Computer underground Digest Wed Jun 12, 1996 Volume 8 : Issue 44 ISSN 1004-042X Editor: Jim Thomas (cudigest@sun.soci.niu.edu) News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu) Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Field Agent Extraordinaire: David Smith Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #8.44 (Wed, Jun 12, 1996) File 1--Fed Court Rules Communications Decency Act Unconstitutional File 2--Excerpts from the CDA Decision (re 96-963) File 3--Cu Digest Header Info (unchanged since 7 Apr, 1996) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Wed, 12 Jun 1996 08:55:37 -0700 From: editor@eff.org Subject: File 1--Fed Court Rules Communications Decency Act Unconstitutional EFFector Online Volume 09 No. 08 June 12 1996 editors@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 ------------------------------------------------ Groups challenging the law prepare for government appeal to the Supreme Court Electronic Frontier Foundation PRESS RELEASE Contacts: Stanton McCandlish, Online Activist, +1 415 436 9333 Mike Godwin, Staff Counsel, +1 510 548 3290 Shari Steele, Staff Counsel, +1 301 375 8856 Philadelphia -- "Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects." With these ringing words, a Philadelphia federal court has struck down a law today that would have criminalized constitutionally protected speech on the Internet and other online forums. In what civil libertarians are hailing as a victory for everyone who uses computer communications, a three-judge panel in Philadelphia's federal court ruled in a unanimous decision that the controversial "Communications Decency Act" (CDA) violates the U.S. constitutional guarantees of freedom of speech and of the press. "First of all, are pleased to see the court vindicate our vision of the Net as a medium protected by the First Amendment," said Lori Fena, executive director of the Electronic Frontier Foundation (EFF), watchdog group established to protect civil liberties, and promote responsibility, in computer communications. "Secondly, we are delighted that the court has gone beyond striking down the law, and has stated positively what constitutional principles must govern any attempt to regulate the most democratic mass medium the world has ever seen." Said EFF Chairman Esther Dyson: "This is a day for individual citizens, for families, and for public and private organizations online to celebrate." "The judges recognized that CDA was a wholly inappropriate exercise of governmental power under the Constitution," said Mike Godwin, EFF staff counsel. "The law would have abridged one of the freedoms that Americans treasure most, and a freedom that is central to any democratic society," he said. Godwin applauded the members of the coalition that challenged the law in federal court. "We and the other plaintiffs persuaded them that the government cannot constitutionally impose this sort of overreaching, and duplicative regulation of content in the online world," Godwin said. Dyson stated that the decision stands for one of EFF's principal positions regarding free speech online: "We believe in free speech at the source -- and in the empowerment of any audience for that speech to control what they see. "This decision takes the responsibility for controlling and accessing speech on the Net out of the hands of government and puts it back in the hands of parents and other individuals where it belongs," she said. "Individuals already have the technical means to make their own choices about what they and their children read and see," Dyson said. Godwin noted that existing anti-obscenity laws, together with low-cost technological solutions, offer a more efficient, less intrusive answer to questions about protecting children in the online world. "The government kept saying that this was a crisis that required harsher censorship in the online world than in any other communications medium," Godwin said. "In fact, we showed that it's possible to promote both freedom of speech and family values -- that the two goals don't oppose each other." While the plaintiffs are pleased with the victory, Fena said, "it's no time to be complacent." A collection of poorly drafted state laws has followed in the wake of the passage of the CDA, and the issues these statutes raise must be addressed as well, she said. "What's as compelling as the language of this decision," Godwin said, "is the breadth of the opposition to this legislation," He noted that two large groups of plaintiffs, including EFF, the American Civil Liberties Union, the Electronic Privacy Information Center, People for the American Way, the American Library Association, Microsoft, and Apple Computer, had challenged the recently passed law in Philadelphia's federal court. Even Administration officials have privately and publicly voiced their concerns. The plaintiffs must now prepare for the government's planned appeal to the United States Supreme Court, Godwin said, citing a provision of the Telecommunications Reform Act of 1996, which prescribes such a direct appeal when a provision of the telecom act is found unconstitutional in a lower court.. Godwin also commented that "this may be the most rapidly distributed federal court opinion in American history." Sites all over the over the Net would be carrying the full text of the opinion almost as soon as the judges hand it down, he said, noting that the court is providing copies of the opinion on computer diskettes as well as through more traditional means. The constitutional challenge to the Communications Decency Act has been grounded in four basic arguments -- that the law is unconstitutionally overbroad (criminalizing protected speech), that it is unconstitutionally vague (making it difficult for individuals and organizations to comply), that it fails what the judiciary calls the "least restrictive means" test for speech regulation, and that there is no basic constitutional authority under the First Amendment to engage in this type of content regulation in any nonbroadcast medium. "We are confident the Supreme Court will uphold the Philadelphia court's decision," Godwin said. To reach EFF board chairman Esther Dyson or executive director Lori Fena, please contact EFF's main office at +1 415 436 9333. ------------------------------ Date: Wed, 12 Jun 1996 16:23:28 -0500 From: cudigest@SUN.SOCI.NIU.EDU(Computer underground Digest) Subject: File 2--Excerpts from the CDA Decision (re 96-963) ((MODERATORS' NOTE: The following are a few excerpts from the CDA decision. The complete text is about a quarter of a meg and over 4,400 lines. It was provided by the Center for Democracy and Technology. For complete information on the Congressional Decency Act (CDA) (including the full decision text) contact the CDT homepage at: http://www.cdt.org The full text can also be found on CuD's homepage at: http://www.soci.niu.edu/~cudigest/cda/cdadec1)) ========================================= IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION et al., : : v. : : JANET RENO, Attorney General of : the United States : No. 96-963 _____________________________________________________________ AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al., : : v. : : UNITED STATES DEP'T OF JUSTICE, : et al. : No. 96-1458 Before: Sloviter, Chief Judge, United States Court of Appeals for the Third Circuit; Buckwalter and Dalzell, Judges, United States District Court for the Eastern District of Pennsylvania June 11, 1996 ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION The parties were afforded expedited discovery in connection with the motions for preliminary injunction, and they cooperated with Judge Dalzell, who had been assigned the case management aspects of the litigation. While the discovery was proceeding, and with the agreement of the parties, the court began receiving evidence at the consolidated hearings which were conducted on March 21 and 22, and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties worked closely with Judge Dalzell and arranged to stipulate to many of the underlying facts and to place much of their cases in chief before the court by sworn declarations, so that the hearings were largely devoted to cross-examination of certain of the witnesses whose declarations had been filed. The parties submitted proposed findings of fact and post-hearing memoranda on April 29, and the court heard extensive oral argument on May 10, 1996.[4] .................. II. FINDINGS OF FACT All parties agree that in order to apprehend the legal questions at issue in these cases, it is necessary to have a clear understanding of the exponentially growing, worldwide medium that is the Internet, which presents unique issues relating to the application of First Amendment jurisprudence and due process requirements to this new and evolving method of communication. For this reason all parties insisted on having extensive evidentiary hearings before the three-judge court. The court's Findings of fact are made pursuant to Fed. R. Civ. P. 52(a). The history and basic technology of this medium are not in dispute, and the first forty-eight paragraphs of the following Findings of fact are derived from the like-numbered paragraphs of a stipulation[8] the parties filed with the court.[9] The Nature of Cyberspace The Creation of the Internet and the Development of Cyberspace 1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks. This is best understood if one considers what a linked group of computers -- referred to here as a "network" -- is, and what it does. Small networks are now ubiquitous (and are often called "local area networks"). For example, in many United States Courthouses, computers are linked to each other for the purpose of exchanging files and messages (and to share equipment such as printers). These are networks. 2. Some networks are "closed" networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet. 3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet, and by 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide, of which approximately 60 percent located within the United States, are estimated to be linked to the Internet. This count does not include the personal computers people use to access the Internet using modems. In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999. 4. Some of the computers and computer networks that make up the Internet are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications -- or "cyberspace" -- that links people, institutions, corporations, and governments around the world. The Internet is an international system. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole. 5. The Internet had its origins in 1969 as an experimental project of the Advanced Research Project Agency ("ARPA"), and was called ARPANET. This network linked computers and computer networks owned by the military, defense contractors, and university laboratories conducting defense-related research. The network later allowed researchers across the country to access directly and to use extremely powerful supercomputers located at a few key universities and laboratories. As it evolved far beyond its research origins in the United States to encompass universities, corporations, and people around the world, the ARPANET came to be called the "DARPA Internet," and finally just the "Internet." 6. From its inception, the network was designed to be a decentralized, self-maintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route communications if one or more individual links were damaged or otherwise unavailable. Among other goals, this redundant system of linked computers was designed to allow vital research and communications to continue even if portions of the network were damaged, say, in a war. 7. To achieve this resilient nationwide (and ultimately global) communications medium, the ARPANET encouraged the creation of multiple links to and from each computer (or computer network) on the network. Thus, a computer located in Washington, D.C., might be linked (usually using dedicated telephone lines) to other computers in neighboring states or on the Eastern seaboard. Each of those computers could in turn be linked to other computers, which themselves would be linked to other computers. 8. A communication sent over this redundant series of linked computers could travel any of a number of routes to its destination. Thus, a message sent from a computer in Washington, D.C., to a computer in Palo Alto, California, might first be sent to a computer in Philadelphia, and then be forwarded to a computer in Pittsburgh, and then to Chicago, Denver, and Salt Lake City, before finally reaching Palo Alto. If the message could not travel along that path (because of military attack, simple technical malfunction, or other reason), the message would automatically (without human intervention or even knowledge) be re-routed, perhaps, from Washington, D.C. to Richmond, and then to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and finally to Palo Alto. This type of transmission, and re-routing, would likely occur in a matter of seconds. 9. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses "packet switching" communication protocols that allow individual messages to be subdivided into smaller "packets" that are then sent independently to the destination, and are then automatically reassembled by the receiving computer. While all packets of a given message often travel along the same path to the destination, if computers along the route become overloaded, then packets can be re-routed to less loaded computers. 10. At the same time that ARPANET was maturing (it subsequently ceased to exist), similar networks developed to link universities, research facilities, businesses, and individuals around the world. These other formal or loose networks included BITNET, CSNET, FIDONET, and USENET. Eventually, each of these networks (many of which overlapped) were themselves linked together, allowing users of any computers linked to any one of the networks to transmit communications to users of computers on other networks. It is this series of linked networks (themselves linking computers and computer networks) that is today commonly known as the Internet. 11. No single entity -- academic, corporate, governmental, or non-profit -- administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet. Restricting Access to Unwanted On-Line Material[12] PICS 49. With the rapid growth of the Internet, the increasing popularity of the Web, and the existence of material online that some parents may consider inappropriate for their children, various entities have begun to build systems intended to enable parents to control the material which comes into their homes and may be accessible to their children. The World Wide Web Consortium launched the PICS ("Platform for Internet Content Selection") program in order to develop technical standards that would support parents' ability to filter and screen material that their children see on the Web. 50. The Consortium intends that PICS will provide the ability for third parties, as well as individual content providers, to rate content on the Internet in a variety of ways. When fully implemented, PICS-compatible World Wide Web browsers, Usenet News Group readers, and other Internet applications, will provide parents the ability to choose from a variety of rating services, or a combination of services. 51. PICS working group [PICS-WG] participants include many of the major online services providers, commercial internet access providers, hardware and software companies, major internet content providers, and consumer organizations. Among active participants in the PICS effort are: Adobe Systems, Inc. Apple Computer America Online AT&T Center for Democracy and Technology CompuServe Delphi Internet Services Digital Equipment Corporation IBM First floor First Virtual Holdings Incorporated France Telecom FTP Software Industrial Technology Research Institute of Taiwan Information Technology Association of America Institut National de Recherche en Informatique et en Automatique (INRIA) Interactive Services Association MCI Microsoft MIT/LCS/World Wide Web Consortium NCD NEC Netscape Communications Corporation NewView O'Reilly and Associates Open Market Prodigy Services Company Progressive Networks Providence Systems/Parental Guidance Recreational Software Advisory Council SafeSurf SoftQuad, Inc. Songline Studios Spyglass SurfWatch Software Telequip Corp. Time Warner Pathfinder Viacom Nickelodeon[13] 52. Membership in the PICS-WG includes a broad cross- section of companies from the computer, communications, and content industries, as well as trade associations and public interest groups. PICS technical specifications have been agreed to, allowing the Internet community to begin to deploy products and services based on the PICS-standards. 53. Until a majority of sites on the Internet have been rated by a PICS rating service, PICS will initially function as a "positive" ratings system in which only those sites that have been rated will be displayed using PICS compatible software. In other words, PICS will initially function as a site inclusion list rather than a site exclusion list. The default configuration for a PICS compatible Internet application will be to block access to all sites which have not been rated by a PICS rating service, while allowing access to sites which have a PICS rating for appropriate content.[14] Software 54. For over a year, various companies have marketed stand alone software that is intended to enable parents and other adults to limit the Internet access of children. Examples of such software include: Cyber Patrol, CYBERsitter, The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server, and WebTrack. The market for this type of software is growing, and there is increasing competition among software providers to provide products. Cyber Patrol 55. As more people, particularly children, began to use the Internet, Microsystems Software, Inc. decided to develop and market Internet software intended to empower parents to exercise individual choice over what material their children could access. Microsystems' stated intent is to develop a product which would give parents comfort that their children can reap the benefits of the Internet while shielding them from objectionable or otherwise inappropriate materials based on the parents' own particular tastes and values. Microsystems' product, Cyber Patrol, was developed to address this need. 56. Cyber Patrol was first introduced in August 1995, and is currently available in Windows and Macintosh versions. Cyber Patrol works with both direct Internet Access providers (ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service Providers (e.g., America Online, Compuserv, Prodigy, Microsoft). Cyber Patrol is also compatible with all major World Wide Web browsers on the market (e.g., Netscape, Navigator, Mosaic, Prodigy's Legacy and Skimmer browsers, America Online, Netcom's NetCruiser, etc.). Cyber Patrol was the first parental empowerment application to be compatible with the PICS standard. In February of 1996, Microsystems put the first PICS ratings server on the Internet. 57. The CyberNOT list contains approximately 7000 sites in twelve categories. The software is designed to enable parents to selectively block access to any or all of the twelve CyberNOT categories simply by checking boxes in the Cyber Patrol Headquarters (the Cyber Patrol program manager). These categories are: Violence/Profanity: Extreme cruelty, physical or emotional acts against any animal or person which are primarily intended to hurt or inflict pain. Obscene words, phrases, and profanity defined as text that uses George Carlin's seven censored words more often than once every fifty messages or pages. Partial Nudity: Full or partial exposure of the human anatomy except when exposing genitalia. Nudity: Any exposure of the human genitalia. Sexual Acts (graphic or text): Pictures or text exposing anyone or anything involved in explicit sexual acts and lewd and lascivious behavior, including masturbation, copulation, pedophilia, intimacy and involving nude or partially nude people in heterosexual, bisexual, lesbian or homosexual encounters. Also includes phone sex ads, dating services, adult personals, CD-ROM and videos. Gross Depictions (graphic or text): Pictures or descriptive text of anyone or anything which are crudely vulgar, deficient in civility or behavior, or showing scatological impropriety. Includes such depictions as maiming, bloody figures, indecent depiction of bodily functions. Racism/Ethnic Impropriety: Prejudice or discrimination against any race or ethnic culture. Ethnic or racist jokes and slurs. Any text that elevates one race over another. Satanic/Cult: Worship of the devil; affinity for evil, wickedness. Sects or groups that potentially coerce individuals to grow, and keep, membership. Drugs/Drug Culture: Topics dealing with the use of illegal drugs for entertainment. This would exclude current illegal drugs used for medicinal purposes (e.g., drugs used to treat victims of AIDS). Includes substances used for other than their primary purpose to alter the individual's state of mind such as glue sniffing. Militant/Extremist: Extremely aggressive and combative behaviors, radicalism, advocacy of extreme political measures. Topics include extreme political groups that advocate violence as a means to achieve their goal. Gambling: Of or relating to lotteries, casinos, betting, numbers games, on-line sports or financial betting including non-monetary dares. Questionable/Illegal: Material or activities of a dubious nature which may be illegal in any or all jurisdictions, such as illegal business schemes, chain letters, software piracy, and copyright infringement. Alcohol, Beer & Wine: Material pertaining to the sale or consumption of alcoholic beverages. Also includes sites and information relating to tobacco products. 58. Microsystems employs people to search the Internet for sites containing material in these categories. Since new sites are constantly coming online, Microsystems updates the CyberNOT list on a weekly basis. Once installed on the home PC, the copy of Cyber Patrol receives automatic updates to the CyberNOT list over the Internet every seven days. 59. In February of 1996, Microsystems signed a licensing arrangement with CompuServe, one of the leading commercial online services with over 4.3 million subscribers. CompuServe provides Cyber Patrol free of charge to its subscribers. Microsystems the same month signed a licensing arrangement with Prodigy, another leading commercial online service with over 1.4 million subscribers. Prodigy will provide Cyber Patrol free of charge of its subscribers. 60. Cyber Patrol is also available directly from Microsystems for $49.95, which includes a six month subscription to the CyberNOT blocked sites list (updated automatically once every seven days). After six months, parents can receive six months of additional updates for $19.95, or twelve months for $29.95. Cyber Patrol Home Edition, a limited version of Cyber Patrol, is available free of charge on the Internet. To obtain either version, parents download a seven day demonstration version of the full Cyber Patrol product from the Microsystems Internet World Wide Web Server. At the end of the seven day trial period, users are offered the opportunity to purchase the complete version of Cyber Patrol or provide Microsystems some basic demographic information in exchange for unlimited use of the Home Edition. The demographic information is used for marketing and research purposes. Since January of 1996, over 10,000 demonstration copies of Cyber Patrol have been downloaded from Microsystems' Web site. 61. Cyber Patrol is also available from Retail outlets as NetBlocker Plus. NetBlocker Plus sells for $19.95, which includes five weeks of updates to the CyberNOT list. 62. Microsystems also sells Cyber Patrol into a growing market in schools. As more classrooms become connected to the Internet, many teachers want to ensure that their students can receive the benefit of the Internet without encountering material they deem educationally inappropriate. 63. Microsystems is working with the Recreational Software Advisory Council (RSAC), a non-profit corporation which developed rating systems for video games, to implement the RSAC rating system for the Internet. 64. The next release of Cyber Patrol, expected in second quarter of this year, will give parents the ability to use any PICS rating service, including the RSAC rating service, in addition to the Microsystems CyberNOT list. 65. In order to speed the implementation of PICS and encourage the development of PICS-compatible Internet applications, Microsystems maintains a server on the Internet which contains its CyberNOT list. The server provides software developers with access to a PICS rating service, and allows software developers to test their products' ability to interpret standard PICS labels. Microsystems is also offering its PICS client test program for Windows free of charge. The client program can be used by developers of PICS rating services to test their services and products. SurfWatch 66. Another software product, SurfWatch, is also designed to allow parents and other concerned users to filter unwanted material on the Internet. SurfWatch is available for both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95 Operating Systems, and works with direct Internet Access Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000 other Internet Service Providers). 67. The suggested retail price of SurfWatch Software is $49.95, with a street price of between $20.00 and $25.00. The product is also available as part of CompuServe/Spry Inc.'s Internet in a Box for Kids, which includes access to Spry's Kids only Internet service and a copy of SurfWatch. Internet in a Box for Kids retails for approximately $30.00. The subscription service, which updates the SurfWatch blocked site list automatically with new sites each month, is available for $5.95 per month or $60.00 per year. The subscription is included as part of the Internet in a Box for Kids program, and is also provided as a low-cost option from Internet Service Providers. 68. SurfWatch is available at over 12,000 retail locations, including National stores such as Comp USA, Egghead Software, Computer City, and several national mail order outlets. SurfWatch can also be ordered directly from its own site on the World Wide Web, and through the Internet Shopping Network. 69. Plaintiffs America Online (AOL), Microsoft Network, and Prodigy all offer parental control options free of charge to their members. AOL has established an online area designed specifically for children. The "Kids Only" parental control feature allows parents to establish an AOL account for their children that accesses only the Kids Only channel on America Online.[15] 70. AOL plans to incorporate PICS-compatible capability into its standard Web browser software, and to make available to subscribers other PICS-compatible Web browsers, such as the Netscape software. 71. Plaintiffs CompuServe and Prodigy give their subscribers the option of blocking all access to the Internet, or to particular media within their proprietary online content, such as bulletin boards and chat rooms. 72. Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images unaccompanied by suggestive text unless those who configure the software are aware of the particular site. 73. Despite its limitations, currently available user- based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available. III. CONCLUSIONS OF LAW Plaintiffs have established a reasonable probability of eventual success in the litigation by demonstrating that .. 223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their face. Accordingly, plaintiffs have shown irreparable injury, no party has any interest in the enforcement of an unconstitutional law, and therefore the public interest will be served by granting the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). The motions for preliminary injunction will therefore be granted. The views of the members of the Court in support of these conclusions follow. SLOVITER, Chief Judge, Court of Appeals for the Third Circuit: A. Statutory Provisions As noted in Part I, Introduction, the plaintiffs' motion for a preliminary injunction is confined to portions of two provisions of the Communications Decency Act of 1996, . 223(a) and . 223(d), which they contend violate their First Amendment free speech and Fifth Amendment due process rights. To facilitate reference, I set forth those provisions in full. Section 223(a), the "indecency" provision, subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who: 1) in interstate or foreign communications . . . (B) by means of a telecommunications device knowingly -- (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; . . . (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity. (emphasis added). The term "telecommunications device" is specifically defined not to include "the use of an interactive computer service," as that is covered by section 223(d)(1). Section 223(d), the "patently offensive" provision, subjects to criminal penalties anyone who: (1) in interstate or foreign communications knowingly-- (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the use of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity. (emphasis added). Two aspects of these provisions stand out. First, we are dealing with criminal provisions, subjecting violators to substantial penalties. Second, the provisions on indecent and patently offensive communications are not parallel. The government uses the term "indecent" interchangeably with "patently offensive" and advises that it so construes the statute in light of the legislative history and the Supreme Court's analysis of the word "indecent" in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). However, the CDA does not define "indecent." Notwithstanding Congress' familiarity with Pacifica, it enacted . 223(a), covering "indecent" communications, without any language confining "indecent" to descriptions or depictions of "sexual or excretory activities or organs," language it included in the reference to "patently offensive" in . 223(d)(1)(B). Nor does . 223(a) contain the phrase "in context," which the government believes is relevant. The failure to define "indecent" in . 223(a) is thus arguably a negative pregnant and subject to "the rule of construction that an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance." Field v. Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("'[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion'") (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). Plaintiffs note the difference but do not press this as a basis for distinguishing between the two sections in their preliminary injunction arguments and therefore I will also use the words interchangeably for this purpose, leaving open the issue for consideration at the final judgment stage if it becomes relevant. B. Preliminary Injunction Standard To obtain a preliminary injunction, plaintiffs must establish that they are likely to prevail on the merits and that they will suffer irreparable harm if injunctive relief is not granted. We also must consider whether the potential harm to the defendant from issuance of a temporary restraining order outweighs possible harm to the plaintiffs if such relief is denied, and whether the granting of injunctive relief is in the public interest. See Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990). In a case in which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success on the merits. In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court emphasized that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 373 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)). Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Thus, this is not a case in which we are dealing with a mere incidental inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but with a regulation that directly penalizes speech. Nor could there be any dispute about the public interest factor which must be taken into account before a court grants a preliminary injunction. No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763-65 (1976). Thus, if plaintiffs have shown a likelihood of success on the merits, they will have shown the irreparable injury needed to entitle them to a preliminary injunction. C. Applicable Standard of Review The CDA is patently a government-imposed content-based restriction on speech, and the speech at issue, whether denominated "indecent" or "patently offensive," is entitled to constitutional protection. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such, the regulation is subject to strict scrutiny, and will only be upheld if it is justified by a compelling government interest and if it is narrowly tailored to effectuate that interest. Sable, 492 U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459 (1994). "[T]he benefit gained [by a content-based restriction] must outweigh the loss of constitutionally protected rights." Elrod v. Burns, 427 U.S. at 363. The government's position on the applicable standard has been less than pellucid but, despite some references to a somewhat lesser burden employed in broadcasting cases, it now appears to have conceded that it has the burden of proof to show both a compelling interest and that the statute regulates least restrictively. Tr. of Preliminary Injunction Hearing at 121 (May 10, 1996). In any event, the evidence and our Findings of Fact based thereon show that Internet communication, while unique, is more akin to telephone communication, at issue in Sable, than to broadcasting, at issue in Pacifica, because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online. Even if a broad search will, on occasion, retrieve unwanted materials, the user virtually always receives some warning of its content, significantly reducing the element of surprise or "assault" involved in broadcasting. Therefore, it is highly unlikely that a very young child will be randomly "surfing" the Web and come across "indecent" or "patently offensive" material. The Reach of the Statute Whatever the strength of the interest the government has demonstrated in preventing minors from accessing "indecent" and "patently offensive" material online, if the means it has chosen sweeps more broadly than necessary and thereby chills the expression of adults, it has overstepped onto rights protected by the First Amendment. Sable, 492 U.S. at 131. The plaintiffs argue that the CDA violates the First Amendment because it effectively bans a substantial category of protected speech from most parts of the Internet. The government responds that the Act does not on its face or in effect ban indecent material that is constitutionally protected for adults. Thus one of the factual issues before us was the likely effect of the CDA on the free availability of constitutionally protected material. A wealth of persuasive evidence, referred to in detail in the Findings of Fact, proved that it is either technologically impossible or economically prohibitive for many of the plaintiffs to comply with the CDA without seriously impeding their posting of online material which adults have a constitutional right to access. With the possible exception of an e-mail to a known recipient, most content providers cannot determine the identity and age of every user accessing their material. Considering separately content providers that fall roughly into two categories, we have found that no technology exists which allows those posting on the category of newsgroups, mail exploders or chat rooms to screen for age. Speakers using those forms of communication cannot control who receives the communication, and in most instances are not aware of the identity of the recipients. If it is not feasible for speakers who communicate via these forms of communication to conduct age screening, they would have to reduce the level of communication to that which is appropriate for children in order to be protected under the statute. This would effect a complete ban even for adults of some expression, albeit "indecent," to which they are constitutionally entitled, and thus would be unconstitutional under the holding in Sable, 492 U.S. at 131. Even as to content providers in the other broad category, such as the World Wide Web, where efforts at age verification are technically feasible through the use of Common Gateway Interface (cgi) scripts (which enable creation of a document that can process information provided by a Web visitor), the Findings of Fact show that as a practical matter, non- commercial organizations and even many commercial organizations using the Web would find it prohibitively expensive and burdensome to engage in the methods of age verification proposed by the government, and that even if they could attempt to age verify, there is little assurance that they could successfully filter out minors. The government attempts to circumvent this problem by seeking to limit the scope of the statute to those content providers who are commercial pornographers, and urges that we do likewise in our obligation to save a congressional enactment from facial unconstitutionality wherever possible. But in light of its plain language and its legislative history, the CDA cannot reasonably be read as limited to commercial pornographers. A court may not impose a narrowing construction on a statute unless it is "readily susceptible" to such a construction. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988). The court may not "rewrite a . . . law to conform it to constitutional requirements." Id. Although we may prefer an interpretation of a statute that will preserve the constitutionality of the statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980), we do not have license to rewrite a statute to "create distinctions where none were intended." American Tobacco Co. v. Patterson, 456 U.S. 63, 72 n.6 (1982); see also Consumer Party v. Davis, 778 F.2d 140, 147 (3d Cir. 1985). The Court has often stated that "absent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive." Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772 (1984)(quoting North Dakota v. United States, 460 U.S. 300, 312 (1983)). It is clear from the face of the CDA and from its legislative history that Congress did not intend to limit its application to commercial purveyors of pornography. Congress unquestionably knew how to limit the statute to such entities if that was its intent, and in fact it did so in provisions relating to dial-a-porn services. See 47 U.S.C. . 223(b)(2)(A) (criminalizing making any indecent telephone communication "for commercial purposes"). It placed no similar limitation in the CDA. Moreover, the Conference Report makes clear that Congress did not intend to limit the application of the statute to content providers such as those which make available the commercial material contained in the government's exhibits, and confirms that Congress intended "content regulation of both commercial and non-commercial providers." Conf. Rep. at 191. See also, 141 Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator Exon). The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther. Nor did Congress include language that would define "patently offensive" or "indecent" to exclude material of serious value. It follows that to narrow the statute in the manner the government urges would be an impermissible exercise of our limited judicial function, which is to review the statute as written for its compliance with constitutional mandates. I conclude inexorably from the foregoing that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults.[1] In questions of the witnesses and in colloquy with the government attorneys, it became evident that even if "indecent" is read as parallel to "patently offensive," the terms would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities (e.g., Leaving Las Vegas) to controversial contemporary art and photographs showing sexual organs in positions that the government conceded would be patently offensive in some communities (e.g., a Robert Mapplethorpe photograph depicting a man with an erect penis). 3. The Effect of the CDA and the Novel Characteristics of Internet Communication Over the course of five days of hearings and many hundreds of pages of declarations, deposition transcripts, and exhibits, we have learned about the special attributes of Internet communication. Our Findings of fact -- many of them undisputed -- express our understanding of the Internet. These Findings lead to the conclusion that Congress may not regulate indecency on the Internet at all. ------------------------------ Date: Thu, 21 Mar 1996 22:51:01 CST From: CuD Moderators Subject: File 3--Cu Digest Header Info (unchanged since 7 Apr, 1996) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: comp.society.cu-digest Or, to subscribe, send post with this in the "Subject:: line: SUBSCRIBE CU-DIGEST Send the message to: cu-digest-request@weber.ucsd.edu DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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