Computer underground Digest Sun Jun 16, 1996 Volume 8 : Issue 46 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, #8.46 (Sun, Jun 16, 1996) File 1--CDA lawsuit the Pentagon Papers of cyberspace, sez Reuters File 2--ACLU Press Conference on CDA File 3--Exon Press Release/Statement on CDA Decision File 4--Dalzell on broadcast v. net metaphor File 5--President Clinton's Statement on the CDA Decision File 6--ALA applauds CDA victory, "a historic case" File 7--OPPOSITION: FRC on CDA Decision File 8--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: Fri, 14 Jun 1996 18:33:38 -0500 From: Declan McCullagh Subject: File 1--CDA lawsuit the Pentagon Papers of cyberspace, sez Reuters I think it was Marc Rotenberg from EPIC who said at Wednesday's CDA press conference in DC that this was the Times v. Sullivan of cyberspace. The attached Reuters article now compares our lawsuit to the Pentagon Papers case... -Declan ---------- Forwarded message ---------- NEW YORK (Reuter) - As official Washington from President Clinton on down attacked a court ruling blocking censorship in cyberspace, the 25th anniversary of a momentous clash on press freedom passed almost unnoticed Thursday. It was on June 13, 1971 that the New York Times began publishing details of the Pentagon Papers, a 7,000-page secret official history of the U.S. role in the Vietnam War that many said proved that successive presidents misled the American people on the course of the war. For two days, President Richard Nixon let the Times print embarrassing disclosures about the Truman, Eisenhower, Kennedy and Johnson administrations. Then he sent his lawyers to court to stop further stories, saying they would cause ``irreparable injury to the defense interests of the United States.'' It was the first time in U.S. history that a president tried to exercise prior restraint on a newspaper and a New York judge issued a restraining order on the Times. Within days, the Washington Post obtained a copy of the papers and began publishing. When a court stopped it as well, newspapers in Boston, Chicago, Los Angeles and St. Louis began publishing. The issue went to the Supreme Court, which sided with press freedom. A quarter of a century later, while historians, press critics and participants still argue over the Pentagon Papers, a new freedom of speech issue is expected to head to the Supreme Court -- whether it is constitutional for the government to slap curbs on indecent material on the Internet. [...] David Rudenstine, a New York law professor and author of ''The Day the Presses Stopped,'' a new account of the Pentagon Papers, says the battle between the Times and other newspapers and the government became a high water mark for democracy. At the same time it laid the foundation for the destruction of the Nixon administration. [...] ------------------------------ Date: Wed, 12 Jun 1996 16:01:41 -0400 (EDT) From: Mark Mangan Subject: File 2--ACLU Press Conference on CDA ACLU Press Conference June 12 ================================= The Conference NEW YORK CITY-- The ACLU held a press conference this morning to announce the victory in its suit contesting the constitutionality of the CDA. The win is embodied in a 216 page decision which reflects the three-judge panel's 3-0 thumbs down to a half-baked ban on indecency. Chris Hansen, lead counsel for the ACLU, described the decision as a "resounding victory," calling the CDA "an unconstitutionally bad idea." Statements were also made by ACLU attorney Marjorie Heins and ACLU Executive Director Ira Glasser, as well as several of the plantiffs in the case. When the press asked about children and how to protect them from looking at all the smut, Hansen pointed to the service providers such as AOL and Prodigy, as well as the existing blocking software such as Surfwatch. He essentially stressed that the freedom and responsibility associated with this powerful medium should be placed with the parents. Glasser offered an interesting world view, as he declared this a "bogus issue." He said he has four kids and "the question of how to raise children is a parental problem which no law should address." In response to a worrisome assertion that kids having a better understanding of computers, he pointed out that "kids who are sophisticated today will be parents tomorrow." When asked about the problem of rogues stirring up problems with anonymous postings, Glasser said "this is not a new issue," recalling the pamphlets in colonial America and such anonymously penned works as the Federalist Papers. Anonymous, free speech is valued in the American tradition, he argued--it's not a new problem served up by the Internet The government lawyers have 20 days to file an appeal. If the Supreme court doesn't laugh in their face and tell them to piss-off, the case would presumably reach the highest court in the land sometime next fall. ================================ Some Good Quotes The decision of the court includes 80 pages of Findings of Fact, as well as a lengthy opinion from each of the judges. The ACLU press release, written by Emily Whitfield, picked out some of the best quotes. Judge Dalzell: "Cutting through the acronyms and argot that littered hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." Judge Buckwalter: "I continue to believe that the word 'indecent' is unconstitutionally vague, and I find that the terms 'in context' and 'patently offensive' are also so vague as to violate the First and Fifth Amendments." Judge Sloviter: "The bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgement of prosecutors. Prosectors come and go ... the First Amendment remains to give protection to future generations as well." ------------------------------ Date: Thu, 13 Jun 1996 16:29:59 -0400 From: Bob Palacios Subject: File 3--Exon Press Release/Statement on CDA Decision For Release, Wednesday, June 12, 1996 EXON ISSUES STATEMENT ON COURT RULING ON DECENCY ACT Washington, D.C. -- U.S. SENATOR JIM EXON (D-NE), issued the following statement today after the court ruling in Philadelphia on the Exon-Coats Communications Decency Act: "The Communications Decency Act makes it illegal to transmit or make available indecent material to children. From the beginning, we felt that the best chance for a considered opinion would be in the U.S. Supreme Court and that's where the final decision will be made. We are still a land of laws and courts and while I do not agree with the judges' decision today, I respect their right to make it. The court has taken the ACLU line that anything goes on the Internet, even though that overlooks well-established laws protecting children from pornography in other areas. The Decency Act stands for the premise that it is wrong to provide pornography to children on computers just as it is wrong to do it on a street corner or anywhere else. Hopefully, reason and common sense will prevail in the Supreme Court." -end- ---------------- SENATOR EXON PRESS CONFERENCE AFTER PHILADELPHIA RULING A three judge panel in Philadelphia this morning handed down a decision enjoining enforcement of two sections of the Communications Decency Act (CDA). This decision is not a surprise, nor is it a set back for the new law. It in fact clears the way for U. S. Supreme Court consideration. The ACLU and their fellow plaintiffs did not select the Philadelphia court by accident to launch their challenge to the CDA. First, it is important to understand what the CDA is and what it is not. The CDA makes it a crime to knowingly use a telecommunications device or interactive computer to send an indecent communication to a child and to use an interactive computer to display an indecent communication in a manner accessible to a child. The new law does not ban any constitutionally protected material from adults. The radical decision of the three judge panel in Philadelphia rests on two pillars. From this Senator's point of view, those pillars are made of chalk which will crumble upon Supreme Court review. The Philadelphia court found that there were no effective measures to determine the age of computers users. This technological argument is faulty because as a relatively, new medium, the Internet and other interactive computer services are infinitely malleable and their architecture can accommodate child screening. The court overlooks that, a number of Internet sites already block child access by requiring credit card or adult PIN numbers to access certain sites. Even if such technology were not available, the statute does not require the impossible only what is "reasonable, effective and appropriate." The second line of criticism was with the law's "indecency" standard. The Philadelphia court found the term "indecency" and its rendition in the statute to be "vague." The court brushed aside years of U. S. Supreme Court jurisprudence which not only found the indecency standard sufficiently clear, but which applied the very standard to radio, television, telephone and cable use. Here the court's disagreement does not seem to be with the Congress but with the U. S. Supreme Court which has repeatedly upheld the decency standard. The Philadelphia court also overlooks that no court has applied the indecency standard to prohibit serious works of art, medical information or important literature. In this regard, the court feasted on a plate of red herrings. The Congress took great care to craft the CDA so that is zeroed in on protecting children from on-line indecency, as the U. S. Supreme Court has repeatedly acknowledged as a compelling state interest. The Congress modeled the statute after the existing DIAL-A-PORN law which the U. S. Supreme Court has found to meet the least restrictive alternative test which is applied to first amendment cases. The CDA can not be violated by accident. There must be a knowing violation. The Philadelphia court ignores that it is fundamentally wrong to knowingly give pornography to children or to display pornography in public place. I am hopeful that the U .S. Supreme Court, relying on its own precedents will find the CDA to Be Constitutional. ---------------- This press release, along with other Congressional press releases and President Clinton's statement, can be found at: http://www.cdt.org/ciec/ ------------------------------ Date: Wed, 12 Jun 96 21:48:21 PDT From: Jonathan Blumen Subject: File 4--Dalzell on broadcast v. net metaphor Judge Dalzell--whose sympathy to the freedom of speech was apparent from the questions he asked during the hearing--writes some really clear and stirring prose distinguishing the Supreme Court's indecency ruling in Pacifica (the seven dirty words case) from the CDA case. One of the fundamental tenets of the pro-CDA forces--expressed on various lists by Matt Elkins--is that the Net can be regulated in the same way as broadcast media. Government regulation of broadcast originated sixty years ago with the doctrine that broadcast frequencies are "scarce"; therefore the government must determine who gets a licence; therefore, in determining who gets a license, the government may determine who is abusing the airwaves with "indecent" language. Since the Net involves no scarcity, pro-CDA forces have had to find an independent underpinning for government intervention. They found it in "pervasiveness", the doctrine that broadcast waves come into the house unbidden and may ambush children who turn the set on and are exposed unexpectedly to indecent content. The Carlin case, involving the comedian's Seven Dirty Words routine, referred to "the uniquely pervasive presence" of broadcasting and never mentioned the scarcity doctrine. Thirteen years ago, communications scholar Ithiel de Sola Pool correctly observed that this statement, if it meant what it appeared to, would justify "quite radical censorship." Now along comes the wonderful and clearheaded Judge Dalzell and clears it up for us. He points out that in a 1994 case, Turner Broadcasting v. FCC, the Supreme Court refused to extend Pacifica to cable TV because of "fundamental technological differences" between broadcast and cable. Dalzell says: "The legal significance to this case of Turner's refusal to apply the broadcast rules to cable television cannot be overstated. Turner's holding confirms beyond doubt that the holding in Pacifica arose out of the scarcity rationale unique to the underlying technology of broadcasting, and not out of the end product that the viewer watches. That is, cable television has no less of a 'uniquely pervasive presence' than broadcast television....Whether one receives a signal through an antenna or through a dedicated wire, the end result is just television in either case. In declining to extend broadcast's scarcity rationale for cable, the Supreme Court also implicitly limited Pacifica, the holding of which flows directly from that rationale." (pp. 188-189) Three cheers for Dalzell. During three decades, censorship advocates have used Pacifica to justify radical measures pertaining to various electronic media. Dalzell's interpretation stops them at the bridge. ACLU v. Reno will be the Supreme Court's opportunity to clarify the outer boundaries of broadcast regulation and to tell us whether "pervasiveness" really means anything; the Turner case suggests that the Court will not shirk its responsibility. ------------------------------ Date: Thu, 13 Jun 1996 13:53:44 -0400 From: Jonah Seiger Subject: File 5--President Clinton's Statement on the CDA Decision What's more interesting is what it doesn't say. He is not at all definitive on whether the gvt will file an appeal... Jonah -- THE WHITE HOUSE Office of the Press Secretary ___________________________________________________________________________ For Immediate Release June 12, 1996 STATEMENT BY THE PRESIDENT The Justice Department is reviewing today's three judge panel court decision on the Communications Decency Act. The opinion just came down today, and the statute says we have twenty days to make an appeal. I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this Act to prevent children from being exposed to objectionable material transmitted though computer networks. I will continue to do everything I can in my Administration to give families every available tool to protect their children from these materials. For example, we vigorously support the development and widespread availability of products that allow both parents and schools to block objectionable materials from reaching computers that children use. And we also support the industry's accelerating efforts to rate Internet sites so that they are compatible with these blocking techniques. ------------------------------ Date: Fri, 14 Jun 1996 20:35:11 -0700 (PDT) From: Declan McCullagh Subject: File 6--ALA applauds CDA victory, "a historic case" Date--Fri, 14 Jun 1996 23:31:25 -0400 (EDT) From--Stan Bernstein Subject--ALAWON, No. 5, No. 34 (194 lines) (fwd) ================================================================= ALAWON Volume 5, Number 34 ISSN 1069-7799 June 14,1996 American Library Association Washington Office Newsline In this issue: (194 lines) COMMUNICATIONS DECENCY ACT REJECTED BY COURT: LIBRARIANS APPLAUD CDA RULING _________________________________________________________________ COMMUNICATIONS DECENCY ACT REJECTED BY COURT: LIBRARIANS APPLAUD CDA RULING The American Library Association, library advocates and others involved with the Citizens Internet Empowerment Coalition (CIEC) welcome the decision of a federal district court panel declaring the new Communications Decency Act unconstitutional saying the ruling protects First Amendment rights, the public's open access to information and the librarians that provide the access. ALA is the lead plaintiff in a suit filed by the CIEC, a coalition of organizations which also includes online providers, publishers, parents and other public interest groups. The suit challenged the Act on the grounds that it is overly broad and so vaguely worded that it would subject librarians and other members of the public to criminal prosecution for posting materials online that are legal in other media. ALA Executive Director Elizabeth Martinez said after the court decision was released on June 12, "This is a historic case. The judges have acted to protect public access to information in this new and important media." Martinez said she was impressed by the open-mindedness of the judges and "their willingness to learn more about the Internet and how it works." The suit, filed in Philadelphia by CIEC, was consolidated with a similar suit brought by the American Civil Liberties Union. The government is expected to file an appeal that could be heard as soon as this fall by the U.S. Supreme Court. "We are ecstatic. Librarians can continue to provide ideas to the public regardless of the format, without concern about fines or jail terms," said Judith Krug, head of ALA's Office for Intellectual Freedom (OIF). "This is a victory for anyone who uses public libraries." The role of ALA in organizing the coalition was broadly acknowledged. OIF was especially instrumental in involving Bruce Ennis, longstanding counsel for the Freedom to Read Foundation, as the lead attorney. BACKGROUND: Under the Communications Decency Act, passed in February as part of the Telecommunications Reform Act of 1996, any person who knowingly sends or displays materials over the Internet that could be interpreted as "indecent" or "patently offensive by contemporary community standards" could be imprisoned for up to two years and fined up to $250,000. Attorneys for the plaintiffs argued that the law would curtail freedom of speech by restricting all communication on the Internet to a level appropriate for children and would unfairly subject libraries, colleges and other educational institutions to criminal prosecution for distributing great works of art and literature, health, science and other materials that some might find offensive. Government attorneys argued that the court should read the Communications Decency Act to apply only to hardcore sexually explicit material. Other plaintiffs included America Online,Inc.; the American Booksellers Association; American Society of Newspaper Editors, Apple Computer, Association of Publishers, Center for Democracy and Technology, Prodigy Services Company, Wired Ventures,. Ltd. This three-judge panel thoughtfully examined and ultimately understood the unique nature of this new medium. Judges Dolores Sloviter, Stewart Dalzell, and Ronald Buckwalter each wrote opinions to articulate the panel's unanimous decision. The judges came to understand the global, interactive and open nature of the Internet, and ruled in favor of the free flow of information that is both the tradition of our democracy and cyberspace. The court also was aware that this case was being watched around the world and sets a precedent for Internet regulation by other countries which would like to censor cyberspace. In concluding her statement, the panel's chief judge, Dolores Sloviter, wrote:..."the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgement of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments." Judge Dalzell noted in his opinion: "...the Internet deserves the highest protection from government intrusion..." Elsewhere he added "...the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation." Judge Buckwalter wrote: "...I find that current technology is inadequate to provide a safe harbor to most speakers on the Internet...I continue to believe that indecent' is unconstitutionally vague, and I find that the terms in context' and Patently offensive' also are so vague as to violate the First and Fifth Amendments." This was the first full court appeals panel hearing regarding the Internet and is considered precedent setting, making the Internet at least as protected as the print medium, if not more so. It became clear to the court that this law could not protect children from inappropriate material on the Internet in a meaningful, enforceable way and that the law was vague and over broad. Another reason that ALA participated in the litigation was that the law made no distinction between librarians, professors, museum curators, newspapers and other providers of legitimate, educational material and the true purveyors of material inappropriate for children. CIEC emphasized that new technology demonstrates a far more effective solution to the problem of content on the Internet than this or any other law ever could. The judges were shown parental control software that effectively blocks unwanted material in e-mail, news groups and Web sites. The judges recognized these technologies in their opinions. For example, witnesses had explained the new Platform for Internet Content Selection (PICS), that will be a basis for a variety of rating systems. The technology is available now and is beginning to be used. TEXT AVAILABLE: The text of the judges ruling in the Communications Decency Act suit is posted at http://www.cdt.org/ciec/ciec-info@cdt.org MEANWHILE IN WASHINGTON... Response came quickly. Senator Patrick Leahy (D-VT), a strong opponent of the CDA in the Senate, was pleased with the court's decision, commenting that the Constitution could not be "trampled" to "make political points back home." Representative Rick White (R-WA), who had opposed the "indecency" provision in the CDA, predicted further legislative work on the act after the Supreme Court decision. "That's when we go back to the drawing board and do something that works," he said. But President Clinton was quoted as saying: "I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this Act to prevent children from being exposed to objectionable material transmitted through computer networks." Senator James Exon(D-NE), sponsor of the Communications Decency Act, was hopeful that "reason and common sense will prevail in the Supreme Court" as he looked to the higher court overturning this decision. Dee Jepsen, president of "Enough is Enough" said "Once again the court system has failed the nation's parents in their struggle to protect their children as they use newly available computer technology." Bruce Taylor, chief counsel for the National Law Center for Children and Families contended "I don't consider this a setback." But the enthusiasm for the court decision could not be dampened by these opponents. Supporters in the Citizens Internet Empowerment Coalition were celebrating a decision that affirmed that the "Internet deserves the broadest possible protection." Perhaps the enthusiasm at winning could be best described in attorney Ennis' quote: "It's a spectacular victory for free speech and the Internet." There will inevitably be other legislative and legal battles in this arena. More to come. _________________________________________________________________ ALAWON is a free, irregular publication of the American Library Association Washington Office. To subscribe, send the message "subscribe ala-wo [your_firstname] [your_lastname]" to . ALAWON archives gopher.ala.org; select Washington Office Newsline. Web page HTTP://www.ala.org/alawashington.html. ------------------------------ Date: Wed, 12 Jun 1996 13:11:45 -0700 From: "--Todd Lappin-->" Subject: File 7--OPPOSITION: FRC on CDA Decision CDA DISASTER NETWORK June 12, 1996 What do the censors at the Family Research Council have to say about today's CDA decision? They think it's "It is an arrogant decision which flies in the face of the Supreme Court and our society." Read on for all the whining details! Work the network! --Todd Lappin--> Section Editor WIRED Magazine =========================================== Date--Wed, 12 Jun 96 15:29 EDT From--frc@townhall.com This Press Release was sent out minutes ago. For additional information about The Family Research Council please visit our Web Site at: http://www.frc.org ------------------------------------------------------------- FOR IMMEDIATE RELEASE: June 12, 1996 CONTACT: Kristin Hansen, (202) 393-2100 ARROGANT DECISION CONTRADICTS PRIOR CASES ON PORNOGRAPHY DISTRIBUTION TO MINORS, FRC SAYS FRC Director of Legal Studies Cathy Cleaver says decision on the Communications Decency Act not a pro-family defeat WASHINGTON, D.C. -- "What else should we expect from an ACLU-hand-picked judge than a sweeping, radical decision allowing adults to knowingly send and display pornography to minors on the Internet?" Director of Legal Studies Cathy Cleaver said Wednesday. "Nevertheless, this is not an ultimate defeat for American families and children. No matter where this case goes next - either to the full Eastern District Court or the Supreme Court - the Department of Justice will have a better opportunity to defend the constitutionality of this statute." Cleaver made her remarks as the Federal District Court for the Eastern District of Pennsylvania released their decision Wednesday on the ACLU v. Reno case involving the regulation of pornography distribution to minors on the Internet. Family Research Council presented a "friend of the court" brief defending the cyberporn provisions of the Communications Decency Act. The decision, written by Dolores K. Sloviter, Chief Judge of the 3rd Circuit Court of Appeals and Carter appointee, contradicts previous Supreme Court decisions on the distribution of indecent material through the media. "It is an arrogant decision which flies in the face of the Supreme Court and our society," Cleaver said. "We have long embraced the principle that those who peddle harmful material have the obligation to keep the material from children. Outside cyberspace, laws restrain people from displaying sexually explicit images in public places and from selling porn magazines to children. So, on the Internet, the burden of protecting children from exploitation should not rest solely on the parents." In her decision, Judge Sloviter maintains that it is "either technologically impossible or economically prohibitive" for pornographers to comply with the regulations. However, Cleaver said that "this decision reflects the Court's unwillingness to consider proposed regulations by dismissing them as 'burdensome.' There are constitutional ways to protect children from cyberporn but not restrict the freedom of speech of the pornographers or the adults." Cleaver continued, "Cyberspace is a work in progress. We should not squander the opportunity to examine and appreciate a world where pornography knows no bounds. Failure to enact strong laws is a concession that the information superhighway should belong to pornographers. It would be like leaving a loaded gun in a playground." FOR INFORMATION OR INTERVIEWS, CONTACT THE FRC MEDIA OFFICE. - END - +--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+--+ This transmission was brought to you by.... THE CDA DISASTER NETWORK The CDA Disaster 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. ------------------------------ Date: Thu, 21 Mar 1996 22:51:01 CST From: CuD Moderators Subject: File 8--Cu Digest Header Info (unchanged since 7 Apr, 1996) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. 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