[Some excerpts follow. Pick up the October issue for the full article. --Declan] Playboy, October 1996 "Freedom on Trial: how the communications decency act played in court" By Declan McCullagh (declan@well.com) Day 1 (March 21) In the shadow of the Liberty Bell in downtown Philadelphia, the future of online liberty is being decided. A panel of federal judges has gathered to hear a challenge to the Communications Decency Act, which bans "indecent" or "patently offensive" material from being transmitted or displayed online where minors might access it. That means just about anywhere online. [...] Day 2 (March 22) A key witness today is Robert Croneberger of the Carnegie Library of Pittsburgh. The judges are pleased with his description of the Internet as a library -- finally, someone who isn't using technobabble. Croneberger testifies about the difficulties and expense of implementing the CDA, noting that his library would have to hire 180 people to review and censor the 2 million listings in its catalog. Russotto, the government lawyer, is skeptical. During her cross-exam, she tries to make the case that the job wouldn't be so difficult as Croneberger portrays it. Q: Can you do a keyword search through your catalog for words related to sex or for the seven dirty words [to find material to restrict]? A: It depends. Q: But a keyword search on sex wouldn't turn up books about physics, would it? A: I doubt it. Q: And a search on sex isn't going to turn up books about gardening? A: Obviously plants proliferate and flowers grow, but it depends on the words you're using. Q: Would a search on sex turn up a biography of Abraham Lincoln? A: I've read many articles about his supposed sex life, or lack thereof. Q: Would a search on sex turn up any books about geology? A: Only if "rock" is put together with "roll." Croneberger's point is subtle but clear. Sex can't be taken out of a library any more easily than it can be separated from life. [...] Day 4 (April 12) The government witnesses take the stand. First up is Howard Schmidt, an Air Force special agent who says he has conducted 30 to 50 investigations of online porn. The judges are growing weary of demonstrations and sex, so when Schmidt offers to download provocative images from Usenet groups, the panel asks for G-rated animals instead. After the second or third waterfowl image, Judge Sloviter rules, "I think we've seen enough ducks." [...] Beyond its sheer stupidity, [Carnegie Mellon University computer scientist Dan Olsen's -L18 self-labelling scheme] seems to be built with prudery rather than technology. During cross-examination, the judges didn't appear to take him seriously: Q: If you thought about posting a centerfold from Playboy, would you think the image might be indecent or patently offensive for persons under 18? A; If we consider the local community that consists of Dan, Dan would be offended. Q: And how about the seven dirty words. A: Dan would be offended. Judge Buckwalter: Who's Dan? Judge Sloviter: Yes, who's Dan? A: That's me. I'm sorry. Judge Dalzell: Oh, he's the community. He is an expert on what would offend him. A: It's a relatively small community, but it's the one I know best. Buckwalter: I thought Dan was an acronym. A moment later, our lawyers show Olsen a list of Internet addresses and ask if they appear to be porn sites deserving of unsuitable-for-children tags. He hesitates, then says, "I don't know, but I wouldn't go there." Looking over the list, Judge Dalzell adds the punch line. "Chick of the Day could be poultry," he suggests. "You really are in for ducks and poultry," says Judge Sloviter. "It's a leitmotif." Bruce Ennis, counsel for the ALA, asks Olsen how content providers would verify the ages of those who visit their sites. Olsen stammers a bit and then hits on an idea. Ask the Social Security Administration! It keeps records of such things. Big Brother couldn't have said it better. Day 5 (April 15) The government has a tough road ahead. It has to convince three skeptical judges that enforcing the CDA would not become a boondoggle. Olsen, at least, believes it can be done. When asked if his rating system would slow the growth of the Net, he quickly responds, "Absolutely not!" But everyone in the courtroom seems to feel Olsen is being a weasel. Judge Dalzell, the most Net-savvy judge and the only one with young kids (I'm guessing the two are related), helps pin the inventor down. "Assume a chat group -- say, students from 13 to 18 -- is talking about the CDA. In the course of the chat, an 18-year-old is exasperated and types in 'Fuck the CDA.' Is it your proposal that before he types the message, he should tag it -L18?" Dalzell is paraphrasing Cohen v. California, a First Amendment case in which the Supreme Court overturned the conviction of a teenager who wore a jacket that read "Fuck The Draft." Some of Dalzell's other questions were equally astute. "If in one issue of The Economist the word 'fuck' appears," he asks Olsen, "the library putting it online would have to go through the entire issue?" "Somebody would have to make that judgement," Olsen replies. He suggests that librarians band together to censor material. He insists his plan is "flexible." To that, Bruce Ennis reponds testily, "Is it flexible if you, the librarian, risk going to jail for two years if you make the wrong judgment and put material online that is found to be patently offensive for a minor?" [...] Sloviter isn't finished. After Olsen claims that a voluntary rating system developed at MIT is unfeasible because it will "slow the flow" online, she asks how an adult could show -L18 tagged materials to a mature teenager. Olsen replies that a "teacher or parent could log on." "Wouldn't that slow the flow?" the judge asks. Flustered, Olsen suddenly discharges a series of staccato high-pitched giggles. It's the damnedest thing that I have ever heard -- it sounds like a rabbit being tortured to death. The galley stares in horror. Thus ends the testimony of our best witness -- and we didn't even call him to the stand. Day 6 (May 10) During closing arguments, Justice attorney Tony Coppolino dances around providing a legal definition for indecency. He hints that it would include only hard-core porn but concedes the government can't guarantee that an ambitious prosecutor somewhere wouldn't take on an absurd case. Judge Sloviter is growing impatient: "I've been taking the position for 17 years that people should know what they can be prosecuted for," she says "I still don't understand" what indecency means under the CDA. "We've been trying to get at this for 40 minutes," grumbles Judge Dalzell. [...] EPILOGUE We have won -- for now. The government's appeal will reach the Supreme Court during the next few months. If the Court upholds the lower court decision, outraged right-wing groups will demand action. Congress will spring to attention. Bills will be drawn up, campaign funds raised, and porn once again waved in the Senate chamber. Censorship is often championed by adults who want to protect children from a world the adults do not understand. During the hearing, Judge Buckwalter raised this issue while discussing the computer gap between parents and children that helps fuel fears of online dangers. "In another generation that will fade from the picture, don't you think?" he asked. Archaic restrictions over what we can share online, however, may not. ###