cr> Perspectives on censorship


Richard Moore

Date: Wed, 21 Feb 1996
From: •••@••.••• (David S. Bennahum)
Subject: Re: confusing the term "public" with "broadcast media"

[This is extracted from a private correspondence.  David had been asked to
explain his categories of cyber usage.  -rkm]

By seeing cyberspace as a collection of different media, and not a single
thing, we can better address the real problems of certain kinds of content
on-line without a legislative sledgehammer.

In the next 10-20 years everything is going to move onto a world-wide
ubiquitous digital network.  The heirs of TV, Radio, telephony, Net access
-- all will travel through the same technical infrastructure.  So it seems
rather than legislating over the infrastructure as one entity (e.g. "the
Net") we should consider breaking up standards according to the degree the
service on the network is "public" or "private."  For instance, in 10
years, the heir of say NBC on-line, with super mind-share, seems to have a
different set of responsbilities than myself writing you a private e-mail.
I'm into this way of looking at things, because it might open new solutions
which better balance the needs of society and those of the individual in
cyberspace.  I'm curious to hear from more people what they think about
this idea.


  David S. Bennahum
  632 Broadway, 6th Floor
  New York, NY 10012
  Voice: 212-674-8107
  Fax  : 212-505-8520
 New York Magazine * Wired * The New York Times
         The Economist * Harper's Bazaar

Date: Tue, 20 Feb 1996
Sender: •••@••.•••
Subject: CDA and the Fourth Amendment

I have been spending some time thinking about the CDA, recently-enacted,
parallel state laws, and the U.S. Supreme Court's interpretation of the
Constitution.  I was struck by the following observations, and I was hoping
to find other observations from the subscribers to this list.

A great deal of the discussion, on this and other lists, about the
Telecommunications Reform Act has focused upon the First Amendment
infirmities of that law.  Pending litigation is focused on similar First
Amendment/censorship issues.  It strikes me as though the statute should
generate even more constitutional concerns:  "The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, . . . " is threatened.  (U.S. Const., amend. IV).

I realize that litigation on this issue is impossible now as no civil
plaintiff could vicariously raise the rights of a hypothetical criminal
defendant.  Nevertheless, enforcement of the Exon and Hyde additions to the
law appear impossible without bruising this essential right.  In short, how
can the government possibly initiate an investigation of an electronic mail
user without reading the mail?

It seems that a warrant must be issued to permit opening and examining
private communications.  To obtain a warrant, probable cause must be
established before a judicial officer.  How could an investigator establish
probable cause when the only fact in existence is that an individual has sent
an e-mail?  If that fact alone is sufficient, then local and federal
authorities possess a de facto ability to read ALL messages transmitted in
this medium.  (An extremely scary thought.)

I appologize for the lack of full development of these ideas, but I wanted to
post this early in order to read other comments.  Further, I realize that
resolution of these issues will probably take several years and that some
individuals will have to suffer prosecution and incarceration before the
federal courts have formulated a complete answer.  Nevertheless, it is
important that we remain cognizant, at this time, of all the threats to our
liberty that were signed into law earlier this month.

Matthew G. Zaleski, III

Date: Tue, 20 Feb 1996
Sender: John Whiting <•••@••.•••>
Subject: Monks and Martinets

There is a story which came down through my family of a
medical missionary in India who showed a Buddhist monk his
microscope, with which he proved that it was impossible for
him to take a drink of water without destroying life, which
was contrary to Buddhist teaching. The monk offered to buy
the microscope for such an enormous sum that the doctor
could not refuse. He then took it out into the courtyard and
smashed it.

The Internet is under attack for the same reason: it
demonstrates, contrary to political and economic dogma, that
it is possible for human beings around the planet to
communicate directly with each other without the services of
an intermediating hierarchy. As "elitist" as it is, relative
to the poverty of most of the world's population, it
nevertheless puts in touch with each other the enlightened
and conscience-directed dissidents among the establishment
who have always been the prime movers of revolution.

Those of us who wish to preserve the Internet as a means of
free and open communication must understand that it is
precisely this feature which makes it unacceptable to those
who believe that information, and therefore power, should
only travel downward. Authoritarians, whether political or
religious, will not be assuaged by appealing to the First
Amendment, which has always been high on their Hit List.
This is an even more fundamental motivation for central
control than the money which is to be made from collecting a
fee for every message that passes a tollbooth. There are
powerful forces whose intention it is that, in the long run,
the flow of information must not merely be taxed, but gated.

In the mean time, our hope lies in two quarters: the courts,
in which an ageing remnant of jurists keeps alight the tiny
flame of constitutional protection; and the Internet itself,
in which a guerrilla force of dedicated technicians fights
to keep one step ahead of the helicopters and the napalm.

John Whiting
Diatribal Press

Date: Wed, 21 Feb 1996
Sender: Robert Cannon <•••@••.•••>
Subject: Content Restrictions For Interactive Computer Netwroks Under

Hopefully the CDA will never be enforced.  However, many have asked what
their liability would be if the CDA survives constitutional scrutiny.  I
have drafted a WWW article entitled "Content Restrictions For Interactive
Computer Netwroks Under the Communications Decency Act" addressing this
subject.  I would be interested in comments on the draft.   It can be found


Robert Cannon, Esq.
Online and Interactive
Telecommunications Law
Washington, D.C.


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