"Congress shall make no law...abridging the freedom of speech"
As the communications Decency Act works its way through court,
Time magazine's article is being cited in defense of the legislation.
One of the trial's plaintiffs is forwarding updates as part of the "work the network" campaign distributing information on the fight against the law. In the dispatch below, the plaintiff reveals the Department of Justice plans to lean heavily on the statistically invalid pornography study which Time's article popularized.
"Thank you, Time magazine", said the counsel opposing the law. An article in Eyenet magazine examines the connection between the law's court challenge and Time's article.
Updates by the plaintiff are posted regularly at the following URL's.
http://fight-censorship.dementia.org/top/
http://fight-censorship.dementia.org/top/
http://fight-censorship.dementia.org/top/
This page was last updated April 15.
From telstar@wired.comThu Apr 11 22:32:50 1996
Date: Wed, 10 Apr 1996 09:31:30 -0800
From: telstar@wired.com
To: telstar@wired.com
Subject: LAWSUIT: Update Report, 4/9/96
Greetings and good cheer,
Things have been relatively quiet on the CDA front this week, as everybody
is busy preparing for the hearings in Philadelphia that begin on April 12.
During the next few court sessions, the Department of Justice will begin
presenting witnesses in an effort to demonstrate that the Communications
Decency Act is a fine piece of legislation whichwill effectively shield
minors from "indecent" material on the Internet.
What a farce. Too bad the DoJ is having such a good laugh at the expense
of the First Amendment.
Of course, we'll bring you gavel-to-gavel coverage of these hearings once
they resume.
And in the meantime...
Declan McCullagh -- our esteemed scholar, statesman, fashion consultant,
plaintiff in the ACLU case, and intrepid reporter -- has put together
another excellent update on the current situation.
In this installment.... Declan tells us about a new (and rather bizarre)
lawsuit that has been filed in opposition to the Communications Decency
Act; profiles Department of Justice lawyer Jason Baron; shows us where to
find Mr. Baron's favorite Net porn pix on the Internet; and resolves the
Mystery of the Man in Grey Flannel Suit.
(PUBLIC SERVICE WARNING: Declan's report contains explicit language,
graphic depictions of sexual acts, and several computer-related acronyms.)
Work the network!
--Todd Lappin-->
Section Editor
WIRED Magazine
=============================================================================
-----------------------------------------------------------------------------
The CDA Challenge, Update #5
-----------------------------------------------------------------------------
By Declan McCullagh / declan@well.com / Redistribute freely
-----------------------------------------------------------------------------
In this update: Yet Another CDA Lawsuit: Fred Cherry v. Janet Reno
Deception and deceit from DoJ's Jason Baron
URLs for the DoJ's dirty picture list
The true identity of Grey Flannel Suit
April 9, 1996
PITTSBURGH, PA -- Fred Cherry wants a Federal court to uphold his
right to flame.
Lambasting "homonazis" on USENET is his inalienable right under the
First Amendment, argues the notorious netizen in his anti-CDA lawsuit
filed yesterday in New York City on behalf of "Johns and Call Girls
United Against Repression, Inc."
Cherry's beef with the law is that under its ban on "indecency," when
he gets flamed by "Australian homosexual nazis" he won't be able to
flame back. His complaint charges that his "Australian opponent will
have MORE freedom of speech" than he does -- unless the CDA is struck
down.
The self-taught amateur lawyer attached 20 pages of net.flamage as his
sole exhibit. One example that was spammed all the way from soc.men to
alt.christnet.second-coming.real-soon-now: "Your ass is so blocked up
that you do need some therapeutic relief for your constipation -- a
condition which has backlogged all the shit right back up into your
head, Fred."
The indefatigable Cherry replied:
So, ramming a huge dick up my ass would be a therapeutic measure,
would it? You homos are the chief cause of AIDS in the United
States with your huge dicks being rammed up each other's asses. And
then you homos go around whining that the government isn't doing
enough to find a cure for AIDS. [12/22/95]
Ya gotta love this guy. He sent me mail describing his legal strategy,
concluding: "Can anyone deny that I am indeed the greatest amateur
lawyer since Caryl Chessman?" Of course Chessman -- California's "Red
Light Bandit" rapist -- was executed in 1960, his jailhouse lawyering
failing him in the end.
Cherry's lawsuit was easy to prepare. He grabbed the ACLU's complaint
from their web site, printed it out, added a few grafs about his
net.nazi adversaries, and trotted off to Federal court. When Cherry
filed his suit, which he's moved from Brooklyn to Federal court in
Manhattan, he wrote:
I am primarily a political activist, working for the repeal of laws
criminalizing adult prostitution and the patronizing of adult
prostitutes. Over the past thirty years I have found that, in the
United States, homosexuals are the worst enemies of the civil
rights of women prostitutes and their male clients.
The Cherry v. Reno case, refiled at docket number 96 Civ. 2498, most
likely will be consolidated with the American Reporter case, which is
also moving forward in the U.S. Second Circuit Court of Appeals.
A.R. editor Joe Shea will probably fight it. Shea refused to join our
lawsuit because he can't stand the ACLU and wants to do his own thing,
so he'll probably try to keep Cherry's case from being joined with
his. In fact, he accused the ACLU of putting Cherry up to it.
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
I would never have suspected the DoJ attorneys of trying to deceive
Federal judges, but now I wonder.
The DoJer I've had the most contact with is Jason Baron, a short,
portly guy who tries to land roundhouse punches during
cross-examination but instead keeps slipping up on technical terms. He
also wrote the Justice Department's reply to our initial complaint. In
that brief, the Civil Division lawyer uncritically cited Marty Rimm's
cyberporn study -- featured last summer on the cover of TIME magazine
-- as an authoritative reference on net.smut:
This article describes material located primarily on USENET
newsgroups, i. at 1865-76, and on adult commercial bulletin boards
(BBS), i. at 1876-1905. Defendants offer this as an initial reference
of the availability and nature of obscene and indecent material from
some on-line sources, such as USENET and BBS. [sic]
Maybe Baron thought nobody would notice. But there's no excuse for not
knowing that the study was deliberately fraudulent: The New York Times
printed an editorial exposing it; Rimm's connections with "family
values" groups have come to light; Donna Hoffman and I run extensive
web sites debunking the study; Carnegie Mellon University claims to be
investigating the ethical misdeeds of their former undergraduate.
Even attorneys who used to work within Baron's division of the Justice
Department complain that Baron deliberately foisted this fraud off on
Federal judges:
I'm embarrassed... They should have mentioned that the "study" came
under heavy critical fire almost immediately upon release. I trust
the opposition will make hay of this omission. In this context, this
"study" is not just another controversial report, but one whose
provenance is well known to be in doubt among the relevant actors.
That much should have been ackowledged in the quoted footnote, at
least along the lines of, "While the methodology of this study has
been challenged, defendants believe it to represent..." etc. [4/7/96]
By citing this study and appending its complete text without informing
the court that it was a hoax, Baron revealed the impoverished ethics
of the Justice Department. Interestingly, the Code of Professional
Responsibility and the Rules of Professional Conduct make it a
disciplinable offense for a lawyer to "knowingly use perjured
testimony or false evidence." Under Title 11, attorneys can be
sanctioned for introducing false evidence.
Perhaps we shouldn't be too surprised by all this. After all, Baron is
the same attorney who confuses EFF with IETF -- not to mention his
additional duties as the DoJ's courtroom-cop. Recall that when I was
asking the mysterious Grey Flannel Suit a question, Baron came over
and interrupted us. Now I've learned that he's threatening to report
me to "higher authorities" if I talk to his witnesses again. (!)
Yeah, Grey Flannel Suit is going to take the stand. He's none other
than the DoJ's cybersexpert witness -- Special Agent Howard A.
Schmidt from the Air Force Office of Special Investigations.
Guess that explains why Baron was so desperate to keep me from talking
with him the other day.
Baron's authoritarian streak showed again during the March 21 hearing,
when I joined some members of the press in paging through the ACLU's
copy of the DoJ's dirty pictures binder. Baron charged over and
snatched it away, snarling: "Not available to the public." Well, the
URLs ended up in my mailbox anyway, so here they are for your
amusement:
http://www.pu55y.com/hotsex/join.html
http://shack.bianca.com/shack/misc/terms.html
http://www.intergate.net/untmi/obbs1.html
http://www.whitman.edu/~burkotwt/pornpics/lady941.jpg
http://www.wizard.com/~gl944vx/gifs/01_21.jpg
http://www.vegaslive.com/sgguests/ginger.html
news:4hrs89k%24oap@what.why.net
http://monkey.hooked.net/monkey/m/grinder/nikkita/graphics/nikki36.jpg
news:313F56FD.3F19@access.mountain.net
news:4hb94m%24sij@asp.erinet.com
http://www.sexvision.com/web2.htm
news:314048f.1657746@news.netwalk.com
The DoJ has full-color printouts of these images, which are sexually
explicit but *not* obscene -- Baron wanted to remind the court that
placing these JPEGs online publicly would not be a criminal act
without the CDA.
For someone who's defending a ban on smutty stuff on the Net, Baron is
surprisingly embarrassed to talk about it. Vanderbilt Professor Donna
Hoffman reports:
[Baron] deposed me for over 7 hours, beginning on a Monday morning
at 9am. The most interesting part of the deposition was when he
brought out several large binders and started going through some of
the material in them and looking increasingly uncomfortable.
Eventually, he spoke and started to apologize saying he might have
to show me some materials and his New England background made him
feel uncomfortable about it.
He honestly was squirming and sweating a bit and then, after a brief
lunch, we resumed and he did eventually show me some materials, but
they were not surprising or of the type that I would have thought
would make him squirm like that.
I did wonder if it was some sort of "act," but he seemed genuinely
embarassed. In hindsight, I wonder if it was because I am a woman and
that was really the part that made the idea of showing me sexually
explicit materials uncomfortable for him.
I guess that Baron is a true "gentleman" who believes that certain
topics like dirty pictures are unmentionable in mixed company.
Avoiding embarrassment is just another reason to censor the stuff!
On April 12, Grey Flannel Suit (aka Special Agent Schmidt) will take
the stand and snarf around the net for dirty pix. He'll be followed by
our last witness, MIT's Albert Vezza, and then BYU/CMU's Dan Olsen.
Stay tuned for more reports.
-----------------------------------------------------------------------------
We're back in court on 4/12, possibly 4/15, 4/26 for rebuttal, and 6/3
for closing arguments.
Mentioned in this CDA update:
DoJ's brief citing Marty Rimm's cyberporn study:
<http://www.law.miami.edu/~froomkin/seminar/ACLU-Reno-TRO-Justice-brief.htm>
Text of complaint from Fred Cherry v. Janet Reno:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2108>
Flamewar attached as exhibit to Fred Cherry v. Janet Reno:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2109>
Fred Cherry's reasons why he filed his lawsuit:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=1911>
Relevant excerpt from Fred Cherry's original complaint:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=1891>
Rimm ethics critique <http://www.cs.cmu.edu/~declan/rimm/>
Censorship at CMU <http://joc.mit.edu/>
The American Reporter <http://www.newshare.com/Reporter/today.html>
Grey Flannel Suit
Previous cases DoJer Jason Baron worked on:
<http://www.eff.org/pub/Legal/Cases/Armstrong_v_President/>
<http://snyside.sunnyside.com/cpsr/government_info/info_access/PROFS_CASE/>
Joe Shea's complaints about ACLU wanting to "stand alone in the limelight":
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2014>
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2036>
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2037>
This report and previous CDA Updates are available at:
<http://www.epic.org/free_speech/censorship/lawsuit/>
<http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/>
<http://fight-censorship.dementia.org/top/>
To subscribe to the fight-censorship mailing list for future CDA
updates and related net.censorship discussions, send "subscribe" in
the body of a message addressed to:
fight-censorship-request@andrew.cmu.edu
Other relevant web sites:
<http://www.eff.org/>
<http://www.aclu.org/>
<http://www.cdt.org/>
###
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution list providing
up-to-the-minute bulletins and background on efforts to overturn the
Communications Decency Act. To subscribe, send email to
<majordomo@wired.com> with "subscribe cda-bulletin" in the message body.
WARNING: This is not a test! WARNING: This is not a drill!
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
======================================================
ACLU v. RENO: TRIAL UPDATE
* 1st Government Witness Acknowledges Difficulty in Finding Sexually
Explicit Material Online
* 2nd Government Witness Returns Monday to Conclude Testimony
* Plaintiffs have option to rebut government case Monday
FOR IMMEDIATE RELEASE
Friday, April 12, 1996
PHILADELPHIA -- Testifying for the government today, Special Agent Howard A.
Schmidt acknowledged, in answer to skeptical questioning by a three-judge
panel, that it is "highly unlikely" for anyone to come across sexually
explicit sites on the Internet by accident.
As the first witness for the government, Agent Schmidt began the morning with
a live Internet tour and demonstration of a search for so-called indecency.
The demonstration stopped short of actually displaying any of the images,
but traced for the court the route by which Schmidt arrived at various web
sites.
Schmidt acknowledged -- under cross-examination -- that majority of the sites
he found would have been off limits had he been running a software program
such as SurfWatch, that blocks access to Internet sites considered
inappropriate for children.
Marjorie Heins, who conducted cross-examination for the ACLU, noted that
Agent Schmidt's expertise -- and the government's case -- lies in focusing on
a very narrow category of sexual material, much of which is already covered
by existing obscenity law.
"In today's testimony, the government attempted to divert the court's
attention from the serious concerns of our plaintiffs by focusing on material
that is highly inflammatory and largely irrelevant to this case," Heins said.
The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge provisions of
the Communications Decency Act that criminalize making available to minors
"indecent" or "patently offensive" speech.
Under questioning by the judges, Agent Schmidt was asked how he would enforce
the censorship law when confronted with a safe-sex information web-site that
displayed an image illustrating how to put a condom on an erect penis.
Agent Schmidt said that since the context was "educational, not purely for
pleasure purposes," he would not censor the site but advise the publishers to
post warnings.
His answer was different when asked how he would rate an online copy of the
controversial Vanity Fair magazine cover featuring the actress Demi Moore,
nearly naked and eight months pregnant.
In that case, Schmidt said, the Communications Decency Act would apply
because the image was "for fun." He also said, in answer to a query from
Judge Stuart Dalzell, that the community standard as to the offensive of the
image might be different for Minnesota than it would for New York.
"It is ironic that, according to the government, an explicit online image of
an erect penis in an educational context would be acceptable, whereas Vanity
Fair, a constitutionally protected publication containing a much less
explicit image, would be censored," Heins said.
Following Agent Schmidt's testimony, the final plaintiff witness, Dr. Albert
Vezza, told the judges about PICS (Platform for Internet Content Selection),
a new rating system designed to allow parents to control children's access to
the Internet without censorship.
Dr. Vezza is associate director of the MIT Laboratory for Computer Sciences
and has chief responsibility for the PICS project. He was unable to testify
earlier in the case due to scheduling conflicts.
Dr. Vezza said he expected that wide industry acceptance of the PICS standard
would enable any number of "third-party" organizations such as the PTA, the
Christian Coalition or the Boy Scouts of America to rate content for Internet
users.
The second and final government witness, Dr. Dan Olsen, a professor of
computer science at Brigham Young University, took the stand in the
mid-afternoon.
Dr. Olsen acknowledged that the PICS standard would allow parents to control
their children's Internet viewing according to their own values or via a
rating system devised by a trusted organization.
He also acknowledged that a system he had conceived in which Internet sites
must be labelled by the content originator, would not allow for such an
independent rating scheme.
While plaintiff lawyers completed cross-examination of Dr. Olsen today, he
will return on Monday for redirect by government lawyers and to answer any
questions the judges may have.
It is now anticipated that Monday, April 15, will be the last day of trial in
ACLU v Reno. Plaintiff lawyers will have the opportunity on Monday (instead
of April 26) to call witnesses to rebut the governments's testimony.
However, the ACLU and ALA coalitions did not indicate which witnesses, if
any they would call.
Because the April 26 rebuttal day is no longer necessary, the next date in
court is set for June 3, when the three-judge panel will hear oral arguments
from both plaintiffs and defendants.
The judges are expected to issue a ruling some time in the weeks following.
Under expedited provisions, any appeal on rulings regarding the new
censorship law will be made directly to the U.S. Supreme Court.
Lawyers for the ACLU appearing before the judges are Christopher Hansen,
Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of
Pennsylvania.
###
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution list providing
up-to-the-minute bulletins and background on efforts to overturn the
Communications Decency Act. To subscribe, send email to
<majordomo@wired.com> with "subscribe cda-bulletin" in the message body.
WARNING: This is not a test WARNING: This is not a drill
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
==================================================================
-----------------------------------------------------------------
_______ _ _ ____ _ _ _ _
|__ __| (_) | | | _ \ | | | | | (_)
| |_ __ _ __ _| | | |_) |_ _| | | ___| |_ _ _ __
| | '__| |/ _` | | | _ <| | | | | |/ _ \ __| | '_ \
| | | | | (_| | | | |_) | |_| | | | __/ |_| | | | |
|_|_| |_|\__,_|_| |____/ \__,_|_|_|\___|\__|_|_| |_|
Citizens Internet Empowerment Coalition Trial Update No. 10
Pre-Trial Update - April 15, 1996 6:30 pm ET
-----------------------------------------------------------------
http://www.cdt.org/ciec/
ciec-info@cdt.org
-----------------------------------------------------------------
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.
------------------------------------------------------------------
** 40,000 Netizens Vs. U.S. Department of Justice. **
* The Fight To Save Free Speech Online *
Contents:
o Testimony Concludes in CDA Legal Challenge
* Government Only Calls Two Witnesses
* Closing Arguments Set for May 10
o More Information on CIEC and the Center for Democracy and Technology
----------------------------------------------------------------------
(1) TESTIMONY ENDS IN COURT BATTLE TO OVERTURN THE CDA - CLOSING ARGUMENTS SET
FOR MAY 10
Hearings ended today in the constitutional challenge to the Communications
Decency Act with the cross-examination of government witness Dan Olsen. The
court also announced today that closing arguments in this landmark case
will be heard on May 10 (the hearing had originally been scheduled for June
3).
Dan Olsen, Chair of the Department of Computer Science Brigham Young
University, testified on Friday April 12 about a scheme he developed two
weeks ago for rating sexually-explicit content on the Internet. Olsen's
proposal would require content providers to label their sites with an
"-L18" tag if the site contains sexually oriented material. During cross
examination on Friday and again today, CIEC and ACLU lawyers criticized
Olsen's proposal as inflexible and extremely difficult to implement.
All three judges presiding over the case -- Dolores Sloviter, chief judge
of the U.S. Third Circuit Court of Appeals, and the U.S. District Judges
Stewart Dalzell and Ronald Buckwalter -- questioned Olsen for almost 45
minutes about his proposal, and seemed unconvinced by his presentation.
At one point, Judge Sloviter asked, "I am wondering if whether in essence
your scheme requires some material to be blocked in advance, and if you can
think of any time in our history when we have blocked material in advance
in an organized fashion?"
Olsen replied that he believed newspaper editors did this routinely. In
response to another question from Judge Sloviter, Olsen admitted his plan
would "make it easier for the government to censor material" on the
Internet if it one day chose to do so directly.
GOVERNMENT RESTS ITS CASE AFTER CALLING ONLY TWO WITNESSES
The government rested its case today after calling only two witnesses in
defense of the Communications Decency Act. The CIEC and ACLU cases called
a total of 13 witnesses. Interestingly, over two days of hearings, neither
witness offered testimony explicitly defending the CDA as written. Instead,
the testimony appeared designed to convince the court that the CDA is
narrowly drawn and therefore satisfies the "least restrictive means" test.
In short, the government witnesses testified:
* That sexually explicit material is available to minors on the Internet
(a claim that neither the CIEC nor the ACLU challenges dispute).
* Requiring content providers to label content will prevent minors from
accessing sexually explicit material on the Internet.
CIEC and ACLU attorneys argue that the content labeling scheme proposed by
Olsen is would not be a "good faith defense" under the CDA, and is
therefore irrelevant, and that the Government has not proven that the
Communications Decency Act is the "least restrictive means" of protecting
children from inappropriate material on the Internet.
Speaking to reporters at the end of today's hearing, CIEC lead attorney
Bruce Ennis summarized the last two days of testimony by saying, " ... in
the final analysis parents have the ability and the technology to control
what kids see ... without reducing all content on the Internet to the level
appropriate for an eight-year-old." Ennis added, "This law is
unconstitutional."
CLOSING ARGUMENTS SET FOR MAY 10
On May 10, the plaintiffs and the government will each present two hours of
closing arguments. A decision is expected from the three judge panel in
mid-June. Any appeal of the ruling will be made directly to the Supreme
Court under expedited review provisions of the Telecommunications Reform
Act.
For more information, including the text of the transcripts from the first
3 days of testimony (remaining tow days will be posted soon), the text of
the complaint, and information on how you can join this historic legal
battle, visit the CIEC World Wide Web page at:
http://www.cdt.org/ciec/
-----------------------------------------------------------------------
(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
###
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
This transmission was brought to you by....
THE CDA INFORMATION NETWORK
The CDA Information Network is a moderated distribution list providing
up-to-the-minute bulletins and background on efforts to overturn the
Communications Decency Act. To subscribe, send email to
with "subscribe cda-bulletin" in the message body.
WARNING: This is not a test! WARNING: This is not a drill!
+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+-
-----------------------------------------------------------------------------
The CDA Challenge, Update #7
-----------------------------------------------------------------------------
By Declan McCullagh / declan@well.com / Courtesy of The Netly News
-----------------------------------------------------------------------------
In this update: Ducks on the Net!
More on BYU's Dan Olsen's censorhappy boondoggle
Grey Flannel Suit wears Blue Pinstripe, surfs for porn
April 15, 1996
PHILADELPHIA -- Ducks were a hit at the most recent Communications
Decency Act hearing in Philadelphia's Federal court.
Yes, ducks.
Last Friday the Department of Justice's cybersleaze expert took the
stand to show how easily children can stumble across online porn --
but the three-judge panel limited his demonstration to G-rated GIFs
that he sucked down from alt.binaries.pictures.animals. (The judges
already had hundreds of pages of dirty downloads in large black
binders, courtesy of the Feds.)
After the second or third image of waterfowl cartoons, Judge Stewart
Dalzell said: "I'm sure we can agree that this is a cute duck." U.S.
Third Circuit Court of Appeals Chief Judge Dolores Sloviter ruled: "I
think we've seen enough of the ducks."
Justice Department attorneys had reserved the day to defend the
constitutionality of the CDA, arguing that the criminal provisions of
the law and a system to label sexually-explicit materials combine to
form the best way to prevent children from stumbling across cyberporn.
Key to the DoJ strategy was the testimony of Dan Olsen, Jr., their pet
censorhappy toady from Brigham Young University who testified that to
comply with the CDA, everyone who uses "indecent" speech should label
it as "-L18," meaning unsuitable for those less than 18 years old.
An intense cross examination by the ALA/CIEC's Bruce Ennis forced the
BYU computer scientist to admit that his proposal has fatal problems:
* Web browsers, IRC clients, newsreaders, and even the telnet
application must be rewritten to recognize the "-L18" string.
* Everyone who posts or publishes "indecent" materials must comply,
including folks overseas.
* "-L18" relies on the poster or publisher to decide what is
"decent" or not -- unlike PICS, which our witness testified allows
third parties to rate content, including non-U.S. material.
On the fight-censorship mailing list, online activist Carl Kadie
has pointed out why Olsen's plan is unconstitutional:
1. "The Government generally can not compel speech (including self-labels)"
2. "It would restrict 17-year olds to material suitable for 5-year olds."
Given the braindead nature of Olsen's scheme, it's not surprising that
he has no expertise in protocol design or distributed computing
environments like the Internet. He also admitted during
cross-examination that he invented the "-L18" boondoggle in the last
two weeks and was unaware that similar proposals like "KidCode"
already exist.
An odd mix of prudish themes and Orwellian overtones laced his
testimony. Olsen, the incoming director of the Human Computer
Interaction Institute at Carnegie Mellon University, testified that he
found both Playboy centerfolds and "the seven dirty words" patently
offensive. (He'll fit in nicely at his new job. CMU still bans the
alt.binaries.pictures.erotica.* hierarchy from campus computers.)
When asked if a list of URLs looked like a bunch of porn sites, Olsen
hesitated: "I don't know, but I wouldn't go there."
Judge Dalzell interrupted: "The 'Chick of the Day' could be poultry!"
Judge Sloviter said: "Are you sure it isn't a duck?"
In response to Bruce Ennis' question about how ISPs can check the ages
of their users, Olsen replied: "The only people who might have this
would be the Social Security Administration. I'm sure they have that
information."
So Olsen proposes that the _Social Security Administration_ would
control who is allowed to access to the Net?
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
GREY FLANNEL SUIT SURFS NET FOR PORN, WEARS BLUE PINSTRIPE
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
The DoJ's net.sex expert who testified in the morning was Grey Flannel
Suit -- AKA Howard Schmidt, Special Agent, Director of the Air Force
Office of Special Investigations, Computer Crime Investigations.
Schmidt started surfing the Net to show how easily a child could
stumble across cyberporn. His smooth demonstration was interrupted
when ALA/CIEC attorney Ann Kappler pressed for details and Schmidt
reluctantly allowed that he had run his initial searches without
SurfWatch activated. Schmidt admitted: "SurfWatch would not have
allowed the search." He also had typed in URLs from the paper copy of
Playboy Magazine -- which children are prevented from buying.
Kappler told me over lunch: "He left himself wide open." The judges
seemed to agree.
No matter what our Philly panel decides, this case is headed for the
Supreme Court. Today is the last day of our hearing, followed by
closing arguments on June 3. [As of late 4/15, this has been
rescheduled to 5/10. -DBM] Then the three-judge panel will issue an
opinion by the end of the summer. The losing side will appeal to the
Supreme Court, which returns from summer recess on October 7.
Stay tuned for more reports.
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We're back in court 4/15 for the last day of the hearing and 5/10 for
closing arguments. The 4/26 date is no longer necessary since we
finished a day early.
Mentioned in this CDA update:
Carl Kadie's note on how Olsen's plan is unconstitutional
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2174>
CDA Update #6, with more details on Dan Olsen's proposal
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2143>
Net-Guru David Reed's article: "CDA may pervert Internet architecture"
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2093>
Social Security Admin. <http://www.ssa.gov/>
Dan Olsen at BYU <http://www.cs.byu.edu/info/drolsen.html>
Fight-Censorship list <http://fight-censorship.dementia.org/top/>
BYU's censorship policy <http://advance.byu.edu/pc/releases/guidelines.html>
Rimm ethics critique <http://www.cs.cmu.edu/~declan/rimm/>
Int'l Net-Censorship <http://www.cs.cmu.edu/~declan/zambia/>
CMU net-censorship <http://www.cs.cmu.edu/~kcf/censor/>
University censorship <http://joc.mit.edu/>
Grey Flannel Suit <Howardas@aol.com>
Carl Kadie's CAF site <http://www.eff.org/CAF/>
This report and previous CDA Updates are available at:
<http://fight-censorship.dementia.org/top/>
<http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/>
<http://www.epic.org/free_speech/censorship/lawsuit/>
To subscribe to the fight-censorship mailing list for future CDA
updates and related net.censorship discussions, send "subscribe" in
the body of a message addressed to:
fight-censorship-request@andrew.cmu.edu
Other relevant web sites:
<http://www.eff.org/>
<http://www.aclu.org/>
<http://www.cdt.org/>
<http://www.ala.org/>
-----------------------------------------------------------------------------
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The CDA Challenge, Update #8
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By Declan McCullagh / declan@well.com / Redistribute freely
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In this update: BYU/CMU's Olsen testifies that "-L18" won't harm the Net
Judges realize Olsen is a weasel
Chief Judge Sloviter's incisive questions
Who is Donna Rice? A DoJ attorney can't stop laughing...
Closing arguments now set for May 10
April 18, 1996
PHILADELPHIA -- The U.S. Department of Justice doesn't like the way
the Communications Decency Act is written.
During the the testimony that ended April 15 in Philadelphia's Federal
court, we've started to see the DoJ's legal strategy emerge -- and it
includes attempts to redefine the CDA.
The DoJ's star witness was the amazingly prudish Dan "I'm offended by
four-letter words" Olsen, who said that his plan to have service
providers card users and tag 'em as adults or minors is a fabulous way
to go. But this shifts the burden of protecting kids from smut onto
ISPs, a proposal that Congress rejected when they included "good
faith" defenses in the law.
Olsen, who will fit in just fine when he takes a job this summer as an
administrator at censorhappy Carnegie Mellon University, also kept
pushing the other half of his plan that would require all "patently
offensive" online content be tagged "-L18."
On Monday, the DoJ's very own attack-ferret Jason Baron asked Olsen:
"Your proposal would not have an adverse effect on the Net as a whole?
Olsen deadpanned: "Absolutely not!"
This isn't surprising. To Olsen, the Internet is just a bunch of geeks
who want to keep everyone else out of their own little world.
When U.S. Third Circuit Court of Appeals Chief Judge Dolores Sloviter
asked him if his "-L18" system would develop side-by-side with PICS,
Olsen replied: "If technical people were left to themselves, it would
be likely to happen. I don't think this is true here. Internet people
don't like other people telling them what to do. They're afraid of the
FCC. They don't want anyone else messing in their pond."
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JUDGES REALIZE OLSEN IS A WEASEL
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Even the judges could tell that Olsen is a weasel.
The three judges hearing our challenge to the CDA were unsympathetic
to the Brigham Young University computer scientist and pinned him down
for almost an hour as he tried to slime away from direct questions.
Judge Stewart Dalzell is the most net-savvy judge on the panel and the
only one with young kids, so I'm guessing they're helping him to grok
the Net. He asked Olsen what would happen if U.S. citizens
automatically cache overseas material, including "indecent" files.
Again Olsen tried to weasel away from the hypothetical, but Dalzell
would have none of it: "You assumed away my question."
The DoJ witness grumpily admitted: "I'd turn the cache off."
Some of Dalzell's questions were stellar: "Assume a chat group is
talking about the CDA -- students from 13 to 18. In the course of the
chat, an 18-year-old is exasperated and types in 'Fuck the CDA.' Is it
your proposal that he should tag that '-L18?'"
Not hesitating, Olsen said: "Yes."
On the fight-censorship mailing list I maintain, Mark Stein writes:
Judge Dalzell was paraphrasing closely from Cohen v. California, a
seminal case in which the Supreme Court overturned the conviction of
a man who was arrested for wearing a jacket with "Fuck The Draft"
painted on the back. This Olsen fellow's a government witness, you
say? Sounds like he's working for us.
Some of Dalzell's other questions were equally fab: "If in one issue
of the Economist the word 'fuck' appears, the library [putting it
online] would have to go through the entire text of the issue?"
Olsen replied: "Somebody would have to make this screening. Somebody
would have to make this judgement." (Later he invented the idea of
libraries banding together to pool resources to make these decisions.
I could feel the hackles of the American Library Association folks
rising. I swear, Olsen makes up these mind-fucks on the fly.)
Remember Judge Buckwalter? I wrote about him in my first CDA Update,
saying that he was the least comfortable with our cybersuit:
In an incomprehensible decision last month, Judge Ronald Buckwalter
granted us only a _partial_ restraining order preventing the Feds
from enforcing the CDA. Now he's justifying his original mistake by
taking a critical stance during this hearing...
Buckwalter has come around. Last Friday his comments indicated he was
starting to understand the issue. His questions to Olsen on Monday
showed that he finally "gets it":
Q: If the creator of the material doesn't buy into your system, it
creates a big problem... Does this mean plaintiff's proposal makes
more sense?
A: No. There are different types of proposals...
Q: On your declaration, determining which are adults, you don't
address economic claims?
A: I only address if it's technically possible.
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CHIEF JUDGE SLOVITER'S INCISIVE QUESTIONS
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Chief Judge Sloviter's questions were the most incisive -- like
Dalzell, she admitted to doing a bit of out-of-court net surfing. She
asked Olsen if "children would be blocked from accessing parts of
museum collections?" Olsen admitted they would.
Some other questions from Sloviter:
Q: Would [your -L18 proposal] contain the seeds that the government
can do the blocking? Once everything is tagged as -L18, would
that facilitate any one entity saying this material should not
go out on the Internet?
A: Possibly.
Q: Can you think of any time in our history where we have blocked
material in advance?
A: Yes, every editor in every newspaper does this every day.
Q: But in an organized manner?
A: Every editor in every newspaper does this every day.
The EFF's Mike Godwin says:
That Sloviter asked this question is incredibly important -- it
shows that she recognizes that compliance with the Communications
Decency Act would amount to a complex system of prior restraints.
Even among those who disagree strongly about the scope of the First
Amendment, there is little disagreement about the general
prohibition of prior restraints on publication -- the only generally
acknowledged exception to this prohibition is the "national
security" exception (publication of troop movements during time of
war and the like). In previous obscenity/indecency cases, it has
long been established that prior restraints on publication are
impermissible.
The strangest point of the day came after Olsen testified that a
PICS-style third-party rating system would "slow the flow." (This was
a snide reference to Vanderbilt Professor Donna Hoffman's testimony
about how uninterrupted "flow" was important while web-surfing.)
Sloviter then asked him how an adult would show -L18 tagged materials
to a mature child. Olsen replied that a "teacher or parent could log
on." Sloviter parried: "Wouldn't that slow the flow?"
At this point, Olsen began to discharge a series of short, staccato
bursts of high-pitched giggles, sounding like a rabbit being tortured
to death. Damnedest thing I ever saw. The audience stared in horror.
Basically, the DoJ fucked up with this witness. Olsen was such a
censorhappy nut and so delighted with his "-L18" scheme that the court
realized it went too far -- that it was obviously unconstitutional.
In other words, he was our best witness.
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WHO IS DONNA RICE? A DOJ ATTORNEY CAN'T STOP LAUGHING...
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I would have loved to have been in Washington, DC when Grey Flannel
Suit -- AKA AFSADAFOSICCI* Howard Schmidt -- was deposed on April 1.
Imagine an entire business day filled with nothing but talk of
cyberporn, with everyone trying to be serious and lawyerly. Some
representative samples, from page 244 of Grey Flannel's deposition:
A: The next one, the same [screen] with panties.jpg reflects the
image that appears on the screen after clicking on Panties.
A: The next one, the same [screen] with boobs.jpg reflects the image
that appears on the screen after clicking on Boobs.
A: And the next one is cunnilingus.jpg, which reflects the image
that comes onto the screen by clicking on Cunnilingus.
But my fave part was when former party girl and ex-No Excuses jeans
model Donna Rice-Hughes was mentioned. In the past year, Rice-Hughes
has leveraged her fame from the Gary Hart presidential campaign into a
budding career as a morality crusader at the anti-porn group "Enough
is Enough!" Read on for an excerpt from page 282 of Grey Flannel's
deposition...
Q: Are you acquainted with Kathleen Cleaver?
A: No, I'm not.
Q: Have you ever heard that name?
A: It does not ring a bell, no.
Q: Are you acquainted with Bruce Taylor?
A: Not that I'm aware of, no.
Q: Are you acquainted with Donna Rice?
A: The name Donna Rice rings a bell it seems, but I don't know from what.
[The ACLU attorneys and Pat Russotto from the DoJ can't stop laughing.]
DoJ's Tony Coppolino: "I'll explain later."
ACLU's Margorie Heins: "It's a honest answer."
ACLU's Chris Hansen: "Even Pat couldn't remain serious through that."
DoJ's Tony Coppolino, trying again: "I'll explain later!"
* AFSADAFOSICCI = Air Force Special Agent, Director of the Air Force
Office of Special Investigations, Computer Crime Investigations
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CLOSING ARGUMENTS NOW SET FOR MAY 10
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The closing arguments for our case now are scheduled for May 10, with
April 29 as the deadline for submitting our findings of fact and
conclusions of law -- a lengthy collection of documents that will
include everything we believe we've proved in our case. (Closing
arguments were pushed up to early May since we didn't feel a need to
call any rebuttal witnesses. After all, we had Olsen!)
Our attorneys and the DoJ each will present two hours of closing
arguments on May 10, though the timeframe is flexible. The three-judge
panel likely will issue a decision three or four weeks later, and
appeals will go directly to the Supreme Court.
What will the Philly court decide?
Bruce Taylor, the president of the National Law Center for Children
and Families, told me that he's "confident" the court will uphold the
indecency portions of the CDA. However, the former Federal prosecutor
said he's "worried that the court may accept some of the technical or
infeasibility arguments" against the law.
I'm sure we'll talk more about it on May 9, when I'll be on a panel
at the University of Pennsylvania with Taylor and Cathy Cleaver.
Fortunately, one of the strongest aspects of our case is that we're
correct.
Stay tuned for more reports.
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We're back in court on May 10 for closing arguments.
Quote of the Day: "We teach them proper principles and let them govern
themselves." -Prophet Joseph Smith
Mentioned in this CDA update:
CDA Update #6, with details on Dan Olsen's "-L18" proposal:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2143>
Brock Meeks on 4/12 and 4/15 hearings:
<http://www.hotwired.com/netizen/96/16/index1a.html>
Mark Eckenwiler's report on the recent CDA forum at Cornell University:
<http://fight-censorship.dementia.org/fight-censorship/dl?num=2226>
CDA forum at the University of Pennsylvania, scheduled for May 9:
<http://dolphin.upenn.edu/~fatf/cda-forum.html>
IETF draft of "Internet Philosophy" article:
Send comments to destiny@crl.com. All comments are assumed for publication.
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