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EFFector Online Volume 09 No. 07       June 5 1996        editors@eff.org

A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

ACTION ALERT: Light up the Web with CDA Case Result Buttons

  News - A decision in the court case is near

  How to participate

  How will this campaign work?

  Press information on this event

  Background: what is the CDA?

What the Final Arguments Tell Us About The Fate of the CDA

NewsNybbles

  EFF/EFC Benefit Concert: Eden MusicFest, July 12-14 (Toronto)

Upcoming Events

Quote of the Day

What YOU Can Do

Administrivia

* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more

nformation on current EFF activities and online activism alerts! *

----------------------------------------------------------------------

Subject: ACTION ALERT: Light up the Web with CDA Case Result Buttons

--------------------------------------------------------------------

 JOIN EFF, VTW, CDT & TENS OF THOUSANDS OF NET USERS IN SPREADING THE WORD

         ABOUT THE FIRST RESULT OF THE ONLINE FREE SPEECH LAWSUIT

                            June 5, 1996

          Redistribute (intact, please) only until June 28, 1996

 ------------------------------------------------------------------------

 Table of contents

	News - A decision in the court case is near

	How to participate

	How will this campaign work?

	Press information on this event

	Background: what is the CDA?

 ------------------------------------------------------------------------

NEWS - A DECISION IN THE COURT CASE IS NEAR

The fate of the Internet and the future of the First Amendment in the

nformation age hang in the balance.  As early as this week, three federal

challenging the Communications Decency Act (CDA), which restricts

constitutionally protected speech on the Internet.

Will the court rule that the CDA is unconstitutional? That the Internet is

a unique communications technology that deserves the same First Amendment

Exon, conservative "pro-family" groups, and the Justice Department who have

argued that the government is the best judge of what material is

appropriate online.

Regardless of the outcome, the decision will have a profound impact on the

future of the Internet as a medium for free expression, education, and

commerce.

JOIN TENS OF THOUSANDS OF YOUR FELLOW NETIZENS IN ANNOUNCING THE DECISION

When the Communications Decency Act was signed into law by President

Clinton on February 8, 1996, the World Wide Web went black in protest.

When the decision in the historic legal challenge to the CDA is announced,

This campaign follows in the steps of the Turn the Web Black campaign,

of people.

New York, press conferences from the CIEC and the ACLU, and a net campaign

to raise awareness to the decision and the effects it will have on free

The result of the first CDA decision is an extremely important milestone in

the fight for free speech online.  Will the net look more like print, or

more like Saturday morning television?

 ------------------------------------------------------------------------

nformed on the latest news and participate in a dramatic demonstration

        
        alt="Free speech court decision" align=top>




        A decision is near in the fight to overturn the Communications Decency

        Act. 
Watch this image and follow the link for more information.


	     http://www.vtw.org/speech/

   with your URL.  A list of participating will be displayed.


   Empowerment Coalition) attorney Bruce Ennis on HotWired.  More details

   are available on the WWW page.


 ------------------------------------------------------------------------


HOW WILL THIS CAMPAIGN WORK?


After you have added the link (above) to your page, an animated image

the case.


As soon as a decision is announced, the image will be changed

automatically (the update will happen at our server - you will not have to

mmediately be aware of the result (win or lose).

By clicking on the updated image, visitors to your page will be able

to obtain the text of the decision, analysis, and other relevant

nformation.

Until the decision is announced, there will be information about upcoming

events and rallies on the VTW Free Speech page, http://www.vtw.org/speech/


 ------------------------------------------------------------------------



For more information on this event, including press inquiries, please

contact:


Jonah Seiger, Policy Analyst, Center For Democracy and Technology (CDT)

       +1.202.637.9800


Shabbir Safdar, Online Representative, Voters Telecommunications Watch (VTW)

      +1.718.596.2851


 ------------------------------------------------------------------------


BACKGROUND: WHAT IS THE CDA?


The Communications Decency Act was passed as part of the Telecommunications

Reform bill in February 1996.  The law seeks to protect minors from

objectionable or sexually explicit material on the Internet by imposing

offensive" material online.


Opponents to the new law argue that while well intentioned, the CDA fails

to account for the unique nature of the Internet, and that it will have a

far-reaching chilling effect on constitutionally protected speech online.

On a global, decentralized communications medium like the Internet, the

only effective and constitutional means of controlling access to

objectionable material is to rely on users and parents, not the government,

to decide what material is or is not appropriate.


Two lawsuits have been filed to challenge the constitutionality of the CDA

n a Philadelphia federal court. The cases have been consolidated and an

The cases have been brought, respectively, by The Citizens Internet

Empowerment Coalition (CIEC), comprised of civil Liberties groups,

libraries, Internet Service Providers, Commercial Online Service Providers,

Newspaper, Magazine and Book Publishers, and over 45,000 individual

nternet users, and a coalition of civil liberties groups, authors, and
others organized by the ACLU.


Detailed information on the legal challenges, as well as information about

the CDA, is available at the following web sites:



Legal Challenges To The CDA

___________________________


*  The ACLU                     -   http://www.aclu.org/


*  The Citizens Internet

   Empowerment Coalition (CIEC)  -  http://www.cdt.org/ciec



Background Information On The CDA/Internet Censorship Issues

____________________________________________________________


* American Civil Liberties Union (ACLU)        - http://www.aclu.org

* Center for Democracy and Technology (CDT)    - http://www.cdt.org

* Electronic Frontier Foundation (EFF)         - http://www.eff.org

* Electronic Privacy Information Center (EPIC) - http://www.epic.org

* Voters Telecommunications Watch (VTW)        - http://www.vtw.org


------------------------------



From: mnemonic@eff.org (Mike Godwin)

Subject: What the Final Arguments Tell Us About The Fate of the CDA

-------------------------------------------------------------------


                                  by Mike Godwin, EFF Staff Counsel



away at my notes, when, suddenly, I had to look up, stop typing, 

and just watch what was happening. It wasn't merely the 

established himself that day as the most aggressive questioner of 

the three-judge panel reviewing the constitutionality of the 

Communications Decency Act. 


No, it was the content of the questions. Holding a copy of the 

_Philadelphia_Inquirer_ in his hand, and indicating an above-the-

fold, page-one photo of the battlefield execution of a soldier in, 

mages, Dalzell said. And suppose that Congress, recognizing that
t couldn't constitutionally ban such images altogether, chose
nstead to pass the "Newspaper Decency Act," which simply required
newspapers that want to print such photographs on page one to 

not visible to passersby as the paper sits on the newstand rack)? 

Would such a law be constitutional?


And it was that question, and the exchange that followed it, that 

convinced me, finally and completely, that the judges "got it" 

about the constitutional problems with the CDA. At that moment I 


"oral argument" since I was a law student and started reading 

accounts about Supreme Court cases. But I never really appreciated 

ts value as a crucible for legal theories until I attended the
final arguments, on May 10, of the Philadelphia cases challenging 

the Communications Decency Act.


"Oral argument" is a point in a hearing or other court proceeding 

"live" in front of the judge. When this is done at the conclusion 

of the lawyers' presentation of a case, it's termed "final 

argument." And if you had been there in the federal courthouse on 

May 10, you'd have seen how important oral argument can be.


Now, once you know the kind of research and writing that goes into 

a litigated case, you may wonder, as even some lawyers do, why 

courts ever bother with oral argument, especially in the final-

argument phase. After all, that last phase is when all the 

arguments, including legal citations, are laid out right there in 

the opposing sides' briefs. What's the point of having the judge 

(or judges, if there's a panel, as there is in each of the CDA 

challenges) go through the process of quizzing the lawyers for 

each side about their arguments? Shouldn't they just save 

everybody time by going back into their chambers and reading the 


The answer is, oral argument turns out to be the best way for 

about real and hypothetical scenarios, by questioning them 

efficiently, whose arguments hold up best, and whose arguments 


fit an appearance for the Philadelphia final argument into my 


As a result, I stretched myself awake at 7 a.m. that Friday 

morning (4 in the morning for me -- I was on San Francisco time), 

lawyers in the lobby of the Holiday Inn, just walking distance 

from the courthouse. I'm one of the "counsel of record" in this 

case myself -- the Electronic Frontier Foundation is also a 

Chris Hansen, in putting _ACLU,_et_al._v._Reno_ together. We'd 

each other. But this was only the second time I'd met Chris face-

to-face, and it would be the first time I'd get to see him in 

action. I met Chris and another ACLU lawyer, Ann Beeson, in the 

lobby.


Our group got to the courthouse so early that the federal 

marshals, who are responsible for keeping the peace, had not yet 

firearms and other weapons.  I shortly discovered that this was a 

blessing -- I walked right in without fear of anyone's 

confiscating or zapping my potentially lethal PowerBook. Danny 

Weitzner (a director of the Center for Democracy and Technology, 

_Association,_et_al._v._United_States_Department_of_Justice_) told 

me that other attendees had had some trouble clearing their 

computers with the feds. I guess that by this time the law-

enforcement guys figured the nerds and their toys were no threat.


Nor was I the only one tap-tapping away (but quietly and 

Chief Judge Dolores Sloviter instructed the attorneys that this 

oral argument was "for our benefit rather than for yours," and she 

Each attorney would have to make his arguments -- *and* answer 

questions -- in a strictly limited period of time. Concluding her 

opening remarks, Judge Sloviter, flanked by Judge Dalzell and 

District Judge Ronald Buckwalter, announced that "We will hear 

counsel."


The attorneys for the two cases had divided up in advance the 

burden of the making the final legal and constitutional arguments.  

ACLU's Chris Hansen would be up at bat first, focusing on the 

overbreadth and vagueness challenges to the statute, after which 

the A.L.A.'s Bruce Ennis (himself a former ACLU attorney) would 

focus on the least-restrictive means argument. Both attorneys 

Amendment-protected speech, in any medium other than broadcasting.


Hansen opened his remarks by noting that there were "two subjects 

that are not in dispute in this case." The first, he said, is that 

"this is a criminal statute"; the second is that "this is a 

underscored a basic legal fact about the constitutional tests of 

both speech-restricting and criminal statutes: that if either kind 

of statute is "vague" (you can't tell what is 

"chilling" lawful conduct or speech), it's unconstitutional. The 

terms of the CDA, Hansen said, are unclear as to what is 

from big conferencing systems like CompuServe to newcomer Web 

e-mail users like you and me -- can be certain about what kinds of 

about what they post to Usenet or other public digital forms -- it

 

What adds to the uncertainty, Hansen said, is that the "defenses" 

avoid criminal liability -- are defined in terms of whatever 

filtering or screening technologies happen to be available at any 

conditions a defense on the defendant's use of "reasonable and 

effective measures under current technology." As a result, Hansen 

changes. What worked last year won't necessarily work next year, 


Hansen then moved into the more basic constitutional question. 

"What this highlights, to me anyway, is the nature of the medium 

Hansen distinguished computer communications from broadcasting, 

other, older media -- partly because broadcasting frequencies are 

"scarce," and partly because, in the words of Justice John Paul 

Stevens, broadcasting is "pervasive" and "uniquely accessible to 

children, even those too young to read." 


medium, he said, it's most like print. "There are a limited number 

of speakers in the context of television," Hansen argued, while 

the Net is arguably "the most democratic means of speech yet 

of us as powerful as CBS News." And since every individual is a 

every single American to define 'indecency'" -- a term on whose 

able to agree.


To impose such a burden on everyday citizens, on the pain of 

criminal penalties, said Hansen, is "particularly onerous." After 

all, he reminded the judges, "we're not talking about obscene 

the other major category of illegal expression. Instead, the 

challenge to the CDA is based on constitutionally protected speech 

-- speech that may not violate community standards, or that has 

Supreme Court has called "the prurient interest" -- said Hansen: 

"It's hard to say how anyone would be turned on by the George 

Carlin monologue" that was at issue in Federal Communications 

Commission v. Pacifica, the 1978 case that established the 

broadcasting.


Hansen's presentation was frequently interrupted by -- in fact, 

t's fairer to say "driven by" -- questions from the bench,
lawsuit, got a similar grilling. "I'm going to speak primarily 

about the subsection (e) safe-harbor defenses," Ennis told the 

court.


"Subsection (d), standing alone," he said, "would constitute a 

flat ban on speech that is constitutionally protected for adults." 

The infamous subsection (d) of the Communications Decency Act is 

the one that prohibits any "display in a manner available to a 

material. In effect, this part of the statute turns you into a 

felon if a 17-year-old college freshman obtains information from 

your Web site that would be perfectly legal if he obtained it from 

the Barnes & Noble bookstore at a shopping mall. No exceptions for 

educational or not. If you knowingly publish perfectly legal 

material from your computer or Internet node, you can end up doing 

two years in Club Fed.


Ennis stressed the fact that the CDA creates a criminal sanction 

for people engaging in certain kinds of constitutionally protected 

there's no such guarantee under the Communications Decency Act. 


Asked Judge Sloviter: To whom *is* the safe-harbor defense 

available? Ennis responded: While a credit-card-approval 

only regulates *commercial* speakers, there's no similar mechanism 

available for the noncommercial speakers who make up the majority 

of users of the Net.


Judge Dalzell jumped in. Even for *commercial* speakers and 

of compliance" with the statute, aren't they? They're not 

convicted anyway, are they? Ennis agreed. At most, they're merely 

"substantial evidence," he said, citing a letter to that effect 

from one of the DOJ's assistant attorneys general. Dalzell then 

(Sable Communications v. FCC, in which the Supreme Court held, in 1

unconstitutional). Asked Dalzell: Didn't Sable say the defenses 

a ban -- constitutional?


Ennis responded by noting what makes the Internet different from 

nternet do not charge for access to their speech." Therefore,
companies to screen out minors. In other words, asked Dalzell, the 

companies simply will not verify credit cards for noncommercial 

mpressive array of technical witnesses, he added that "the
evidence is quite clear that ... there is no technological way to 


Judge Buckwalter also had a question about the defenses: With 

like other criminal statutes, which place the burden of proof of 

case (what lawyers call a "prima facie" case) that the defendant 

burden shifts to the *defendant* to prove that the so-called 


Having been peppered by questions from the bench, Ennis saw that 

much time talking about newsgroups, chat rooms, and mail 

exploders" where the sort of screening prescribed by the CDA is 

even more difficult to implement than it is on the Web. "Those are 


Ennis also noted that that the government's argument seemed to be 

that every user on the net would be free from criminal liability 

f they "tag" or "self-label" or "register" their speech as

Dalzell responded with some sarcasm: "Do you take that point 

venerable online service had been the subject of headlines in the 

Family Association (Donald Wildmon's organization), CompuServe's 

content was being reviewed for possible violations of the CDA. Are 

the government's people, asked Dalzell, really serious about these 

and in a separate directory, and screened by parental-control 

CompuServe was made to look in the national headlines as if it was 

a scofflaw porn vendor. So what use are the defenses?


Ennis agreed that they didn't seem to be of much use. He also 

noted that even if the commercial online services tag or register 

their content, tagging and registering will not work unless the 

content-classification scheme such as PICS, there's no need for 

tagging and filtering.


At this point, Judge Sloviter addressed another issue: What about 

the risk of a child's inadvertently coming across the 

nappropriate material?

According to the available evidence, Ennis said, "the odds are 

nteractive computer services, unlike broadcast or radio, the user
chooses where he wants to go.


As the clock ran down, Sloviter had even more questions: Could 

Congress trump parent wishes? After all, she said, the CDA's 

conference-committee report says it's the empowerment of parents 

that they're aiming for. And isn't there evidence that, even if 

the CDA were found to be somewhat effective, some substantial 

number of children could encounter the stuff outside the home"?


Dalzell chimed in: "Internet cafes? Libraries?"


And, asked Sloviter, what about the difficulties of even smart 


Ennis attempted valiantly, if not wholly successfully, to answer 

all the questions in his remaining time, noting in particular that 

t's not difficult for parents to use this stuff, but if it is,
that's as much a problem for the government's arguments as it is 

for the plaintiffs'.


As the clock ran out, Ennis was asked whether the statute could be 

t could be improved -- especially by striking out the "display"
offense altogether -- but the message was clear that he didn't 

think the statute could ever be made wholly constitutional. Hansen 


Center looked over at me and said, with a little worry in his 

voice, that the questioning from the bench seemed a bit tougher 

today than it had in earlier phases of the case. "I think it's a 

they're asking *very intelligent* questions."


Then DOJ attorney Anthony Coppolino got up to give the 

lively in the first part of the oral argument, it was so fierce, 

t fractured the government's presentation of the case. It wasn't
that the judges' questions were any tougher for the government 

than they had been for the plaintiffs. Nor was it that the 

constitutionality, but also incoherently drafted. (One section of 

the CDA, for example, seems explicitly to exclude the very 

"interactive computer services" that the drafters of the statute 

aimed to include, and that companies like CompuServe operate.) And 

they were forced to rely heavily on statements about the statute 

made in the Congressional conference-committee report about it -- 

a report whose statements about the relevant legal and 

constitutional principles is itself inconsistent and misleading.


Coppolino first informed the judges that he and his associate, 

Jason Baron would be dividing the issues up much the way Hansen 

and Ennis had, although "I do expect I will cross over a bit." 

Coppolino would deal with the overbreadth and indecency 

challenges, and the basic constitutional issue of whether the 

for the noncommercial providers will be dealt with by Baron.


Most of the questioning of Coppolino and Baron paralleled the 

questions asked of Hansen and Ennis. Coppolino argued that the 

terms "indecent" and "patently offensive as measured by 

contemporary community standards, sexual or excretory activities 

or organs" are not vague (they've been used by the FCC in a number 

of cases, and the cases tell us what the terms mean), and that the 

two terms in fact mean the same thing. In itself this is a 

FCC, if not by Congress or the Supreme Court, to mean "patently 

offensive (etc.)."


Judge Dalzell had a problem with this argument, though: "Doesn't 

the conference report say that these terms are taken from Pacifica 

and Sable?" The problem for the government was that in neither 

offensive" definition of indecency.


Judge Sloviter then asked if the government wanted the court "to 


"That's not hard," said Coppolino. The "patently offensive" 


But what about the requirement that a criminal statute give due 

notice to citizens as to what is prohibited? asked Sloviter. 

Answered Coppolino: the caselaw gives notice as to the meaning of 

the terms. (The legal fiction here is that everyday citizens know 

FCC caselaw, but the fact that this assumption defies common sense 

know, ignorance of the law is no excuse.)


Sloviter then asked about the conference-committee report's claim 

that the statute's does not penalize content with social worth: 

"You want us to read the statute to have a built-in exception for 

the conference-committee report's claims about the CDA -- although 

t states that "indecent" material does not include material of
artistic, scientific, or political value, the FCC has explicitly 

"indecent" for broadcast purposes.


Hence Coppolino's response: "I don't agree with that 

characterization."


Furthermore, he said, "We have not asked that the term be 

narrowed to pornography." (The conference report says that the 

use it as it has been applied by the courts." In short, Coppolino 

the conference report. "Our point," he said, "is that it's not 

clearly anything about sex or anything with an expletive." He 

added, however, that indecency "can include pornography. It can 

also including shocking or vulgar textual discussions."


Judge Dalzell questioned whether the FCC's use of the term in 

broadcasting tell us anything about its meaning in the context of 

"patently offensive" just mean what a U.S. Attorney somewhere 


Coppolino responded: We cannot provide assurance that a U.S. Atty 

a statute can be unconstitutional. It can be "facially" 

unconstitutional -- that is, its terms on their face violate 

constitutional guarantees. Or it can be unconstitutional as 

applied by the government, in which case the judiciary can 

law altogether.) Coppolino was telling the judges that we could 

unconstitutional. The problem with his argument here was that the 

CompuServe.


Sloviter asked about literary works that might be offensive yet 

-- would that be "indecent" on the Internet? She also asked about

Henry Miller's _Tropic_of_Cancer_.


"Unlike the plaintiffs," Coppolino said, "we don't believe that 

'indecency' necessarily includes serious value or necessarily 

excludes material with prurient appeal." (He misstated plaintiff's 

argument here -- Hansen had simply noted that "prurient" appeal is 

not necessary for something to be found "indecent." This is not 

the same as saying that nothing "prurient" is indecent.)


Asked Sloviter: Under the First Amendment and the Due Process 

about what is forbidden? Coppolino replied: "I can't give you a 

categorical answer about serious value."


Responded Sloviter: If you want the court to construe the statute 

as not prohibiting works of serious value,."[y]ou're asking us to 

be the activist judges that some members of Congress excoriate, 

and to put words into the statute that are not there."


Coppolino argued that indecency and "patently offensive" will be 

ssue, much the way obscenity is. (In doing so, he departed from
the FCC caselaw, which says that "community" for the purposes of 

community standards.)


"Isn't that a problem in communications that are available all 

over the United States?" asked Judge Sloviter. The only 

apparently arguing that there is already a national consensus as 

to what is indecent..


Judge Dalzell then asked about a web site that carried Robert 

Mapplethorpe photographs. Coppolino admitted that "there a few 


Judge Sloviter shot back: There are "lots of hard cases" the court 

could ask about. "But we don't have all day."


Responding to a question about what the CDA added to existing 

Coppolino attempted to address the issue of overbreadth.There is 

only "a very narrow category of speech" that is not obscene but is 

ndecent, he asserted. This statute is a solution that aims at
effectively protecting minors from this type of speech.


At this point, Coppolino seemed to be saying that "indecency" 

Dalzell had problems with this: "How can we graft a harmful to 

minors statute when Congress specifically rejected it?" he asked, 

Rick White during the conference committee, but which was 


Dalzell also distinguished prior indecency cases from this one. 

Sable Communications, he said, was about commercial dial-a-porn 

vendors -- in that case, the very subject matter was porn. 

to justify constitutionally. But since the Net is available, 


Furthermore, asked Dalzell, isn't it true that if the issue were 

merely pornography, not one of the  plaintiffs in the ACLU or ALA 

cases would be reachable under a statute that aimed purely at 


Coppolino seemed to agree. He then returned to his argument about 

of the statute he suggested. Dalzell added that the trial has seen 

a lot of evidence that there's a broad class of material available 

on the Net that is not porn but that nonetheless can be penalized.


Coppolino stated further that courts and citizens can be guided in 

understanding indecency by looking at what the FCC has identified 

as indecent in the broadcasting arena. He referred again to the 

committee report language, which says that "indecent" is defined 

"in context" -- which raised two problems for the government. 

First, it is not clear how courts (or anyone else) will interpret 

the "in context" language. Second, it's a problem to have to cite 

the committee report to support your case in one part of your 

argument while having to disavow its statements in other parts of 

your argument.


Dalzell questioned Coppolino about the Pacifica/George Carlin 

case: "tremendous weight," he said, was given in the Pacifica case 

to "the surprise element" inherent in radio programming. Is there 

anything like that degree of "surprise" on the Net, where users 

are making choices about what to see and read? 


Coppolino argued that the Net was like the radio broadcasting in 

broadcast," he said. It's "pervasive" because it can be received 

n the home. He noted that when it comes to radio and TV, the
Supreme Court has established and consistently upheld the "less 

tolerant standard of broadcasting."


And that's when Dalzell hit him with the artfully crafted 

Newspaper Decency Act, which banned violence above the fold, be 

constitutional?


At first Coppolino misunderstood the question -- he took it be a 

Dalzell was asking about general federal authority to regulate 

nonobscene content that might be harmful. The Supreme Court, 

authority. Prudently, perhaps, Coppolino never answered this 

question directly.


But to me, sitting in the front row, it didn't matter what 

Coppolino's answer was. Dalzell's question, and Sloviter's 

followup questions signaled that they fully understood what was at 

the same freedoms that traditional media like newspapers have, or 

else be subjected to a strict regulatory regime of the sort that 

fare.


When Coppolino did understand the question (to his credit, it 

broadcasting because it "comes into the home." Responded Dalzell: 

The _Inquirer_ comes into my home.


Coppolino: A child can't go buy _Playboy_.


Sloviter: But parents can subscribe -- _Playboy_ does, in fact, come 

nto many people's homes.

Coppolino attempted to recover. The issue, he said, is links to 

nadvertent exposure? he asked.

That gave Sloviter an opportunity to take over the questioning. 

Suppose there is minimal risk of accidental exposure -- is there a 

compelling government interest (such an interest is 

constitutionally required in legislation like the CDA) if there's 

no inadvertence or surprise? And what if a 14-year-old child 

questions, Sloviter was raising the issue of how the CDA would 

affect the availability of "indecent" or "patently offensive" 

material if parents approved of their minor child accessing it. The 

*decreasing* the availability of that material. So the 

false.


Coppolino returned to his theme of pervasiveness --the Net is 

therefore merits the kind of close control that the federal 

ndecent. Coppolino responded: "This isn't about _Catcher_in_the_Rye_."

Sloviter then commented with some amusement that _Tropic_ is a very 


Sloviter's final question sank any credibility that the conference 

about the committee's claim that there is an "intent to offend" 

element to the crime? she asked.


Responded Coppolino: "That would be a lot to read into the 


The questioning of Tony Coppolino was so devastating to the 

onlookers in the courtroom. The plaintiffs had undergone tough 

questioning, but the government's case seemed bullet-ridden after 

Coppolino's turn at bat. DOJ attorney Jason Baron tried to recover 

by claiming that the defenses built into the statute rended the 

CDA constitutional, but Judge Dalzell -- seemingly personally 

offended by what had happened to CompuServe in the week -- was 

nothing if not sceptical. "What more could CompuServe have done 

[to protect children] than what it did?" Dalzell asked, after 

noting that the adult material in question had already been 


Said Baron: "I don't think that's a very good example." Visibly 

angry, Dalzell responded: "Could you answer my question?"


Baron attempted to argue that the Department of Justice may really 

but he was forced to rely on a letter written after the fact. The 

fact is, as we stated in page 632 of our post-hearing brief ... 

The answer to your hypothetical would be, I would expect, that 

there would be an affirmative defense... under the available 

technology."


The problem here was that the government was already on the record 

as saying that use of current technology to screen out nonobscene 

but "indecent" material from minors would, as most, count only as 

evidence of a defense, and not establish a defense in and of 

tself.

Judge Buckwalter had many questions for Baron -- which seemed 

earlier questioning. But Buckwalter seemed to be troubled that 

there was "no effective way" for a speaker on the Internet to 


Argued Baron: "The key to the CDA is the burden on the content 


Dalzell quickly slamdunked that comment: "But CompuServe *did* 

nvestigation/review from the FBI.)

Dalzell later read a May 3 letter from the American Reporter case 

assistant AG: "Under present technology, it is the position of the 

... under the circumstances."


Further, Dalzell said credit-card identification of minors is a 

non-starter -- it would unfairly burden individuals and non-profit 

that noncommercial Net publishers typically don't have. 

There was a some discussion of one plaintiff's insistence that his 

material needs to be "indecent" in order to interest minors in AIDS

education and safe-sex information. Baron responded by saying that if


Dalzell: "But that's the parents' decision, not the government's 


Baron was at a loss to come up with a good answer to this one.

Judge Sloviter asked about a web site called "Bianca's Smut 

Shack": "How would you block it for Judge Dalzell's ten-year-old, 

but make it available to Judge Dalzell if he wants to see it?" 

Baron seemed to fumble his answer -- perhaps because there is no 


Dalzell commented, with some heat: You ridiculed the witness who 

offensive and complains to the Department of Justice. Isn't that 


Although there were a few more questions, Baron's argument was 

effectively over at that point.


of a clear victory, strove to give the court the strongest, 

broadest arguments for striking down the statute. Said Hansen: 

Even if filtering technology is constantly improving, "there are 

two things that are enormously troubling". First, he said, the 

nature of the speech being criminalized by the CDA is valuable 


Ennis summarized his case with "three brief points":


Web,  there is no technology now, and none in the pipeline, that 


admitted that tagging is not a defense today." At most it's 

"substantial evidence." even if it's all in place.


the First Amendment bars government from forcing upon you. A court

First Amendment problem, Ennis concluded. And Congress had no 

ntention of doing so. Congress specifically rejected compelled
labelling of broadcast when it mandated the so-called V-chip, which 

s intented to enable parents to filter out violent content on TV.

Then Ennis sat down, and the final argument was over.


And I sat there, numb with the sense that we had won, that the 

lawyers and law professors will tell you that you can't predict 

the outcome of a case from an oral argument. But it was hard to 

morally certain that, on one or more grounds, the singularly 

offensive and unconstitutional Communications Decency Act would be 


faith in the law.


------------------------------



Subject: NewsNybbles

--------------------


* EFF Benefit Concert, Eden MusicFest, July 12-14 (Toronto)


Eden MusicFest '96


Eden MusicFest, A 3 day Modern Rock Festival and Exposition, has been 

confirmed and will take place July 12-14 at Mosport Park. The 400-acre 


Eden Interfest will pioneer the use of "Cyber Sales," whereby ticket 

are available NOW.


A portion of revenues from ticket sales from the concert will benefit the 

Electronic Frontier Foundation (EFF) and their Canadian counterpart, 

Electronic Frontier Canada. The organizations have been chosen as 

beneficiaries for their valuable contributions to civil liberties online 

and their dedication to free speech and the reduction of censorship on the


The event will include a state-of-the-art "Internet Expo" featuring 

exhibitors with high visibility on the World Wide Web. The festival will 

also include weekend camping and a global village with arts and crafts, 

a variety of vendors and merchandisers, information providers, and more.


Artists who'll be performing include:


 The Tragically Hip, Bush, The Cure, Live, Love and Rockets, Everclear,

 Spacehog, The Watchmen, Goo Goo Dolls, Tracy Bonham, Spirit of the

 West, Seven Mary Three, Spin Doctors, Cibo Matto, and more!  


More major bands will be confirmed soon.


liberties online!


For full details, please see the event web site at:


------------------------------



Upcoming Events

---------------


This schedule lists EFF events, and those we feel might be of interest to

our members.  EFF events (those sponsored by us or featuring an EFF speaker)

are marked with a "*" instead of a "-" after the date.  Simlarly, government

events (such as deadlines for comments on reports or testimony submission,

or conferences at which government representatives are speaking) are marked

ndicates a non-USA event.  If it's a foreign EFF event with govt. people,
t'll be "*!+" instead of "-".  You get the idea.

The latest version of the full EFF calendar is available from:


ftp: ftp.eff.org, /pub/EFF/calendar.eff


See also our new Now-Up-to-Date HTML calendar at:



June 6-

     8  - Connected Classroom Conference; using the Internet in the

          classroom, sponsored by National Education and Technology Alliance;

          Hunt Valley Marriott Inn, Baltimore, MD.

          Contact: +1 800 638 1639

          Fax: +1 717 393 5752

          Email: register@classroom.net

          URL: http://www.classroom.net/connected/



June 6-

     9  + 5CYBERCONF: Fifth International Conference on Cyberspace;

          Madrid, Spain. Hosted by "Fundacion Arte y Technologia de

          Telefonica. Deadline for registration is May 1, 1996.

          Tel. 34-1-542-9380

          Fax. 34-1-521-0041

          Email: 5cyberconf@ceai.telefonica.es

          URL http://www.telefonica.es/fat/


June 9-

     10 - Communications Law Institute, a continuing and distance

          education service of the College of Communications and the

          Pennsylvania Center for the First Amendment. The conference will

          feature scholars, First Amendment experts and professional

          journalists examining the effect of new communication technologies

          on copyright, government access and libel. The Penn State Scanticon

          Conference Center Hotel. To register, call 1-800-778-8632 or

          send Email to conferenceinfo@cde.psu and include all pertinent 

          info.

          Contact: Robert D. Richards, +1 814 863 1900

          Fax: +1 814 863 8044

          Email: rdr2@psuvm.psu.edu

          URL: http://www.cde.psu.edu/C&I/Commlaw.html


June 11-

     13 - National Educational Computing Conference; Minneapolis

          Convention Center, Minneapolis, MN.

          Contact: +1 612 638 8764

          Fax: +1 612 638 8769

          Email: necc96@ties.k12.mn.us


June 15 - Open discussion of the lack of computer industry philanthropy.

          $10 dollar donation includes dinner and drinks. ($5-children); 

          4pm - midnight, Fred and Sylvia's CyberSalon West, 630 San 

          Miguel Way, Berkeley, CA.

          Contact: +1 510 526 5555


June 16-

     20 - Society and the Future of Computing; Snowbird, UT.

          Email: rxl@lanl.gov

          URL: http://www.lanl.gov/SFC


June 17-

     18 - Practicing Law Institute's 16th Annual Institute on Computer

          Law: Understanding the Business and Legal Aspects of the Internet;

          San Francisco, CA

          Contact: +1 800 477 0300

          Email: info@pli.edu


June 17-

     18 * Venture Market Europe - presentation and discussion of private

          technology company CEOs' international business plans and ideas;

          London, England. ph: 415/865-2277 x210, fax: 415/865-0453


June 17-

     22 - World Conference on Educational Multimedia and Hypermedia,

          ED-MEDIA 96; Boston, MA. Submission deadline: Oct. 20, 1995.

          Contact: +1 804 973 3987

          Fax: +1 804 978 7449

          Email: aace@virginia.edu


June 21-

     22 - ISTAS 96, International Symposium on Technology and Society;

          Princeton Univeristy, Princeton, NJ. Abstract submission

          deadline: Dec. 15, 1995.

          Email: istas@wws.princeton.edu

          Fax: +1 609 258 1985


June 21-

     22 - "Personal Information - Security, Engineering and Ethics,"

          sponsored by the Britsish Medical Association; Isaac Newton

          Institute, Cambridge, MA. Deadline for submissions: May 10.

          Contact: Dr. Ross Anderson, Isaac Newton Institute, 20 Clarkson

          Road, Cambridge CB3 0EH, England

          Email: rja14@newton.cam.ac.uk


June 24-

     26 + Australasian Conference on Information Security and Privacy;

          New South Wales, Australia.

          Email: jennie@cs.uow.edu.au


June 25-

     28 + INET 96, The 6th Annual Conference of the Internet Society: "The

          Internet: Transforming Our Society Now"; Montreal Canada. Deadline

          for abstracts: Jan. 15.

          Contact: Carol Gray, International Secretariat

                   12020 Sunrise Valley Drive, Suite 210

                   Reston, VA 22091

          Voice: +1 703 648 9888

          Fax: +1 703 648 9887

          Email: inet96@isoc.org

          URL: http://www.isoc.org/conferences/inet96


June 26-

     28 - MIT seminar, "Converging Networks: Business and the

          Telecommunications Act of 1996."

          Email: cnbta@rpcp.mit.edu

          URL: http://farnsworth.mit.edu/Workshops


------------------------------



Subject: Quote of the Day

-------------------------


"Conventionality is not morality. Self-righteousness is not religion. To 

attack the first is not to assail the last."

  - Charlotte Bronte


Find yourself wondering if your privacy and freedom of speech are safe 

the rush to make us secure from ourselves that our government 

Concerned that legislative efforts nominally to "protect children" will 

actually censor all communications down to only content suitable for 

the playground?  Alarmed by commercial and religious organizations abusing

the judicial and legislative processes to stifle satire, dissent and 

criticism?


Join EFF!   


Even if you don't live in the U.S., the anti-Internet hysteria will soon 

be visiting a legislative body near you.  If it hasn't already.


------------------------------



Subject: What YOU Can Do

------------------------


* The Communications Decency Act & Other Censorship Legislation


The Communications Decency Act and similar legislation pose serious 

threats to freedom of expression online, and to the livelihoods of system 

operators.  The legislation also undermines several crucial privacy 


Business/industry persons concerned should alert their corporate govt.

affairs office and/or legal counsel.  Everyone should write to their own

Representatives and Senators, letting them know that such abuses of 

your free speech rights will be voted against by you in the next elections.


Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html



Support the EFF Cyberspace Legal Defense Fund:


For more information on what you can do to help stop this and other 


ftp.eff.org, /pub/Alerts/


for information to ask@eff.org.


censorious legislation is turning up at the US state and non-US 

national levels.  Don't let it sneak by you - or by the online activism 

community. Without locals on the look out, it's very difficult for the 

Net civil liberties community to keep track of what's happening locally 

as well as globally.



* New Crypto-Privacy Legislation


Urge your Represenatitives to support the Pro-CODE crypto export bill 

(and to fix the few remaining bugs in it).  


For years US export controls on encryption have hampered the development

of secure communications online. This technology is vital for online 

commerce, for national security, and for YOUR electronic privacy.


The new Pro-CODE legislation will go a long way to rectifying the situation.


Join in the Golden Key Campaign - see http://www.eff.org/goldkey.html



Support the EFF Cyberspace Legal Defense Fund:


See also:

 http://www.eff.org/pub/Privacy/

 http://www.privacy.org/ipc/

 http://www.crypto.com/

for more info.



* Digital Telephony/Comms. Assistance to Law Enforcement Act


The FBI has been seeking both funding for the DT/CALEA wiretapping 


To oppose the funding, write to your own Senators and Representatives 

urging them to vote against any appropriations for wiretapping. 


We are aware of no major action on this threat at present, but keep your

eyes peeled. It will be back.


See http://www.eff.org/pub/Privacy/Surveillance/ for more info.



* Anti-Terrorism Bills


Several bills threatening your privacy and free speech have been introduced

this very moment - however, this status may change. Urge your 

Congresspersons to oppose these unconstitutional and Big-Brotherish 

bills, which threaten freedom of association, free press, free speech, 

and privacy. One such bill passed a few weeks ago, stripped of some of the 

more onerous provisions.  It could have been worse, and could yet still 

be worse.


Keep up the pressure. Write to your legislators: No 

authority, no national or "smart-card" ID systems!


For more information on some of this legislation, see 



* The Anti-Electronic Racketeering Act


This bill is unlikely to pass in any form, being very poorly drafted, and 

flying colors [the jolly roger?] in Congress. It's better to be safe 

than sorry. If you have a few moments to spare, writing to, faxing, or 

calling your Congresspersons to urge opposition to this bill is a good 

dea.


* Medical Privacy Legislation


Several bills relating to medical privacy issues are floating in Congress 

enhance the medical privacy of citizens.


More information on this legislation will be available at 

t appear there faster. :)


* Child Privacy Legislation


A new bill to protect children from unethical marketing practices (e.g. 

tricking kids into revealing personal information by offering prizes or 

like, and dislike, various points in this bill.  The legislators 



* Find Out Who Your Congresspersons Are


Writing letters to, faxing, and phoning your representatives in Congress

s one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.


EFF has lists of the Senate and House with contact information, as well

as lists of Congressional committees. These lists are available at: 

ftp.eff.org, /pub/Activism/Congress_cmtes/


The full Senate and House lists are senate.list and hr.list, respectively.

Those not in the U.S. should seek out similar information about their

own legislative bodies.  EFF will be happy to archive any such

nformation provided to us, so pass it on!

try contacting your local League of Women Voters, who maintain a great 

that matches Zip Codes to Congressional districts with about 85%

accuracy at:


Computer Currents Interactive has provided Congress contact info, sorted 

by who voted for and against the Communcations Decency Act:



* Join EFF!


You *know* privacy, freedom of speech and ability to make your voice heard

n government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way to

opinions heard.  EFF members are informed and are making a difference.  Join

EFF today!


For EFF membership info, send queries to membership@eff.org, or send any

message to info@eff.org for basic EFF info, and a membership form.


------------------------------



Administrivia

=============


EFFector Online is published by:


The Electronic Frontier Foundation

San Francisco CA 94103 USA

+1 415 436 9333 (voice)

+1 415 436 9993 (fax)

Membership & donations: membership@eff.org

Legal services: ssteele@eff.org

General EFF, legal, policy or online resources queries: ask@eff.org


Editor: Stanton McCandlish, Online Activist, Webmaster (mech@eff.org)


This newsletter is printed on 100% recycled electrons.


Reproduction of this publication in electronic media is encouraged.  Signed

articles do not necessarily represent the views of EFF.  To reproduce

ually at will.


To subscribe to EFFector via email, send message body of "subscribe

effector-online" (without the "quotes") to listserv@eff.org, which will add

you to a subscription list for EFFector.


Back issues are available at:

ftp.eff.org, /pub/EFF/Newsletters/EFFector/


To get the latest issue, send any message to effector-reflector@eff.org (or

er@eff.org), and it will be mailed to you automagically.  You can also get

the file "current" from the EFFector directory at the above sites at any 

time for a copy of the current issue.  HTML editions available at:

at EFFweb.  HTML editions of the current issue sometimes take a day or 

longer to prepare after issue of the ASCII text version.


------------------------------






End of EFFector Online v09 #07 Digest

*************************************


$$