzell was intrigued by the fact that the
new version of Surfwatch will also allow you to block the
entire Net--except for the sites you review and approve.
In her affidavit, Duval had referred to the "tiny percentage"
of inappropriate material on the Internet. The DOJ lawyer
challenged her as to whether the 5,000 sites her
product blocked were really such a "tiny" percentage.
Q: "Have you done any statistical research?"
Judge Slovitzer was concerned that Surfwatch was a for profit
enterprise. What would happen if it didn't make a profit?
Duval explained that there are at least four competitors, and
that blocking software will always be available. Duval said that,
because of the bundling of Surfwatch with online service
subscriptions, she could not say how many units were installed.
However, the company has fifteen hundred subscribers paying
a monthly fee for updates.
Next, plaintiff Kiyoshi Kuromya took the stand. Kiyoshi is
an amazing person. I had previously met him at the ACLU's
kick-off press conference in Washington a few weeks back.
I am proud to know him and if ACLU could only pick a
couple of us to testify at trial, then Kiyoshi was an
excellent choice. he has been an activist since
1959. He was injured by the police during a civil
rights demonstration in Selma, Alabama in 1964;
was one of the group that tried to levitate the Pentagon
in 1966; was thrown off the Penn Campus for selling "Fuck
the Draft" t-shirts in 1968 (ooops, little CDA violation
there); and arrested, along with 12,000 other people, at the
May Day demonstrations in Washington in 1971. Fifteen years
ago, Kiyoshi was diagnosed with HIV, and he has had
full-blown AIDS for almost five years. He is dignified,
indefatigably cheerful, and in addition to fighting for
our freedom of speech, runs the Critical Path Aids Project,
which includes a Web resource which disseminates safe
sex and AIDS treatment information.
The government at first declined any cross-examination
of Kiyoshi--possibly, he is too sympathetic,
and there was nothingto gain. Judge Dalzell got right
to the point: What does the CDA do to you?
A: "I don't know what 'indecent' means. I don't know what
'patently offensive' means. "
Q: "How many HIV-positive people are there who are under 18
in this country?"
A: "There are about 1 million people in the U.S. infected
with HIV, of which 25% were infected under age 18 or
Here, DOJ lawyer Pat Rosado popped up after all, and
asked: "You are linked to other databases via HTML
Q: "Did you learn HTML yourself?"
Q: "And writing HTML will become easier as new software comes
Dalzell, who consistently went to the heart of the matter,
asked, "If you were required to self-rate your system,
would you rate it NC-17?"
A: "No. My information is explicit, but it is necessary
to avoid a sexually transmitted disease. I would not
want to deny young people the information necessary to
save them from a fatal disease."
Judge Sloviter asked what Kiyoshi publishes which is at risk.
A: "Safe sex information, descriptions of how to avoid HIV
Chris Hansen of the ACLU asked, "When you discuss safer
sex practices, what language do you use?"
A: "Some people do not have the education to understand
clinical language--we use street language,
Judge Buckwalter asked his first question at 3:30 in the
afternoon: "Do you make any attempt to avoid street
language, to use proper language?"
A: "I use whatever language is appropriate."
Up next was plaintiff Patricia Nell Warren. Patricia
is a novelist and gay activist who observed censorship
first hand when living in Spain. She is from
Montana originally, where she has lobbied against
censorship bills introduced by
the far right. She lives in California, where she co-owns
Wildcat Press, runs the Youtharts program, and is involved
with the Los Angeles school boards in an attempt to
ensure tolerance in the schools. Through Wildcat Press,
she has republished her out-of-print novels, including
The Front Runner. Patricia, Declan and I went out
for dinner after the hearing; she is a wonderful person,
full of experience and wisdom, and I cannot stress
too much that the most rewarding aspect of being a
plaintiff has been the opportunity to
meet people like Patricia, Kiyoshi and Declan.
Ann Beeson of ACLU conducted Patricia's direct examination--
but again, Judge Dalzell jumped in to ask most of the
questions. Patricia had testified that she sells
copies of her book from her Web pages."Your
credit card company charges you $1 per
The significance of this is that inexpensive and
free Web resources cannot afford to exclude
minors by requiring a credit card
from users before they can see explicit information.
Q: "Is it easier to start an ezine than a print magazine?"
A: "Yes. There are fewer start-up costs."
Judge Sloviter asked, "Is your material gay and
A: "Yes. Most of my books are."
Q: "Would you call Truman Capote's Other Voices, Other Rooms
A: "I haven't read it, but its been referred to as such."
Q: "Would literature in that category be subject to the CDA?"
A: "I'm concerned about people in this country who
regard the whole area of gay and lesbian literature
as patently offensive."
Q: "Is such literature available to people under 18
in public libraries?"
A: "Yes, it is."
I wasn't certain, however, that this was the answer
Sloviter was expecting.
Judge Buckwalter spoke up again. "The law doesn't just say
'patently offensive'--it says 'sexual or excretory acts
A: "I'm concerned how a group might interpret this provision
in making a complaint to the Department of Justice."
At dinner, Patricia told us about a proposed law in Montana
that would have required all self-declared gay people to
register with the local sherriff as sex offenders.
Next on the stand was an expert witness for the ACLU,
Dr. William Staton of the University of Pennsylvania.
Staton is a Presbytrian minister tasked by his
church with a ministry in sex education.
Judge Dalzell wanted to know why Staton was
testifying. "The value of sex information for minors,"
Chris Hansen said. If the judges get to the issue of
whether the government has a "compelling interest" in
preventing sex infromation from reaching minors, the
ACLU was trying to convince the judges that it does
not. Obviously, it is to be hoped that the court throws
out the CDA because it is vague or because it is not
"narrowly tailored" to do the job it sets out to do,
and that "compelling interest" does not become
the main issue.
DOJ lawyer Pat Rosado again conducted the cross--only this
time she had that prosecutorial edge that had been lacking
in the low-keyed proceedings so far. She asked Staton whether
it was bad for minors to see Playboy, Penthouse or
Hustler. He said no.
Q: "Do you prefer your children not to see them?"
A: "It doesn't matter to me."
Rosado showed him government exhibits 70-77, apparently
explicit photos downloaded from the Web. These were not
projected on the screens in front of the courtroom;
at the end of the day, Declan did everything he could
to get a look at these, but the DOJ people wouldn't
show them to him, claiming that (though they are from the
Internet) they are not public yet because not yet admitted
in evidence in the case!
The voice of Catharine MacKinnon was then heard in the
courtroom, speaking through Pat Rosado.
Q: "Would you agree that these images don't depict a
healthy view of women as sexual beings?"
A: "Women are often exploited."
Rosado established that boys are often shown these kinds of
pictures during their "socialization" process, when they
are learning how to think about women. Staton insisted that
most of boys' information comes from other sources than
Q: "You don't believe that exposing minors to these kinds
of images is harmful?"
A: "Not in itself, no."
Rosado then began a progression, in which she asked
Staton whether such images would be harmful for a
12 year old, ten year old, eight year old, six year
old.....He replied to each question that there
is nothing inherently harmful in sex, but "I would want
to be the one to give my value system...hundreds of
thousands of people have seen pictures like this and
not been harmed."
Rosado elicited that Staton uses sexually explicit films in
counselling, which a pharmaceutical company made expressly
for him. She then embarked on her blues progression again:
are the films fit for 12 year olds? 10 year olds?
"My five year old has seen them," Staton said.
Later he said, "We're born sexual. That's who we are."
The primary sex educator of children should be their
parents, with the church, school, and YMCA playing
a secondary role. "Our children are bombarded by sex...
I want them to have good information."
Judge Sloviter wanted to know if anyone would
regard exhibits 70-77 as obscene.
A: "Oh yes. I know them. I know some of them."
Judge Buckwalter observed that sex education ought to
be handled by parents. "Its often not, though."
Staton replied: "Parents often abdicate their role.
We should do more parent training."
Staton remarked to me as he was leaving the courtroom,
"If we lose this thing, I'm moving to Australia."
And that was it. We mingled with the attorneys for a while,
speculating about which judges were on our side and which
are not. Some of the questions, like Judge Slovitzer's,
can cut either way.
I spent a lot of the day talking to Declan McCullough. Every
once in a while you get into an environment where everyone
you meet is remarkable. The ACLU v. Reno case has been like
that. Declan is a powerhouse, a young man who is constantly
multitasking: thinking, talking, working the angles in favor
of the freedom of speech. There cannot have been many people
his age who have irritated so many foreign governments so
quickly. He knows everybody and worked the courtroom and
the hallway, talking to the attorneys, reporters, witnesses
and even the opposition (Cathy Cleaver from the
American Council on the Family). Declan is not shy and had
no trouble walking up to the DOJ lawyers and asking to
see exhibits 70-77.
That night on local TV, the report on the day's hearing led off
with those same cyber-smut shots. The reporters know better;
but TV is a visual medium. This isn't about smut; its about
protecting electronic text the same way we protect text printed
on paper. And what freedom of speech is going to look like
in the 21st century.
The Ethical Spectacle
ACLU v. Reno plaintiff
Co-author, Sex, Laws and Cyberspace
(Henry Holt, 1996)
Free speech absolutist--and proud to be
Date: Thu, 7 Mar 1996 14:20:36 -0800 (PST)
From: Declan McCullagh
Subject: File 2--Cleveland BBS lawsuit, in response to raids
Greenwood & Associates
Attorneys At Law
2301 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
Fax: (513) 684-0077
For IMMEDIATE Release 3/6/96
Scott T. Greenwood
Father & Son Computer Users Fight Back:
CINCINNATI ELECTRONIC BULLETIN BOARD SYSTEM USERS FILE CLASS ACTION LAWSUIT
SHERIFF SIMON LEIS & COMPUTER TASK FORCE
A father and son filed a class action lawsuit today in federal
court against Sheriff Simon L Leis, Jr., and other law enforcement
officials. On August 31, 1995, members of the Hamilton County Regional
Electronic Computer Intelligence Task Force (RECI) raided the West Chester
home of Michael O'Brien and seized his personal computer system. O'Brien's
son Noah, a 15 year old sophomore at Indian Hill High School, ran a
computer bulletin board system called "Spanish Inquisition" from his
The police raid took everything on the O'Briens' computer and its
bulletin board system, including all the private electronic mail and work
product of the users. This is the second user class action challenging a
government seizure of computer material. Both actions have arisen out of
the activities of Sheriff Leis and the RECI Task Force.
According to the search warrant used to justify the raid, the Task Force
was seeking computer image files and "hacker" information on a system that
contained thousands of public and private messages.
Noah & his father, an engineering manager, represent a class of
hundreds of users of the Spanish Inquisition electronic bulletin board.
Mr. O'Brien uses the computer system to send and receive electronic mail
and to do work projects at home; his son ran the bulletin board system,
sent & received e-mail, and authored computer programs and artwork.
The lawsuit claims that the wholesale seizure of the computer
bulletin board system violated the users' constitutional right to free
speech and association, and that the seizure of their private e-mail,
public messages, and materials intended for publication violated their
right to privacy and federal law.
"The Task Force used a drift net to troll for a tiny amount of
supposed 'cyberporn' and 'hacker' tools," said Cincinnati civil rights
lawyer Scott T. Greenwood, who represents the plaintiffs. "In the process,
they netted an enormous amount of entirely irrelevant material, and shut
down a constitutionally-protected forum for speech and association."
Greenwood added, "This seizure was doubly outrageous. It came on
the heels of the first suit filed against the very same defendants for the
same type of constitutional violations. Whether the sheriff and our local
'Internet police' like it or not, the Bill of Rights is not optional just
because they don't like it or understand it. Shutting down a computer
system and seizing people's private communications turns the First
Amendment on its head."
The lawsuit claims that Sheriff Leis and the Task Force violated
the First Amendment, the Fourth Amendment, several provisions of the
federal Electronic Communications Privacy Act of 1986, the First Amendment
Privacy Protection Act of 1980, and Ohio common law privacy rights, and
seeks actual damages, statutory damages, and punitive damages on behalf of
the lead plaintiffs and the entire class.
Copies of the complaint are currently available by e-mail, and will
also be available later on a website.
The first user class action's website may be found at
Scott T. Greenwood Attorney
email@example.com Greenwood & Associates
(513) 684-0101 (voice) 2301 Carew Tower, 441 Vine Street
(513) 684-0077 (fax) Cincinnati, Ohio 45202
"Eternal Vigilance is the Price of Liberty."
Date: Tue, 19 Mar 1996 15:25:02 -0800
From: telstar@WIRED.COM(--Todd Lappin-->)
Subject: File 3--CONGRESS: "The Rogues Gallery"
Accountability is the cornerstone of democracy. Thus, in the spirit of
naming names, I bring you the full text of "The Rogues Gallery" from the
April issue of Wired.
In this episode, we bear witness to the "tortured explanations and flat-out
evasions" offered by Congressional legislators who brought us the
Communications Decency Act.
Hats go off to Brock Meeks, the author of this piece, whom the Washington
Post recently descibed as "a sheriff on the electronic frontier, exposing
the frauds and snake oil salesmen in scoop after scoop."
Spread the word!
THE ROGUES GALLERY
Meet the legislators who helped make government censorship a reality on the
By Brock Meeks
The history of the Communications Decency Act - legislation that became law
as part of the sweeping telecommunications reform bill - is a twisted tale.
Championed by Senator James Exon with ample support from the Christian
Coalition, the Communications Decency Act criminalizes constitutionally
protected speech on the Net. Americans who prove unwilling to abandon their
First Amendment rights may be subject to US$250,000 fines and two-year
The United States Supreme Court says that the state has a "compelling
interest" in protecting minors from inappropriate or potentially harmful
media content. The Court also says that the government must always use the
"least restrictive means" short of broad, content-based regulation to
achieve this compelling interest. The new legislation clearly fails this
critical First Amendment test.
Wired asked several proponents of the act to clarify their decision to
forsake the First Amendment and Supreme Court precedents protecting our
civil liberties. Here are the tortured explanations and flat-out evasions
offered by legislators - some of whom previously distinguished themselves
as advocates of free speech.
SENATOR JAMES EXON (D-Nebraska), sponsor of the Communications Decency Act.
"There is enough of the self-serving philosophy of the 'hands-off elite.'
They seem to rationalize that the framers of the Constitution planned and
plotted at great length to make certain that above all else, the
profiteering pornographer, the pervert, and the pedophile must be free to
practice their pursuits in the presence of children on a taxpayer created
and subsidized computer network. This is nonsense."
SENATOR DIANNE FEINSTEIN (D-California) voted for the Communications
Decency Act during a Senate vote on 14 June 1995.
46einstein's office flat out refused to return repeated calls. Later, when
met face-to-face with her staff, they continued to stonewall. Finally, with
deadline pressure looming and after a Wired editor strong-armed her press
aide, the senator issued this statement:
"While I strongly believe in our First Amendment right of free speech, I
also believe that we need to reconcile First Amendment freedoms with other
fundamental rights and concerns - in this case our need as adults to be
able to protect children from obscene and indecent material. I recognize
that there currently are software filtering programs that have the
potential to screen out certain pornographic 'discussion groups' to prevent
our children from being able to access them. I hope that even better
software can be developed to address this problem more successfully in the
REPRESENTATIVE PATRICIA SCHROEDER (D-Colorado) voted to adopt Senator
Exon's "indecency" language provision during a 6 December 1995, meeting of
the House Conference Committee on Telecommunications Reform.
"I voted for the 'no indecency for kids' provision because, in my view, all
doubts about the competing provisions had to be resolved in favor of
I'd be the first to say that the options before us weren't perfect, and the
process was abysmal. The House had no hearings on this issue, no committee
deliberation, and no floor debate. A better process would have given us
better options. My requests for a more open process were ignored - not too
surprising from a Republican majority, which rushed through too much
legislation by a similarly slipshod process."
REPRESENTATIVE JOHN CONYERS (D-Michigan) voted to adopt Senator Exon's
"indecency" language provision during a 6 December 1995, meeting of the
House Conference Committee on Telecommunications Reform.
Previously an ardent supporter of the First Amendment, Conyers's position
on Internet censorship made us wonder why he voted to adopt the "indecency"
language. Rodney Walker, Conyers's press secretary, evaded me for a week
when I tried to reach the representative by phone. "This is a very hard
question for us, which is why I haven't been able to answer it," Walker
confessed. "Let me get the congressman's guidance on this." He never called
Later, I caught Walker as he was ducking into an elevator: "Have a seat in
the office, I'll get back to you in a minute," he pleaded. After spending
45 minutes cooling my heels in Conyers's waiting area, a call came in. It
was Walker, calling from a committee meeting room, with a statement from
his boss. Conyers had decided to punt:
"When I voted for the indecency language, I was looking for a vehicle to
balance freedom of speech with the state's compelling interest in
protecting children from indecent and obscene material."
SENATOR BARBARA BOXER (D-California) voted for the Communications Decency
Act during a Senate vote on 14 June 1995.
Boxer's staff couldn't get her to cough up a statement explaining her
support for the Communications Decency Act. Boxer voted against the
flag-burning amendment, but when it came to discussing Internet censorship,
her press secretary explained, "I've never really heard her talk about her
position on that. The only thing I've ever really heard her say is that she
wanted to send a signal to technology companies to encourage them to come
up with better solutions for protecting kids from indecent material."
Brock N. Meeks (firstname.lastname@example.org) is Wired's Washington correspondent.
Copyright A9 1996 Wired Ventures Ltd.
All right reserved. Non-commercial redistribution of this message is permit
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution list providing
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Date: Thu, 21 Mar 1996 19:34:25 -0800 (PST)
From: Declan McCullagh
Subject: File 4--CWD -- The Hyde Factor (Brock Meeks/CyberWire reprint)
CyberWire Dispatch // Copyright (c) 1996 //
Jacking in from the "Is That Your Peyote or Mine?" Port:
Washington, DC -- Hell hath no fury like a piece of legislation that
comes around and bites its author on the ass. Enter Rep. Henry Hyde
You remember Hyde. He's the wheezing, corpulent, white-haired gnome
on steroids that snuck language into the telecom reform bill that makes
it a crime to even mention abortion in an electronic format.
Hyde's pathetic legislative slight of hand revived the all but dead
Comstock Act, which was enacted when General Ulysses S. Grant was
president. It was aimed at stopping activists of the day from
distributing printed abortion information.
Oh, the humiliation of it all. First, Hyde was little more than the
water boy for Sen. James Exon (D-Neb.), being made to introduce Exon's
Communications Indecency Act language into the House telecom reform
bill. Second, even as my gnarled fingers hammer out this Dispatch,
the American Civil Liberties Union and a coalition of other groups are
in a Philly court, claiming provisions of the reform bill that Hyde
helped make law are unconstitutional.
Now, I don't know about you, but I wouldn't exactly be thrilled having
to shoulder the shame of being known as the legislator that wrote such
an egregious rat bastard bill that the courts deem it unconstitutional.
In fact, when the courts do overturn this blatant affront to free
speech, those in Congress responsible for it should be impeached. The
charge? Criminal negligence and terminal ignorance of the Constitution
they have sworn an oath to serve.
And when that happens, we can call it the "Hyde Factor." Just imagine,
lawmakers would forever live in fear of writing legislation that would
raise the specter of the "Hyde Factor" kicking in.
I'm licking my chops already, thinking of standing up during a press
conference to ask: "Senator, with all the controversy surrounding this
bill, aren't you afraid the fallout might invoke the 'Hyde Factor'?"
And then I would sit down and watch the little beads of sweat form on
the Senator's upper lip.
As if all this weren't enough, consider the twisted political vortex
Hyde finds himself in today, as the Subcommittee on the Constitution,
which falls under his chairmanship as head of the House Judiciary
Committee, holds an oversight hearing on abortion procedures.
Political Pretzel Logic
In preparation for the hearing, Hyde sent letters to all those asked to
testify. In that March 8 letter, a copy of which was obtained by
Dispatch, Hyde says that the Subcommittee "puts prepared statements for
hearings on the Internet to allow access to the public." To
facilitate that, Hyde asked that all testimony be included on a disk.
The "Murder, She Wrote" fans among you will have already sniffed out
the thinly veiled plot about to unfold here.
A March 15 letter to Hyde from Kathryn Kolbert, vice president of the
Center for Reproductive Law and Policy, on behalf of a doctor asked to
testify at the hearing, lays bear Hyde's political pretzel logic.
The letter, a copy of which was obtained by Dispatch, tells Hyde that
the doctor he asked to testify must decline. Kolbert is representing
the doctor in litigation challenging an Ohio bill which bans certain
abortion procedures. However, "[m]ost importantly, your March 8,
1996 invitation is clear that the... prepared statements for hearings
be put on the Internet," Kolbert says. If the doctor were to comply
with such a request he "is extremely concerned that this practice may
subject him to criminal liability" as defined under the same language
that Hyde himself inserted in the telecom bill that criminalizes the
transferring of abortion information on the Internet!
The doctor's testimony "could be considered advertising, something you
explicitly said would be criminal," Kolbert wrote to Hyde. "Moreover,
discussion of the availability of abortion at his facilities, as well
as the medical aspects of the procedure, may be criminal violation
under the explicit terms of the new telecommunications law," she says.
This one incident speaks volumes. Not only about extreme chilling
effects of the anti-indecency provisions in this bill, but also about
how truly clueless Hyde appears to be with respect to his own
And remember, this was testimony to be held before the CONSTITUTION
Subcommittee. Hello? Maybe Hyde should tap that campaign warchest and
buy a fucking clue.
Like I said, when the anti-indecency provisions of this bill are deemed
unconstitutional, they should hold impeachment hearings based on
criminal stupidity. If nothing else, it will give the media hacks a
new catch phrase: "And now, Sir, about that pesky 'Hyde Factor'..."
Date: Thu, 21 Mar 1996 22:51:01 CST
From: CuD Moderators
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