EPIC Alert 4.04 (CDA on Trial)

============================================================= @@@@ @@@@ @@@ @@@@ @ @ @@@@ @@@@ @@@@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @@@ @ @ @@@@@ @ @@@ @@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @ @@@ @@@@ @ @ @@@@ @@@@ @ @ @ ============================================================== Volume 4.04 March 17, 1997 -------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. http://www.epic.org/ ** SPECIAL ISSUE: THE CDA ON TRIAL ** ======================================================================= Table of Contents ======================================================================= [1] Reno v. ACLU: The Communications Decency Act on Trial [2] Background on the Litigation [3] EPIC Statement on Supreme Court Argument [4] The CDA and International Censorship [5] EPIC Bookstore: First Amendment Reading [6] Upcoming Conferences and Events ======================================================================= [1] Reno v. ACLU: The Communications Decency Act on Trial ======================================================================= On March 19, the United States Supreme Court will hear oral argument in Reno v. ACLU, the first case to address the issue of free speech in cyberspace. The legal challenge to the Communications Decency Act was initiated by the ACLU, EPIC and other organizations last February. The high court's consideration of the case is likely to produce a landmark constitutional decision, which is expected by July. Immediately following the oral argument, the Reno v. ACLU plaintiffs and lawyers will hold a news conference to offer in-depth analysis and commentary (approximately 11:30 a.m. ET). The event will be cybercast live via RealAudio on the World Wide Web. Links to the cybercast will be available at: http://www.epic.org/cda/ and http://www.aclu.org/issues/cyber/trial/appeal.html ======================================================================= [2] Background on the Litigation ======================================================================= The Communications Decency Act passed Congress last February as part of an omnibus telecommunications reform bill. The CDA makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is "indecent" or "patently offensive" on computer networks if the speech can be accessed or viewed by a minor. The American Civil Liberties Union, joined by EPIC and 18 other plaintiffs, filed its legal challenge to the Act on February 8, 1996, the day it was signed into law by President Clinton. Several weeks later, a second challenge was filed by nearly 30 plaintiffs, led by the American Library Association. That suit, known as ALA v. DOJ, was subsequently consolidated with the ACLU case. Although the two cases are consolidated and the legal teams have worked together, each plaintiff group has filed separate briefs throughout the litigation. A three-judge panel in Philadelphia was appointed to hear the plaintiffs' motion for preliminary injunction, and five days of hearings were scheduled during March and April of last year. The panel consisted of Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter. The proceedings included five days of live testimony, written testimony, documentary evidence, and detailed stipulations about the nature of the Internet. On June 12, the court issued a preliminary injunction barring the government from enforcing the challenged provisions of the CDA. The opinion makes clear that the lower court agreed with the plaintiffs' view that the CDA's ill-conceived effort to censor speech in the unique medium of cyberspace violates the First Amendment. On December 6, the Supreme Court noted probable jurisdiction in the government's appeal of the lower court decision. The government filed its brief on January 21; the plaintiffs' briefs were filed on February 20. Eleven amicus ("friend of the court") briefs were also filed in support of the plaintiffs (several of which are available online). The government filed its reply brief on March 7. The Supreme Court will hear oral arguments for one hour, with the time divided equally between the two sides. Plaintiffs will be represented by Bruce J. Ennis; the government by Seth Waxman of the Solicitor General's office. ================================================================== [3] EPIC Statement on Supreme Court Argument ================================================================== Supreme Court Internet Decision Will Have a Profound Impact on Individual Privacy Rights March 19, 1997 Washington, DC Contact: David Sobel, EPIC Legal Counsel 202/544-9240 http://www.epic.org/cda/ The U.S. Supreme Court's consideration of Reno v. ACLU sets the stage for a decision of historic significance, one that will establish a constitutional framework for reviewing government regulation of the Internet. The issues extend beyond the Communications Decency Act and go to the very essence of the information infrastructure. The Electronic Privacy Information Center (EPIC) has consistently stressed both the free speech and the privacy implications of the case since joining with the American Civil Liberties Union in challenging this ill-advised and unconstitutional attempt to impose governmental content regulation on emerging global electronic media. EPIC is participating in the litigation as both plaintiff and co-counsel. As the three-judge panel in Philadelphia recognized, the legislation's vague "indecency" standard will have an obvious impact upon the free speech rights of millions of Americans who use computer networks to receive and distribute information. Less apparent is the assault on privacy rights that the legislation, if upheld, will engender. To avoid potential criminal liability under the CDA's "indecency" provision, information providers would, in effect, be required to verify the identities and ages of all recipients of material that might be deemed inappropriate for children. If upheld, the statutory regime would thus result in the creation of "registration records" for tens of thousands of Internet sites, containing detailed descriptions of information accessed by particular recipients. These records would be accessible to law enforcement agencies and prosecutors investigating alleged violations of the statute. Such a regime would constitute a gross violation of Americans' rights to access information privately and anonymously. Two years ago, the Supreme Court upheld the right to anonymous speech in McIntyre v. Ohio Elections Commission. EPIC believes that the Court's rationale in that case applies with even greater force to the Internet "indecency" provisions now under review. The Court noted in McIntyre that The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. ... Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society. Whether the millions of individuals visiting sites on the Internet are seeking information on teenage pregnancy, AIDS and other sexually transmitted diseases, classic works of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonymously. The Communications Decency Act seeks to destroy that right. If upheld, the CDA would render the Internet not only the most censored communications medium, but also the most heavily monitored. EPIC is confident that upon review of the legislation and its impact upon free speech and privacy rights in emerging electronic media, the Supreme Court will affirm the lower court decision invalidating the CDA as fundamentally at odds with the Constitution. ======================================================================= [4] The CDA and International Censorship ======================================================================= Following the passage of the CDA in the United States, dozens of other countries followed suit and imposed restrictions on Internet content, citing the CDA as justification for their efforts at censorship. In many countries, the legal bans cover a broad range of material, including news services and political discussions. Not surprisingly, Singapore has played a leading role in restricting Net content. According to the U.S. State Department's description of Singaporean law, "access to web pages that undermine public security, national defense, racial and religious harmony, and public morals is banned. In addition, content that tends to bring the Government into hatred or contempt, or that excites disaffection against the Government is forbidden." In China, human rights groups critical of the govern- ment's record are "filtered," as are many U.S. newspapers. With the help of Bay Networks, an American company, China is setting up its own Intranet that will not permit the online distribution of critical material. Arab countries met in Dubai last October to discuss setting up an Arab Intranet where political discussion could be banned. The European Union and the OECD are currently discussing Internet content restrictions. In response to these trends, the Parliamentary Human Rights Foundation recently convened a meeting in Brussels to draft "Open Internet Policy Principles." Among the consensus principles is a strong statement in support of freedom of expression: There should be no regulation of Internet content by government. We understand the fundamental rights of freedom of expression, as embodied in Art. 19 of the Universal Declaration of Human Rights ("Everybody has the right ... to seek, receive and impart information and ideas through any media and regardless of frontiers" ) and in Art. 19(2) of the International Covenant on Civil and Political Rights ("Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form or art or through any other media of his choice") -- to apply with full force to Internet communication. The full text of the Open Internet Policy Principles is available at: http://www.phrf.org/conference Free speech and human rights advocates from around the world have joined together in the Global Internet Liberty Campaign to fight these restrictions. Members include EPIC, ACLU, Human Rights Watch, and groups from around the world. More information on GILC is available at: http://www.gilc.org Other information on international censorship efforts is available from the Fight Censorship list archives at: http://www.eff.org/~declan/global/ ======================================================================= [5] EPIC Bookstore: First Amendment Reading ======================================================================= The EPIC Bookstore offers a wide range of books on civil liberties, privacy, and on-line freedom. With the Communications Decency Act being argued before the Supreme Court this week, we are featuring four titles that look at the history, technology, policy and practice behind the First Amendment: * Make No Law: The Sullivan Case and the First Amendment by Anthony Lewis -- Few cases have done more to shape the First Amendment than this historic decision. * Technologies of Freedom by Ithiel De Sola Pool -- One of the early works on why regulating speech in cyberspace is a bad idea. * Intellectual Freedom Manual by The Office for Intellectual Freedom, American Library Association -- Good advice for protecting freedom in the on-line world. * Censored: The News That Didn't Make the News-And Why: The 1995 Project Censored Yearbook by Carl Jensen -- Sometimes it's the press and not government that keeps important stories under wraps. Here's what the big shots missed in 1995. We also have an extensive collection of other titles on freedom of expression. Visit the EPIC Bookstore and celebrate the First Amendment with a good book on free speech! It can be found at: http://www.epic.org/bookstore/ ======================================================================= [6] Upcoming Conferences and Events ======================================================================= Eurosec'97: the Seventh Annual Forum on Information Systems Quality and Security. March 17 - 19, 1997. Paris, France. Sponsored by XP Conseil. Contact: http://ourworld.compuserve.com/homepages/eurosec/ CyberRights Congress. March 20-21, 1997. Washington, DC. Sponsored by the First Amendment Congress. Contact: http://www.oklahoman.net/connections/congress/ Culture and Democracy revisited in the Global Information Society. May 8 - 10, 1997. Corfu, Greece. Sponsored by IFIP-WG9.2/9.5. Contact: http://www.math.aegean.gr/english/eevents/econf/ecnew/ewc97.htm CYBER://CON.97: Rules for Cyberspace?:Governance, Standards and Control. June 4 - 7, 1997. Chicago, Illinois. Sponsored by the John Marshall Law School. Contact: cyber97@jmls.edu. Ethics in the Computer Society: The Second Annual Ethics and Technology Conference. June 6 - 7, 1997. Chicago, Ill. Sponsored by Loyola University Chicago. http://www.math.luc.edu/ethics97 Public Workshop on Consumer Privacy. June 10-13, 1997. Washington, DC. Sponsored by the Federal Trade Commission. Contact: http://www.ftc.gov/os/9703/privacy.htm INET 97 -- The Internet: The Global Frontiers. June 24-27, 1997. Kuala Lumpur, Malaysia. Sponsored by the Internet Society. Contact: inet97@isoc.org or http://www.isoc.org/inet97 Privacy laws & Business 10th Anniversary Conference. July 1-3, 1997. St. John's College, Cambridge, England. Contact: info@privacylaws.co.uk. AST3: Cryptography and Internet Privacy. Sept. 15, 1997. Brussels, Belgium. Sponsored by Privacy International and EPIC. Contact: pi@privacy.org. http://www.privacy.org/pi/conference/brussels/ 19th Annual International Privacy and Data Protection Conference. Sept. 17-18, 1997. Brussels, Belgium. Sponsored by Belgium Data Protection and Privacy Commission. International Conference on Privacy. September 23-26, 1997. Montreal, Canada. Sponsored by the Commission d'Acces a l'information du Quebec. Managing the Privacy Revolution '97. October 21-23, 1997. Washington, DC. Sponsored by Privacy and American Business. Contact: http://shell.idt.net/~pab/conf97.html (Send calendar submissions to alert@epic.org) ======================================================================= The EPIC Alert is a free biweekly publication of the Electronic Privacy Information Center. To subscribe, send email to epic-news@epic.org with the subject: "subscribe" (no quotes) or use the subscription form at: http://www.epic.org/alert/subscribe.html Back issues are available at: http://www.epic.org/alert/ ======================================================================= The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC is sponsored by the Fund for Constitutional Government, a non-profit organization established in 1974 to protect civil liberties and constitutional rights. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, email info@epic.org, HTTP://www.epic.org or write EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. +1 202 544 9240 (tel), +1 202 547 5482 (fax). If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "The Fund for Constitutional Government" and sent to EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington DC 20003. Individuals with First Virtual accounts can donate at http://www.epic.org/epic/support.html Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and funding of the National Wiretap Plan. Thank you for your support. ---------------------- END EPIC Alert 4.04 ----------------------- ========================================================================= David Banisar (Banisar@epic.org) * 202-544-9240 (tel) Electronic Privacy Information Center * 202-547-5482 (fax) 666 Pennsylvania Ave, SE, Suite 301 * HTTP://www.epic.org Washington, DC 20003 PGP Key: http://www.epic.org/staff/banisar/key.html =========================================================================