The DoJ also quizzed Donna Hoffman about anonymous remailers. They wanted to make sure that she wasn't an expert on them, had conducted no studies of remailers, and had collected no statistics on their use. -Declan ----------------------------------------------------------------------------- The CDA Challenge, Day #2 ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- March 22, 1996 PHILADELPHIA -- At 2:21 pm today, one of the judges hearing our challenge to the Communications Decency Act finally "got it." "The folks in Luxembourg don't give a damn what our laws are. So my son, who's 10, can still view 'Sexy European Girls?'" asked U.S. District Court Judge Stewart Dalzell. "That's correct," replied Scott Bradner of Harvard University, who took the stand today to describe net.technology. Bradner told me afterwards he thought Friday's hearing went well -- he had come to Philadelphia to testify because this "is such an important issue." Judge Dalzell's remark hints that he, at least, is starting to understand the Internet -- and the consequences of the court's eventual ruling. This comes not a picosecond too soon for those of us who have been fidgeting in our seats, wincing as Department of Justice attorneys misuse technical terms and hoping the judges can sort through the cyberconfusion in just six days of hearings. Dalzell has a keen sense of humor and seems sympathetic to our arguments. In fact, I'd guess he's been doing some out-of-court web-surfing himself. In an _astounding_ question at the end of the day, he asked Bradner: "Isn't it true that the exponential and incredible growth of the Internet came about because the government kept their hands off of it?" Bradner gladly agreed. (What else would he say?) The other two judges aren't quite as reflective. In an incomprehensible decision last month, Judge Ronald Buckwalter granted us only a _partial_ restraining order preventing the Feds from enforcing the CDA. Now he's justifying his original mistake by taking a critical stance during this hearing -- that is, when he's not dozing. During one of his more alert moments, Buckwalter asked if labeling all online content is possible: "Your problems are technical and financial? If thse problems are solved and we agree on the definition of indecent, is it possible?" "Yes, it is," our witness replied. Buckwalter also asked earlier: "What do you mean by saying the Internet is a very democratic medium? Isn't there someone who steers discussion?" As proof, he held up a copy of a recent Atlantic magazine article that claimed the most popular USENET newsgroups are moderated and are therefore "quasi-authoritarian." I suggested to our attorney, Chris Hansen from the ACLU, that he clarify what percentage of newsgroups were moderated. On redirect, Hansen posed that question to Donna Hoffman of Vanderbilt University. She replied that most newsgroups are unmoderated. Later, Bradner of Harvard University added that moderated newsgroups amount to less than 10 percent of the total. Dolores Sloviter is the third judge on the panel. As the chief judge of the U.S. Third Circuit Court of Appeals, she penned a sparkling decision upholding free expression in a phone sex case. In this hearing, Sloviter's questions are the most pointed and incisive. When Robert Cronenberger of Pittsburgh's Carnegie Library was testifying, Sloviter asked him if under the CDA "would something have to be removed from your collection?" Cronenberger replied: "We don't know. We would be afraid that someone might find something indecent or patently offensive." The Department of Justice attorneys are an interesting lot. Jay Baron is a short, heavyset man who tries hard to land roundhouse punches during cross-examination but instead comes across as prone to malapropisms. I think he was the DoJer who confused <http://www.eff.org/> with <http://www.itef.org/> and "ISP" with "IP address." Before the hearing resumed for the afternoon, I introduced myself to him. He recognized me as a plaintiff and said he included one of my articles on Marty Rimm as evidence (!) and used it during depositions. <http://www.cs.cmu.edu/~declan/rimm/> Tony Coppolino is more reserved and didn't say much when we chatted, except to say that his office is busy enough with this case that they won't be sending anyone to the Computers, Freedom and Privacy conference next week. I was impressed by the poise of Patricia Rosado, the DoJ's point person on porn. Yesterday she floated the MacKinnonesque theory that porn is harmful not just to minors, but also to women. Today she greeted our witnesses with a barbed, stinging cross-examination. Unfortunately for Rosado, she was up against Cronenberger, a likable gent who came across as a traditional librarian close to the judges' own ages -- not a net.geek like Donna Hoffman and Scott Bradner. (At one point, Judge Sloviter demanded that Bradner explain URLs and linking in English, not net-ese.) The judges gladly related to Cronenberger's description of the Net as a library -- finally, something they could grasp! The ACLU's Chris Hansen expanded on this in a brilliant redirect, pointing out that the concept extends beyond that of a traditional library, allowing a user to link "from the fourth floor of Wiedner Library in Boston to the third floor of the Carnegie Mellon University library in Pittsburgh." Rosado from the DoJ rallied with questions like: DoJ: "You can do a keyword search on the seven dirty words?" DoJ: "Would a search on Abraham Lincoln turn up articles about sex?" R.C.: "I've read many articles about his sex life, or lack of sex life. DoJ: "Would a search on travel turn up articles about sex?" DoJ: "Would a search on geology turn up articles about sex?" R.C. "Only if rock is put together with roll!" <laughter>) DoJ: "Would a search on food turn up articles about sex?" DoJ: "You exercise discretion as to what you make available. You don't carry everything, do you?" DoJ: "You select materials that reflect the local community standards?" Not surprisingly, the DoJ is trying to keep the hearing focused on porn and sex. (At least it keeps Buckwalter awake!) Not the truly extreme stuff that obscenity laws already ban online, but the softcore Playboy-style cyberpix that would be permitted in the absence of the CDA. The Justice Department asked Vanderbilt's Hoffman: DoJ: "You stated in your deposition that you were generally familiar with the web page called Bianca's Smut Shack?" Judge Dalzell immediately looked up, startled: "Bianca's WHAT?" DoJ: "Bianca's SMUT Shack." Judge Dalzell: "Oh, okay." Other DoJ questions included a passing reference to would-be cyberporn researcher Marty Rimm, who claimed that pornographers were using the Net to recruit customers. (Last month, the DoJ attached Rimm's study as an exhibit in their response to our complaint and cited it as evidence of the pervasiveness of nasty stuff on USENET.) Some examples: DoJ: "You will concede, will you not, that this law will not have a profound adverse effect [on password-protected smutty sites]?" DoJ: "Pornographers are using USENET newsgroups to advertise, are they not?" DoJ: "Tell us about bots and spiders." Judge Dalzell, trying hard: "That's an acronym, right?" My fellow plaintiffs are wonderful. Kiyoshi Kuromiya testified the first day, followed by Patricia Nell Warren. Warren and I had dinner on Thursday with Jonathan Wallace of the Ethical Spectacle; we talked about the political and social forces behind the push for the CDA. I asked Wallace why he came down from New York City -- he told me because "this is the most important free speech case in 60 years." Today I sat next to the DoJ's net.experts, who kept leaning forward to whisper technical data into the ears of the Justice Department's attorneys. One of the two experts was from Brigham Young University. The other was Steve Nesbitt from the Department of Defense. One or both likely will be testifying as expert witnesses for the DoJ, but Justice isn't releasing the list until April 3. Stay tuned for more reports. ----------------------------------------------------------------------------- We're back in court on 4/1, 4/12, 4/15, and 4/26. The DoJ will be taking depositions from our remaining witnesses the week of March 24. For more information and breaking updates, check out: http://fight-censorship.dementia.org/top/ To subscribe to the fight-censorship announcement list, send email with "subscribe fight-censorship-announce" in the body to: majordomo@sojourn.com Other relevant web sites: http://www.eff.org/ http://www.cs.cmu.edu/~declan/rimm/ http://www.cdt.org/ http://www.aclu.org/ -----------------------------------------------------------------------------