cr> RECAP: Indecency trial testimony


Craig A. Johnson


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    Citizens Internet Empowerment Coalition Trial Update No. 7
              Evening Update -  April 1, 1996 10:00 pm ET
   CIEC UPDATES intended for members of the Citizens Internet
   Empowerment Coalition. CIEC Updates are written and edited by the
   Center for Democracy and Technology ( This
   document may be reposted as long as it remains in total.

          ** 30,000 Netizens Vs. U.S. Department of Justice. **
                 * The Fight To Save Free Speech Online *

  o Evening Update - Recap of Last Day o f CIEC/ACLU Testimony
      * How is the CIEC case fairing so far?
      * Preview of DOJ defense - Don't worry, CDA's not too broad.. *
      Summary of today's testimony
  o Subscription Information
  o More Information on CIEC and the Center for Democracy and


Testimony in the battle to overturn the Communications Decency Act
resumed Monday (4/1) before a three judge panel in the Philadelphia
federal court. Witnesses for the Citizens Internet Empowerment
Coalition and the ACLU gave the court an overview of the availability
of parental controls on Commercial Online Services and the further
illustrated the concerns of commercial and non commercial content
providers that the CDA threatens the free flow of information and the
free exchange of ideas online.

Witnesses testifying today included:

- Bill Burrington, Director of Public Policy for America Online (CIEC)
- Andrew Anker, CEO of HotWired Ventures Ltd. (CIEC) - Barry
Steinhardt, Associate Director, National ACLU (ACLU) - Howard
Rheingold, Author (ACLU) - Stephen Donaldson, President of Stop
Prisoner Rape (ACLU)

A summary of the testimony is included below.

Monday was the third and final day of testimony from Citizens Internet
Empowerment Coalition (CIEC) and ACLU witnesses. Testimony resumes on
April 12 and 15 when the Justice Department will call witnesses to
defend the constitutionality of the CDA. CIEC and ACLU lawyers will
have an opportunity to rebut the DOJ testimony during a final session
scheduled for April 26.


The first three days of testimony have established a solid record for
the basis of the legal challenge. The CIEC legal challenge to the CDA
is based on two arguments:

* The Internet is a unique communications technology, different from
  traditional broadcast mass-media, and

* The content regulations imposed by the CDA are not the "least
  restrictive means" of protecting children online, and is therefor

The court has heard testimony from Internet businesses, access
providers, and Libraries, and commercial and non commercial content
providers describing the nature of the Internet and how it functions
(including a live demonstration of the Net and parental control
technologies), as well as numerous examples of constitutionally
protected materials which would be prohibited under the CDA.  The
Judges, while giving little indication of their positions, are asking
numerous questions and appear to have taken a keen interest in the


After 3 days of hearings and cross examination by Justice Department
attorneys, a picture of the government's strategy for defending the
CDA is beginning to emerge. Although we will learn much more when
testimony resumes on April 12, the government appears to be arguing
that CDA will restrict only the most extreme sexually explicit
material, and that the defenses to prosecution are broad and do not
place undue burdens on content providers. In other words, the terms
"indecent" and "patently offensive" should be construed narrowly, and
the defenses construed broadly.

Under this argument, the government appears to be overlooking several
fundamental aspects of past indecency cases and the actual language of
the CDA.  In past indecency cases, including the Pacifica case which
the authors of the CDA cite as precedent for the legislation, the term
"indecent" has been read very broadly to prohibit material even if it
has redeeming social, literary, educational, or scientific value. In
addition, during the debate on the CDA, Congress explicitly rejected
the "harmful to minors" standard, which includes a test for redeeming

The government also appears to be arguing for a broad interpretation
of the CDA's defenses.  The defenses available under the CDA provide
immunity for content provides who take "good faith, reasonable steps",
including adult access codes or credit card verification, to restrict
minors access to "indecent" material.  Throughout the course of the
testimony, the DOJ has asked questions of witnesses implying that
implementing PICS standards or other HTML tags would be relatively
easy for content providers, suggesting that they believe content
labeling would be a "good faith" defense under the CDA.  Here again
however, it is important to note that the House/Senate Conference
committee rejected parts of the White amendment which would have
created a more explicit defense for content labeling.


CDT will continue to provide updates on the case when testimony
resumes on April 12.  In addition, transcripts of the first 3 days of
testimony will be available on CDT's web page later this week. Please
continue to visit for more information.



Bill Burrington, Director of Public Policy for America Online, told
the Court that while AOL can and does exert some control over content
on its on network, it is impossible for service providers to control
content on the global Internet.  Testifying both on behalf of AOL as
well as the entire commercial online services industry (including
Compuserve, Prodigy, Microsoft Network, etc.), Burrington stated that
while some online material may be inappropriate for children, "...
effective protection of children from exposure to inappropriate
material can only occur at the level of individual users".

Burrington outlined the various parental control measures available on
commercial online services.  On America Online, parents have the
ability to restrict their children's access to Usenet newsgroups,
binary downloads, chat rooms, and other features of the service. He
also argued that the "indecency" restrictions imposed by the CDA will
effectively ban constitutionally protected speech for adults and
reduce online-speech to information and discourse only appropriate for
children.  Burrington argued that fear of criminal liability under the
CDA could motivate AOL to remove health related information, online
forums, and other content from the service.

HotWired CEO Andrew Anker testified that some of the material
available on HotWired, including a recent stories on the poet Allen
Ginsburg and the newsgroup could be considered
"indecent", but that it would be impossible and extremely expensive
for the company to verify the age of every visitor to the site. In
response to a question from the Justice Department, Anker stated, "I
don't understand what indecent and patently offensive mean, or what
community's standards apply".  As a result, Anker stated, HotWired
fears criminal liability under the Communications Decency Act.

Stephen Donaldson of Stop Prisoner Rape, a group dedicated to
educating the public about prison rape and helping victims recover,
testified that because some of the content on his World Wide Web site
uses sometimes explicit images and "street language" to describe
prison conditions, he fears criminal liability under the CDA.

Similarly, Barry Steinhardt of the ACLU testified that some of the
material on the ACLU's web site, including the '7-dirty words' in the
text of the Pacifica Decision, and because the ACLU hosts chat
sessions on America Online, the ACLU could face huge fines and prison
terms unless it censors itself and its members. When asked if he felt
that the text of the bible or Shakespeare's Hamlet could be considered
"indecent" under the CDA, Steinhardt argued that community standards
vary throughout the United States and that in some places, "That kind
of material ... has been the subject of censorship" in parts of the
US, and "there are many people who regard that material as Indecent."

Howard Rheingold, author and expert on the subject of Cyberspace
Communities, described some of the many benefits the online world can
bring to education and a sense of community.  Rheingold argued that,
although it is technically possible to restrict minor's access to MUDs
and MUSEs, it is difficult to determine what material should be would
be illegal under the CDA.


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