----------------------------------------------------------------------------- The CDA Challenge, Update #8 ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- In this update: BYU/CMU's Olsen testifies that "-L18" won't harm the Net Judges realize Olsen is a weasel Chief Judge Sloviter's incisive questions Who is Donna Rice? A DoJ attorney can't stop laughing... Closing arguments now set for May 10 April 18, 1996 PHILADELPHIA -- The U.S. Department of Justice doesn't like the way the Communications Decency Act is written. During the the testimony that ended April 15 in Philadelphia's Federal court, we've started to see the DoJ's legal strategy emerge -- and it includes attempts to redefine the CDA. The DoJ's star witness was the amazingly prudish Dan "I'm offended by four-letter words" Olsen, who said that his plan to have service providers card users and tag 'em as adults or minors is a fabulous way to go. But this shifts the burden of protecting kids from smut onto ISPs, a proposal that Congress rejected when they included "good faith" defenses in the law. Olsen, who will fit in just fine when he takes a job this summer as an administrator at censorhappy Carnegie Mellon University, also kept pushing the other half of his plan that would require all "patently offensive" online content be tagged "-L18." On Monday, the DoJ's very own attack-ferret Jason Baron asked Olsen: "Your proposal would not have an adverse effect on the Net as a whole? Olsen deadpanned: "Absolutely not!" This isn't surprising. To Olsen, the Internet is just a bunch of geeks who want to keep everyone else out of their own little world. When U.S. Third Circuit Court of Appeals Chief Judge Dolores Sloviter asked him if his "-L18" system would develop side-by-side with PICS, Olsen replied: "If technical people were left to themselves, it would be likely to happen. I don't think this is true here. Internet people don't like other people telling them what to do. They're afraid of the FCC. They don't want anyone else messing in their pond." +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ JUDGES REALIZE OLSEN IS A WEASEL +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ Even the judges could tell that Olsen is a weasel. The three judges hearing our challenge to the CDA were unsympathetic to the Brigham Young University computer scientist and pinned him down for almost an hour as he tried to slime away from direct questions. Judge Stewart Dalzell is the most net-savvy judge on the panel and the only one with young kids, so I'm guessing they're helping him to grok the Net. He asked Olsen what would happen if U.S. citizens automatically cache overseas material, including "indecent" files. Again Olsen tried to weasel away from the hypothetical, but Dalzell would have none of it: "You assumed away my question." The DoJ witness grumpily admitted: "I'd turn the cache off." Some of Dalzell's questions were stellar: "Assume a chat group is talking about the CDA -- students from 13 to 18. In the course of the chat, an 18-year-old is exasperated and types in 'Fuck the CDA.' Is it your proposal that he should tag that '-L18?'" Not hesitating, Olsen said: "Yes." On the fight-censorship mailing list I maintain, Mark Stein writes: Judge Dalzell was paraphrasing closely from Cohen v. California, a seminal case in which the Supreme Court overturned the conviction of a man who was arrested for wearing a jacket with "Fuck The Draft" painted on the back. This Olsen fellow's a government witness, you say? Sounds like he's working for us. Some of Dalzell's other questions were equally fab: "If in one issue of the Economist the word 'fuck' appears, the library [putting it online] would have to go through the entire text of the issue?" Olsen replied: "Somebody would have to make this screening. Somebody would have to make this judgement." (Later he invented the idea of libraries banding together to pool resources to make these decisions. I could feel the hackles of the American Library Association folks rising. I swear, Olsen makes up these mind-fucks on the fly.) Remember Judge Buckwalter? I wrote about him in my first CDA Update, saying that he was the least comfortable with our cybersuit: 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... Buckwalter has come around. Last Friday his comments indicated he was starting to understand the issue. His questions to Olsen on Monday showed that he finally "gets it": Q: If the creator of the material doesn't buy into your system, it creates a big problem... Does this mean plaintiff's proposal makes more sense? A: No. There are different types of proposals... Q: On your declaration, determining which are adults, you don't address economic claims? A: I only address if it's technically possible. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ CHIEF JUDGE SLOVITER'S INCISIVE QUESTIONS +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ Chief Judge Sloviter's questions were the most incisive -- like Dalzell, she admitted to doing a bit of out-of-court net surfing. She asked Olsen if "children would be blocked from accessing parts of museum collections?" Olsen admitted they would. Some other questions from Sloviter: Q: Would [your -L18 proposal] contain the seeds that the government can do the blocking? Once everything is tagged as -L18, would that facilitate any one entity saying this material should not go out on the Internet? A: Possibly. Q: Can you think of any time in our history where we have blocked material in advance? A: Yes, every editor in every newspaper does this every day. Q: But in an organized manner? A: Every editor in every newspaper does this every day. The EFF's Mike Godwin says: That Sloviter asked this question is incredibly important -- it shows that she recognizes that compliance with the Communications Decency Act would amount to a complex system of prior restraints. Even among those who disagree strongly about the scope of the First Amendment, there is little disagreement about the general prohibition of prior restraints on publication -- the only generally acknowledged exception to this prohibition is the "national security" exception (publication of troop movements during time of war and the like). In previous obscenity/indecency cases, it has long been established that prior restraints on publication are impermissible. The strangest point of the day came after Olsen testified that a PICS-style third-party rating system would "slow the flow." (This was a snide reference to Vanderbilt Professor Donna Hoffman's testimony about how uninterrupted "flow" was important while web-surfing.) Sloviter then asked him how an adult would show -L18 tagged materials to a mature child. Olsen replied that a "teacher or parent could log on." Sloviter parried: "Wouldn't that slow the flow?" At this point, Olsen began to discharge a series of short, staccato bursts of high-pitched giggles, sounding like a rabbit being tortured to death. Damnedest thing I ever saw. The audience stared in horror. Basically, the DoJ fucked up with this witness. Olsen was such a censorhappy nut and so delighted with his "-L18" scheme that the court realized it went too far -- that it was obviously unconstitutional. In other words, he was our best witness. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ WHO IS DONNA RICE? A DOJ ATTORNEY CAN'T STOP LAUGHING... +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ I would have loved to have been in Washington, DC when Grey Flannel Suit -- AKA AFSADAFOSICCI* Howard Schmidt -- was deposed on April 1. Imagine an entire business day filled with nothing but talk of cyberporn, with everyone trying to be serious and lawyerly. Some representative samples, from page 244 of Grey Flannel's deposition: A: The next one, the same [screen] with panties.jpg reflects the image that appears on the screen after clicking on Panties. A: The next one, the same [screen] with boobs.jpg reflects the image that appears on the screen after clicking on Boobs. A: And the next one is cunnilingus.jpg, which reflects the image that comes onto the screen by clicking on Cunnilingus. But my fave part was when former party girl and ex-No Excuses jeans model Donna Rice-Hughes was mentioned. In the past year, Rice-Hughes has leveraged her fame from the Gary Hart presidential campaign into a budding career as a morality crusader at the anti-porn group "Enough is Enough!" Read on for an excerpt from page 282 of Grey Flannel's deposition... Q: Are you acquainted with Kathleen Cleaver? A: No, I'm not. Q: Have you ever heard that name? A: It does not ring a bell, no. Q: Are you acquainted with Bruce Taylor? A: Not that I'm aware of, no. Q: Are you acquainted with Donna Rice? A: The name Donna Rice rings a bell it seems, but I don't know from what. [The ACLU attorneys and Pat Russotto from the DoJ can't stop laughing.] DoJ's Tony Coppolino: "I'll explain later." ACLU's Margorie Heins: "It's a honest answer." ACLU's Chris Hansen: "Even Pat couldn't remain serious through that." DoJ's Tony Coppolino, trying again: "I'll explain later!" * AFSADAFOSICCI = Air Force Special Agent, Director of the Air Force Office of Special Investigations, Computer Crime Investigations +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ CLOSING ARGUMENTS NOW SET FOR MAY 10 +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ The closing arguments for our case now are scheduled for May 10, with April 29 as the deadline for submitting our findings of fact and conclusions of law -- a lengthy collection of documents that will include everything we believe we've proved in our case. (Closing arguments were pushed up to early May since we didn't feel a need to call any rebuttal witnesses. After all, we had Olsen!) Our attorneys and the DoJ each will present two hours of closing arguments on May 10, though the timeframe is flexible. The three-judge panel likely will issue a decision three or four weeks later, and appeals will go directly to the Supreme Court. What will the Philly court decide? Bruce Taylor, the president of the National Law Center for Children and Families, told me that he's "confident" the court will uphold the indecency portions of the CDA. However, the former Federal prosecutor said he's "worried that the court may accept some of the technical or infeasibility arguments" against the law. I'm sure we'll talk more about it on May 9, when I'll be on a panel at the University of Pennsylvania with Taylor and Cathy Cleaver. Fortunately, one of the strongest aspects of our case is that we're correct. Stay tuned for more reports. ----------------------------------------------------------------------------- We're back in court on May 10 for closing arguments. Quote of the Day: "We teach them proper principles and let them govern themselves." -Prophet Joseph Smith Mentioned in this CDA update: CDA Update #6, with details on Dan Olsen's "-L18" proposal: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2143> Brock Meeks on 4/12 and 4/15 hearings: <http://www.hotwired.com/netizen/96/16/index1a.html> Mark Eckenwiler's report on the recent CDA forum at Cornell University: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2226> CDA forum at the University of Pennsylvania, scheduled for May 9: <http://dolphin.upenn.edu/~fatf/cda-forum.html> IETF draft of "Internet Philosophy" article: <ftp://ds.internic.net/internet-drafts/draft-iab-principles-02.txt> Net-Guru David Reed's article: "CDA may pervert Internet architecture": <http://fight-censorship.dementia.org/fight-censorship/dl?num=2093> Censored by the CDA <http://www.iuma.com/Cyborgasm/> Dan Olsen at BYU <http://www.cs.byu.edu/info/drolsen.html> Fight-Censorship list <http://fight-censorship.dementia.org/top/> BYU's censorship policy <http://advance.byu.edu/pc/releases/guidelines.html> Rimm ethics critique <http://www.cs.cmu.edu/~declan/rimm/> Int'l Net-Censorship <http://www.cs.cmu.edu/~declan/zambia/> CMU net-censorship <http://www.cs.cmu.edu/~kcf/censor/> University censorship <http://joc.mit.edu/> Grey Flannel Suit <howardas@aol.com> Carl Kadie's CAF site <http://www.eff.org/CAF/> Blue Ribbon T-Shirts <http://www.fqa.com/romana/blueribbon.html> This report and previous CDA Updates are available at: <http://fight-censorship.dementia.org/top/> <http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/> <http://www.epic.org/free_speech/censorship/lawsuit/> To subscribe to the fight-censorship mailing list for future CDA updates and related discussions, send "subscribe" in the body of a message addressed to: fight-censorship-request@andrew.cmu.edu Other relevant web sites: <http://www.eff.org/> <http://www.aclu.org/> <http://www.cdt.org/> <http://www.ala.org/> -----------------------------------------------------------------------------