Here's a summary of the Exon Bill & status from the cyber-rights list. FYI.
-Richard
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Date: Wed, 28 Jun 1995 01:03:28 -0700
Sender: •••@••.•••
Subject: CDA FAQ and related posting [cr-95/6/27]
Here is an official document from Shabbir, of Voters Telecommunication
Watch, with information you'll find useful when talking to parents,
news reporters, etc.
Andy
========================================================================
CAMPAIGN TO STOP THE UNCONSTITUTIONAL EXON/GORTON/COATS
COMMUNICATIONS DECENCY ACT
(SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END)
FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT THE 1995
COMMUNICATIONS DECENCY ACT
June 27, 1995
PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT
REDISTRIBUTE ONLY UNTIL July 25, 1995
REPRODUCE THIS FAQ ONLY IN RELEVANT FORUMS
To get a copy of this document, please send mail to •••@••.•••
with a subject line of "send cdafaq" or check
URL:http://www.panix.com/vtw/exon/index.html or
via gopher at gopher.panix.com
__________________________________________________________________________
TABLE OF CONTENTS
Introduction
Brief analysis
Definitions
Myths surrounding the CDA
Typical questions asked by reporters
Bill chronology
Organizations opposing the CDA
Where you can go for more information
Credits
__________________________________________________________________________
INTRODUCTION
The following FAQ contains everything you need to know to argue about
the Communications Decency Act. The subtleties are easily lost on most
people who think they know these issues, so please take the time to
digest this information. Next time you get a call from a reporter, or
are asked to do a radio show, keep a copy of this handy.
Changes/additions/corrections should be sent to •••@••.•••.
__________________________________________________________________________
BRIEF ANALYSIS
The Communications Decency Act (CDA) is a poorly thought-out piece of
legislation intended to restrict the access of minors to indecent
and obscene material on the Internet.
It fails to meet those goals. It would, however, succeed in chilling
free speech such that public discussions would be diluted to the
level of that which is acceptable to children. Furthermore it's whole
approach is to treat computer communications as a broadcast medium,
which fails to take into account the unique possibilities for parental
control and "self-filtering" that are available to us in this medium.
Representatives Ron Wyden (D-OR) and Chris Cox (R-CA) are working on
legislation that's to be introduced soon to keep government regulation
out of cyberspace. The actual text of the legislation has not yet
been introduced, but early press reports from Cox and Wyden indicate
they're on the right track.
Please watch these newsgroups and subscribe to •••@••.•••
if you want to stay abreast of these issues.
__________________________________________________________________________
DEFINITIONS
It's important when arguing that you're familiar with the terminology.
This isn't an all-inclusive discussion of these issues; please refer
to the relevant caselaw for more information.
OBSCENITY
Obscene material was determined as not deserving of Constitutional
protection in _Miller_v._California_ (1973). In that decision,
the Supreme Court provided a three-part test for determining if
material was obscene.
1. Would the average person, applying contemporary standards of
the state or local community find that the work, taken as a
whole, appeals to the prurient interest?
2. Does the work depict or describe in a patently offensive way
sexual conduct specifically defined by the applicable state law?
3. Does the work lack serious literary, artistic, political, or
scientific value?
If a work satisfies all three of these tests, then a court may
determine it to be obscene. Notice that the three-part test above does
not specify which media the work might be viewed, created, transmitted
or stored in. This means that every time a new technology that allows
expression is invented, the laws governing obscenity are automatically
in force for it.
INDECENCY
Indecent material is sexually-explicit material which may be offensive
to some or may be considered by some to be inappropriate for children,
but which is protected by the First Amendment. In _Sable_Communications_
v._FCC_, the Court found that any regulation of indecent material must
use the "least intrusive means" for accomplishing the government's
goal of protecting children. The Court has stated that restrictions
on indecency cannot have the effect that they "reduce the adult population
to only what is fit for children."
Given the existence of software and hardware that enable parents to
block children's access to indecent material the regulation here does
not constitute the "least restrictive means" requirement set out by the
Supreme Court.
What are some examples of "indecent" content? The most famous example
probably is the George Carlin comedy monologue that was the basis of the
Supreme Court case _FCC_v._Pacifica_Foundation_ (1978). In that
monologue, Carlin discusses the "Seven Dirty Words" (i.e., certain profane
language) that cannot be uttered in broadcast media. Other examples of
"indecency" could include passages from John Updike or Erica Jong novels,
certain rock lyrics, and Dr. Ruth Westheimer's sexual-advice column.
Under the CDA, it would be criminal to "knowingly" publish such material
on the Internet unless children were affirmatively denied access to it.
It's as if the manager of a Barnes & Noble bookstore could be sent to
jail simply because children were able to wander the store's aisles and
search for the racy passages in a Judith Krantz or Harold Robbins novel.
LEWD/FILTHY/LASCIVIOUS EXPRESSION OR SPEECH
These are all also Constitutionally-protected expression, although
there currently exists no legal definition for what constitutes
this type of speech.
PORNOGRAPHY
Unless this is deemed as "obscene", this is Constitutionally protected
as well.
__________________________________________________________________________
MYTHS SURROUNDING THE (CDA) COMMUNICATIONS DECENCY ACT
M = Myth, R = Reality
CDA = the Communications Decency Act,
aka the Exon bill, the Exon/Gorton bill, the Exon/Coats bill
S 314, the Internet Censorship bill
MYTHS ABOUT EXPRESSION AND ONLINE SYSTEMS (SUCH AS THE INTERNET)
M: Obscene material is currently legal in electronic form. The CDA
is needed to bring electronic networks in line with telephone and
broadcast media.
R: Obscene material is already illegal in any medium, existing or in
the future. No new legislation is needed.
M: There's lot of ``dirty stuff'' on the Internet that's protected
because current law doesn't work there. The CDA would fix that.
R: Obscene material is already illegal on the net (or anywhere else).
There's nothing for the CDA to fix.
M: The government has the right to control all speech in any electronic
media through the FCC (Federal Communications Commission). They have
previously done the very same thing for television and radio. This
is just an extension to a new medium.
R: This is indeed a new medium. It is not a broadcast medium and should
not be treated like the broadcast mediums the FCC currently is allowed
to regulate. The government (and in particular the FCC) has only had
content control over two specific types of media:
(1) broadcasting media like TV and radio (and broadcasting-related
technologies, such as cable TV), and
(2) the narrow class of telephone-based commercial services that requires
the assistance and support of government-regulated common carriers.
(eg 900 chat lines)
In all other communications media, the government has no constitutional
authority to impose broad regulation of indecent content.
M: The CDA is just an extension of the already Constitutional "Dial-A-Porn"
statutes into this new medium.
R: The Dial-A-Porn statutes were specifically written for telephone
communications. They deal in a communications medium that is
specifically point-to-point. Online communication on the other hand
is many-to-many and cannot fit the same model. In particular, the
Dial-A-Porn statutes do not criminalize speech between two adults
in a non-commercial conversation, whereas the CDA does.
M: The only effect the CDA will have is to stop obscene material on the net.
R: Since the CDA would be a US law, and networks do not acknowledge
geographical borders, it is unlikely that the CDA will stop anyone
outside the US from sending lewd, lascivious, filthy, obscene, or
indecent information into networks that traverse the United States.
More importantly, the effect of the CDA will be to impose a chilling
effect on speech on the net, where only that which is appropriate for
children is acceptable in public. Any discussion of Shakespeare or
safe sex would not be allowable except in private areas, where someone
can be paid for the task of rigidly screening participants.
M: There's no way to control what my child can see, and I cannot be
bothered (nor am I capable) of monitoring them while they're using
the computer. This is the only way.
R: Several large service providers (such as America OnLine, Prodigy, and
Compuserve) have special areas specifically for kids on their systems.
In addition there are a growing number of products for restricting
access to the Internet. Software that filters all forms of Internet
content including World Wide Web, Gopher, News, and Email is already
available for some platforms.
M: The government is the best person to tell me what my child can see.
R: Parents are the best people to evaluate what they want their children
to see, whereas government censors are probably the least appropriate.
In _Wisconsin_v._Yoder_ (1972), the Supreme Court acknowledged that the
right of parents to determine what is appropriate for their children is
Constitutionally protected.
M: This will encourage other countries to extradite their citizenry back
to the US, if the citizen violates this law.
R: Non-US citizens will be theoretically liable if they commit any
element of the crime in the United States (e.g., if the indecent
content reaches a minor in the United States). Normally, this
theoretical liability won't translate into an actual attempt at
prosecution unless the defendant has a high Noriega Quotient. (There
has to be strong political pressure backing the prosecution.)
MYTHS ABOUT HARASSMENT
M: The CDA simply makes it illegal to harass another person electronically
("knowingly makes transmissions that are indecent or obscene with the
intent to threaten or harass another person")
R: Obscene or harassing speech which "threatens", is not Constitutionally
protected. However the CDA goes farther than that, prohibiting
lewd, lascivious, filthy, obscene, or indecent speech even when it
is intended to be ``annoying'' which is a Constitutionally-protected
form of speech.
For example, if you wrote a letter to your Senator about his or her
poor vote on the Exon bill, you might intend to annoy him.
MYTHS ABOUT LIABILITY OF SERVICE OR CONTENT PROVIDERS
M: The CDA makes each individual sysop responsible for the content they
carry and provide to their users. This is not unreasonable, as you
should be responsible for the material you store on your disks.
R: Even if a service provider took their entire staff and devoted them
to reading all the email, news forums, and chat forums, that provider
still could never be expected to keep up with the huge volume of
information that travels the Internet every day. It is unreasonable
to expect a service provider to be response for each piece of content
that travels through or onto its systems.
M: The CDA says you're liable only if you "knowingly transmit or
make available" this information to a minor. If you ask everyone
on your system their age, won't this keep you from being liable?
R: No, it is a reasonable assumption that someone might not be telling
you the truth. Simply asking age would not be strict enough measures.
M: I can claim I don't know the content of the stuff on the net, because
I can't possibly be required to read it all. Won't that protect me from
``knowingly' transmitting it to a minor?
R: No, Senator Exon said he's found lewd, lascivious, filthy, indecent, and
obscene material on the Internet during his investigation for the bill.
If a Senator has noticed this, then you, an Internet Service Provider,
should have too.
M: I don't actively send any data out, I simply leave it on a Web page
for people to pick up. Therefore neither I nor my service provider
are liable if a minor gets access to my web page and decides it
is lewd, lascivious, filthy, indecent, and obscene.
R: The statute clearly states that you are responsible if you "make
available" such information. You don't even have to be aware it is
being downloaded to be liable.
M: If I'm providing a Fidonet or netnews relay for someone else, and I
don't examine all the content, will I still be liable if someone
downstream from me provides indecent content (that I carried for
a time, however brief) to a minor?
R: Probably yes, though the statute leaves some room for interpretation.
__________________________________________________________________________
TYPICAL QUESTIONS ASKED BY REPORTERS
This section is currently being completed. Please be patient.
__________________________________________________________________________
BILL CHRONOLOGY
No more actions have been scheduled as of June 27, 1995.
Jun 21, '95 Several prominent House members publicly announce their
opposition to the CDA, including Rep. Newt Gingrich (R-GA),
Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR).
Jun 14, '95 The Senate passes the CDA as attached to the Telecomm
reform bill (S 652) by a vote of 84-16. The Leahy bill
(S 714) is not passd.
May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee
in the House with the Leahy alternative attached to it,
thanks to Rep. Ron Klink of (D-PA). The Communications
Decency Act is not attached to it.
Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to
the Exon/Gorton bill, which commissions the Dept. of
Justice to study the problem to see if additional legislation
(such as the CDA) is necessary.
Mar 23, '95 S314 amended and attached to the telecommunications reform
bill by Sen. Gorton (R-WA). Language provides some provider
protection, but continues to infringe upon email privacy
and free speech.
Feb 21, '95 HR1004 referred to the House Commerce and Judiciary committees
Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD)
Feb 1, '95 S314 referred to the Senate Commerce committee
Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA).
__________________________________________________________________________
ORGANIZATIONS OPPOSING THE CDA
In order to use the net more effectively, several organizations have
joined forces on a single Congressional net campaign to stop the
Communications Decency Act. The following list of groups are
coordinating to stop the Communications Decency Act.
American Civil Liberties Union * American Communication Association *
American Council for the Arts * Arts & Technology Society * Association
of Alternative Newsweeklies * biancaTroll productions * Californians
Against Censorship Together * Center For Democracy And Technology *
Centre for Democratic Communications * Center for Public Representation
* Citizen's Voice - New Zealand * Computer Communicators Association *
Computer Professionals for Social Responsibility * Cross Connection *
Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens'
Movement * Electronic Frontier Canada * Electronic Frontier Foundation
* Electronic Frontier Foundation - Austin * Electronic Frontiers
Australia * Electronic Frontiers Houston * Electronic Frontiers New
Hampshire * Electronic Privacy Information Center * Feminists For Free
Expression * First Amendment Teach-In * Florida Coalition Against
Censorship * Friendly Anti-Censorship Taskforce for Students * Hands
Off! The Net * Human Rights Watch * Inland Book Company * Inner Circle
Technologies, Inc. * Inst. for Global Communications * Internet
On-Ramp, Inc. * Joint Artists' and Music Promotions Political Action
Committee * The Libertarian Party * Marijuana Policy Project *
Metropolitan Data Networks Ltd. * MindVox * National Bicycle Greenway *
National Campaign for Freedom of Expression * National Coalition
Against Censorship * National Gay and Lesbian Task Force * National
Public Telecomputing Network * National Writers Union * Oregon Coast
RISC * Panix Public Access Internet * People for the American Way *
Rock Out Censorship * Society for Electronic Access * The Thing
International BBS Network * The WELL * Voters Telecommunications Watch
__________________________________________________________________________
WHERE YOU CAN GO FOR MORE INFORMATION
Web Sites
URL:http://www.panix.com/vtw/exon/
URL:http://epic.org/
URL:http://www.eff.org/pub/Alerts/
URL:http://www.cdt.org/cda.html
FTP Archives
URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH
URL:ftp://ftp.eff.org/pub/Alerts/
Gopher Archives:
URL:gopher://gopher.panix.com/11/vtw/exon
URL:gopher://gopher.eff.org/11/Alerts
Email:
•••@••.••• (put "send help" in the subject line)
•••@••.••• (General CDA information)
•••@••.••• (Current status of the CDA)
__________________________________________________________________________
CREDITS
Significant legal input came from Mike Godwin (•••@••.•••) and
Shari Steele (•••@••.•••) of the Electronic Frontier Foundation
and Jonah Seiger (•••@••.•••) and Danny Weitzner (•••@••.•••)
from the Center for Democracy and Technology.
Several coalition members contributed large amounts of text and
suggestions to the document, including Andy Oram (CPSR Cyber Rights
campaign), Bob Bickford (Libertarian Party), Anne Beeson (ACLU),
Steven Cherry (Voters Telecommunications Watch) and Stanton
McCandlish (EFF).
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Posted by -- Richard K. Moore -- •••@••.••• -- Wexford, Ireland.
Moderator: CYBERJOURNAL (@CPSR.ORG)
World Wide Web:
http://www.cs.virginia.edu/~hwh6k/public/cyber-rights.html
http://jasper.ora.com/andyo/cyber-rights/cyber-rights.html
FTP:
ftp://jasper.ora.com/pub/andyo/cyber-rights
You are encouraged to forward and cross-post messages and online
materials, for non-commercial use, pursuant to any contained copyright &
redistribution restrictions. For commercial re-use, contact the author.
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