EFFector Online Volume June org Pub

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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
  EFF/EFC Benefit Concert: Eden MusicFest, July 12-14 (Toronto)
Upcoming Events
Quote of the Day
What YOU Can Do

* 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


                            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?



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


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
Watch this image and follow the link for more information.

   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.



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

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

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

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



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 

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 

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 

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 

"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 

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 

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 

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 

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 

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 

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 

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 
          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 

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:
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 

* 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.



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
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To subscribe to EFFector via email, send message body of "subscribe
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To get the latest issue, send any message to effector-reflector@eff.org (or
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End of EFFector Online v09 #07 Digest