Computer underground Digest Fri Mar 21, 1997 Volume 9 : Issue 22

Computer underground Digest Fri Mar 21, 1997 Volume 9 : Issue 22
ISSN 1004-042X

Editor: Jim Thomas ([email protected])
News Editor: Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest

CONTENTS, #9.22 (Fri, Mar 21, 1997)

File 1--SUPREMES: Report From the Protest Lines
File 2--SUPREMES: Reports from the Netizen; Netly News
File 3--SUPREMES: Pointers to Transcript, More Coverage
File 4--Reno v. ACLU SupCt Transcript online
File 5--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: Wed, 19 Mar 1997 14:07:19 -0800
From: --Todd Lappin-- <[email protected]>
Subject: File 1--SUPREMES: Report From the Protest Lines

THE CDA DISASTER NETWORK
March 19, 1997

Keith Glass <[email protected]> didn't have a ticket to hear today's oral
arguments, but he nevertheless made the trek to the Supreme Court
to participate in the anti-CDA demonstrations that took place
this morning on the Court steps.

Keith's first-hand account of the rally -- and of the pro-CDA
folks who also showed up to demonstrate -- gives a great sense of
what the scene was like this morning, so I'm passing it along.

Hope you enjoy, and many thanks to Keith for his report.

--Todd Lappin-->
Section Editor
WIRED Magazine

===========

Date--Wed, 19 Mar 1997 16:18:28 -0500
From--"Keith A. Glass" <[email protected]>
Subject--Report from the Supreme Court, and our opposition (AKA Nuremberg '97)

Greetings and felicitations !!

I just got back from the demonstration outside the Supreme Court this morning.

It was a REALLY nasty morning in DC: a cold snow-rain combo, temperature
hovering around freezing (Naturally, about the time the demonstrations
ended around 11:30, it stopped. Go figure. . .). Even so, when I got in
line at 6:55 AM, there were over 120 people in front of me. ALL of them
seemed to be for the overturning of the CDA. The line ended up at about 250
people, before it got out that as members of the Supreme Court Bar had
priority for seating, and there were 75+ of them in THEIR line, that only
10-20 or so people in line would actually get seats for the trial.
Everyone else either could take the tour, with three minutes in the Court,
or go home.

Not too long after that, Glenn Haumann of BiblioBytes and Jonah Seiger of
CDT appeared on the scene, and signs showed up soon thereafter.

BTW, for those interested, the signs were:

"The Internet is not Television"

"I'm a Better Parent than Uncle Sam"

"The First Amendment Applies to the Internet"

With that out of the way, we took our handful of activists (about 10 or so
at the time) and a large bunch of High School students who were waiting in
line for the Court (about 30-40, in my estimate).

For perhaps 45 minutes, we were the only demonstrators there. Favorable
reaction from most of the crowd. The "Hey Hey, Ho Ho, the CDA has got to
go!!" cheer got a good response as well. We got a LOT of good press in
this period, mostly radio and newspapers, but also some local Washington
and Baltimore TV, as well as a few Network Cameras.

Around 9:30 or so, Pro-CDA demonstrators started to arrive, first from the
"Maryland Coalition Against Pornography", and later, from "Enough is
Enough", who brought hand-made signs, banners, and a bullhorn. . .more on
THEM later. . . The last group which appeared was a small contingient from
Concerned Women for America.

Both our group and their group demonstrated in peaceful coexistence for
perhaps 30 minutes. Then the Other Side started heckling our people (using
epithets such as "witch", "devil-worshipper", "porno-kings",
"child-molestors" . . . and those are the ones I heard . . . oh yes, and
my favorite: "Slaves of Pornography". . . . . )

This was followed by their circle of demonstrators (about 30-40 or so,
including a oddly dressed man wearing an over-tunic of what appeared to be
photos from a fashion magazine, a broken plastic step-stool with the
remains of some sort of printed circuit card glued to it as a chest-plate,
a styrofoam set of wings on his back, and brandishing a toy bow and arrow.
I **STILL** don't get it. . . .) starting to push ours back, and
incidentally, closer to the cameras that were setting up for the
after-hearing Press Conference. . . And their chant of "Children Don't
Need This Stuff Enough is Enough !!". . . for hours and hours, and with
the help of the bullhorn, they were drowning us out. They obviously didn't
want anyone to hear OUR message. No surprise, that. . .

About this time, I took a short break, and chatted with a few of the
Supreme Court Police. The uniform opinion: The Other Side was worse than
even the Abortion Protesters.

And THEN, it came to me. Why they felt familiar. It was the Nuremberg
Rally, 1997 edition. We anti-CDA activists were the forces of darkness, an
evil group of soul-starved porno-fiends. We were the Enemy, not just the
Opponent. . .

In a relatively short time, you'll know how the Hearing went, and in July
we'll learn the decision of the Supreme Court. But in the meantime, this
ends the report from the frontlines. . . .

**This article is copyright 1997, Keith A. Glass <[email protected]>
Permission is granted to reproduce this article in full or in part,
provided that credit is given and you forward me a copy of what you did
with it. . . **

+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+
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. To UNSUBSCRIBE, send email to
<[email protected]> with "unsubscribe cda-bulletin" in the message body.

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

Date: Wed, 19 Mar 1997 16:27:21 -0800
From: --Todd Lappin-- <[email protected]>
Subject: File 2--SUPREMES: Reports from the Netizen; Netly News

THE CDA DISASTER NETWORK
March 19, 1997

Two final -- and authoritative -- reports from today's Supreme
Court hearing:

In the first, John Heilemann of The Netizen argues that "although
there are few more treacherous occupations than reading the
court's tea leaves, the behavior of the justices hinted strongly
that the CDA is dead meat."

Next, Declan McCullagh and Noah Robischon from the Netly News
describe how "U.S. Supreme Court justices pummeled government
proponents of the Communications Decency Act" and give some hint
as to how the CDA's supporters in Congress plan to respond after
the Court issues its ruling during the summer.

Read on for all the details...

--Todd Lappin-->
Section Editor
WIRED Magazine

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

The Netizen: http://www.netizen.com

Net Decency Law Looks Like Dead Meat
by John Heilemann

2:13pm 19.Mar.97.PST In a lively, fractious, sometimes-funny
70-minute session, the US Supreme Court on Wednesday
heard arguments in the case of the Communications
Decency Act, aka Reno v. ACLU. The case, which will decide
the constitutionality of the year-old (but never enforced)
federal ban on online indecency, marks the first time the
court has been asked to rule on the question of free speech
in cyberspace. And although there are few more
treacherous occupations than reading the court's tea leaves,
the behavior of the justices hinted strongly that the CDA is
dead meat.

Arguing the case for the government, Deputy Solicitor
General Seth Waxman had his hands full. Waxman spoke
first, and was subjected to a steady barrage of plainly
skeptical questions from Justices Sandra Day O'Connor,
Steven Breyer, Ruth Bader Ginsburg, David Souter,
Anthony Kennedy, and John Paul Stevens.

In a sharp tone of voice, O'Connor suggested that,
considering the nature of the Net, the CDA's use of the
adverb "knowingly" - as in, to "knowingly" transmit indecent
material to minors - was "virtually worthless."

Breyer expressed, again and again, his concerns that the
CDA would turn teenagers who use the Net to talk about
their sexual experiences into federal felons. ("You mean
there's not a high school student exception?" cracked
Justice Antonin Scalia.)

Kennedy asked Waxman whether he thought it would be
permissible to ban adults from smutty talk in public parks
just because kids might overhear them - a question that led
to a colloquy in which Waxman claimed, incredibly, that the
Net was not a "public forum."

And when Souter's probing about whether parents could be
imprisoned for letting their kids look at racy stuff online led
Waxman to claim that parents weren't the CDA's real
targets, Souter accused the government's lawyer of
"grabbing exceptions out of thin air."

Bruce Ennis, the lawyer for the anti-CDA forces, had his
share of tough questions, too - only almost all of them came
from Chief Justice William Rehnquist and Scalia. As ever,
the latter was particularly nettlesome: sharp, acerbic, and
terribly clever.

When Ennis noted that screening by age was only
technologically possible in one corner of cyberspace - the
Web - Scalia asked what was wrong with asking speakers
who want to be naughty to do it there. When Ennis said that
even on the Web the cost of such screening was
"prohibitively expensive," Scalia pointed out that the
definition of "prohibitive" depends on the goal you're trying
to achieve. And, as if he were laying the groundwork for
future battles, Scalia repeatedly argued that with the rapid
pace of change - "I throw away my computer every five
years," he said - whatever is technologically impossible or
prohibitively expensive today might not be that way for long.

"Isn't it possible that this statute is unconstitutional today ...
but won't be unconstitutional two weeks from now?" Scalia
asked.

But while Scalia and Rehnquist tag-teamed Ennis, the rest
of the justices asked him few questions, and the questions
they did ask were of a much friendlier tenor than had been
the case with Waxman.

The court will decide the case and announce its decision - it
can throw out the entire CDA or tailor a narrower ruling that
will leave pieces intact - by the end of its term early this
summer.

Before Wednesday's arguments, the question of just how
Net-savvy the justices were had been the subject of much
speculation, little of it kind.

Chris Hansen of the ACLU, who was Ennis's co-counsel,
made only one prediction going into the arguments: that
there would be no questions about what he called "cgi
script," a reference to the ubiquitous technology on the
Web that can be used to screen users by age. But,
amazingly, cgi scripting was the subject of the first question
of the day, from O'Connor, who wanted to know the precise
percentage of Web sites actually are equipped to use it.

Indeed, though there was the occasional moment of
technological confusion, most of the justices seemed fairly
switched on - if not regarding the details, then at least
regarding the big picture of what the Net is all about.
Breyer, in particular, drew an analogy between the Net and
the telephone system; even Scalia went on at length about
how the court was in uncharted territory. And the very fact
that so many of the justices took active part in the
discussion - all of them, actually, except for Justice Clarence
Thomas, who sat through much of the proceeding with his
head resting on his hand, stifling yawns - was a sign that the
court recognized the stakes of the case before it.

In the closing minutes of his argument, Ennis was cruising.
Compared with Waxman, he had been fairly successful at
getting all his arguments on the table; even after dodging
the ink pellets flicked by the Frankenstein and Don
Corleone of archconservative jurisprudence, Ennis found
time to pick up on Breyer's telephone analogy, and to
expand on the parents-in-the-slammer hypothetical that
Souter had put to Waxman. At least three times he was able
to state his central claim: that, in the guise of protecting
children, the CDA operates as a ban on adult speech that is
constitutionally protected.

After Ennis finished, Waxman rose to give his rebuttal -
using the time he had saved from his first go-round. He had
five points to make. Rehnquist told him he had one minute.
In the middle of his second point, Souter interrupted him,
and in the middle of his response to Souter, Rehnquist cut
him off and brought the show to a close. It was that kind of
day for the government.
###

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

The Netly News Network
http://cgi.pathfinder.com/netly/editorial/0,1012,744,00.html
@The Supreme Court
March 19, 1997

By Declan McCullagh ([email protected])
Noah Robischon ([email protected])

U.S. Supreme Court justices pummeled
government proponents of the Communications
Decency Act this morning during a review of the
law that will set new standards for free speech
in the 21st century.

The notorious CDA, reviled throughout
cyberspace since the day it was signed by
President Clinton in February 1996, would
criminalize the ill-defined category of
"indecent" communications on the Net. A
Philadelphia federal court struck down the law a
year ago.

Justice Antonin Scalia called the lawsuit,
brought by the American Civil Liberties Union
against Attorney General Janet Reno, "a
distinctive form of First Amendment argument
unlike others" because it covers an uncharted and
rapidly developing communications medium. "That's
a new case for us," he said.

Deputy Solicitor General Seth Waxman argued
that the CDA merely established boundaries on the
Net and made it harder for pornographic material
to fall into the hands of minors. He likened the
law to a cyber-zoning ordinance; without it, he
said, the Internet "threatens to give every child
a free pass to get into every adult movie theater
or bookstore in the country."

But less than a minute after Waxman started,
the justices impatiently plowed into his
presentation. Justice Stephen Breyer demanded:
"Suppose a group of high school students decides
to talk over the Internet and they want to talk
about their sexual experiences. I mean, that's
been known to happen in high school." Would they
"be guilty of a federal crime?"

Justice Antonin Scalia cut in, joking:
"There's no high school student exemption?"

"You might find it in the legislative
history, but I do not," a chagrined Waxman
replied.

For much of the 70-minute hearing, the
discussion swirled around the question of how
netizens could comply with the CDA. Waxman
claimed that the act includes a battery of ways
to protect a person from prosecution -- visitors
to "indecent" web sites would be required to
provide credit-card numbers, for instance. But
Justice Sandra Day O'Connor was unmoved. "How
does that fit in with the use of web sites by
noncommercial users, libraries?" she asked.

Justice David Souter wondered if the
portions of the act banning the "display" of
indecent materials would imprison parents. "I
take it a parent who allows his computer to be
used by a child viewing indecent material, that
parent would go to prison," he said. When Waxman
demurred, Scalia took up the chase. "No... One of
those offenses is a display offense," he pointed
out. Chastened, Waxman replied, "I see your
point."

Bruce Ennis, arguing on behalf of the ACLU
and American Library Association coalitions,
contended that the CDA bans speech, even for
adults; is not as effective as blocking software;
and is unconstitutionally vague.

Justice Scalia, who noted that he uses a
computer, pointed out that technology is rapidly
changing. "So much of your argument is based on
what's currently available," he said to Ennis.
"This technology is changing so quickly. Is it
possible that this statute is unconstitutional
now but could be [constitutional] in four or five
years?" Ennis replied: "Not as it's written."

During a subsequent press conference, Ennis
added that indeed, the technology is changing,
and is giving parents more control over what
their children do and see online. "Precisely
because the technology is changing, the
government should not be trying to enforce this
law," he said. The ACLU attorneys who joined
Ennis were grinning: the justices appeared to
understand the nature of communications online,
noted that teens have rights, and focused on free
speech, not porn.

After the hearing, the anti-CDA protestors
who had braved a chill rain to chant "Hey-ho, the
CDA has got to go!" were displaced by a larger,
bullhorn-wielding group of anti-porn advocates.
One sign demanded, "Don't sacrifice my child on
the altar of the First Amendment."

One of the most vocal protestors was
19-year-old Berkeley student Kenritsu Yamamoto,
who happened to be dressed as a Net cupid,
complete with angel wings and a circuit board
breastplate. He was acting in the Pure Love
Alliance's skit illustrating how pornography and
"Net abduction" harms children. In the skit,
Yamamoto accidentally kills a small child to
demonstrate the dangers of a world without the
CDA. "If a small child buys porn at a 7-11, then
the store can be held accountable," said
Yamamoto. "But on the Net, there is no
accountability."

A few steps away, Donna Rice Hughes, Enough
Is Enough's communications director, was
explaining why she thought the CDA should be
upheld. "Without the CDA, Larry Flynt can make
his teasers and centerfolds available to kids on
the Internet," she said. Across from Hughes stood
Bruce Taylor, the lawyer who argued against Flynt
in the Supreme Court more than a decade ago. "The
technology is advancing so well that the court is
going to see that people can use this stuff
without violating the law," he said.

If the Supreme Court disagrees and strikes
down the CDA, some members of Congress have
pledged to try again. Netly cornered Sen. Charles
Grassley (R-Iowa), a stauch supporter of the CDA,
in the basement of the Capitol after the
argument. What would he do? "How to do this I
don't know, but our objective hasn't changed," he
replied. "Some way, somehow, we will have to find
a constitutional way of doing this for kids,
protecting them from porn the way we did for
printed material." Rep. Bob Goodlatte
(R-Virginia) says he hopes the high court "will
give the Congress some very clear guidance."

But any Congressional tinkering will come
after the Supreme Court decides. A ruling is
expected in early July.

[McCullagh is one of the plaintiffs in the
lawsuit challenging the CDA.]

+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+
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. To UNSUBSCRIBE, send email to
<[email protected]> with "unsubscribe cda-bulletin" in the message body.

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

Date: Thu, 20 Mar 1997 11:33:51 -0800
From: --Todd Lappin-- <[email protected]>
Subject: File 3--SUPREMES: Pointers to Transcript, More Coverage

THE CDA DISASTER NETWORK
March 20, 1997

It's the morning after, so I thought I'd pass along some handy
pointers to more information about yesterday's Supreme Court
arguments -- including a transcript of the session, and
interesting press coverage in today's Washington Post and New
York Times.

Hope you enjoy,

--Todd Lappin-->
Section Editor
WIRED Magazine

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

TRANSCRIPT OF THE ARGUMENT:
It's not quite the same as having been there, but nevertheless... the ACLU
has published a full transcript of yesterday's Supreme Court arguments on
their Website. The document is big -- 28 pages when I printed it out --
but its a fascinating read.

The transcript is available at
http://www.aclu.org/issues/cyber/trial/sctran.html

THE WASHINGTON POST:
In today's Washington Post, Joan Biskupic and John Schwartz write:

"While the justices' comments may not reflect where they will end up on
this potentially landmark case, Justice Antonin Scalia and Chief Justice
William H. Rehnquist seemed most in favor of the law. Justices O'Connor
and Anthony M. Kennedy were also sympathetic, but less so, and both of
these usual swing justices raised free speech concerns.

"Showing the greatest support for the challengers were Breyer and
Justices David H. Souter and Ruth Bader Ginsburg. Justice John Paul
Stevens, who wrote a 1978 opinion allowing government to limit indecency
on the radio but who has generally liberal tendencies, was hard to read.
Justice Clarence Thomas did not ask any questions.

Full story at:
http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/supcourt.htm

THE NEW YORK TIMES:
Linda Greenhouse covered the CDA arguments for the Times. She writes:

"The lawyers who argued Wednesday are among the most highly regarded of
Supreme Court advocates, and the session was nuanced and fast moving.
The justices added 10 minutes to the standard hour as a concession to
the importance and complexity of the case.

"Neither lawyer had a particularly easy time. Expressing concerns about
both positions, the justices appeared less interested in constitutional
theory than in learning about the available technology by which those
who post material on the Internet and those who receive it on their
computer screens can filter or mark the portions not suitable for
children.

Full story at:
http://www.nytimes.com/library/cyber/week/032097decency.html

NOTE: Free registration is required to access the NY Times site.

###

+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+
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. To UNSUBSCRIBE, send email to
<[email protected]> with "unsubscribe cda-bulletin" in the message body.

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

Date: Wed, 19 Mar 1997 19:35:45 -0500 (EST)
From: Lisa Kamm <[email protected]>
Subject: File 4--Reno v. ACLU SupCt Transcript online

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

ACLU Cyber-Liberties Update
Wednesday, March 19, 1997

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Transcript of Reno v. ACLU Oral Arguments
Online Today at ACLU's Freedom Network

Demonstrating the power of the Internet, the American Civil Liberties
Union today posted online the transcript of the oral arguments in Reno
v. ACLU only hours after the questioning ended.

Reno v. ACLU challenges censorship provisions of the Communications
Decency Act aimed at protecting minors by criminalizing so-called
"indecency" on the Internet. The government appealed the case to the
Supreme Court after a federal three-judge panel ruled unanimously last
June that the law unconstitutionally restricts free speech.

The transcript is available at
http://www.aclu.org/issues/cyber/trial/sctran.html

In a news conference immediately following the oral arguments, ACLU
lawyers said they were "encouraged" by the tenor of the questioning
from the Justices. "This case presents the Court with its first
opportunity to consider how traditional free speech principles should
be applied to the Internet," said Steven Shapiro, ACLU Legal Director.
"It is only fitting that we harness the power of cyberspace to further
educate the public about what is at stake here."

The ACLU news conference was also cybercast live via Real Audio. The
audio of the event is available on the web at
http://www.aclu.org/issues/cyber/trial/appeal.html

The ACLU is also offering a special Reno v. ACLU "GIF" - a
computer-animated image - that web publishers can post on their home
pages for instant access to the transcripts and other information
about the case. A change in the image will alert viewers the instant
the Court releases its decision, which is expected by July. Details are
at
http://www.aclu.org/issues/cyber/trial/appeal.html

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

ACLU Cyber-Liberties Update Editor:
Lisa Kamm ([email protected])
American Civil Liberties Union National Office
132 West 43rd Street
New York, New York 10036

To subscribe to the ACLU Cyber-Liberties Update, send a message to
[email protected] with "subscribe Cyber-Liberties" in the body of
your message. To terminate your subscription, send a message to
[email protected] with "unsubscribe Cyber-Liberties" in the body.

The Cyber-Liberties Update is archived at
http://www.aclu.org/issues/cyber/updates.html

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

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End of Computer Underground Digest #9.22
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