cj950629> CDA FAQ

1995-06-29

Richard Moore

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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