I've heard some misgivings expressed about Coralee's latest analysis
(below) -- they'll be posted as a follow-up.
-rkm
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Date: Fri, 16 Feb 1996
Sender: •••@••.•••
Subject: Telecom Post #22
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Free Speech Media, LLC
Computer Professionals for Social Responsibility
February 22, 1996
Number 22
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Compiled, written, and edited by Coralee Whitcomb
Please direct comments and inquiries to •••@••.•••.
====================================================
For more information on Computer Professionals for Social
Responsibility, please write •••@••.••• or call
415-322-3778.
====================================================
The Telecom Post is posted to several distribution lists and is also available
from the CPSR listserv. To subscribe, send to •••@••.••• with the
message SUBSCRIBE TELECOM-POST YOUR NAME. Unsubscribtion requests should
be sent to the list from which you receive the Telecom Post unless you
purposely subscribed to it through CPSR in which case you would write to
•••@••.••• with the message UNSUBSCRIBE TELECOM-POST.
=====================================================
The Telecom Post is posted more or less weekly. My apologies
for cross-posts.
======================================================
TELECOMMUNICATIONS ACT OF 1996 - S652
TOPICS:
1. Censorship in legalese
2. Examples of the "Chilling Effect"
3. The Abortion Controversy
4. Actions to Challenge the CDA
5. Tobacco and Alcohol in the Mix
6. Censorship and Community Media
CENSORSHIP IN LEGALESE
It looks as though our fight to protect the Net is going to make
us defacto lawyers. We might as well bone up on the jargon
since it looks like we'll be waging war in the courts in order
to return our rights to where they were on February 7, 1996.
"Obscenity" - not protected by the first amendment - must meet
these tests as of the Supreme Court's 1973 decision in Miller v.
California.
1. depicts sexual or excretory acts listed in a state obscenity
statute and
2. depicts those acts in a patently offensive manner, appealing
to the prurient interest as judged by a reasonable person
applying the standards of the community and
3 lacks serious literary, artistic, social, political, or
scientific value
"Indecency" according to the Communications Decency Act (CDA) is
defined as "any comment, request, suggestion, proposal, image,
or other communication that, in context, depicts or describes,
in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs."
If all three tests of obscenity aren't met, then the First
Amendment prevails - unless there is a "compelling government
interest" in limiting free expression - such as protecting
children. Controls on "indecent" material must be exercised
through the "least restrictive means possible". FCC v. Pacifica
upheld the restrictions on George Carlin's "Filthy Words"
monologue because it was BROADCAST at 2:00PM on the RADIO. The
argument explicitly cited the pervasiveness of broadcasting as
the reason for this decision. The two questions that arise are
1) is online media a broadcast medium and 2) is the CDA the
"least restrictive means available?
EXAMPLES OF THE "CHILLING EFFECT"
What does this Act look like in action? We already have some
examples.
These all took place BEFORE the bill was even released from
committee:
1. Compuserve dropped 200 newsgroups related to sexual matters
claiming pressure exerted from German authorities that
"indecent" content violated certain laws. Claiming they could
not carve out only German users, all Compuserve users worldwide
lost access. Who chose which groups were to go? Compuserve.
What groups were included? The algorithm used to filter included
alt.*gay* and alt.*homosexual* resulting in the removal of 90%
of the homosexual newsgroups. This move affected 4 million
subscribers worldwide in 140 countries. Later reports show
Germany got a bum rap. It turns out that the only German role
was an inquiry from a Munich district attorney. The German
government has spoken out against any legislative means to
regulate the Internet and have faith that their existing laws
are suffcient to handle misconduct.
2. American On-Line censored the word "breast" in anticipation
of the CDA. (Personally, I believe this had to be an effort to
trigger an uproar. The AOL folks are simply smarter than that.)
3. New York State has passed a bill making Internet Service
Providers (ISPs) liable for content on their networks. The
language prohibits the "knowingy" "dissemination" of material
that depicts "actual or simulated nudity, [or] sexual conduct",
that is "harmful to minors" and is communicated to a minor
through a "computer communications systems". Bear in mind that
this does not discriminate against simple email use - all
traffic - Web pages, discussion groups and email are included.
The bill has not yet been signed. (Bill number S210/A3967 for
you New Yorkers)
4. The largest BBS in the world, Exec-PC closed down all its
X-rated file libraries without notice citing fear of the legal
system.
5. The full text of the Supreme Court's _FCC v. Pacifica_
decision is now online. It is this decision that
constitutionally defines "indecency". Due to the "indecent"
language included in this decision, the decision, itself, if
made publicly available, will be considered a crime punishable
by 2 years in prison and a $25,000 fine.
6. The CyberQueer Lounge, an ISP has been attempting to enlist
credit card services. After the credit services application was
signed, the credit card company insisted it be allowed to search
the premises of the QLounge for unacceptable materials. Certain
areas of the QLounge are restricted from the public by password.
The credit card company insisted it must be allowed to search
these areas before accepting the application and that the
discovery of unacceptable materials would be sufficient cause to
deny services. There was no mention in this requirement in any
of the application materials. All efforts to proceed both
legally and in cooperation with the credit card company have
failed to produce results.
THE ABORTION CONTROVERSY
The minute the Telecommunications Act of 1996 was signed, little
nasty surprises surfaced that finally got the attention of
Congress. A headline grabber highlighted the provision that
abortion related speech, specifically, would not be allowed on
the Internet. Rep. Pat Schroeder (D-CO) took up the cause and
chastened the Conference Committee for their attention to
technical details and totally sloppy work with regard to the
First Amendment. The problematic language is in Section 507 (
of S652) which extends the current provisions of the Comstock
Act, Section 1462 of title 18 of the U.S. Criminal Code..
"Whoever brings into the United States, or any place subject to
the jurisdiction thereof, or knowingly uses any express company
or other common carrier, or interactive computer service, as
defined in section 230(e)2 of the Communications Act of 1934,
for carriage in interstate of foreign commerce--
(a) any obscene, lewd, lascivious, or filthy book, pamphlet,
picture, motion-picture film, paper, letter, writing, print, or
other matter of indecent character; or (b) any obscene, lewd,
lascivious or filthy phonograph recording, electrical
transcription, or other article or thing capable of producing
sound; or (c) any drug, medicine, article, or thing designed,
adapted, or intended for producing abortion, or for any indecent
or immoral use; or any written or printed card, letter,
circular, book, pamphlet, advertisement, or notice of any kind
of information, directly or indirectly, where, how, or of whom,
or by what means any of such mentioned articles, matters, or
things may be obtained or made: ..."
This crime carries with it a 5 year prison term - 10 years for
subsequent offense.
Its champion was Rep. Henry Hyde (R-IL). He disavowed
intending that this cover all talk of abortion on the
Internet. Further examination of this subsection shows that
while it continues to exist on the books (since 1909) it has
not been used for 25 years. It is generally felt that it would
not fly if used in court, however, it has never been actually
ruled unconstitutional and the attention paid it in this 1996
legislation could conceivably breath new life into its viability.
Hyde and Rep. Nita Lowey (D-NY) performed a colliquouy or
scripted exchange on the floor intended to clarify that the
language did not intend to ban discussion of abortion..
Colliquouys are used to clarify legislators intent for the
record and the courts. Nevertheless, should Roe v. Wade ever be
overturned, this language will come back to life.
The good news is that our wise and caring legislators had to
backpedal furiously within days of this bill becoming law.
Let's not give up hope. Good old American common sense may
still prevail over this stupid bill.
ACTIONS TO CHALLENGE THE CDA
The ACLU, CPSR (Computer Professionals for Social
Responsibility), and 19 other plaintiffs have initiated a
lawsuit to challenge the constitutionality of the Communications
Decency Act (CDA). Holding a press conference immediately
after Clinton signed the bill, the ACLU announced that a lawsuit
had been filed in Philadelphia with Judge Ronald L. Buckwalter.
The lawsuit included a motion for a temporary restraining order
to prohibit enforcement of the CDA. Prosecuting CDA violations
is the province of the Justice Department, Janet Reno, Attorney
General.
The Government agreed not to enforce the "indecent" and
"patently offensive" provisions for 7 days. It did not agree,
however, to prosecute in the future for those materials
available during the 7 days. The Government did concede that the
abortion speech restriction were unconstitutional but so far
that concession is not in writing.
The ACLU attorney is Chris Hansen. The other plaintiffs in the
suit are AIDS Education Global Information Service, BiblioBytes,
ClariNet Communications Corp., Critical Path AIDS Project,
Electronic Frontier Foundation, Electronic Privacy Information
Center, Human Rights Watch, The Institute for Global
Communications, Journalism Education Association, Declan
McCullagh dba Justice on Campus, Brock Meeks dba CyberWire
Dispatch, National Writers Union, Planned Parenthood Federation
of American, Queer Resources Directory, Stop Prisoner Rape,
John Troyer dba Safer Sex Page, Jonathan Wallace dba The Ethical
Spectacle, Wildcat Press, YouthArts Project of Wildcat Press.
Pressure can be applied by all who care.
Call the Attorney General - 202-514-2001
Fax the Attorney General - 202-514-4371
Email the Attorney General - •••@••.•••
|
DoJ website - www.usdoj.gov
For updates check the ACLU website - www.aclu.org
To subscribe to the ACLU Cyber-Liberties Update, send to
•••@••.••• with the message subscribe cyber-liberties
Senator Patrick Leahy has submitted a bill on the Senate floor
to repeal the CDA. Citing all the public concerns from the
chilling effect on the most private of email messages to the
wide variety of "indecent" interpretations used world-wide, he
views the CDA as "using a meat cleaver to deal with the problems
better addressed with a scalpel."
The American Reporter, an online magazine, has taken on the
Government by publishing an "indecent" article, "The X-ON
Congress: Indecent Comment on an Indecent Subject" by former
judge and law professor, Steve Russell. It is currently seeking
injunctive relief from the Communications Decency Act but
prepared to do jail time on behalf of a free and independent
press. In an editorial, Joe Shea points out that "Indecency is
not the world of slaughter and depredation found in Bosnian war
crimes or the gluttonous hoarding of public money from the poor,
nor the vast poverty of spirit our entertainment industry
creates, and not the ugly deaths of children shot down in the
streets of New York, Chicago and Los Angeles."
Voter's Telecommunication Watch promoted a campaign to turn all
Web pages black for the 48 hours after the President signed S652
into law. The net responded with thousands of blackened pages
including that of Rep. Jerrold Nadler (D-NY).
TOBACCO AND ALCOHOL MONEY IN THE MIX
David Rothman reported that Sen. Jim Exon, originator of this
travesty, Sen. Bob Dole and 6 others ardently opposed to
"indecency" received $273,000 from the tobacco and alcohol
industries as of December 31, 1994. Dole received $75,500 for
his Senatorial campaign alone.
Imagine the take in an election year.
The other big recipients include Sen. Daniel Coats (R-IN), Sen.
Slade Gorton (R-WA), Sen Chuck Grassley (R-Iowa), Rep. Thomas
Bliley (R-VA), Rep. Robert Goodlatte (R-VA), and Rep. Henry Hyde
(R-IL).
CENSORSHIP AND COMMUNITY MEDIA
The Supreme Court has agreed to hear oral arguments on the issue
of the right of cable companies to censor the content of access
channels on February 21. The Alliance for Community Media issued
a press release explaining that "The Court is being asked to
rule on the constitutionality of Section 10 of the Cable Act of
1992 (Pub.L. No. 102-385), and rules promulgated thereunder.
These provisions would authorize a cable company to censor
programming on cable "leased access" channels that the company
believed to be "indecent" and programming on public,
educational, and governmental ("PEG") access channels, that the
company believed to contain "sexually explicit conduct, or
material soliciting or promoting unlawful conduct."
Free speech is a right enforced only against the activities of
federal, state, or local governments. Private individuals or
entities are not subject to constitutional review. The Alliance
will argue that if a statute authorizes a private entity to
engage in censorship then that authorization constitutes a
governmental action and is therefore subject to scrutiny.
Statutes based on content must be judged by the "strict
scrutiny" standard (prove a compelling state interest and the
least restrictive mean possible must be used). Judicial history
is on the side of the Alliance, as states have rarely been able
to prove a compelling state interest in censoring speech.
This case, if won by the Alliance, will apply to future cases
involving on-line communication and the role of service
providers in monitoring/censoring that information.
The Alliance can be contacted at 202-393-2650 or
•••@••.•••.
"We love our country more than we should, or we would not be so
hurt to see its blessing betrayed. Of all of those, none is
greater than the right to speak and write freely, and none is
more worth dying for.", Joe Shea, Editor, The American Reporter
PRECAUTIONS TO AVOID CRIMINAL LIABILITY
The Telecommunications Bill of 1996 gives the FCC the authority
to describe the precautions that can be taken to avoid criminal
liability. Since these have not been established - we can't
know for sure.
A brief submitted by the Computer Professionals for Social
Responsibility, however, lists several methods it might employ
on its Web site to protect the organization from breaking the
law.
1. Monitor all linking pages to the CPSR Website for indecent
content. Pages come from CPSR working groups as well as other
organizations.
2. Cull out any "indecent" passages in archived newsgroup and
listserv discussions.
3. Change listserv subscription systems to manual in order to
attempt to screen out minors.
4. Require listserv moderators to dispose of indecent posts.
5. Impose CPSR initiated control over discussion etiquette on
discussion lists.
6. Impose a fee for use of the CPSR online resources
(eliminating all those without credit)
7. Maintain two sites, one for minors, one for adults
8. Continually traverse all links to other Internet sites to
monitor them for "indecent" materials.
These precautions are obviously way beyond the means of an
organization such as CPSR where the huge bulk of program work is
done by volunteers. In fact, this kind of oversight would make
even wealthy corporation hesitant to support such a labor
intensive presence on the Net.
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Posted by Richard K. Moore - •••@••.••• - Wexford, Ireland
•••@••.••• | Cyberlib temporarily unavailable
•••@••.••• | http://www.cpsr.org/cpsr/nii/cyber-rights/
Materials may be reposted in their entirety for non-commercial use.
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