Computer underground Digest Sun Jun 16, 1996 Volume 8 : Issue 46
ISSN 1004-042X
Editor: Jim Thomas (
[email protected])
News Editor: Gordon Meyer (
[email protected])
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, #8.46 (Sun, Jun 16, 1996)
File 1--CDA lawsuit the Pentagon Papers of cyberspace, sez Reuters
File 2--ACLU Press Conference on CDA
File 3--Exon Press Release/Statement on CDA Decision
File 4--Dalzell on broadcast v. net metaphor
File 5--President Clinton's Statement on the CDA Decision
File 6--ALA applauds CDA victory, "a historic case"
File 7--OPPOSITION: FRC on CDA Decision
File 8--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Fri, 14 Jun 1996 18:33:38 -0500
From: Declan McCullagh <
[email protected]>
Subject: File 1--CDA lawsuit the Pentagon Papers of cyberspace, sez Reuters
I think it was Marc Rotenberg from EPIC who said at Wednesday's CDA press
conference in DC that this was the Times v. Sullivan of cyberspace. The
attached Reuters article now compares our lawsuit to the Pentagon Papers
case...
-Declan
---------- Forwarded message ----------
NEW YORK (Reuter) - As official Washington from President
Clinton on down attacked a court ruling blocking censorship in
cyberspace, the 25th anniversary of a momentous clash on press
freedom passed almost unnoticed Thursday.
It was on June 13, 1971 that the New York Times began
publishing details of the Pentagon Papers, a 7,000-page secret
official history of the U.S. role in the Vietnam War that many
said proved that successive presidents misled the American
people on the course of the war.
For two days, President Richard Nixon let the Times print
embarrassing disclosures about the Truman, Eisenhower, Kennedy
and Johnson administrations. Then he sent his lawyers to court
to stop further stories, saying they would cause ``irreparable
injury to the defense interests of the United States.''
It was the first time in U.S. history that a president tried
to exercise prior restraint on a newspaper and a New York judge
issued a restraining order on the Times. Within days, the
Washington Post obtained a copy of the papers and began
publishing. When a court stopped it as well, newspapers in
Boston, Chicago, Los Angeles and St. Louis began publishing. The
issue went to the Supreme Court, which sided with press freedom.
A quarter of a century later, while historians, press
critics and participants still argue over the Pentagon Papers, a
new freedom of speech issue is expected to head to the Supreme
Court -- whether it is constitutional for the government to slap
curbs on indecent material on the Internet.
[...]
David Rudenstine, a New York law professor and author of
''The Day the Presses Stopped,'' a new account of the Pentagon
Papers, says the battle between the Times and other newspapers
and the government became a high water mark for democracy. At
the same time it laid the foundation for the destruction of the
Nixon administration.
[...]
------------------------------
Date: Wed, 12 Jun 1996 16:01:41 -0400 (EDT)
From: Mark Mangan <
[email protected]>
Subject: File 2--ACLU Press Conference on CDA
ACLU Press Conference
June 12
=================================
The Conference
NEW YORK CITY-- The ACLU held a press conference this morning to
announce the victory in its suit contesting the constitutionality
of the CDA. The win is embodied in a 216 page decision which reflects
the three-judge panel's 3-0 thumbs down to a half-baked ban on indecency.
Chris Hansen, lead counsel for the ACLU, described the decision as a
"resounding victory," calling the CDA "an unconstitutionally bad idea."
Statements were also made by ACLU attorney Marjorie Heins and ACLU
Executive Director Ira Glasser, as well as several of the plantiffs
in the case. When the press asked about children and how to protect
them from looking at all the smut, Hansen pointed to the service providers
such as AOL and Prodigy, as well as the existing blocking software such
as Surfwatch. He essentially stressed that the freedom and responsibility
associated with this powerful medium should be placed with the parents.
Glasser offered an interesting world view, as he declared this
a "bogus issue." He said he has four kids and "the question of
how to raise children is a parental problem which no law should address."
In response to a worrisome assertion that kids having a better understanding
of computers, he pointed out that "kids who are sophisticated today will
be parents tomorrow." When asked about the problem of rogues stirring
up problems with anonymous postings, Glasser said "this is not a new
issue," recalling the pamphlets in colonial America and such anonymously
penned works as the Federalist Papers. Anonymous, free speech is valued
in the American tradition, he argued--it's not a new problem served up by
the Internet
The government lawyers have 20 days to file an appeal. If the Supreme
court doesn't laugh in their face and tell them to piss-off, the
case would presumably reach the highest court in the land sometime
next fall.
================================
Some Good Quotes
The decision of the court includes 80 pages of Findings of Fact,
as well as a lengthy opinion from each of the judges.
The ACLU press release, written by Emily Whitfield, picked out
some of the best quotes.
Judge Dalzell: "Cutting through the acronyms and argot that littered
hearing testimony, the Internet may fairly be regarded as a never-ending
worldwide conversation. The Government may not, through the CDA, interrupt
that conversation. As the most participatory form of mass speech yet
developed, the Internet deserves the highest protection from governmental
intrusion."
Judge Buckwalter: "I continue to believe that the word 'indecent' is
unconstitutionally vague, and I find that the terms 'in context' and
'patently offensive' are also so vague as to violate the First and Fifth
Amendments."
Judge Sloviter: "The bottom line is that the First Amendment should not
be interpreted to require us to entrust the protection it affords to the
judgement of prosecutors. Prosectors come and go ... the First Amendment
remains to give protection to future generations as well."
------------------------------
Date: Thu, 13 Jun 1996 16:29:59 -0400
From: Bob Palacios <
[email protected]>
Subject: File 3--Exon Press Release/Statement on CDA Decision
For Release, Wednesday, June 12, 1996
EXON ISSUES STATEMENT ON COURT RULING ON DECENCY ACT
Washington, D.C. -- U.S. SENATOR JIM EXON (D-NE), issued the following
statement today after the court ruling in Philadelphia on the Exon-Coats
Communications Decency Act:
"The Communications Decency Act makes it illegal to transmit or make
available indecent material to children. From the beginning, we felt that
the best chance for a considered opinion would be in the U.S. Supreme Court
and that's where the final decision will be made. We are still a land of
laws and courts and while I do not agree with the judges' decision today, I
respect their right to make it. The court has taken the ACLU line that
anything goes on the Internet, even though that overlooks well-established
laws protecting children from pornography
in other areas. The Decency Act stands for the premise that it is wrong to
provide pornography to children on computers just as it is wrong to do it
on a street corner or anywhere else. Hopefully, reason and common sense
will prevail in the Supreme Court."
-end-
----------------
SENATOR EXON PRESS CONFERENCE AFTER PHILADELPHIA RULING
A three judge panel in Philadelphia this morning handed down a decision
enjoining enforcement of two sections of the Communications Decency Act
(CDA). This decision is not a surprise, nor is it a set back for the new
law. It in fact clears the way for U. S. Supreme Court consideration.
The ACLU and their fellow plaintiffs did not select the Philadelphia court
by accident to launch their challenge to the CDA.
First, it is important to understand what the CDA is and what it is not.
The CDA makes it a crime to knowingly use a telecommunications device or
interactive computer to send an indecent communication to a child and to
use an interactive computer to display an indecent communication in a
manner accessible to a child.
The new law does not ban any constitutionally protected material from adults.
The radical decision of the three judge panel in Philadelphia rests on two
pillars. From this Senator's point of view, those pillars are made of chalk
which will crumble upon Supreme Court review.
The Philadelphia court found that there were no effective measures to
determine the age of computers users. This technological argument is faulty
because as a relatively, new medium, the Internet and other interactive
computer services are infinitely malleable and their architecture can
accommodate child screening. The court overlooks that, a number of Internet
sites already block child access by requiring credit card or adult PIN
numbers to access certain sites. Even if such technology were not
available, the statute does not require the impossible only what is
"reasonable, effective and appropriate."
The second line of criticism was with the law's "indecency" standard. The
Philadelphia court found the term "indecency" and its rendition in the
statute to be "vague." The court brushed aside years of U. S. Supreme Court
jurisprudence which not only found the indecency standard sufficiently
clear, but which applied the very standard to radio, television, telephone
and cable use. Here the court's disagreement does not seem to be with the
Congress but with the U. S. Supreme Court which has repeatedly upheld the
decency standard.
The Philadelphia court also overlooks that no court has applied the
indecency standard to prohibit serious works of art, medical information or
important literature. In this regard, the court feasted on a plate of red
herrings.
The Congress took great care to craft the CDA so that is zeroed in on
protecting children from on-line indecency, as the U. S. Supreme Court has
repeatedly acknowledged as a compelling state interest. The Congress
modeled the statute after the existing DIAL-A-PORN law which the U. S.
Supreme Court has found to meet the least restrictive alternative test
which is applied to first amendment cases. The CDA can not be violated by
accident. There must be a knowing violation.
The Philadelphia court ignores that it is fundamentally wrong to knowingly
give pornography to children or to display pornography in public place. I
am hopeful that the U .S. Supreme Court, relying on its own precedents will
find the CDA to Be Constitutional.
----------------
This press release, along with other Congressional press releases and
President Clinton's statement, can be found at:
http://www.cdt.org/ciec/
------------------------------
Date: Wed, 12 Jun 96 21:48:21 PDT
From: Jonathan Blumen <
[email protected]>
Subject: File 4--Dalzell on broadcast v. net metaphor
Judge Dalzell--whose sympathy to the freedom of speech was apparent
from the questions he asked during the hearing--writes some really
clear and stirring prose distinguishing the Supreme Court's
indecency ruling in Pacifica (the seven dirty words case) from the
CDA case.
One of the fundamental tenets of the pro-CDA forces--expressed on
various lists by Matt Elkins--is that the Net can be regulated in
the same way as broadcast media. Government regulation of broadcast
originated sixty years ago with the doctrine that broadcast
frequencies are "scarce"; therefore the government must determine
who gets a licence; therefore, in determining who gets a license,
the government may determine who is abusing the airwaves with
"indecent" language. Since the Net involves no scarcity, pro-CDA
forces have had to find an independent underpinning for government
intervention. They found it in "pervasiveness", the doctrine that
broadcast waves come into the house unbidden and may ambush children
who turn the set on and are exposed unexpectedly to indecent
content.
The Carlin case, involving the comedian's Seven Dirty Words routine,
referred to "the uniquely pervasive presence" of broadcasting and
never mentioned the scarcity doctrine. Thirteen years ago,
communications scholar Ithiel de Sola Pool correctly observed that
this statement, if it meant what it appeared to, would justify
"quite radical censorship." Now along comes the wonderful and
clearheaded Judge Dalzell and clears it up for us.
He points out that in a 1994 case, Turner Broadcasting v. FCC, the
Supreme Court refused to extend Pacifica to cable TV because of
"fundamental technological differences" between broadcast and cable.
Dalzell says:
"The legal significance to this case of Turner's refusal to apply
the broadcast rules to cable television cannot be overstated.
Turner's holding confirms beyond doubt that the holding in Pacifica
arose out of the scarcity rationale unique to the underlying
technology of broadcasting, and not out of the end product that the
viewer watches. That is, cable television has no less of a
'uniquely pervasive presence' than broadcast television....Whether
one receives a signal through an antenna or through a dedicated
wire, the end result is just television in either case. In declining
to extend broadcast's scarcity rationale for cable, the Supreme
Court also implicitly limited Pacifica, the holding of which flows
directly from that rationale." (pp. 188-189)
Three cheers for Dalzell. During three decades, censorship advocates
have used Pacifica to justify radical measures pertaining to various
electronic media. Dalzell's interpretation stops them at the bridge.
ACLU v. Reno will be the Supreme Court's opportunity to clarify the
outer boundaries of broadcast regulation and to tell us whether
"pervasiveness" really means anything; the Turner case suggests that
the Court will not shirk its responsibility.
------------------------------
Date: Thu, 13 Jun 1996 13:53:44 -0400
From: Jonah Seiger <
[email protected]>
Subject: File 5--President Clinton's Statement on the CDA Decision
What's more interesting is what it doesn't say. He is not at all
definitive on whether the gvt will file an appeal...
Jonah
--
THE WHITE HOUSE
Office of the Press Secretary
___________________________________________________________________________
For Immediate Release June 12, 1996
STATEMENT BY THE PRESIDENT
The Justice Department is reviewing today's three judge panel court
decision on the Communications Decency Act. The opinion just came
down today, and the statute says we have twenty days to make an
appeal.
I remain convinced, as I was when I signed the bill, that our
Constitution allows us to help parents by enforcing this Act to
prevent children from being exposed to objectionable material
transmitted though computer networks. I will continue to do
everything I can in my Administration to give families every
available tool to protect their children from these materials. For
example, we vigorously support the development and widespread
availability of products that allow both parents and schools to
block objectionable materials from reaching computers that children
use. And we also support the industry's accelerating efforts to
rate Internet sites so that they are compatible with these blocking
techniques.
------------------------------
Date: Fri, 14 Jun 1996 20:35:11 -0700 (PDT)
From: Declan McCullagh <
[email protected]>
Subject: File 6--ALA applauds CDA victory, "a historic case"
Date--Fri, 14 Jun 1996 23:31:25 -0400 (EDT)
From--Stan Bernstein <
[email protected]>
Subject--ALAWON, No. 5, No. 34 (194 lines) (fwd)
=================================================================
ALAWON Volume 5, Number 34
ISSN 1069-7799 June 14,1996
American Library Association Washington Office Newsline
In this issue: (194 lines)
COMMUNICATIONS DECENCY ACT REJECTED BY COURT:
LIBRARIANS APPLAUD CDA RULING
_________________________________________________________________
COMMUNICATIONS DECENCY ACT REJECTED BY COURT:
LIBRARIANS APPLAUD CDA RULING
The American Library Association, library advocates and others
involved with the Citizens Internet Empowerment Coalition (CIEC)
welcome the decision of a federal district court panel declaring
the new Communications Decency Act unconstitutional saying the
ruling protects First Amendment rights, the public's open access
to information and the librarians that provide the access.
ALA is the lead plaintiff in a suit filed by the CIEC, a
coalition of organizations which also includes online providers,
publishers, parents and other public interest groups. The suit
challenged the Act on the grounds that it is overly broad and so
vaguely worded that it would subject librarians and other members
of the public to criminal prosecution for posting materials
online that are legal in other media.
ALA Executive Director Elizabeth Martinez said after the court
decision was released on June 12, "This is a historic case. The
judges have acted to protect public access to information in this
new and important media." Martinez said she was impressed by the
open-mindedness of the judges and "their willingness to learn
more about the Internet and how it works."
The suit, filed in Philadelphia by CIEC, was consolidated with a
similar suit brought by the American Civil Liberties Union. The
government is expected to file an appeal that could be heard as
soon as this fall by the U.S. Supreme Court.
"We are ecstatic. Librarians can continue to provide ideas to
the public regardless of the format, without concern about fines
or jail terms," said Judith Krug, head of ALA's Office for
Intellectual Freedom (OIF). "This is a victory for anyone who
uses public libraries."
The role of ALA in organizing the coalition was broadly
acknowledged. OIF was especially instrumental in involving Bruce
Ennis, longstanding counsel for the Freedom to Read Foundation,
as the lead attorney.
BACKGROUND:
Under the Communications Decency Act, passed in February as part
of the Telecommunications Reform Act of 1996, any person who
knowingly sends or displays materials over the Internet that
could be interpreted as "indecent" or "patently offensive by
contemporary community standards" could be imprisoned for up to
two years and fined up to $250,000.
Attorneys for the plaintiffs argued that the law would curtail
freedom of speech by restricting all communication on the
Internet to a level appropriate for children and would unfairly
subject libraries, colleges and other educational institutions to
criminal prosecution for distributing great works of art and
literature, health, science and other materials that some might
find offensive. Government attorneys argued that the court
should read the Communications Decency Act to apply only to
hardcore sexually explicit material.
Other plaintiffs included America Online,Inc.; the American
Booksellers Association; American Society of Newspaper Editors,
Apple Computer, Association of Publishers, Center for Democracy
and Technology, Prodigy Services Company, Wired Ventures,. Ltd.
This three-judge panel thoughtfully examined and ultimately
understood the unique nature of this new medium. Judges Dolores
Sloviter, Stewart Dalzell, and Ronald Buckwalter each wrote
opinions to articulate the panel's unanimous decision. The judges
came to understand the global, interactive and open nature of the
Internet, and ruled in favor of the free flow of information that
is both the tradition of our democracy and cyberspace. The court
also was aware that this case was being watched around the world
and sets a precedent for Internet regulation by other countries
which would like to censor cyberspace.
In concluding her statement, the panel's chief judge, Dolores
Sloviter, wrote:..."the bottom line is that the First Amendment
should not be interpreted to require us to entrust the protection
it affords to the judgement of prosecutors. Prosecutors come and
go. Even federal judges are limited to life tenure. The First
Amendment remains to give protection to future generations as
well. I have no hesitancy in concluding that it is likely that
plaintiffs will prevail on the merits of their argument that the
challenged provisions of the CDA are facially invalid under both
the First and Fifth Amendments."
Judge Dalzell noted in his opinion: "...the Internet deserves the
highest protection from government intrusion..." Elsewhere he
added "...the Internet may fairly be regarded as a never-ending
worldwide conversation. The Government may not, through the CDA,
interrupt that conversation."
Judge Buckwalter wrote: "...I find that current technology is
inadequate to provide a safe harbor to most speakers on the
Internet...I continue to believe that indecent' is
unconstitutionally vague, and I find that the terms in context'
and Patently offensive' also are so vague as to violate the
First and Fifth Amendments."
This was the first full court appeals panel hearing regarding the
Internet and is considered precedent setting, making the Internet
at least as protected as the print medium, if not more so. It
became clear to the court that this law could not protect
children from inappropriate material on the Internet in a
meaningful, enforceable way and that the law was vague and over
broad.
Another reason that ALA participated in the litigation was that
the law made no distinction between librarians, professors,
museum curators, newspapers and other providers of legitimate,
educational material and the true purveyors of material
inappropriate for children.
CIEC emphasized that new technology demonstrates a far more
effective solution to the problem of content on the Internet than
this or any other law ever could. The judges were shown parental
control software that effectively blocks unwanted material in
e-mail, news groups and Web sites. The judges recognized these
technologies in their opinions. For example, witnesses had
explained the new Platform for Internet Content Selection (PICS),
that will be a basis for a variety of rating systems. The
technology is available now and is beginning to be used.
TEXT AVAILABLE: The text of the judges ruling in the
Communications Decency Act suit is posted at
http://www.cdt.org/ciec/ciec-info@cdt.org
MEANWHILE IN WASHINGTON...
Response came quickly. Senator Patrick Leahy (D-VT), a strong
opponent of the CDA in the Senate, was pleased with the court's
decision, commenting that the Constitution could not be
"trampled" to "make political points back home."
Representative Rick White (R-WA), who had opposed the "indecency"
provision in the CDA, predicted further legislative work on the
act after the Supreme Court decision. "That's when we go back to
the drawing board and do something that works," he said.
But President Clinton was quoted as saying: "I remain convinced,
as I was when I signed the bill, that our Constitution allows us
to help parents by enforcing this Act to prevent children from
being exposed to objectionable material transmitted through
computer networks."
Senator James Exon(D-NE), sponsor of the Communications Decency
Act, was hopeful that "reason and common sense will prevail in
the Supreme Court" as he looked to the higher court overturning
this decision.
Dee Jepsen, president of "Enough is Enough" said "Once again the
court system has failed the nation's parents in their struggle to
protect their children as they use newly available computer
technology." Bruce Taylor, chief counsel for the National Law
Center for Children and Families contended "I don't consider this
a setback."
But the enthusiasm for the court decision could not be dampened
by these opponents. Supporters in the Citizens Internet
Empowerment Coalition were celebrating a decision that affirmed
that the "Internet deserves the broadest possible protection."
Perhaps the enthusiasm at winning could be best described in
attorney Ennis' quote: "It's a spectacular victory for free
speech and the Internet."
There will inevitably be other legislative and legal battles in
this arena. More to come.
_________________________________________________________________
ALAWON is a free, irregular publication of the American Library
Association Washington Office. To subscribe, send the message
"subscribe ala-wo [your_firstname] [your_lastname]" to <listproc
@ala.org>. ALAWON archives gopher.ala.org; select Washington
Office Newsline. Web page
HTTP://www.ala.org/alawashington.html.
------------------------------
Date: Wed, 12 Jun 1996 13:11:45 -0700
From: "--Todd Lappin-->" <
[email protected]>
Subject: File 7--OPPOSITION: FRC on CDA Decision
CDA DISASTER NETWORK
June 12, 1996
What do the censors at the Family Research Council have to say about
today's CDA decision?
They think it's "It is an arrogant decision which flies in the face of the
Supreme Court and our society."
Read on for all the whining details!
Work the network!
--Todd Lappin-->
Section Editor
WIRED Magazine
===========================================
Date--Wed, 12 Jun 96 15:29 EDT
[email protected]
This Press Release was sent out minutes ago. For additional information
about The Family Research Council please visit our Web Site at:
http://www.frc.org
-------------------------------------------------------------
FOR IMMEDIATE RELEASE: June 12, 1996
CONTACT: Kristin Hansen, (202) 393-2100
ARROGANT DECISION CONTRADICTS PRIOR CASES ON
PORNOGRAPHY DISTRIBUTION TO MINORS, FRC SAYS
FRC Director of Legal Studies Cathy Cleaver says
decision on the Communications Decency Act not a
pro-family defeat
WASHINGTON, D.C. -- "What else should we expect from an
ACLU-hand-picked judge than a sweeping, radical decision
allowing adults to knowingly send and display pornography
to minors on the Internet?" Director of Legal Studies
Cathy Cleaver said Wednesday. "Nevertheless, this is not
an ultimate defeat for American families and children. No
matter where this case goes next - either to the full
Eastern District Court or the Supreme Court - the Department
of Justice will have a better opportunity to defend the
constitutionality of this statute."
Cleaver made her remarks as the Federal District Court for
the Eastern District of Pennsylvania released their decision
Wednesday on the ACLU v. Reno case involving the regulation
of pornography distribution to minors on the Internet.
Family Research Council presented a "friend of the court"
brief defending the cyberporn provisions of the Communications
Decency Act. The decision, written by Dolores K. Sloviter,
Chief Judge of the 3rd Circuit Court of Appeals and Carter
appointee, contradicts previous Supreme Court decisions on
the distribution of indecent material through the media.
"It is an arrogant decision which flies in the face of the
Supreme Court and our society," Cleaver said. "We have long
embraced the principle that those who peddle harmful material
have the obligation to keep the material from children.
Outside cyberspace, laws restrain people from displaying
sexually explicit images in public places and from selling
porn magazines to children. So, on the Internet, the burden
of protecting children from exploitation should not rest
solely on the parents."
In her decision, Judge Sloviter maintains that it is "either
technologically impossible or economically prohibitive" for
pornographers to comply with the regulations. However,
Cleaver said that "this decision reflects the Court's
unwillingness to consider proposed regulations by dismissing
them as 'burdensome.' There are constitutional ways to
protect children from cyberporn but not restrict the freedom
of speech of the pornographers or the adults."
Cleaver continued, "Cyberspace is a work in progress. We
should not squander the opportunity to examine and appreciate
a world where pornography knows no bounds. Failure to enact
strong laws is a concession that the information superhighway
should belong to pornographers. It would be like leaving a
loaded gun in a playground."
FOR INFORMATION OR INTERVIEWS, CONTACT THE FRC MEDIA OFFICE.
- END -
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+
This transmission was brought to you by....
THE CDA DISASTER NETWORK
The CDA Disaster Network is a moderated distribution list providing
up-to-the-minute bulletins and background on efforts to overturn the
Communications Decency Act. To subscribe, send email to
<
[email protected]> with "subscribe cda-bulletin" in the message body.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
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