Computer underground Digest    Sun  Jan 19, 1997   Volume 9 : Issue 04
                          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, #9.04 (Sun, Jan 19, 1997)

File 1--Solid Oak Blocking Software & Ethical Spectacle
File 2--IP: going to InfoWar (fwd)
File 3--If Operating Systems Were Airlines (fwd)
File 4--Sidgmore/PC Week (on Growth of UUNET Backbone) (fwd)
File 5--Internet Forum In Italy Subjected To Censorship
File 6--GovAcc97.002: 7th Conference on Computers, Freedom & Privacy
File 7--ALA/ACLU file lawsuit challenging New York "CDA" law
File 8--Enough is Never Enough -- pro-CDA alliances, from TNNN
File 9--SUPREMES: Court Date Set, DoJ Brief Filed
File 10--Cu Digest Header Info (unchanged since 13 Dec, 1996)


CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

---------------------------------------------------------------------

Date: Sun, 19 Jan 1997 14:36:55 -0800
From: Jonathan Wallace <[email protected]>
Subject: 1--Solid Oak Blocking Software & Ethical Spectacle

FOR IMMEDIATE RELEASE

Contact: Jonathan Wallace
        [email protected]

       NEW YORK CITY, January 19, 1997--In an apparent act of
retaliation against a critic of the company, Solid Oak Sofware
has added The Ethical Spectacle (http://www.spectacle.org) to
the list of Web sites blocked by its Cybersitter software.

       The Ethical Spectacle is a monthly Webzine examining
the intersection of ethics, law and politics
in our society, which recently urged its readers not to
buy Cybersitter because of Solid Oak's unethical behavior.
The Ethical Spectacle is edited by Jonathan Wallace, a New York-
based software executive and attorney who is the co-author,
with Mark Mangan, of Sex, Laws and Cyberspace (Henry Holt, 1996),
a book on Internet censorship.

       "In the book," Wallace said, "we took the position--
naively, I now think--that use of blocking software by parents
was a less restrictive alternative to government censorship.
We never expected that publishers of blocking software would
block sites for their political content alone, as Solid Oak
has done."

       Solid Oak describes its product as blocking sites
which contain obscene and indecent material, hate speech,
and advocacy of violence and illegal behavior. In late 1996,
computer journalists Declan McCullagh ([email protected])
and Brock Meeks ([email protected]) broke the story that
Cybersitter blocked the National Organization for
Women site (http://www.now.org)
along with other political and feminist organizations.
In addition, the product blocked entire domains such as
well.com, maintained by the venerable Well online service.

       McCullagh and Meeks implied that they had received an inner
look at the Cybersitter database of blocked sites from someone
who had reverse engineered the software. Shortly afterwards,
Solid Oak asked the FBI to begin a criminal investigation of
the two journalists and accused college student Bennett Haselton
([email protected]) of being their source.
Though McCullagh, Meeks and Haselton all
denied he was the source (or that anything illegal
had occurred), Solid Oak president Brian Milburn called
Haselton an "aspiring felon" and threatened to add
his Internet service provider to the blocked list if it did
not muzzle Haselton.

       Haselton came to Milburn's attention by founding Peacefire,
a student organization opposing censorship. On his Web pages
(http://www.peacefire.org), Haselton posted an essay called
"Where Do We Not Want You to Go Today?" criticizing
Solid Oak. The company promptly added Peacefire to its
blocked list, claiming   that Haselton had reverse
engineered its software, an allegation for which the
company has never produced any evidence.

       "At that point," Wallace said, "I felt Milburn was
acting like the proverbial 800-pound gorilla. I added a
link to the Spectacle top page called 'Don't Buy Cybersitter'
(http://www.spectacle.org/alert/peace.html).
Anyone clicking on the link would see a copy of Bennett's
'Where Do We Not Want You to Go' page with some added
material, including my thoughts on the inappropriateness
of Solid Oak's behavior. I wrote the company, informing
them of my actions and telling them that they
misrepresent their product when they claim it blocks only
indecent material, hate speech and the like."

       Solid Oak has now responded by blocking The
Ethical Spectacle. "I wrote to Milburn and to
Solid Oak technical support demanding an explanation,"
Wallace said. "I pointed out that The Spectacle does not fit
any of their published criteria for blocking a site.
I received mail in return demanding that I cease writing
to them and calling my mail 'harassment'--with a copy
to the postmaster at my ISP."

Wallace continued: "With other critics such as Declan,
Brock and Bennett, Solid Oak has claimed reverse
engineering of its software, in supposed violation
of its shrink-wrapped license. I have never downloaded,
purchased or used Cybersitter, nor had any access to
its database. I believe that Solid Oak's sole reason
for blocking my site is the 'Don't Buy Cybersitter'
page, criticizing the company's bullying behavior."


       The Ethical Spectacle includes the internationally
respected An Auschwitz Alphabet
(http://www.spectacle.org/695/ausch.html), a compilation
of resources pertaining to the Holocaust. "Sixty
percent of the Spectacle's traffic consists of visitors to the
Holocaust materials," Wallace said. "Schoolteachers have
used it in their curricula, it was the subject of a lecture at
a museum in Poland some weeks ago, and every month, I get
letters from schoolchildren thanking me for placing it
online. Now, due to Solid Oak's actions, Cybersitter's
claimed 900,000 users will no longer have access to it."

Solid Oak can be contacted at [email protected],
or care of its president, Brian Milburn ([email protected].)

     -----------------------------------------------
Jonathan Wallace
The Ethical Spectacle http://www.spectacle.org
Co-author, Sex, Laws and Cyberspace http://www.spectacle.org/freespch/

"We must be the change we wish to see in the world."--Gandhi

------------------------------

Date: Wed, 8 Jan 1997 13:06:00 -0800 (PST)
From: Stanton McCandlish <[email protected]>
Subject: 2--IP: going to InfoWar (fwd)

These excerpts from Edupage, aside from warning of increasing US
executive branch policymaking involving the Internet, likely to
have some kind of negative fallout whatever good it may do, also
demonstrates an increasingly frequent rhetorical device and logic flaw:
The Administration's intelligence people say that the Net is the fastest
growing method of economic espionage, as if this were a meaningful
statement out of the context of the facts surrounding it. The Net is also
the fastest growing way to make new friends, to ask and answer questions
among colleagues, to play games, to get in arguments, to organize events,
to...  I'm strongly reminded of the contorted reasoning of many
well-meaning organizations who are in a panic over online neo-nazis and
pornographers.  *Of course* racists, porn merchants, and spies use the Net.
The also use telephones and microwave ovens just like anyone else. Why
the press even bothers to listen to claims like this, much less report them
as "news" is beyond me.  It should be immediately apparent to any writer
following such a story that the Net, like any technology, will be used by
everyone with access to it, whether they be moms, rabbis, students or
scam artists.

It think it is sensible that NACIC is warning businesses of Net-related
security risks - there are many genuine ones.  It even bolsters our
own position that such risks combined with the National Security Agency's
anti-encryption public policy stance is ironically harming the very national
security interests NSA is charged with protecting.

But it cannot be sensible for NACIC to make alarmist statements like
"All requests for information received via the Internet should be viewed
with suspicion".  Are corporate webmasters supposed to call the CIA next
time someone asks them "what is your URL?" or "Where do I find more
information on your products or services?" Had Edupage simply been
summarizing I would not have worried much, but that "all requests" line
appears to be a direct quote from NACIC's report, the full text of which
I'll certainly be looking for.


Dave Farber typed:
> Date--Wed, 08 Jan 1997 11:17:48 -0500
> From--Dave Farber <[email protected]>
> Subject--IP--going to InfoWar
>
> >From Edunews:
>
> INTERNET IS NO.1 CHOICE FOR FOREIGN SNOOPERS
> A report released by the National Counterintelligence Center (NACIC)
> indicates that the Internet is the fastest growing method used by foreign
> entities to gather intelligence about U.S. companies.  "All requests for
> information received via the Internet should be viewed with suspicion," says
> the report, which urges caution in replying to requests coming from foreign
> countries or foreign governments, particularly with regard to questions
> about defense-related technology.  NACIC works in close coordination with
> the CIA, but is an autonomous agency reporting the National Security
> Council.  (BNA Daily Report for Executives 6 Jan 97 A15)
>
> DOD URGES "INFORMATION CZAR" APPOINTMENT
> The U.S. Department of Defense has recommended establishing a new
> "information-warfare" czar in the Defense Department and an
> "information-warfare" center within U.S. intelligence agencies.  A report
> released by a task force appointed by the Defense Science Board calls for
> spending $580 million in R&D over the coming years, mainly in the private
> sector, to develop new software and hardware to provide security, such as a
> system for automatically tracing cracker attacks back to their source.  The
> task force also recommends changing the laws so that the Pentagon can
> legally pursue and repel those who attempt to hack into DoD computer
> systems, injecting their computers with "a polymorphic virus that wipes out
> the system, takes it down for weeks."  A Defense Department spokesman notes
> that the Advanced Research Projects Agency is working on an "electronic
> immune system" that could detect invaders and mobilize against them.  (Wall
> Street Journal 6 Jan 97 B2)

------------------------------

Date: Wed, 18 Dec 1996 21:49:53 -0600
From: Avi Bass <[email protected]>
Subject: 3--If Operating Systems Were Airlines (fwd)

((MODERATORS' NOTE: Fowarded from another list; Original author unknown))

If Operating Systems Were Airlines

DOS Air:
Passengers walk out onto the runway, grab hold of the plane, push t
until it gets in the air, hop on, then jump off when it hits the
ground.  They grab the plane again, push it back into the air, hop
on, jump off....

Mac Airways:
The cashiers, flight attendants, and pilots all look the same, talk
the same, and act the same.  When you ask them questions about the
flight,they reply that you don't want to know, don't need to know,
and would you please return to your seat and watch the movie.

Windows Airlines:
The terminal is net and clean, the attendants courteous, the pilots
capable The fleet of Lear jets the carrier operates takes off
without a hitch, pushes above the clouds and, at 20,000 feet,
explodes without warning.

OS/2 Skyways:
The terminal is almost empty - only a few prospective passengers
mill about.  The announcer says that a flight has departed, although
no planes appear to be on the runway.  Airline personnel apologize
profusely to customers in hushed voices pointing from time to time
to the sleek, powerful jets outside.
They tell each passenger how great the flight will be on these new
jets and how much safer it will be than Windows Airlines, but they
will have to wait a little longer for the technicians to finish the
flight systems.
Maybe until mid-1995.  Maybe longer.

Fly Windows NT:
Passengers carry their seats out onto the tarmac and place them in
the outline of a plane.  They sit down, flap their arms, and make
jet swooshing sounds as if they are flying.

Unix Express:
Passengers bring a piece of the airplane and a box of tools with
them to the airport.  They gather on the tarmac, arguing about what
kind of plane they want to build.  The passengers split into groups
and build several different aircraft but give them all the same
name.  Only some passengers reach their destinations, but all of
them believe thay arrived.

------------------------------

Date: Mon, 16 Dec 1996 18:35:41 -0500 (EST)
From: "[email protected]" <[email protected]>
Subject: 4--Sidgmore/PC Week (on Growth of UUNET Backbone) (fwd)

Source  -Noah

---------- Forwarded message ----------
Date--Mon, 16 Dec 1996 16:26:23 -0500 (EST)
From--"Scott A. Davis" <[email protected]>
[email protected]

You guys want to read some frightening statistics?  UUNET's backbone in
three years, according to our CEO,  will be 1000 times the size of today's
existing internet...

 -------------------------------------------------------------
Great article in this weeks edition of PC Week from Johns keynote speech
last Thursday at Mecklermedia's Internet World Conference in New York.  It
quotes most of the key elements from his speech and be found at

http://www.pcweek.com/news/1209/12muu.html

or is cut and pasted below.

__________________________________________________

December 12, 1996 12:00 PM ET

                         UUNet chief sees telecom/ISP mergers as
                         the wave of the future
                         By Margaret Kane


NEW YORK -- In a speech that was part pitch and part prognostication,
UUNet with communications services provider MFS Communications Co. Inc.
was the right move and where he thinks the telecommunications industry
will end up.

In the past six months, UUNet has not only merged with MFS but also has
announced a proposed merger with long-distance carrier WorldCom Inc. The
joining of two telecommunications companies with an Internet company is
the wave of the future, Sidgmore told an Internet World audience here this
morning in a keynote address.

ISPs (Internet service providers) that do not control their facilities
will not survive, he predicted.

Sidgmore based his pronouncement on the exploding demand for bandwidth,
which brings with it exploding costs for ISPs.

"UUNet alone will have an Internet [backbone] in three years that is 1,000
times the size of the whole Internet network today," he said. Because
bandwidth accounts for roughly 54 percent of an ISP's total cost, the only
companies that will survive will be those that are part of a core telco.

  "We don't see how to escape from the arithmetic here," he said.

Sidgmore agreed with analysts' predictions that the number of ISPs will
drop sharply in the near future, predicting that companies would split
into two markets: ISPs that own their own networks, like UUNet, and ISPs
that provide value-added reselling of those network services.

But UUNet will not get out of the service business. Indeed, Sidgmore took
time to announce the introduction of a pair of "extranet" services that
will allow businesses to employ Internet protocols to share information
with associates and partners. ExtraLink is a VPN (virtual private network)
with full Internet connectivity based on UUNet's backbone and MFS' local
access. ExtraLink Remote will allow users with a VPN to permit secure,
remote dial-up access to mobile users or affinity groups. The services are
slated to be available commercially in February.

The demand for bandwidth will not just affect ISPs, Sidgmore continued.
Telcos also will be changed by the Internet, mainly because of how cheap
it is to send faxes over the Internet.

Sidgmore said faxes make up 50 percent of international telecommunications
traffic. That puts telcos in a vulnerable position, he said, citing the
cost of a 42-page fax sent from New York to Los Angeles. By fax, it's
about $10. By Internet, it's about 10 cents.

"The Internet is not about being 10 percent better or 10 percent cheaper,"
he said. "It's about being 10 times better and 10 times cheaper."

"Think about the vulnerability of the core telecom companies. What's at
stake is not the $20 billion voice market, it's the $900 billion market
worldwide," he said. "That's why all the telecom companies worldwide have
scrambled to derive Internet strategies."

Not surprisingly, Sidgmore said the one thing that could hurt the growth
of the Internet is the government.

"How can we screw it up? One way is to get them involved," he said, to
applause from the crowd. "You could argue that they had the chance. The
government had control of the Internet for 25 years, and nothing happened.
We think the government should declare success, and move on to health
care."

------------------------------

Date: Mon, 2 Dec 1996 12:08:20 -0500 (EST)
From: Noah Robischon <[email protected]>
Subject: 5--Internet Forum In Italy Subjected To Censorship

From: http://netday.iworld.com/business/NATW.html

In what is widely thought to be the first instance of Net
censorship in Italy, an e-mail forum called Lisa has been removed
from the computers of Bologna University. At issue were
defamatory messages that were circulated among members of the
list. The messages did not concern the themes of the list, but
were insults directed at the members of another online group
called Citt=E1 Invisible (Invisible City). "They were very
serious affirmations. In another context they would have led to
legal action," said Lucio Picci, president of Citt=E1 Invisible
and the object of many of the insulting messages. Laura Caponi,
the forum moderator, says she was not consulted before the
decision was taken, adding that "pressure" was exerted on the
university to close the list. The university stated that its
network belongs to the ministry of education and that it is
obliged to exercise some control over users' activities. (The
Guardian, Britain; November 28, 1996)

------------------------------

Date: Fri, 17 Jan 1997 17:19:02 -0800
From: [email protected](Jim Warren)
Subject: 6--GovAcc97.002: 7th Conference on Computers, Freedom & Privacy

The Consitution "guarantee" NOTHING.  It merely proposes.  Diligent citizen
vigilence and personal activism provides the *only* guarantee -- and it's
only good for as long as *we* continuously invest *our* time, energy and
resources.
--preacher-jim


&&&&&&&&&&&&&&&&&&&&


     The Seventh Conference on Computers, Freedom, and Privacy
                        March 11-14, 1997
    San Francisco Airport Hyatt Regency; Burlingame, California

Date: Wed, 8 Jan 1997 18:11:09 -0800 (PST)
From: Bruce R Koball <[email protected]>

                  CFP'97 : Commerce & Community

    CFP'97 will assemble experts, advocates, and interested people
    from a broad spectrum of disciplines and backgrounds in a balanced
    public forum to address the impact of new technologies on society.
    This year's theme addresses two of the main drivers of social and
    technological transformation.  How is private enterprise changing
    cyberspace?  How are traditional and virtual communities reacting?
    Topics in the wide-ranging main track program will include:

            PERSPECTIVES ON CONTROVERSIAL SPEECH
            THE COMMERCIAL DEVELOPMENT OF THE NET
            GOVERNMENTAL & SOCIAL IMPLICATIONS OF DIGITAL MONEY
            INTERNATIONAL PERSPECTIVES ON CRYPTOGRAPHY
            CYPHERPUNKS & CYBERCOPS
            REGULATION OF ISPs
            SPAMMING
            INFOWAR
            INTELLECTUAL PROPERTY AND INFO-PROPERTY
            THE 1996 ELECTIONS:  CREATING A NEW DEMOCRACY
            THE COMING COLLAPSE OF THE NET

    CFP'97 will feature parallel-track lunchtime workshops during the
    main conference on topics including:

    THE CASE AGAINST PRIVACY           HOW A SKIPTRACER OPERATES
    CYBERBANKING                       HOW THE ARCHITECTURE REGULATES
    RIGHTS IN AVATAR CYBERSPACE        NATIONAL I.D. CARDS
    PUBLIC KEY INFRASTRUCTURES         EUROPEAN IP LAW
    SEXUAL HARASSMENT IN CYBERSPACE    VIRTUAL COMMUNITIES
    DOMAIN NAMES                       ARCHIVES, INDEXES & PRIVACY
    GOVERNMENT REGULATION OF ECASH     CRYPTO AND THE 1st AMENDMENT

    The conference will also offer a number of in-depth tutorials on
    subjects including:

    * The Economics of the Internet
    * Regulation of Internet Service Providers
    * The Latest in Cryptography
    * The Constitution in Cyberspace
    * Info War: The Day After
    * Personal Information and Advertising on the Net
    * Transborder Data Flows and the Coming European Union
    * Intellectual Property Rights on the Net: A Primer


    INFORMATION

    A complete conference brochure and registration information are
    available on our web site at:   http://www.cfp.org

    For an ASCII version of the conference brochure and registration
    information, send email to:     [email protected]

    For additional information or questions, call: 415-548-2424


&&&&&&&&&&&&&&&&&&&&


An old languange teachers' joke:
They call people who can speak three languages, "tri-lingual."
They call people who can speak two languages, "bi-lingual."
But the call people who can speak only one language, "American."

------------------------------

Date: Tue, 14 Jan 1997 08:43:52 -0800 (PST)
From: Declan McCullagh <[email protected]>
Subject: 7--ALA/ACLU file lawsuit challenging New York "CDA" law

From -  [email protected]

[Visit netlynews.com for the rest of the story. Another reason to follow
the New York case is that a successful challenge to its "harmful to
minors" ban could create a useful precedent in fighting a CDA 2.0, which
likely will have such language. --Declan]

***********

The Netly News Network
http://netlynews.com

A Civil (Libertarian) War
by Declan McCullagh ([email protected])
January 14, 1997

      On a frosty winter morning last February, Shabbir Safdar and a
  gaggle of VTW loyalists trekked to Albany, New York, to protest a
  state bill that would muzzle the Net. "This was our first time doing
  any state-level lobbying," Safdar says. "We managed to convince them
  to take some stuff out of the law." But his efforts didn't stop the
  measure from wending its way through the legislature: In September,
  Governor George Pataki signed it into law.

      Today the ACLU sued New York State in federal court, charging that
  the law is unconstitutional. New York now takes its place among two
  dozen states battling similar local legislation that would criminalize
  certain forms of Net speech. In Georgia, for instance, merely having
  an anonymous user name could be illegal. Virginia restricts state
  employees' rights to view sexually explicit material -- college
  professors who might want to use the Net in, say, an English lit class
  have to exercise extreme caution. Forget the Communications Decency
  Act: A kind of civil war is being waged across half the U.S.

      The ALA v. Pataki lawsuit, filed in the Southern District of New
  York, involves 14 plaintiffs including the American Library
  Association, the American Booksellers Association Foundation for Free
  Expression, Panix, Echo and the ACLU. The coalition, which is asking
  for a permanent injunction, maintains that the law unconstitutionally
  stifles online speech and unduly interferes with interstate commerce.
  The law amends the penal code by making it a criminal offense
  punishable by seven years in prison to distribute pictures or text
  "which (are) harmful to minors."

      We here at The Netly News are ardent advocates of free speech, of
  course -- we held a joint teach-in on the New York law in the fall. So
  I spoke to Ann Beeson, a staff attorney at the ACLU, who's spent the
  last year attacking other state laws and the CDA in court. Why should
  netizens care about this law if they don't live in New York? I asked
  her.

      "Because New York can extradite you," she replied.

      But what if it's not a crime where I live?

      "It doesn't make a difference," Beeson said. "There's no question
  that New York could try to extradite you if you put up a web site that
  has material harmful to minors on it."

[...]

------------------------------

Date: Fri, 17 Jan 1997 18:04:35 -0800 (PST)
From: Declan McCullagh <[email protected]>
Subject: 8--Enough is Never Enough -- pro-CDA alliances, from TNNN

From -   [email protected]

[Attached are two excerpts from the article. For the rest, check out:
http://cgi.pathfinder.com/netly/textonly/1,1035,549,00.html --Declan]

********

The Netly News Network
http://netlynews.com/

Enough Is Never Enough
By Declan McCullagh ([email protected])
January 17, 1997

      A broad coalition of conservative and anti-pornography groups and
  individuals will file legal briefs next Tuesday in the Supreme Court
  supporting the government's defense of the Communications Decency Act,
  The Netly News has learned.

      The alliance includes longtime supporters of the act, such as
  Enough is Enough, Focus on the Family, and the National Association of
  Evangelicals. Members of Congress will join a separate brief that the
  National Law Center for Children and Families is preparing.

      But a letter from the attorney representing the coalition asked
  the ACLU for permission to file a brief "on behalf of" 59 plaintiffs,
  including such unlikely participants as the National Association for
  the Advancement of Colored People, PBS, SafeSurf... and Netscape.

      Netscape? The company that lobbied against the CDA? A firm with a
  reputation of putting their balls on the chopping block when fighting
  for Net-issues on Capitol Hill? Netscape was as shocked as I was to
  learn about their participation. "It wasn't authorized by me or my
  office. This is flabbergasting," Peter Harter, public policy counsel
  for Netscape, said. "I'd be crucified if this happened."

[...]

      In their brief, which argues sociological rather than legal
  points, the groups hope to highlight the "dangers" of pornography
  online. They plan to supply the court with "legislative facts" to
  support the position Congress took when crafting the bill. The
  document also will include statistics discussing the effects of the
  Internet on children and the availability of material covered by the
  law. (Marty Rimm, where are you now?)

      Donna Rice-Hughes from Enough is Enough says: "It discusses three
  primary areas of our concern: letting the court know the problems on
  the Internet. Adult pornography, indecency, and child porn as well. A
  section on the harms of pornography. And a section dealing with the
  compliance issues: Is it feasible technically to comply with the CDA?"

[...]

      Chris Stamper and Noah Robischon contributed to this report.

------------------------------

Date: Wed, 22 Jan 1997 13:44:14 -0700
From: --Todd Lappin-- <[email protected]>
Subject: 9--SUPREMES: Court Date Set, DoJ Brief Filed

THE CDA DISASTER NETWORK
January 22, 1997


Quietly and without much fanfare, the run-up to the Supreme Court's review
of the Communications Decency Act has now gotten underway.

I have two major pieces of news to report:

First, we now know when we'll have our day in the nation's highest court.

It's official -- on Wednesday March 19, 1997 at 10 AM, the nine justices of
the US Supreme Court will hear oral arguments in the case of Janet Reno,
Attorney General of the United States v. American Civil Liberties Union et
al. Mark your calendars and datebooks, because March 19 will be a watershed
moment in the history of free speech on the Internet.

In another piece of important news, on Tuesday, January 21, 1997 the US
Department of Justice filed their first brief in support of the CDA before
the Supreme Court.

(A full text version of the DoJ brief is available at:
http://www.cdt.org/ciec/SC_appeal/970121_DOJ_brief.html )

I received a copy of the DoJ brief last night, and after spending a few
hours pouring through its 14,000 words, I can promise you that this
document won't win any literary prizes for 1997.

In truth, the thing reads with all the passion of a coroner's report.  But
the cold detachment does nothing to diminish the thinness of the
Government's argument that the CDA is fully constitutional and that "there
are no alternatives that would be equally effective in advancing the
Government's interests" in shielding minors from inappropriate material.

Elsewhere, Janet Reno's footsoldiers claim, "Because the CDA's restrictions
are all facially constitutional, and because any infirmity in those
provisions could not justify the [Philadelphia] district court's sweeping
injunction, the district court's judgment should be reversed."

How does the Government reach this stunning conclusion?

It begins with a bizarre argument that censoring the Internet is an
effective way to defend the ideals of the First Amendment. The DoJ brief
says:

"Parents and their children have a First Amendment right to receive
information and acquire knowledge ... and the Internet has unmatched
potential to facilitate that interest.  Much of the Internet's potential as
an educational and informational resource will be wasted, however, if
people are unwilling to avail themselves of its benefits because they do
not want their children harmed by exposure to patently offensive sexually
explicit material.  The government therefore not only has an especially
strong interest in protecting children from patently offensive material on
the Internet, it has an equally compelling interest in furthering the First
Amendment interest of all Americans to use what has become an unparalleled
educational resource."

In other words, the Government's defense of Internet censorship boils down
to a paternalistic, "tough love" argument that "this hurts me more than it
hurts you."

The DoJ then moves on to cite a 1968 case as justification for the
provisions of the CDA which prohibit the sending of indecent material to
children with knowledge that the recipient is under 18:

"Those provisions are essentially no different from the prohibition on the
sale of indecent material to minors upheld in Ginsberg v. New York. Like
that prohibition, the transmission and specific child provisions [of the
CDA] directly prevent the dissemination of indecent material to children
without prohibiting adult access to that material."

The problem here is that no viable systems currently exist that allow
noncommercial Internet publishers to verify the age of individuals
receiving potentially "indecent" online material.  (Consider, for example,
that as the publisher of this mailing list, it is impossible for me to
verify how old you are as you read this message.) The DoJ glosses over this
issue of age verification with a dreamy glance toward the technological
future, saying:

"Those who post indecent material on Web sites for commercial purposes can
ensure that only adults have access to their material by requiring a credit
card number or an adult ID. Similarly, operators of noncommercial Web sites
can use adult verification services for that purpose.  There are also ways
to communicate through other Internet applications that would not expose
children to indecency.  And, as technology evolves, the opportunities for
adult-to-adult communication of indecent material will expand even further"

What will these "opportunities for adult-to-adult communication" look like?
The DoJ seems to have two scenarios in mind -- both of which seem absurd
when applied to the Internet.

The first assumes that the Internet can be regulated much like broadcast
television.  Citing the 1978 Supreme Court case of FCC v. Pacifica, the
brief argues:

"Just as it was constitutional for the FCC to channel indecent broadcasts
to times of the day when children most likely would not be exposed to them,
so Congress could channel indecent communications to places on the Internet
where children are unlikely to obtain them.  Indeed, there is a stronger
justification for the display provision than there was for the restriction
approved in Pacifica.  The indecency problem on the Internet is much more
pronounced than it is on broadcast stations."

So what is to be done?  Here the DoJ moves on to make it's second
assumption -- that censorship will consign all "indecent" online material
to an Internet "red light district" that minors cannot enter.  Again
relying on earlier precedents, the DoJ puts forth the idea that:

"City of Renton v. Playtime Theatres, Inc. (1986) and Young v. American
Mini Theatres, Inc. (1976) also support the constitutionality of the [CDA's
provisions which ban the display of "indecent" material in areas where they
can be seen by minors].  In effect, the display provision operates as an
adult "cyberzoning" restriction, very much like the adult theater zoning
ordinances upheld in Renton and Young.  Just as the cities of Detroit and
Renton could direct adult theaters away from residential neighborhoods, so
Congress could direct purveyors of indecent material away from areas of
cyberspace that are easily accessible to children."

Of course, the only feasible way to create such a system of "cyberzoning"
would be to deploy a less restrictive system that uses filtering software
to facilitate parental control and shield minors from inappropriate online
material.  However, citing the  ostensible "wisdom" of Congress, the DoJ
explicitly rejects this approach:

"Congress reasonably determined that commercial software that attempts to
screen out indecent information only partially addresses the problem.  Such
software cannot identify all existing sexually explicit sites; it cannot
keep pace with the rapid emergence of numerous new sexually explicit sites;
it places the entire burden on parents; and it is owned by only a small
fraction of Americans."

Finally, the DoJ challenges the Philadelphia court's decision that the
CDA's speech restrictions are unconstitutionally vague.  (The CDA, you will
recall, uses criminal penalties to restrict the dissemination of material
that, "in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs.")

Does that mean that the CDA's "indecency" provisions effectively ban the
use of George Carlin's so-called "Seven Dirty Words" in cyberspace?
Classic works of literature that contain sexual content?  AIDS education
information?

Sure seems that way.  Yet the DoJ wants the Supreme Court to pretend
otherwise.  They argue:

"The historical meaning of the CDA's indecency definition and the CDA's
legislative history indicate that the kind of graphic pictures that appear
in soft-porn and hard-core porn magazines almost always would be covered,
while material having scientific, educational, or news value almost always
would not be covered. There may be borderline cases in which it is
difficult to determine on which side of the line particular material falls.
But that does not show that the CDA's definition of indecency is
unconstitutionally vague."

We'll see what the Supremes have to say about all this come March.

And in the meantime...

Work the network!

--Todd Lappin-->
Section Editor
WIRED Magazine


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Date: Thu, 15 Dec 1996 22:51:01 CST
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