Danny - Since you have associated EPIC's position on the White "compromise" with CDT's, I feel some obligation to correct the record. We did not, as you recall, support that bill which included the harmful to minor standard because we believed it was contrary to generally accepted First Amendment standards. CDT supported the White measure and went to great pains to blame the members of the conference committee who did not endorse it. (I'd be happy to dig out the news reports on this point if there is any question). The Court's opinion in Reno v. ACLU seems to support our position. I do not think the White bill that you supported would have survived a Constitutional challenge. I wish to make a second point also. You accused Declan of mischaracterizing CDT's position on the White legislation. I'm still not clear exactly what he got wrong. But you have surely mischaracterized Larry Lessig's position in suggesting that he supports passage of new legislation. The O'Connor opinion, which by the way is a concurrence and not a dissent, relies on an article by Lessig in which he observes that restrictions have been upheld where procedures are established to segregate (zone) adult content. Thus the so-called Ginsburg statute. I read Larry's analysis and his subsequent commentary more as a warning than a recommendation. Establish such zones and content-based controls become permissible. Thus O'Connor's opinion seems to suggest that labels used to distinguish content based not on traditional library classifications (history, literature, etc) but on whether such information is suitable for minors would make it easier to permit regulation. I am not particularly interested in a lengthy back and forth on this topic. I do think it is important to set the record straight on EPIC and CDTs views on the White bill. We did not agree then. You cannot change that now. I also think you should think a little more carefully about whether the rating systems you promote will make it easier for a CDA II to survive a Constitutional challenge. Regards, Marc. At 12:05 AM -0000 11/13/97, Daniel J. Weitzner wrote:
Declan,
It's kind of you to get the word out about this new Coats bill, but you have managed to seriously mischaracterize CDT's position on the White legislation of 1995. We did not believe that Congress should have passed the White Compromise, and certaily never "embraced" it, as you write. Based on my initial reading of the Coats bill, we will certainly oppose it.
The Coats bill, with it's emphasis on age verification as a means to "protect" kids and provide online publishers with liability limitation, is actually a direct result of Justice O'Connor's dissenting opinion in the CDA case and her desire to try to "zone" cyberspace. Following Larry Lessig, she suggests that instead of relying on individually-controlled blocking and filtering software, it is better for the government to require that certain content be placed behind age verification firewalls. Prof. Lessig prefers this zoning to what you have characterized as "censorware." I hope that you, as an opponent of user empowerment filtering tools like Larry, do not prefer this O'Connor/Lessig approach too?
I can't remember whether you were actually around in 1995, either as journalist or activist, so let me remind you of what we and other civil liberties advocates like Marc Rotenberg of EPIC said.
In the New York Times (12/2/95, p.A1)
"While it does embody much of the original Exon proposal, it does so in a way that tries to embody a constitutionally recognized standard," said Jerry Berman, director of the Center of Democracy and Technology, a nonprofit group that focuses on civil rights and technology issues.
and Jerry went on to say:
"I don't think we need any legislation at all."
Marc seemed to take a similar position:
"It is preferable to the Exon bill, but ultimately this issue will be resolved in the courts, which is where it should be resolved," said Marc Rotenberg....
Both CDT and EPIC recognized that as a plain matter of constitional law, the "harmful to minor" standard is more broadly accepted by courts around the country, but that the legislation was still an unwise infringement on Internet speech.
We still believe that.
We can certainly have a discussion about the various legislative strategies employed during the final days of the CDA debate and House-Senate conference, but frankly I think there's more important work to do.
I hope that future discussions on this list can focus on how to defeat misguided efforts like the Coats bill, instead of misleading characterization of the past.
Finally, Declan, I would suggest that when you want to characterize CDT positions you talk to someone at CDT, or at least find some documentation of your assertions. I know that you recognize you have an obligation as a journalist to check facts and sources with some care. That sort of care would also help in discussions among activists. I'm never exactly sure whether you think of yourself as a journalist or activist when writing to FC, but whichever it is, I hope you'll try to avoid this confusion in the future by talking to us.
At 5:01 PM -0500 11/12/97, Declan McCullagh wrote:
Just when you thought the Internet was safe from government censorship, Sen. Dan Coats has introduced a sequel to the notorious Communications Decency Act.
The bill punishes commercial distributors of material that's "harmful to minors" with six months in jail and a $50,000 fine. Unlike the original CDA, it applies only to web sites -- not to chatrooms, newsgroups, or email.
Like the original CDA, it's certain to be controversial. Sen. Coats (R-Indiana), chief GOP sponsor of the original CDA, said his bill takes into account the Supreme Court's unanimous vote in June that struck down his first try. "I have studied the opinion of the Court and come before my colleagues today to introduce legislation that reflects the parameters laid out by the Court's opinion," he said on the Senate floor. (ftp://ftp.loc.gov/pub/thomas/c105/s1482.is.txt)
Coats' brainchild is strikingly similar to (and in fact not as broad as) an ill-fated version of the first CDA that Rep. Rick White (R-Wash.) and the Center for Democracy and Technology embraced as a "compromise" in December 1995. Like Coats' bill, the White-CDT measure restricted material that was "harmful to minors." (http://www.epic.org/cda/hyde_letter.html)
A Coats staffer said the measure requires adult pornographers to place images behind a firewall. "If you're involved in the commercial distribution of material that's harmful to minors, you have to take the bad stuff and put it on the other side of a credit card or PIN number," David Crane said.
But the bill applies to more than just visual pornography. Its definition of material that could hurt minors includes any offensive sexual "communication" or "writing" without redeeming value. It applies to text-only web pages -- or bookstores that place sample chapters on the web.
Since it covers anyone who "through the World Wide Web is engaged in the business of the commercial distribution of material that is harmful to minors," it could apply to Internet providers and online services as well.
The FCC and the Department of Justice would be required to publish on their web sites "such information as is necessary to inform the public of the meaning of the term `material that is harmful to minors.'" Solveig Singleton, a lawyer at the Cato Institute, says: "The Supreme Court struggled for years to come up with a national defintion of obscenity. They failed. Harmful to minors is obscenity-lite. The FCC and Department of Justice won't have any luck coming up with a definition of obscenity-lite."
Not a problem, predicts former porn-prosecutor Bruce Taylor, now the head of the National Law Center for Children and Families. "This bill will ensure that the hardcore pornographers don't get off the hook," he says.
Next step for Coats is to attract co-sponsors and to forward his bill to the Senate Commerce committee. Some judges criticized Congress for holding no hearings on the original CDA; Coats isn't going to make that mistake again. "There will be a concerted effort to build a substantial legislative history," says David Crane.
This bill won't be the end of Congressional interest in cyberporn. "You'll probably see other legislation come forward. Introducing this is not abandoning our other concerns," Crane says.
-Declan
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