EFFector       Vol. 12, No. 3       Oct. 25, 1999       [email protected]

  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

 IN THE 147th ISSUE OF EFFECTOR (now with over 19,000 subscribers!):

    * ALERT: H.R. 10
         + Mandatory Filtering & Other Problems in Juvenile Justice Bill
         + Cybersquatting Bill Threatens Free Speech, Privacy, Fair Use,
           and Justice
         + WHAT YOU CAN DO
    * Administrivia

  For more information on EFF activities & alerts: http://www.eff.org
    _________________________________________________________________



               Electronic Frontier Foundation ACTION ALERT:

H.R. 1501 & H.R. 3028 Threaten Online Free Speech, Privacy and Other Rights

             (Issued: Oct 25, 1999 / Deadline: Nov. 10, 1999)



  Mandatory Filtering & Other Problems in Juvenile Justice Bill

  The bloated Juvenile Justice bill (H.R. 1501), passed by both houses
  of Congress in different forms and currently in conference committee,
  contains, in the House version
  ( http://www.eff.org/censorship1999/hr1501_1999_bill.html ), a
  requirement that publicly-funded libraries (and schools) install
  Internet content filters on their computers to block access to illegal
  content (child porn, obscenity) for all users and to block legal but
  somewhat explicit content ("material harmful to minors") for kids.

  The principal problems with this legislation are:
    * It is physically impossible for any software to block "illegal"
      content, since only a court can deem it illegal on a case-by-case
      basis. The software can't predict what is and isn't legal.
    * Filtering software is notoriously imprecise, and does not perform
      as advertised (or as believed by Congress) - it both fails to
      block a wide range of "obscene", "indecent" or "harmful-to-minors"
      material, and accidentally (or in some cases maliciously) blocks
      material that is not in any way pornographic, including a wide
      range of news coverage, political content and health-related
      material, even sites that provide facts about filtering software
      in some cases. Even conservative groups oppose this legislation,
      since their own sites are frequently censored for "intolerance".
    * Much of this material is First Amendment-protected, even for
      minors, making the bill unconstitutional.

  Institutions that do not comply with these requirements would be
  stripped of vital E-Rate funding.

  Additionally, the Senate version
  ( http://www.eff.org/censorship1999/hr1501_sp1344_1999_bill.html ) of
  the Juvenile Justice bill contains a provision that will force large
  Internet service providers to give filtering software to their
  customers, free or at-cost. Aside from interfering in the ISP and
  software market for no legitimate reason (remember, filtering simply
  doesn't work the way Congress mistakenly thinks it does), this
  provision really makes no sense: Some filtering software is available
  for free over the Internet; any ISP, by definition, already provides
  their customers with free access to filtering software.

  As if all this weren't enough, the Senate version also includes a ban
  on online advertising or sale of firearms or explosives, and a
  provision to encourage the formation of an industry cartel to restrict
  access to constitutionally protected content ("violent" material,
  depictions of illegal activity, etc.)

  Finally, both versions of the bill have numerous threatening
  surveillance and other anti-privacy provisions.


 Cybersquatting Bill Threatens Free Speech, Privacy, Fair Use, and Justice

  The "Trademark Cyberpiracy Prevention Act," H.R. 3028, is about to be
  voted on in the House of Representatives and would be disastrous to
  the free speech and privacy rights of domain name holders. EFF urges
  you to contact your Representative today and tell him or her to vote
  no on this bill. (The bill has already passed the Senate, and is
  expected to be voted on any day now in the House.)

  With the stated goal of preventing trademark infringement and dilution
  in the Internet domain name space, the misguided "Trademark
  Cyberpiracy Prevention Act" the would make domain name holders legally
  liable in civil actions brought by trademark holders sharing the same
  name or one that is "confusingly similar."

  This bill undermines fair use and First Amendment freedoms in granting
  all trademark holders new rights greatly in excess of those already
  granted by existing trademark law. TCPA's provisions would enable
  bad-acting trademark holders to sue satirists and critics into
  silence.

  The legislation is an assault on anonymous speech; it effectively
  forces domain name holders to give up their privacy or have an
  increased likelihood of liability (and for no real reason, since there
  isn't any connection between anonymous use of the Internet and
  trademark violations).

  The bill will have a chilling effect on free expression because it
  effectively encourages registrars to reject the registration of any
  domain name that they believe has a remote possibility of being
  infringing.

  The TCPA bill also sets up a system whereby US-based companies would
  be able to take away domain names - without notice - from foreign
  companies and individuals who can't afford to travel to the US to
  defend themselves (assuming they even know about the action against
  them at all.)

  Attacked domain name holders would have to file their own lawsuits to
  prove their innocence, and do not even have affirmative defenses to
  assert when sued, only factors for optional court consideration.
  Domain name holders must not be treated guilty until proven innocent.

  Months' worth of international cooperation could be undermined in the
  Internet Corporation for Assigned Names and Numbers (ICANN), working
  to come to a balanced consensus on intellectual property, domain names
  and individual rights. Congress should not be second-guessing the
  Commerce Dept. (which is overseeing transition to the new
  administration of the Domain Naming System), nor suddenly wading into
  a highly contentious area of global technology policy.


 WHAT YOU CAN DO

  Contact your Representative and Senators, and urge them to pressure
  the Juvenile Justice Bill conferees to remove the senseless and highly
  controversial Net censorship provisions from the bill. SEPARATELY
  contact your Representative again (one issue per call, or the message
  may get confused) and ask them to vote against the "Trademark
  Cyberpiracy Prevention Act".

  (To find out who your legislators are and to get their contact
  information, please see EFF's Contacting Congress Factsheet. You
  should send a letter, fax or email, or make a phone call to the office
  of, your Representative (and your two Senators, in the case of the
  Juvenile Justice bill). For good measure, you may wish to send a
  similar letter of opposition to the offices of the President and
  Vice-President as well.)

  Short sample message about the Juvenile Justice Bill for phone calls
  or telegrams (faxes & letters should be more detailed):

    I'm a constituent, and am contacting you to oppose controversial
    and misguided provisions of the Juvenile Justice Bill currently in
    conference. I urge you to pressure the conferees to delete the
    following sections:
    * House version, Sections 1401-1403 - unconstitutional mandatory
      filtering, opposed by liberals and conservatives alike
    * Senate version, Section 1504 - mandatory ISP provision of filters
    * Senate version, Sections 1561-1564 - unconstitutional ban on
      online advertising that's legal in print;
    * Senate version, 401-406 - formation of industry cartel to restrict
      access to First Amendment-protected content that some find
      offensive.
    * Both versions, various sections - anti-privacy provisions
      regarding "clone pagers", increased uncontrolled sharing among
      agencies of personally identifiable information about citizens,
      and more surveillance.

    These provisions have not been examined much less approved by both
    houses of Congress, and should certainly not be passed as riders on
    the Juvenile Justice Bill.

  Short sample message about the "Trademark Cyberpiracy Prevention Act"
  for phone calls or telegrams (faxes should be more detailed; it is too
  late for postal letters, House may vote any day now):

    I'm a constitutent contacting you to oppose the antidemocratic and
    misguided "Trademark Cyberpiracy Prevention Act", H.R. 3028. I urge
    Rep. [Rep.'s name here] to vote AGAINST this legislation. Some of
    the flaws in the bill:
    * It undermines fair use and free expression;
    * grants all trademark holders vast new rights, at the expense of
      every individual's rights;
    * threaten online privacy with anti-anonymity provisions that
      implicate First Amendment-protected anonymous speech;
    * treats accused domain name holders as guilty until proven
      innocent;
    * allows bad-acting trademark holders to steal domain names without
      notice and to shut down critics' Web sites.
    * effectively encourages registrars to reject any and all domain
      name registrations they imagine could conceivably be infringing,
      thereby chilling free expression and harming online commerce; and
    * undermines the work of ICANN (Internet Corporation for Assigned
      Names and Numbers, the new non-profit created with the guidance of
      the Commerce Dept. to administer the Domain Naming System).

    This bill desperately needs to be examined in hearings, but is
    being rushed to a vote by intellectual property interests. Passage
    of this bill will thwart ongoing attempts to reach an international
    consensus on intellectual property, domain names and individual
    rights.

    _________________________________________________________________

                                Administrivia

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