Computer underground Digest Wed Mar 27, 1996 Volume 8 : Issue 25 ISSN 1004-042X Editor: Ji

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Computer underground Digest Wed Mar 27, 1996 Volume 8 : Issue 25 ISSN 1004-042X Editor: Jim Thomas (cudigest@sun.soci.niu.edu) News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu) Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Field Agent Extraordinaire: David Smith Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #8.25 (Wed, Mar 27, 1996) File 1-CONGRESS: Online Parental Control Act of 1996 File 2-Review of ROAD WARRIORS File 3-Internet Book File 4-CDA Frequently Asked Questions File 5-Cu Digest Header Info (unchanged since 25 Mar, 1996) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Thu, 14 Mar 1996 11:47:33 -0800 From: telstar@WIRED.COM(--Todd Lappin-->) Subject: File 1--CONGRESS: Online Parental Control Act of 1996 Today in the House of Representatives, legislation was introduced to encourage parental empowerment on the Internet and eliminate the vague and overbroad "indecency" standard that became law under the Communications Decency Act. The new legislation, called the "Online Parental Control Act of 1996," was introduced by Rep. Anna Eshoo (D-CA), whose district includes much of California's Silicon Valley. Representatives Pelosi (D-CA), Dellums (D-CA), Farr (D-CA), Gejdenson (D-CT), and Woolsey (D-CA) are co-sponsors of the bill. (The full text of Rep. Eschoo's press release on the new legislation follows below.) The Online Parental Control Act of 1996 seeks to replace the "indecency" standard (which is mainly used to regulate speech in BROADCAST media) with the more narrowly-drawn "harmful to minors" standard which has already been upheld as constitutional in 48 states. My understanding is that "harmful to minors" is a PRINT-based standard, but I'll research this and send out a more detailed evaluation as soon as possible. In the meantime, I can say this: "harmful to minors" is viewed as a middle-of-the-road standard, and as such, it remains *highly* controversial. There are many who would argue that *any* attempt to restrict access to content other than obscenity (which does not enjoy First Amendment protection) is unwarranted. Stay tuned. All of this, by the way, comes on the heels of a bill (S 1567) Patrick Leahy introduced in the United States Senate last month in an effort to repeal the Communications Decency Act altogether. Spread the word! --Todd Lappin--> Section Editor WIRED Magazine ============================================================ FOR IMMEDIATE RELEASE Lewis Roth CONTACT: (202) 225-8104 March 14, 1996 Eshoo Introduces Online Parental Control Act Legislation Strengthens Parental Control Of Online Materials, Eliminates "Indecency" Standard Washington, D.C.--Rep. Anna Eshoo (D-CA) today introduced the Online Parental Control Act of 1996 (OPCA) to strengthen the control parents have over their children's access to online materials, eliminate the "indecency" standard from the Communications Act of 1934, and provide additional defenses against liability for publishing online materials. Representatives Pelosi (D-CA), Dellums (D-CA), Farr (D-CA), Gejdenson (D-CT), and Woolsey (D-CA) are original cosponsors of OPCA. When the Telecommunications Reform Bill was signed into law earlier this year, it made sweeping changes to America's telecommunications policy. Among those changes was the establishment of a ban on using telecommunications devices to provide "indecent" materials to minors, as well as defenses against being held liable for a violation of that ban. For example, people could avoid liability by using software that blocks the access of minors to such materials or restricts access through the use of credit card numbers or adult access codes. Some U.S. Representatives, including Rep. Eshoo, opposed the "indecency" standard because the range of material it would ban was so broad that it violates the right to freedom of speech. The "indecency" standard is currently being challenged in court by a large coalition of free speech advocacy groups and high technology companies. "The Online Parental Control Act will encourage an open dialogue in Congress about the best way to both give parents control over what their children see online and protect the First Amendment rights of Internet users," said Rep. Eshoo. "My proposal builds on last year's efforts to reach a compromise on this issue by offering more incentives for the online community to provide families with better parental control technologies. "I'm supportive of efforts to address this issue in the courts, but I believe Congress also needs to offer a legislative solution. Given the political realities of the current Congress, I think OPCA offers the most realistic way to settle this dispute in a timely and effective manner." The Online Parental Control Act of 1996: Replaces the "indecency" standard with a "harmful to minors" standard; Establishes a definition for "harmful to minors;" Maintains the Communications Act of 1934's legal defenses against liability for people who choose to give parents technology that: 1) blocks or restricts access to online materials deemed obscene or harmful to minors, and 2) restricts access to such materials through adult access codes or credit card numbers; Adds two new defenses: 1) the use of labeling or segregating systems to restrict access to online materials, such as systems developed using the standards designed by the Platform for Internet Content Selection project (PICS), and 2) the use of other systems that serve the same function of the other defenses if they are as reasonable, effective, and appropriate as blocking, adult access code, and labeling technologies; and Protects providers or users of interactive computer services, information content providers, and access software providers from civil or criminal liability under state law for making available to minors materials that are indecent or harmful to minors if they take actions to qualify for the defenses mentioned above. "I'd rather have Mom and Dad monitoring their children's online viewing habits than the government," concluded Rep. Eshoo. "Technology offers the best opportunity for parents to manage what their kids have access to, and the Online Parental Control Act encourages those technologies to be developed more fully." The "indecency" standard is a vague term that has been subject to legal challenge by a wide range of free speech advocates and high technology companies. The broad nature of the "indecency" standard means that it could lead to a prohibition on material such as classic art like Michelangelo's David, classic literature like "Catcher In The Rye," and frank discussions about birth control, sexuality, or disease transmission. "Harmful to minors," on the other hand, already works successfully in 48 states, more directly addresses speech that actually harms children, and passes constitutional muster. PICS is a cross-industry working group assembled under the auspices of MIT's World Wide Web Consortium to develop an easy-to-use content labeling and selection platform that empowers people worldwide to selectively control online content they receive through personal computers. The Recreational Software Advisory Council recently announced that it will soon implement a detailed voluntary ratings system, using PICS standards, that will let computer users filter out varying degrees of sex, violence, nudity, and foul language. Companies and groups supporting PICS include Apple, America Online, AT&T, the Center for Democracy and Technology, CompuServe, IBM, France Telecom, Prodigy, Providence Systems/Parental Guidance, Surf Watch Software, and Time Warner Pathfinder. For more information about the Online Parental Control Act of 1996, please contact Lewis Roth at (202) 225-8104 or look on the Internet at http://www-eshoo.house.gov/opca.html. ### +--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+- This transmission was brought to you by.... THE CDA INFORMATION NETWORK The CDA Information Network is a moderated mailing list providing up-to-the-minute bulletins and background on efforts to overturn the Communications Decency Act. To subscribe, send email to with "subscribe cda-bulletin" in the message body. ------------------------------ Date: Wed, 27 Mar 1996 22:51:01 EDT From: Jim Thomas Subject: File 2--Review of ROAD WARRIORS ROAD WARRIORS: Dreams and Nightmares along the Information Highway. By Daniel Burstein & David Kline. New York: Dutton. 466 pp. $24.95 (cloth). Reviewed by: Jim Thomas (cudigest@sun.soci.niu.edu). I was conceived in 1941, the result of my father's ability to zip and unzip his fly quickly and with adroitness. This may explain why I wasn't born, say, in 1936, when only six percent of summer suits had zippers. By 1940, I learn from ROAD WARRIORS, nearly 90 percent of Princeton students had zippers. Therefore, I am. That's what I like about ROAD WARRIORS--hundreds of tiny factoids strewn about the text to spice up the prose and around which more profound points are made. The zipper anecdote, for example, is used to illustrate the relationship between technology, capitalism, and entreprenerial endurance (p. 15). It, and dozens of others, illustrate points and prod our thinking about computer technology, history, culture, and politics. ROAD WARRIORS has been hyped as a business text. The cover jacket is over-represented with admirable comments by CEOs and other business types, the book's promos focus on the business motif, and in the Chicago area, it can be found in the computer/business section of the chain bookstores. Bad marketing move: Burstein and Kline have strung together a fact-filled, intellectually eclectic, and insightful tome that fulfills like a text book, but reads like a novel. The authors argue that, underlying the computer technological revolution, lies an array of economic, political, ideological, and cultural processes reflect greed, vision, creativity, conflict, and courageous intelligence (p. 22). The volume draws both its title and its primary organizing metaphor from Mel Gibson's Road Warrior films, in which a futuristic society becomes fragmented and chaotic. Lacking strong centers of control or authority, individuals and groups vie for power and scrap for resources in staking-out and protecting their fiefdoms. In the Information Age, life imitates art: In the war rooms of the world's major business empires, a who's who of corporate generals are plotting their strategies, forging Machiavellian alliances and conspiring to outflank each other in an epic struggle for supremacy in these emerging Information Age markets (p. 35). Telecommunications and computer industry competition, mergers, innovation, commercialization, and transition in and among established companies and new or would-be entrpreneurs lock modern techno-economic road warriors in a battle for control of the Internet, information technology, and political and economic advantage in a war of capital, not just technology. Drawing from the Sony Betamax v. VHS video recorders as an example, the authors note that it's not necessarily who has the best product, but who is most adept at marketing. This is hardly a startling revelation. What is new is how the authors illustrate the marketing processes and trace out the social and political implications for the information age. There is no doubt that the Internet is a hot multi-billion dollar property. But what is far less certain is whether it can be effectively molded to serve corporate America's key financial and business-to-business requirements (p. 126). The authors map out the chapters in thematic sequence. Beginning with a brief summary of the impact of technological innovations in general and digital technology in particular, they lead us through the mergers of telephone, visual, and computer technology. The second section, "A Kingdom of Riches," describes the potential of the Internet both as an information medium and commercial gold mine. In a typically memorable twist of phrase, the authors note that the Internet's original near-invulnerabity to nuclear or other concerted attack is partly what makes bringing it under economic or political control so difficult: "...trying to make all the Internet's disparate parts work together smoothly and efficiently would be akin to trying to herd five million cats" (p. 127). Who, they ask rhetorically, would bet $10 billion on smooth herding? Yet, this challenge poses both problems and rewards for those willing to try. Drawing from the example of the struggle over digital media between telecoms and cable companies, the authors argue that companies that adopt the most creative and aggressively far-sighted policies will succeed, and those with the slows will lose market share or ultimately disappear into mergers and bankruptcies (p. 173). The broader implication, only hinted at but still obvious, is that the next round of change on the information highway, which the authors liken to a dirt road rather than an expressway, will be influenced more by capital than technological innovation. Failure to recognize this clouds analysis of the trends and directions of the techno-revolution, which in turn jeapordizes planning for a smoother transition in a period of dramatic social change. Who cares? We should. The authors cite Whtehead's observation that "The major advances in civilization are processes that all but wreck the societies in which they occur" (p. 317). They draw from the Industrial Revolution to illustrate the ironies of progress that simultaneously disrupts and disenfranchizes over the short term. Real and potential problems are the result of more than simply material changes--they also result from ideological and political conflicts, as they argue in describing how some health policies, for which remedies exist, are not implemented: Our society has become the first to be paralyzed in the face of a public health threat not from lack of scientific knowledge or equipment, but by absurd extensions of the concept of individual rights (p. 321). One can disagree with their their conclusion, as I do, but it doesn't change its value: Burstein and Kline 1) correctly insist on grounding an understanding of pressing Net issues in a broader socio-historical context, and 2) provoke the reader's thinking with well-reasoned observations that, even when we disagree, engage us in an intellectual exercise of response. ROAD WARRIORS is particularly valuable for playing on the ironies and contradictions of social change. Rather than simply laud the good and condemn the bad, they take the next step and work through the dialectical processes at play. Best of all, they avoid academic jargon, political buzzwords, and ideological ax-grinding (almost). As one (of many) examples, they summarize the dreams on the information highway, and then note: On the other side of the ledger, though, the nightmare scenarios are as frightening as the dream scenarios are inspiring: dehumanization in the face of so much technology; overdependence on systems and networks vulnerable to hacker and terrorist attack--or "only" to the vagaries of software bugs, power outages, and squirrels chewing up fiber-optic lines; governments and corporations increasingly able to play Big Brother in monitoring home activities; economic anarchy bred by a new order that doesn't respect intellectual poperty rights and steals usable "bits" at will; a society rendered irrational and illiterate by its infatuation with the image and the soundbite; teledemocracy that turns into Rush Limbaugh-style mob rule; global, generational, and class wars between info-rich and info-poor (p. 324). Rather than summarize the tensions between the good, the bad, and the ugly, they provide a cogent analysis in which they conclude that: At the heard of the political-economy of the Digital Revolution lies a troubling, foreboding enigma: we are taking a leap toward a society where the historic correlation between wealth creation and the input of labor power is severed--or at least becomes less highly correlated than it used to be (p. 325). >From such a simple, single, sentence comes the generation of a myriad of hypotheses and theoretical revisions that could keep Phd students busy for the next decade. The authors have no answers to the problems of transition into the Information Age, but they argue strongly for a coherent, flexible, and non-fettering set of government policies. They conclude with eight "early-state ideas and provocations" (pp 357-359) to stimulate dialogue. These include: 1) Government strategies and policies that include economic incentives to preserve and stimulate domestic Info-technology; 2) Goverment articulation and stimulation of "social virtue," including educational and public service programs; and 3) Staying out of the business of regulating the content of Internet traffic. For about a nickel a page, relatively inexpensive by publishing standards, readers receive not only a compendium of insights, but a valuable reference resource. The inclusion of substantial interviews with CEOs John Malone and Ray Smith, and Reed Hundt, Chair of the FCC, are a nice touch. The thorough index makes retrieving information relatively easy. Some potential readers might avoid ROAD WARRIORS in the belief that it's simply another volume about business on the Internet. That's unfortunate. "Business" is only the hook that grabs other topics and issues, and the volume is not only useful for those with an interest in Cyberspace, but also for those interested in political economy, social change, and social policy. The paper back version would make an valuable class room supplement, and it's unfortunate that the publisher's marketing people seem not to recognize the significance of the volume. ------------------------------ Date: Fri, 22 Mar 1996 17:13:03 -0500 (EST) From: Charles Platt Subject: File 3--Internet Book A New Book Investigating Sex on the Internet is Pre-Published, Free, via the World Wide Web ------------------------------------------------------------- While the fate of online freedoms is being determined by federal judges in Philadelphia, a contributing writer to Wired magazine has decided to give away his investigative book on the subject. Charles Platt spent six months gathering data about netporn for a book to be published later this year by HarperCollins. According to Platt, "My publishers hoped to rush the book into print. When their plans changed as a result of factors outside my control, I decided the material was so topical and so important, it should be placed freely on web sites." Titled ANARCHY ONLINE, the book is divided into two parts. The first deals with net crimes such as hacking, viruses, and data piracy. Platt includes first-hand descriptions of hackers and pirates and debunks myths created by melodramatic press coverage. Part Two of the book explores free speech online and examines netporn more frankly and in greater depth than has been achieved elsewhere. Platt concludes that although a genuine problem does exist, a "war on porn" will be as unwinnable, expensive, and divisive as the "war on drugs." Part Two of the book contains about 65,000 words and is being placed online in its entirety. It includes transcripts from pornographic IRC chat sessions and sexually oriented Usenet news groups; a look at pedophilia on America Online; a new, damning investigation of Martin Rimm (whose porn study was immortalized in Time magazine); and a reassessment of issues raised by Jake Baker (who faced years in jail after he placed sadistic stories on Usenet). Platt also examines federal attempts to control encryption; the Guardian Angels; anonymous remailers; repressive laws at the state level; content-filtering software; and content rating schemes. There are exclusive interviews with Scott Charney at the Department of Justice, Ann Beeson of ACLU, Louis Rossetto and Kevin Kelly of Wired magazine, anti-child-porn crusader Barry Crimmins, David Chaum of DigiCash, and Phil Zimmermann, creator of PGP. Many other industry figures and commentators make cameo appearances. Platt concludes that net fears have been exaggerated and demands for censorship are unwarranted. "Most people who want to censor the net don't use it and are willfully ignorant of it. They tend to be religious extremists and opportunistic legislators looking for a hot-button issue. I question their right to inflict laws on a community that they don't live in and know nothing about." Platt feels that if widely available methods are used to control access by children, the net can be safer than a day- care center. "My daughter started net surfing when she was 15. Even if children have totally unrestricted access, the net is still more benign than most real-world environments. I believe this is thoroughly substantiated by my book." ANARCHY ONLINE is freely available at http://anarchy-online.dementia.org/book/ Charles Platt is the author of 40 books, ranging from computer guides to science fiction. His novel PROTEKTOR was published this year by Avon Books. He is a contributing writer to Wired magazine and has an article on net censorship in the current issue, dated April. Platt can be contacted at (212) 929 3983 or via email at cp@panix.com. ------------------------------ Date: Wed, 13 Mar 96 22:44:37 PST From: jblumen@interramp.com Subject: File 4--CDA Frequently Asked Questions The Internet Censorship FAQ The Internet Censorship FAQ was created by Jonathan Wallace and Mark Mangan, co-authors of Sex, Laws and Cyberspace, a new book on Internet censorship from Henry Holt. (See http://www.spectacle.org/freespch/ for more information.) Some of the material in the following is taken from the book. Please redistribute this FAQ freely in relevant forums. Q: What threats of censorship exist for the Internet? A: The principal threat of Internet censorship today is the Communications Decency Act, a law passed by Congress and signed by the President in January, 1996 which would apply quite radical regulations to speech on the Internet. Q: What is the Communications Decency Act (CDA)? A: The CDA criminalizes "indecent" speech on the Internet. One section of the CDA defines indecency as speech depicting or describing sexual or excretory acts or organs in a patently offensive fashion under conetmporary community standards. Each of these clauses--indecent, depicting or describing, patently offensive, and contemporary community standards--hides a landmine threatening the future of freedom of speech in this country. i."Indecent" "Indecency" is a vague standard long used to prosecute explicit, outspoken speech in the Western world (for example, Radcliffe Hall's pathbreaking but actually very restrained lesbian novel, The Well of Loneliness, was indecent because of the phrase, "And that night, they were not divided.") Indecency laws are completely unconstitutional as applied to print media, while broadcast spectrum scarcity has been used as a rationale to continue applying such laws to broadcast media. Indecency laws in general, the CDA in particular, contain absolutely no exception for speech with scientific, literary, artistic or political value. ii. "Depicting or describing" The word "describes" confirms that pure text can be illegal under the CDA. Courts in recent decades have tacitly acknowledged that sexually explicit text cannot be held illegal under obscenity laws. Books such as Henry Miller's Tropic of Cancer and James Joyce's Ulysses, which were held years ago to be significant literary works and not obscene, could fall prey to the broader, vaguer CDA language if posted online. iii. "Sexual or excretory acts or functions" While the reaction of some observers to this, the core of the CDA's prohibition, may be "So what?", pause for a second to imagine that you enter your neighborhood bookstore and wave a magic wand. Immediately, all books infringing this definition vanish from the shelves. The shelves are now half or two thirds empty! Not only trashy bestsellers, but 19th century classics such as Zola's La Terre and Flaubert's Madame Bovary, modern literature such as Joyce, Miller, Nabokov and Burroughs, nonfiction works on health, aids, rape, and sexual fulfillment, and even all vanish from the shelves! All serious human discourse sooner or later touches on earthy topics, as history, metaphor or information. Under the CDA, speech which is quite legal in a book or magazine should be banned from the Internet. iv. "Patently offensive" This wording, which the CDA picked up from the Supreme Court's so-called Miller standard of obscenity, allows a jury to decide that material is illegal based on how the jury feels about it. Patent offensiveness is an extremely subjective standard; coupled with the contemporary community standard provision, below, it is a recipe for disaster. In a case called Eckstein v. Melson, the owner of a bookstore was threatened with prosecution if she continued carrying obscene, patently offensive materials. But when she asked the prosecutor, the police and numerous other public officials to tell her what she was carrying which was "patently offensive" (FBI agents raiding her shop had seized novels by John Updike, among other materials) no-one would tell her. A "patent offensiveness" standard means that you engage in explicit speech at your own peril. v. "Contemporary community standards" The 1973 Miller case on obscenity held that local communities could apply their own standards to determining whether material is obscene. This approach barely makes sense for works such as movies or magazines, which distributors can refrain from showing or selling in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas (known as the Amateur Action case) upheld the conviction of two California sysops under Tennessee standards. Their crime had been to place obscene material on their California BBS which offended the ncommunity of Memphis, Tennessee. This result, now codified by the CDA's use of the "community standards" wording, means that material placed on the Internet anywhere must satisfy the standards of every community that has Internet access anywhere in the U.S. In other words, the standards of the most conservative community now apply to the entire Internet. Q: Is the CDA unconstitutional? A: Yes. The basic U.S. rule on freedom of speech is the First Amendment to the U.S. Constitution, which says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Supreme Court cases, notably including Butler v. Michigan (1957), have held that indecency standards cannot be applied to printed matter (that case overturned a law which banned books unfit for children). The extremist rationale of the CDA is that censorship which would be impermissible for the printed word is appropriate for the electronic word, and that works which are protected on paper are subject to censorship on a computer screen. There is no justification for treating the printed and electronic word differently. The consequences of doing so will become most apparent in the next century, as printed books and magazines continue to decline in importance compared to the sheer volume of words available online. If the full protection of the First Amendment applies only to books and magazines printed on paper, then the First Amendment will become a historical curiousity. Q: What rationales are advanced by the supporters of the CDA? A: The CDA's supporters advance two significant reasons for the law: it is necessary to protect children; it is constitutional because the Internet is no different than the telephone or broadcast media and may be regulated similarly. We will deal with each of these individually. Q: Is the CDA necessary to protect children? First, and as a dispositive matter, the constitutionality of the CDA cannot turn on whether it protects children, despite the emotional appeal of this issue. The Supreme Court in Butler v. Michigan did not spend a lot of time considering the state of youthful minds and the measures available to protect them; it held, instead, that setting all public discourse in Michigan at the level acceptable for children would be "burning down the house to roast the pig." A law banning books by Miller, Joyce, Burroughs and Nabokov might also protect children who might get hold of them, but would be completely unconstitutional under the First Amendment. Proponents of the CDA have completely ignored the fact that no child can connect to the Internet without the help of an adult. Signing up for an Internet account typically involves presenting a credit card to an ISP. Adults who wish to allow their children to surf the Net unsupervised can sign them up through a child-safe service like Prodigy. Childhood specialists universally criticize parents who allow their children to vegetate in front of the TV unsupervised; the Net raises the same issues of parental responsibility. Ironically, the same Congress that mandated the V-chip--which would allow parents to stop undesirable broadcasts at the TV--passed the CDA which addresses the same problem by eliminating undesirable speech from the entire Internet. A mature, measured approach to the problem of explicit online speech would involve parental supervision and local screening, not wide-ranging censorship. See the Voters' Telecommunications Watch Parental Control FAQ. Q: Is regulating the Net similar to regulating the telephone, radio or or TV? A: Not at all. The telephone and the broadcast media are all government-supervised monopolies, and Congress and the courts have recognized the government's right to supervise content as a result. However, the right of government intervention to ban indecent language recognized for these other communications media, though cited as a precedent for the CDA, is actually far less than the profound censorship the CDA envisions. The government and the phone company itself can play no role in regulating the contents of private conversations. In fact, the phone company, as a common carrier, is legally required to carry any kind of private communications without making any distinctions. In the 1980's, disturbed by the growth of adult 900-line services, Congress tried banning them; the Supreme Court held that indecent speech could not be banned from phone lines. Instead, Congress passed a law, which the Court upheld, mandating that 900-line services require credit cards or, if billed by the local phone company, be "reverse blocked" (you can't get access unless you request it from the local phone company in writing.) These regulations have allowed 900 line services to exist, while significantly blocking access to minors. By contrast, government involvement in radio and television is based on the "scarcity" doctrine, which holds that government censorship of content is justified by the government's role in assigning broadcast frequencies on a scarce spectrum. The Supreme Court, in the famous Pacifica (seven dirty words) case, held, as with the telephone, that indecent language cannot be completely banned from radio and television. Current FCC regulations allow indecent speech on broadcast media after ten o'clock at night. The Internet is not a "scarce" resource and anyone can attach a computer to it without asking the government's permission. Nor is it a government-licensed common carrier like the phone company. Moreover, the regulations which have been held constitutional for telephone, radio and TV merely seek to shift ("channel") explicit speech to a time or place where children cannot access it, but not to ban such speech entirely. Q: Doesn't the CDA merely attempt to channel indecent speech on the Internet? A: The CDA is extremely ambiguous on this point--with the result that the only safe thing to do is to avoid controversial speech entirely, as many users are already doing. Unlike laws pertaining to telephone, TV and radio, which clearly spell out what is safe (take a credit card, broadcast after ten p.m.), the CDA as written gives absolutely no guidance. None of the methods of channeling decreed for other media works well, or at all, on the Net. The only rational solution for channeling speech on the Net is the parental control solution the Congress rejected even as it was mandating the V-chip: promote the use of child-safe ISP providers and local software to screen undesirable speech. Q: What about the argument that the Internet is "pervasive"? A: Ithiel de Sola Pool, who in 1983 published a really prescient book called Technologies of Freedom, predicted that the doctrine of "pervasiveness" would someday be used to justify quite "radical" censorship. That day has arrived. "Pervasiveness" is an ill-thought out doctrine that has been around since the 1880's, when a court allowed a local phone company to deny service to a subscriber on the grounds that he used foul language. The court's reasoning was that the wires might get crossed, and another family might pick up its telephone to hear this man cursing! The "pervasiveness" of radio was frequently cited by Herbert Hoover and others to justify the FCC's role in the 1930's in censoring the contents of radio broadcasts. The concept simply describes the fact that a communications technology reaches into the home; radio, said Hoover, must be "clean and safe for home consumption". However, courts, which have frequently mentioned the pervasiveness argument in media cases, have never used it as a basis for upholding a scheme of censorship unless "scarcity" (see above) was also present. If pervasiveness, standing alone, justifies censorship, then it is hard to see why the Supreme Court overturned the state law in Butler v. Michigan, which outlawed books unfit for children. One would hope that books are also pervasive, with at least one or two of them invading most houses. Proponents of the CDA would argue that books must be brought into the house, while the Internet somehow comes in unbidden. The courts have given some credence to this argument, holding that broadcast waves pass the walls of your house whether you want them to or not. However, the Supreme Court has most recently suggested that the "pervasiveness" argument would not be valid for cable televsion, which it characterized as an invited guest in the home. This suggests that the Court would also find (as it should) that the Internet is also invited into the home and is not "pervasive." Q: What is being done to combat the CDA? A: The American Civil Liberties Union, Center for Democracy and Technology, and other organizations have filed lawsuits to hold the CDA unconstitutional. One of these lawsuits is scheduled for a hearing in federal court in Philadelphia at the end of March 1996, during which a three-judge panel will determine if the CDA is unconstitutional under the First Amendment. One of the authors of this FAQ, Jonathan Wallace, is a plaintiff in that lawsuit. (See http://www.spectacle.org/cda/cdamn.html for more information.) Q: Has a federal court restrained enforcement of the CDA? A: Only in part. The Philadelphia court said that one section of the CDA, which refers to indecency without defining it, is vague. However, upon a first look, the court did not think that the companion section, referring to "sexual or excretory acts or organs", was too vague. The court will take a more detailed look at the constitutionality of the CDA after the preliminary injunction hearing, which begins on March 21. In the meantime, the government has agreed not to bring any indictments under the CDA--but behavior that is occuring now may still be prosecuted after the court reaches its decision, assuming it leaves the CDA alive. Q: What is the relationship between the CDA and obscenity laws? A: Prior to the CDA, federal obscenity law already applied to material distributed on the Internet, as the Amateur Action case illustrates. Under that law, as interpreted by the 1973 Miller case, obscene materials are those which are (i)prurient and (ii)patently offensive under contemporary community standards and which (iii) lack significant scientific, literary, artistic or political ("SLAP") value. Cases in recent decades have indicated that only visual images--photographs and films--will be held obscene under this standard, as pure text is always found to have at least minimal literary value. The CDA makes illegal a large zone of speech which obscenity laws don't touch--material depicting or describing sexual or excretory acts or organs, which is not prurient, but is patently offensive to somebody, even though it has SLAP value. Q: Is it true that the CDA outlaws putting abortion information on the Internet? A: Its true. One section of the CDA confirms that the federal postal obscenity law, first passed in 1873, applies to cyberspace. That law included a section which hasn't been enforced in decades, but which is still on the books, making it illegal to pass abortion information across state lines. Congressional backers of the CDA claim they didn't intend to outlaw the communication of abortion information on the Internet, and President Clinton has said that he will not allow the Justice Department to enforce it. Nevertheless, the law is on the books, and could be enforced in a future presidential administration, if it is not thrown out by the federal court. Q: Where can I go for more information? A: Check out the following organizations: The American Civil Liberties Union http://www.aclu.org Voter's Telecommunications Watch http://www.vtw.org Electronic Frontier Foundation http://www.eff.org Center for Democracy and Technology http://www.cdt.org The Internet Censorship FAQ was created and distributed by Jonathan Wallace,jblumen@spectacle.org, and Mark Mangan, markm@bway.net. ----------------------------- Jonathan Wallace The Ethical Spectacle http://www.spectacle.org Co-author, Sex, Laws and Cyberspace (Henry Holt, 1996) http://www.spectacle.org/freespch/ ------------------------------ Date: Thu, 21 Mar 1996 22:51:01 CST From: CuD Moderators Subject: File 5--Cu Digest Header Info (unchanged since 25 Mar, 1996) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. 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