1996-02-14
Craig A. Johnson
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From: EFFector Online Volume 09 No. 02 Feb. 14, 1995 •••@••.•••
Subject: The CDA: Has It Fallen? Can It Get Up?
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[Redistribute at will.]
In the days after the passage of the unconstitutional "Communications
Decency Act" as part of the Telecom bill, the CDA appears to be toppling
just as it should have begun to ride high in the saddle of fundamentalist
"victory" (though the battles are hardly over yet.)
The entire Congress passed this bill (some Members knowing it was
unconstititonal, and some on the other extreme not even knowing the CDA
existed), with the exception of the following legislators who voted
against the whole Telecom Bill:
Representatives
Earl Hilliard (D-AL), Pete Stark (D-CA), Pat Schroeder (D-CO), Neil
Abercrombie (D-HI), Lane Evans (D-IL), Sidney Yates (D-IL), Barney Frank
(D-MA), John Conyers (D-MI), Collin Peterson (D-MN), Harold Volkmer (D-MO),
Pat Williams (D-MT), Maurice Hinchey (D-NY), Jerrold Nadler (D-NY), Peter
DeFazio (D-OR), Timothy Johnson (D-SD), Bernard Sanders (independent-VT)
Senators
Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Paul Simon (D-IL), Paul
Wellstone (D-WI), and John McCain (R-AZ).
(Plus a handful that did not vote.) In all, only a singe Republican, out
of both Houses of Congress, voted to preserve American freedom of
expression.[*]
The President proclaimed, in the first State of the Union Address to
mention the Internet, "When parents control what their children see,
that's not censorship. That's enabling parents to assume more
responsibility for their children. And I urge them to do it". Clinton
then, in a signing party timed to coincide with the press attention given
to the "24 Hours In Cyberspace" multimedia event, enacted a law that
strips parents of the right and responsibility to decide what is
appropriate for their own children. The CDA would not only fail to help
"parents control what their children see" - a goal long supported by
EFF, ACLU, VTW, CDT and others opposed to the "decency" bill - but actually
hinder the development of tools and services to help parents and
teachers filter children's Net access.
* Backlash
It is ironic that it took passage of this law to garner the public and
media attention it warrants.
For 48 hours after President Clinton's signing of the CDA into law,
thousands of Web users and BBS sysops world wide took part in a "Thousand
Points of Darkness" protest of the new censorship law by turning their Web
page and login screen backgrounds to black, to mourn the death of the
Internet as we know it. Some, including online magazines such as
Factsheet Five Electric and Scamizdat, blanked out their entire online
offerings, replacing everything that had been available with a
single sentence: "This is what censorship looks like".
The protest garnered major news coverage of the Net censorship debate for
the first time. Finally the debate has shifted from false "save the
children" hype to the real issue: free speech, press and association
rights in new media. The "facts", figures and motives of the
lobbyists and lawmakers behind the CDA are at last being more widely
examined.
The "black page" protest is being followed up with a long term
awareness-raising and protest effort, in which particants, already
numbering in the tens of thousands, wear blue ribbons, and place
graphics of blue ribbons on their online services and homepages.
Participants range from individual users, to online journalism
sites like HotWired, to major centers of Internet connectivity like
Netcom and Yahoo!, among others.
As with Germany and France, where attempted censorship of online
information has backfired, leading to proscribed data's immediate
global availabilty from numerous anti-censorship "mirror sites", the U.S.
government may have to learn the hard way. The online community is
determined to knock the lesson into regulators' heads. To cater to
censored U.S. users, "offshore" anonymous Internet access providers are
popping up, such as Offshore Information Services Ltd -
http://online.offshore.com.ai/ - offering $50/month privacy-protected
accounts from tax-haven island Anguilla.
In case that were not enough, an ad-hoc programmer coalition, the Decense
Project - at http://www.clark.net/pub/rjc/decense.html - has produced an
"de-censoring" solution, which like that of the Anguilla ISP, also provides
privacy protection as a bonus: Decense, "a cgi script designed to
provide a double-blind pseudonym scheme which allows a site to hide
behind a chain of http servers which 'proxy' for it. Neither the user [ID]
requesting the document, nor the ultimate address of the destination web
site is immediately available to prying government eyes."
* Action in Court and Congress
The action has spread offline as well. There has already been an public
protest rally in Washington DC on Feb. 10, and there are others in the
works. The University of Pennsylvania at Philadelphia will see a
demonstration just before a scheduled speech by VP Gore. A DC "Electronic
Freedom March" is gearing up, and even high school students are donning
blue ribbons and demonstrating against reactive academic censorship
Most importantly, the new law itself is under concerted attack in
the courts and on the Hill.
EFF, with ACLU and 24 other organizations, have filed a federal lawsuit
against the Department of Justice (DoJ), in the Phildelphia court of Judge
Ronald Buckwalter, challenging the CDA on constitutional grounds. As of
Feb. 13, Judge Buckwalter has not only commended the plaintiffs on a well-
written lawsuit, but has put the case on the fast track, demanding a DoJ
response by Wed. Feb. 14. The Judge further indicated that he will
likely grant plaintiffs' motion for a temporary restraining order (TRO),
by Thu., Feb. 15 at the latest, without further hearings.
The TRO would prevent enforcement of the CDA pending a hearing before and
decision from a panel of three judges, on a motion for a longer-term
preliminary injunction that would prevent all enforcment of the
"decency" provisions until the real meat of the case is settled -
whether the CDA stands up to constitutional challenges. The hearing on
the long-term injunction should take place within the next few weeks. And
the balance of the legal "tests" the CDA must face are very much in plaintiffs'
favor.
Though the DoJ has agreed to make no arrests under the new statutes between
now and the probable issuance of a TRO this week, content and access
providers should be warned that the FBI and other Justice Dept. agents
may later decide to prosecute for CDA violations committed during this
time, if they eventually win the case - a possibility everyone should be
concerned about. And plaintiffs' attorneys warn that even the little
assurance provided by DoJ for now is rather meaningless since it has not
been put in writing.
The Justice Dept. and the Christian Coalition are expected to present, as
evidence supporting the CDA, the most vulgar content they can possibly find
online - though this tactic could backfire. After all, the CDA does not
address pornography (obscenity) at all, since it is already illegal
online or offline, but rather targets indecency, a broader category
including nudity in almost any context, or "indecent" words like those
found in any PG-rated movie.
In the mean time, the Telecom bill has been delivered a one-two-punch by
some of the legislators that voted against it the first time around.
Sen. Patrick Leahy (D-VT), like Rep. Jerrold Nadler (D-NY), was a
high-profile participant in the WWW Blackout protest, and has, with
Sen. Russ Feingold, introduced a new bill (S.1567) to repeal most of the
CDA. This legislation will likely need to be re-examined and modified to
make sure it actually succeeds in the goal of removing the threat posed
by the Communications Decency Act.
* Women's Groups and Others Join the Battle
Rep. Pat Schroeder (D-CO) is attacking another dangerous provision of
the Telecom Bill - an amendment outlawing the online distribution of
certain kinds of abortion-related information. The amendment in question
was slipped into the leviathan telecommuncations "deregulation" package
by Rep. Henry Hyde (R-IL), who also shepherded the final version of the CDA.
Schroeder announced that she will introduce a bill, when Congress
re-convenes on Feb. 26, to repeal this less well-known Telecom Bill
assault on free expression. (It should be noted that although Rep.
Shroeder voted against the Telecom bill in the final vote, she can be
partially blamed for the existence of the CDA in that bill - she voted
"yes" on it in committee deliberations, along with a majority of her
colleagues.)
The "abortion gag rule" in the Telecom bill is also being slammed in
in another lawsuit, Sanger v. Reno, filed in New York by the Center for
Reproductive Law and Policy, and many other plaintiffs. In this case,
U.S. Attorney Zachary Carter has (according to ACLU releases) admitted
the unconstitutionality of the CDA, and also agreed to hold off enforcing
it for a while. East District of New York Chief Judge Charles P. Sifton has
asked Chief Judge Jon O. Newman of the U.S. Court of Appeals for the 2nd
Circuit to convene another 3-judge panel to decide this case.
Sifton has not granted a TRO or injuction. The Judge appears to find the
DoJ's assurances sufficient evidence that this particular provision will
not be enforced or chill free speech. His decision may also rely on the
fact that the section of the ancient Comstock censorship law modified
by the Telecom Bill to ban abortion info online, has not been enforced in
many years. However, no court has yet to rule the Comstock Act
unconstitutional, leaving some people worried for the short term, even if
they expect an eventual favorable decision from the 3-judge appellate court.
Content providers and internet users, as well as women's groups, are also
not pariticularly comforted by the platitudes of supporters of the
abortion info ban, who have disingenously claimed they simply want to
update the Comstock law for consistency reasons and to show support for
"Christian" ideals, but don't expect anyone to actually be censored
under the new revisions.
Plaintiffs' attorney Simon Heller said, "We are extremely pleased that the
Clinton Administration has recognized the invalidity of this law.
However, we believe a court ruling against the provision barring receipt
or provision of abortion information is still necessary to prevent a
future administration or radical right-wing members of Congress from
wielding it against women's health care providers and advocates."
* Shifting Lines
It is clear that the Internet and computer industries do not support the
Communications Decency Act, though most organizations in these fields did
not act, other than to support EFF and other advocacy groups, until too
late. It has shocked the commercial world as well as the general public
that Congress would actually pass a bill so terrible. The industry is,
however, increasinly participating in protest, and legal, action against
the CDA, realizing that such important decisions as what we each should
read or avoid cannot be left up to government. Even the usually
Beltway-shy Microsoft is taking a stand; in an AP interview, the company's
leader, Bill Gates, said of the Internet regulation attempt, "Unfortunately,
it means we're going to have to spend some time in Washington, DC. In
the first 15 years of Microsoft history, we never visited Washington."
And content producers of all sorts are expressing concern, even outrage,
from upstart multimedia giants, to major print publishers, all of
whom now find not only their free press rights but also their livelihoods
threatened. As journalism organizations have flocked to the pro-speech
side, only one news association, to our knowledge, has offered anything
but derision for the CDA. (Newspaper Association of America President
John Sturm expressed support for the telecom bill as a whole, citing only
disappointment at the censorship, and support of the "motives of the
conferees to protect children from obscene and indecent material". One
wonders how closely Mr. Sturm has questioned those motives.)
It is clear that the fundamentalist organizations and legislators behind
the CDA have neither an understanding of the medium and issue, nor any
particular desire to inform the public or the media. The Family Research
Council - http://www.frc.org - disinformed readers by quoting and
explaining in their newsletter the obscenity restrictions from an older
draft of the bill (which they helped replace with an unconstitutional
"indecency" version) in an attempt to imply that the FRC and their
favorite bill would prohibit online distribution of obscenity.
Religious right spokespersons, as well as CDA sponsors like Exon
and Hyde, repeatedly tell the press and tv news programs that they are
trying to "protect children from pornography" as if somehow unaware that
their bill actually makes it more difficult to prevent children from
being exposed to inappropriate materials, by removing all incentive to
continue developing services and software which genuinely perform this
needed function.
But perhaps even the moralists are having second thoughts (or trying to
save face): Confronted with World Wide Web co-creator Tim Berners-Lee's
free Net filtration software, Christian Coalition spokersperson
Heidi Strup conceded that the program "definitely would be a useful tool
for us." One must wonder how and why the CC and its allies failed to
realize this 6 months ago.
More education and outreach is clearly needed, so that legislators do not
fear the net, so that lobbyist groups do not push for unneeded and
hazardous legislation, and most importantly so that the general public
have a better understanding of their free speech rights and recognize the
early warning signs of censorship threats.
On the other side of the issue, organizations like Voters' Telecom Watch
(http://www.vtw.org), with help from local activists (see, for example
the "Tennessee Hit List" of bad legislators at
http://www.people.memphis.edu/~mddallara/hitlist.html)
vow to bring the Net constituency into its own in upcoming elections.
They are gearing up to vote out legislators and other officials at all
levels who betray the trust of their voters by pushing for censorship.
The online voting bloc will have a number of people to remove from
office, it seems, given Congresspersons like Rep. Thomas Bliley (R-VA),
chair of the House Telecom Committee, who seems to consider the CDA's
assault on the Constitution an inconsequential matter to be fixed by
"technical corrections" to the bill later in the year. And what about
Vice-President Al Gore? For all his "Information Superhighway" hype,
Gore stronly supported passage of the legislation, since, after all, the
courts can take care of the unconstitutional stuff. Sen. Carl Levin
(D-MI) echoed both sentiments, at an "ask the politicians" event in
Kalamazoo, MI, claiming that the CDA was only "one small page in a very
large bill", and stating that he knew it was unconstitutional and (you
won't believe this) that it is "always necessary to test the
Constitutionality of some legislation", ergo no service providers would
get hurt! Perhaps Sen. Levin considers this a game, but online voters
may just cure him of that notion come election day. And let's not
forget legislators from Connecticut and other states, who did not even
know the CDA was in the Telecom Bill - they passed it without reading
the bill at all, much less understanding it's impact.
* Civil Disobedience (and Decidedly Uncivil Obedience)
At present EFF cannot advise what to do and not do under the CDA.
No one can. The law is too vague and overbroad to be applied meaningfully.
Some sites are already closing, with more providers broadly self-censoring
their content. The moderator of an amateur radio discussion group
closed the forum down, saying only, "I have closed my mailing lists to
minors, not in protest but for my own protection. Since I enforce rules
of conduct for the lists, I think I'm too close to being part of content
creation to be safe should one of the subscribers post a 4-letter
word." If the judges in the cases challenging the CDA need any evidence
of the chilling effect of this legislation, this should be all they need.
Other content providers, including many who had never thought of posting
"offensive" materials at all, are engaging is widespread civil
disobedience, deliberately violating the new Act. A particularly
creative example can be found at http://coolheart.infi.net/exon/index.html
- you can send a Valentine'd Day card to Sen. Exon, reading "In honor of
Valentine's Day, I thought I would send you an example of some of the
nudity I've found on the Internet - Enjoy", and including your choice of
several classic works of art, including Michelangelo's "David" and
Boticelli's "Birth of Venus".
Yet more are being "uncivilly obedient", complying - barely - by
ROT13-encrypting "dirty words", putting "CENSORED!" banners all over
their web pages, replacing scatological terms with legislators'
surnames, and other actions of visible obedience-under-duress.
Still, helpful as these actions may - or may not - prove to be, some
protest activities are decidedly unhelpful. "Spamming" Senate and House
email addresses, particularly with indecent material is self-defeating.
Please remember that this legislation passed because legislators by and
large were too ignorant of the medium to recognize that the Net is not
really a den of pornographers and terrorists. Irresponsible and
overtly threatening gestures - especially threat letters or dirty
stories - will only prove to legislators' minds that they were right after
all.
Lastly, please keep in mind that obvious civil disobedience can be
dangerous, particularly as "Oklahomans for Children and Families" and
other local fundamentalist groups are on the prowl, vowing to report to
police any CDA violations they find. The current hold on enforcement of
these laws by the Justice Dept. does not even mean you can't be prosecuted
for violations occuring now (assuming the court cases fail, which is
probably not a good assumption, fortunately), only that you won't be
prosecuted right now.
Stanton McCandlish,
Online Activist & Webmaster
Electronic Frontier Foundation
San Francisco - Feb. 13, 1995
[* I observe that only one Republican voted against the CDA because it
is a fact. This does not constitute an endorsement of the Democractic
Party or any other kind of endorsement on my or EFF's part.]
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