---------- Forwarded message ---------- Date: Fri, 20 Jun 1997 22:16:38 -0400 From: Marc Rotenberg <rotenberg@epic.org> To: fight-censorship@vorlon.mit.edu I'm not looking for any awards, but I thought this debate with Cathy Cleaver went very well. As I said earlier, she doesn't expect to win next week. Marc. ---------- <fontfamily><param>Geneva</param><bigger> CNNFN SHOW: IT'S ONLY MONEY 13:00 pm ET June 20, 1997; Friday 1:17 pm Eastern Time Transcript # 97062002FN-l05 HEADLINE: Panel Discussion on Internet Pornography Law GUESTS: Cathy Cleaver, Bruce Fancher, Marc Rotenberg BYLINE: Valerie Morris BODY: VALERIE MORRIS, CNNfn ANCHOR, IT'S ONLY MONEY: The Supreme Court is expected to rule on the constitutionality of the Communications Decency Act, better known as the CDA, sometime next week. Now, whatever the outcome, the CDA will set the precedent for all future laws involving any censoring of material on the Internet. The past year's debate over the CDA has divided net users into distinct camps of - on issues of cyber censorship. I'm joined today by some important members of those opposing camps, first of all from our bureau in Washington, Marc Rotenberg, who is director of the Electronic Privacy Information Center. Marc was a counsel in challenging the CDA. And from our bureau in Los Angeles, Cathy Cleaver, director of legal policy with the Family Research Council - Cathy co-authored a brief on behalf of members of Congress in defense of the CDA. And with me here in our New York studio is our Generation-X representative on the issue, Bruce Fancher. Formerly a computer hacker, now an entreprenuer, Bruce is the president of Online Evolution Systems. He is also the co- founder of Digital Liberty, which is an online civil rights advocacy group. To all of you, welcome. CATHY CLEAVER, DIRECTOR, FAMILY RESEARCH COUNCIL: Thank you. MORRIS: I'd like to start out - Cathy, could you please outline what the CDA proposes? CLEAVER: What the CDA does is make it a crime to knowingly send indecent material or pornography to known minors and also makes it a crime to knowingly make it available to minors without taking good faith steps to try to screen minors out, a very reasonable law, no censorship involved. We like that word "censorship." But it's very similar to other laws restricting adults from selling, giving or showing pornography to children in other media. MORRIS: OK. Marc, what's EPIC's response, and what is the challenge with regard to the CDA from your perspective? MARC ROTENBERG, DIRECTOR, EPIC: Well, EPIC and the American Civil Liberties Union challenged the constitutionality of the bill, and so far, we've been successful in our litigation. We've had 2 panels of judges in New York and Philadelphia that have agreed with us unanimously that, contrary to what Cathy says, the bill was poorly drafted. It sweeps much too broadly. It tries to prohibit access to information that the First Amendment has always protected. MORRIS: All right. And now to Bruce, who is here in the studio with me, what's your stance with regard to the issue? BRUCE FANCHER, PRESIDENT, EVOLUTION ONLINE SYSTEMS: My stance is that, while I think the law is clearly ridiculous and unconstitutional, I'm inclined to see it a little bit like the British tax on tea in 1776. So in some sense I hope it is upheld because, sooner or later, the government is going to try to regulate in Internet and we need to start developing tools now to make that difficult or impossible, including moving some of these operations offshore. MORRIS: I'm now going to try and facilitate this with all 3 of you jumping in as you see fit. I would like to ask Bruce, though, a follow- up question. Do you see any business related activity on the net being impacted dramatically by the CDA? FANCHER: Well, my business could potentially be impacted. We run a discussion group which is open to anyone who wants to join, and that's about 10,000 people on it. And we don't have any control of what the people say. So we're vulnerable in that way. MORRIS: Cathy, is indecency out of control on the Internet in your opinion? CLEAVER: Well, we know that people online that sell pornography, for instance, is the fastest growing online marketing right now. It's impossible now to predict what exactly would happen if the CDA were upheld, but let me tell you, you know, when the CDA was first presented, online pornographers started checking their material. They started screening for children, but then when they won their first round in the courts, as Eric mentioned, they went back to showing free pictures of pornography to anyone who came to the site. So, yes, I think it should affect business. Pornography is a booming business online, but it shouldn't affect the adult's ability to get pornography, but only children's ability to get pornography, which is what indecency laws have done for 30 years. MORRIS: Marc, there are regulations for television, regulations for radio. How is the Internet different? ROTENBERG: Well, the Internet is very different from television and radio. There is no central licensing. There is no government review or authority. The Internet is much more like a series of interconnected bookstores or newsstands or libraries, and to understand just how sweeping the CDA could be in its application, it would effectively restrict the ability to anyone to publish information on the Internet, which is why, you know quite frankly, I think the Supreme Court, when it rules next week, will say no, you can't legislate in this manner. CLEAVER: That is truly ridiculous I think, because, listen, we've got indecency laws that effect all of those areas that he just mentioned. So the question. ROTENBERG: Cathy, to what (OFF-MIKE) CLEAVER: .really is -- the question is just: Should we provide an exemption in cyberspace to Larry Flint? Should he be able to sell his magazines to 12 year olds online? We, as a society, say no, you can't do that over the - in a bookstore and you can't rent or sell x- rated videos to kids in a video stores. Should pornographers have a carte blanche in cyperspace? It makes no sense. And the Constitution doesn't require that. Look, free speech is not an absolute right. We all know that. Adults are not able to exploit children by selling them or giving pornography anywhere, and they should be able to, and I believe they won't be able to do that on the Internet. MORRIS: The CD. ROTENBERG: Valerie. MORRIS: Yes? ROTENBERG: .if I could ask a question here. MORRIS: Yes, you can. ROTENBERG: Cathy, how do you think the Supreme Court is going to rule next week? I mean, let's just - let's be blunt about this. Are they going to side with you and say this type of sweeping legislation is permissible, or are they going to side with the people who have been trying to defend free speech online and say, no, you can't do this in this country, you can't try to impose such draconian legislation and controls on what other people may see even if you happen to disagree with it? MORRIS: I'm going to ask you both to hold. Cathy, I will start with your answer when we come back. We do need to take a break right now. Don't go away. We will be back with more on IT'S ONLY MONEY with more on the Communication Decency Act, and when we return, we'll open up the phones for your questions, the number, 1-800-304-fnet. Back in a moment. VALERIE MORRIS, CNNfn ANCHOR, IT'S ONLY MONEY: We are talking about the Communications Decency Act with Marc Rotenberg who is Director of Electronic Privacy Information Center and in opposition to the CDA, Cathy Cleaver who is Director of Legal Policy for the Family Research Council and a supporter of the CDA, and Bruce Fancher, an entrepreneur, founder of Evolution Online Systems. He believes the Internet should be completely unregulated. We will be taking your calls. The number 1-800-304-FNET. As we went to break, Cathy, you had been asked a question by Marc, how do you think the Supreme Court will rule? Please give us your answer. CATHY CLEAVER, DIRECTOR, FAMILY RESEARCH COUNCIL: Well, one of the challenges, of course, is to the indecency standard itself, and we can look to just last year when the Supreme Court upheld the indecency standard as a constitutional standard, not overly broad and not vague. You know, the decency standard means a patently offensive depiction of sexual or excretory activities. So, it's not a vague challenge. So, I think that's a definite win. I find it difficult to see how the Supreme Court would reverse itself, since just last year in the cable pornography case, it upheld indecency regulation using that standard for cable. But also, remember, this law has a lot of good faith defense that people can use to show pornography to adults but also make attempts to keep it from children. That's all the law's ever required. MORRIS: But there are a couple of things-the CDA's being challenged on a couple of bases. One is because some say that it's too broad. The other is a standard of decency is unconstitutional, and I think those are the concerns, Bruce, some of which you had an opinion with regard to how the Supreme Court is going to rule. And you say it's because of the unconstitutional issue? GBRUCE FANCHER, PRESIDENT, EVOLUTION ONLINE SYSTEMS: Well, I'm not a lawyer, but from what I've read, it seems to me-my opinion will rule that it's unconstitutional. But I'm much less concerned with placing faith in the political process to protect the Internet than with developing tools which we can use to effectively protect our privacy and our right to communicate and engage in trade on the Internet, regardless of what the government decides to do. MORRIS: Because those are also issues. I mean, we sometimes get stuck on this one, but the CDA also covers surveillance, encryption and consumer privacy. But the most immediate concern tends to be this free speech issue in Cyberspace. CLEAVER: If I can just jump in, the CDA protects privacy in Cyberspace. So, that's how it addresses privacy. It upholds and refers to EPIC's privacy provision that it got it in. MORRIS: Mark, do you agree? MARC ROTENBERG, DIRECTOR, EPIC: I don't know what Cathy's talking about. We didn't have anything to do with the drafting of the bill. It's bad for privacy. But let me just say in response to Bruce, while I'm aware of his concerns and I think there should be good techniques to protect privacy and liberty online, I have not given up on the American political system. I feel very strongly about our constitutional form of government, and the first amendment in particular. And I think next week will in fact be a great victory for our system of government. We will preserve liberty in the online world. MORRIS: All right, we have a caller, Darren, from Canada, thanks for joining us. What's your question or comment? CALLER: Yes, basically I'm just wondering how this all will be enforced. MORRIS: All right, who would like to take that on? How will the law be enforced? CLEAVER: I can take that. Just like other laws are enforced, where first of all, we would require or rely upon, you know, self regulation, that's what happens now with video stores and magazine stores. We require the clerks to abide by the law. And when they don't, then when they run afoul of the law, then prosecutors can, you know, bring an action against them and an investigation. You know, it's not going to be like some have suggested that there's going to be some government Cyberpolice or some sort of government pre-screening of information of all of that which suggests great privacy violations. The law doesn't do that. This is kind of like Chicken Little. You know, the sky is going to fall if the CDA is upheld. That's just nonsense. MORRIS: But what it does to and part of the concern is what about the liability? Who is going to be liable? Marc, can you take that on? ROTENBERG: Yes, well, the liability issue here is actually key. You asked the question at the outset, what is the impact on business? The impact would be enormous for anyone who's trying to use the Internet to get information out. CLEAVER: Only pornographers. ROTENBERG: That's not true, and you know that's not true. CLEAVER: That is true. ROTENBERG: People engaging in speech, operating chat rooms, discussion groups. CLEAVER: Patently offensive sexual or excretory speech. ROTENBERG: Sexual information. We had people testifying at the Philadelphia hearing that if they were providing medical information on breast cancer or to AIDS patients that they faced a risk of prosecution under the statutes. CLEAVER: That's just not true. The indecency definition has never been applied in that way. It's never been applied in that way. ROTENBERG: The judges who have looked at the CDA heard our arguments, heard your arguments, have rejected your arguments. They don't agree with you, Cathy. CLEAVER: Well those judges didn't. ROTENBERG: And I think it's important to keep that in mind. We are going to win next week in the Supreme Court. MORRIS: I would like to inject something here, and ask Bruce, with regard to your business, will the CDA have direct impact on your business, and especially because you still have online chat rooms? I mean, do you see that as a potential area where you could be held liable? FANCHER: That's really something that I've been concerned about. I haven't consulted a lawyer specifically, but I'm definitely concerned about it. MORRIS: OK, we have another caller, Christian, from New York. Thanks for joining us. What's your question? CALLER: Hi, my question is as follows: How can we regulate the world? As we know, the Internet is not only one organization located in the United States. But it's all over the world. How can we impose laws to the entire world. We can't do that. FANCHER: That's a very good point, what affect the CDA will have if it's upheld is it will advance the process which is going to eventually happen anyway of moving any kind of Internet service or activities which might be slightly illicit or simply where the proprietors want to avoid taxation or regulation to other parts of the world, specifically places like the Caiman Islands, the Bahamas, Anguilla. It does not take a lot of resources to run copper wire to a Caribbean island and operate an Internet server there. And I'm looking forward to the day when that's more common. ROTENBERG: Bruce, let me say, I'm not looking forward to that day. I think the Internet offers wonderful opportunities for American business and American citizens and American consumers, and the thought that we would want a law to pass which would effectively move all of this activity offshore doesn't seem to me to be something that many people would be in favor of. FANCHER: Well, only the servers have to be offshore. The people behind the information can remain in the United States. As you know, using encryption, that's perfectly feasible. MORRIS: And what about the penalties? Let's get to that. If the CDA is upheld by the Supreme Court, what kind of penalties are people facing? Are these felonies? ROTENBERG: Well, these are criminal sanctions. I mean, which includes both fines and the risk of imprisonment. And one of the other great concerns that arises when you try to punish people for speech is always the question how are these decisions going to be made? What type of speech is going to trigger, you know-one type of publication ends you up in jail for 3 years, and another type of publication isn't prosecuted. There's always a problem with prosecuting people based on what they say or what they print. MORRIS: I'm going to ask each of you in the last moments that we have- we have about 20 seconds each to wrap up your point of view. Can I start, Cathy, we started with you. Let's begin this wrap-up with you. CLEAVER: Sure. The idea that Cyberspace is going to be exempt from any laws, I think, is just nonsense. We know that to be the case. If Cyberspace, if the Internet is going to survive as a marketing forum which most of the people want it to be, there are going to have to be some rules and regulations, some laws against fraud, some laws against exploitation. There are laws now against child pornography. You know, these are important. It's important to build this new community in such a way that we can actually operate with each other as we do with an amount of trust and an amount of responsibility imposed by laws. It's just-it's inevitable. It's going to happen. MORRIS: Cathy Cleaver from-the Director of Legal Policy for Family Research Council. Thank you very much for adding to today's conversation. CLEAVER: You're welcome. MORRIS: And, Bruce, your comment for a wrap-up. FANCHER: Well, I'd like to say to Cathy that 25 years ago the idea of 100 million personal computers sounded like nonsense. And 5 years ago the idea of 40 or 50 million people connected to the Internet sounded like nonsense. So, I'd be very careful before making statements like that. And I would like to say that I still believe in the U.S. Constitution, but I believe we need technological solutions to back it up. MORRIS: All right, Bruce Fancher, thank you very much for being with us. And then the final word, Marc Rotenberg, Director, Electronic Privacy Information Center. ROTENBERG: Well, Valerie, I'm looking forward to next week. The Supreme Court is going to rule on a very important case, affecting the freedom and the future of the Internet. And it is my hope and my belief that they're going to take one of the principles that this country was founded on, a right of individuals to express their views, even when others may disagree strongly, and protect that right. It was established in the 18th century, and I'm hopeful that it will remain with us in the 21st. MORRIS: Marc Rotenberg, Director, Electronic Privacy Information Center. Thank you to all three of you. I hope that we can revisit this issue if not next week, in the very near future. Thank you all very much. END LANGUAGE: ENGLISH LOAD-DATE: June 20, 1997 </bigger></fontfamily> ================================================================== Marc Rotenberg, director * +1 202 544 9240 (tel) Electronic Privacy Information Center * +1 202 547 5482 (fax) 666 Pennsylvania Ave., SE Suite 301 * rotenberg@epic.org Washington, DC 20003 USA + http://www.epic.org ==================================================================