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Citizens Internet Empowerment Coalition Trial Update No. 7
Evening Update - April 1, 1996 10:00 pm ET
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http://www.cdt.org/ciec/
ciec-info@cdt.org
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CIEC UPDATES intended for members of the Citizens Internet
Empowerment Coalition. CIEC Updates are written and edited by the
Center for Democracy and Technology (http://www.cdt.org). This
document may be reposted as long as it remains in total.
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** 30,000 Netizens Vs. U.S. Department of Justice. **
* The Fight To Save Free Speech Online *
Contents:
o Evening Update - Recap of Last Day of 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 Technology
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(1) EVENING UPDATE - RECAP OF FINAL DAY OF CIEC/ACLU TESTIMONY
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.
HOW IS THE CIEC CASE FAIRING?
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
unconstitutional.
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 Internet.
DOJ: DON'T WORRY, THE BILL AINT THAT BAD...
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 value.
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.
FOR MORE INFORMATION
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
http://www.cdt.org/ciec for more information.
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(2) SUMMARY OF TODAY'S TESTIMONY
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
atl.sex.bondage 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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2. Subscription Information
As CIEC members, you have been invited to join this list in order to
receive news updates and other information relevant to the CIEC challenge
to the Communications Decency Act.
If you ever want to remove yourself from this list, send email to
ciec-members-request@cdt.org
with 'unsubscribe ciec-members' in the SUBJECT LINE (w/o the 'quotes').
Leave the body of your message blank.
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3. For More Information
For more information on the CIEC challenge, including the text of the
complaint and other relevant materials:
* World Wide Web -- http://www.cdt.org/ciec/
* General Information about CIEC -- ciec-info@cdt.org
* Copy of the Complaint -- ciec-docs@cdt.org
* Specific Questions Regarding the
Coalition, incuding Press Inquiries -- ciec@cdt.org
* General information about the
Center for Democracy and Technology -- info@cdt.org
--
end ciec-update.7
4/1/96
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