October 4, 1995 ACLU CYBER-LIBERTIES UPDATE **Premiere Issue** A bi-weekly online ‘zine on cyber-liberties cases and controversies at the state and federal level. ---------------------------------------------------------------------------------------------------------------------- FEDERAL PAGE (Congress/Agency/Court Cases) ---------------------------------------------------------------------------------------------------------------------- * "Virtual" Child Pornography Bill is Overbroad and Fails to Protect Real Children Despite the FBI's apparent success in raiding alleged child pornographers on America Online, Senator Orrin Hatch decided we needed a new child pornography law. Hatch's bill would expand the existing child porn law to include materials that are: -visual depictions of what "appears to be . . . a minor engaging in sexually explicit conduct;" and -visual depictions "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." In its effort to outlaw "virtual" child pornography, the bill would criminalize a wide range of constitutionally protected expression. Hatch attempts to justify the new bill by reference to a widely-publicized Canadian case in which a pornographer copied pictures of clothed children from catalogs and morphed them into child pornography. Senator Hatch claims that the case would not be covered under the existing federal child porn statute, but that issue has never been decided by a United States court. While the application of the existing statute to these facts is far from clear, the Hatch bill covers *much more* than just this case scenario. The statute would cover *any* image of a child engaged in sexual behavior, including non-computer-generated drawings, cartoons, and visual images created without the use of photos of real children or even real adults. In upholding child pornography laws, the Supreme Court has stated that "the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. . . . [T]he distribution of descriptions or depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection." _New York v. Ferber_, 458 U.S. 747, 764-65 (1982). Hatch's "virtual child porn" law is clearly unconstitutional because it would outlaw images produced without any involvement by an actual child. Bruce Taylor of the National Law Center for Families and Children argued at a recent conference at Brooklyn Law School that a "virtual child porn" law was needed because pedophiles use virtual porn to lure children. Under that rationale, if a pedophile used a piece of candy to lure a child into sex we would have to outlaw candy. In a free society, we cannot use censorship laws to try to control "bad thoughts." Outlawing all images that might be stimulating to pedophiles would require a massive amount of censorship and would *not* cure pedophilia. The ACLU reiterates its position on child pornography laws: "The ACLU believes that the First Amendment protects the dissemination of all forms of communication. The ACLU opposes on First Amendment grounds laws that restrict the production and distribution of any printed and visual materials even when some of the producers of those materials are punishable under criminal law." "The ACLU views the use of children in the production of visual depictions of sexually explicit conduct as a violation of childrens' rights when such use is highly likely to cause: a) substantial physical harm or, b) substantial and continuing emotional or psychological harm. Government quite properly has the means to protect the interest of children in these situations by the use of criminal prosecution of those persons who are likely to cause such harm to children." The Hatch proposal only demonstrates the dangers of trying to protect children indirectly through censorship laws. ---------------------------------------------------------------------------------------------------------------------- * Clipper II? Your electronic privacy rights are at stake . . . again. In 1993, the ACLU and an overwhelming majority of industry condemned the Clipper Chip -- the Administration's key escrow encryption scheme to equip every telecommunications device with a "chip" that would allow anyone to secure his private communications as long as the U.S. government held the descrambling key. The government insisted that Clipper would be merely a voluntary standard, but government documents requested under the Freedom of Information Act now confirm the suspicions of civil liberties advocates that the government really believes key escrowed encryption will only meet law enforcement standards if it is mandatory. (See URL:http://www.epic.org/crypto/) Now the Administration has returned with another scheme -- commercial key escrow ("Clipper II"). At close range, Clipper II is a lot like Clipper I: * Although supposedly "independent" of the government, key escrow agents will have to meet standards set by the U.S. government, and will have to reside in the U.S. or in a country with which the U.S. has entered a bilateral agreement. * The proposal provides no privacy safeguards to prevent the compromise of the key escrow agent or the key. * Offered as a "voluntary" standard, the proposal nevertheless forbids interoperability with non-escrowed encryption in exported products. * While the government says it recognizes industry's need for strong encryption, the proposal limits exportable encryption to 64 bits -- a length widely recognized to provide inadequate security. On September 6, 7, and 15, 1995, the ACLU attended meetings held by the National Institute for Standards and Technology (NIST) in Gaithersberg, Maryland. The meetings were called to solicit input from industry on the Clipper II proposal. Draft export criteria were considered on September 6-7, and the general industry response was very lukewarm -- except for a few industries that have been meeting with the Administration and are preparing to announce products that would fit the suggested criteria. The ACLU led one working group to vote 7-7 in favor of condemning the entire proposal. On September 15th, NIST discussed the implementation of a federal key escrow encryption standard. By requiring federal agencies to use commercial key escrow as a FIPS (Federal Information Processing Standard), the Administration clearly hopes to drive industry to accept commercial key escrow as the export standard as well. The ACLU issued the following statement on the current key escrow proposal: The American Civil Liberties Union's Position on the Administration's Current Key Escrow Proposal: * Encryption is speech protected by the First Amendment. The Administration's current key escrow proposal, like the Clipper proposal, continues to tread on the First Amendment rights of American individuals and businesses to use encryption technologies to secure their private communications. The current proposal, like Clipper, should be rejected on First Amendment grounds alone. * The current proposal will not accomplish its stated objectives because a wide array of encryption is available around the globe and will continue to be employed in place of American government-approved key escrow software. * The only key escrow proposal that could begin to satisfy the government's objectives would be an outright ban on the sale of encryption technologies other than those approved by the government and key escrowed. The ACLU fears that the current proposal, and similar proposals, are merely the first step towards mandatory key escrow of encryption. Mandatory key escrow is completely unacceptable to both industry and privacy advocates. * The Administration should abandon its fruitless and unconstitutional efforts to control the export of encryption technology. No legislation is needed -- the Administration has the power to lift the regulatory restrictions that it created. ---------------------------------------------------------------------------------------------------------------------- * Call for Plaintiffs in Suit to Challenge Online Indecency Legislation Most of you know that the House and Senate have now passed two different versions of the telecommunications bill that would outlaw "indecent" speech over the Internet and other online services. This fall, a conference committee of House and Senate members will work out the differences between the two telco bills and will probably approve some form of online censorship legislation. [For a copy of the legislation, send a message to infoaclu@aclu.org, with "Online Indecency Amendments" in the subject line.] While the ACLU and other advocacy groups continue to lobby Congress to remove the censorship provisions from the telco bill, it is highly likely that some restriction on online indecency will appear in the final bill that emerges from the conference committee. A coalition of civil liberties organizations are preparing a constitutional challenge to this legislation now. The coalition includes the ACLU, Electronic Frontier Foundation, Electronic Privacy Information Center, Media Access Project, and People for the American Way. We plan to be ready to file a lawsuit as soon as the statute is signed into law -- which could be as early as October. An important first step in planning the lawsuit is the selection of plaintiffs. We need to put together a set of plaintiffs that disprove the stereotype created by proponents of the legislation that people opposed to the bill are "pedophiles and pornographers." We believe that the best plaintiffs for this challenge will be persons or entities that provide material that some may deem "indecent" but that has serious artistic, literary, and educational value to our society. We need plaintiffs who use online networks to discuss or distribute works or art, literary classics, sex education, gay and lesbian literature, human rights reporting, abortion information, rape counseling, and controversial political speech. Please contact Ann Beeson at the ACLU if your organization is interested in being a plaintiff in this ground-breaking litigation that will define First Amendment rights in cyberspace. 212-944-9800 x788, beeson@aclu.org. ---------------------------------------------------------------------------------------------------------------------- STATE PAGE (Legislation/Agency/Court Cases) ---------------------------------------------------------------------------------------------------------------------- * Overbroad Searches and Seizures Threaten Electronic Privacy The latest threat to your civil liberties results from law enforcement's overzealous attempts to find evidence of crime or wrongdoing in cyberspace. As we move into the information age, traditional search and seizure rules will need to be refined to ensure fairness and respect for electronic privacy rights. Several recent cases illustrate how privacy rights can be violated when law enforcement conducts investigations in cyberspace. * The ACLU recently wrote to America Online to inquire about their cooperation in the FBI's recent raid of alleged child pornographers who used the online service. The ACLU asked, among other things, whether AOL revealed any information about individual users that was not sought by subpoena or court order; whether AOL turned over all private e-mail messages of suspects or whether they turned over only messages related to the alleged crime; whether AOL also turned over the names, addresses, and e-mail messages of persons who had communicated with the suspects; whether AOL set up accounts for the purpose of allowing government investigators to have access to public chat rooms; and what information AOL regularly keeps about its users' online activity and how long the information is kept. * In Cincinnati, Ohio, a computer bulletin board operator filed a civil rights suit against the Hamilton County Sheriff's Department after the department raided the BBS and seized computer equipment, files, and personal communications. The case argues that the indiscriminate search and seizures violated the BBS operator's free speech and privacy rights. See _Emerson v. Leis_, S.D. Ohio, No. C-1-95-608. The subscribers to the BBS have filed a separate class action suit against the sheriff's department. See _Guest v. Leis_, S.D. Ohio. Law enforcement seized the entire BBS -- all the hardware, software, files, and private communications -- in an effort to obtain 45 files on the BBS that were allegedly obscene. The case asserts that the 45 files represented only 3% of the total resources on the board. * In California, Colorado, and Virginia, the Church of Scientology has brought three copyright infringement actions against anti-scientologists who use online communications to criticize the church. The cases raise important questions about the breadth of computer communications seizures in civil cases. The ACLU of Southern California and the ACLU of Colorado continue to monitor the cases in their states. ---------------------------------------------------------------------------------------------------------------------- * Nine States This Year Passed Online Censorship Legislation While online activists have been busy fighting the pending federal attempts to censor online communications, state legislatures have been carelessly crafting online censorship bills at home. And if you think Congress is full of Luddites, just wait until to hear what your state legislators have come up with. At least nine states (CT, GA, IL, KS, MD, MT, NJ, OK, VA) have passed legislation this year to regulate online content, and several others considered such bills, with some still pending. These bills seek to criminalize a wide range of online speech and content, including: * speech that "harasses, annoys, or alarms" * materials deemed "indecent," "obscene" or "harmful to minors" * information related to "terrorist acts" or "explosive materials" The state bills, like the federal bills, raise serious free speech and privacy concerns. None of the bills indicates an understanding of the unique nature of the online medium. Some bills purposefully, and other bills inadvertently, fail to clarify that only the initiators of the illegal images may be held liable -- so service providers can be held liable for the pedophiles and pornographers that use their networks. The laws would, at best, require service providers to snoop in private e-mail in order to avoid criminal liability. At worst, these laws would force providers to shut down their networks altogether. The draconian effect of these state bills doesn't stop at state borders. A message you post to the Internet today in New York City could travel the fifty states and the globe by tomorrow. You'd better be careful that the message isn't "obscene" according to an Oklahoman, "annoying" to a Connecticutter, "solicitous" of a minor in Illinois, or related to "terrorism" as defined by a Georgian. The wave of online censorship at the state level is far from over. The ACLU is considering constitutional challenges to the online censorship laws that passed this year. But given the continuing media hype over "cyber-porn," we are certain to see more censorship bills from the states next year. With the help of affiliate offices in fifty states, the ACLU continues to monitor these state attempts to infringe on your online free speech rights. [For a synopsis of all the online censorship bills passed or considered by the states this year, send a message to infoaclu@aclu.org with "Update of State Bills" in the subject line of the message.] ---------------------------------------------------------------------------------------------------------------------- * Saving the Best for Last: Good News on Cyber-Liberties ARIZONA: Another troubling application of existing obscenity laws to cyberspace was averted when charges were dropped against Arizona Department of Public Safety Officer Lorne Shantz. Shantz, who ran a community bulletin board, lost his job and endured several months of hassle and humiliation when he was arrested for allegedly "obscene" files on the board. Shantz maintains that he was unaware of the existence of the files, which represented only a minuscule fraction of all the information on the board. COLORADO: Federal Judge John Kane ordered the Church of Scientology to return computers and hundreds of files seized by Federal marshals and Scientology officials in a copyright infringement action. The judge ruled that the seizures were overbroad, and said that "The public interest is best served by the free exchange of ideas." ---------------------------------------------------------------------------------------------------------------------- ONLINE RESOURCES FROM THE ACLU ---------------------------------------------------------------------------------------------------------------------- Stay tuned for news on the ACLU's world wide web site, under construction at http://www.aclu.org. In the meantime, you can retrieve ACLU documents via gopher at gopher://aclu.org:6601 (forgive the less-than-updated state of our gopher -- we've devoted all our resources to WWW construction!). If you're on America Online, check out the live chats, auditorium events, *very* active message boards, and complete news on civil liberties, at keyword ACLU. ---------------------------------------------------------------------------------------------------------------------- ACLU Cyber-Liberties Update Editor: Ann Beeson (beeson@aclu.org) American Civil Liberties Union National Office 132 West 43rd Street New York, New York 10036 To subscribe to the ACLU Cyber-Liberties Update, send a message to infoaclu@aclu.org with "subscribe ACLU" in the subject line of your message. To terminate your subscription, send a message to infoaclu@aclu.org with "unsubscribe ACLU" in the subject line. For general information about the ACLU, write to infoaclu@aclu.org. ----------------------------------------------------------------------------------------------------------------------