CDA Court Challenge: Day #2

[Declan B. McCullagh]

The DoJ also quizzed Donna Hoffman about anonymous remailers. They
wanted to make sure that she wasn't an expert on them, had conducted no
studies of remailers, and had collected no statistics on their use.

-Declan



-----------------------------------------------------------------------------
                           The CDA Challenge, Day #2
-----------------------------------------------------------------------------
         By Declan McCullagh / declan at well.com / Redistribute freely
-----------------------------------------------------------------------------

March 22, 1996


PHILADELPHIA -- At 2:21 pm today, one of the judges hearing our
challenge to the Communications Decency Act finally "got it."

"The folks in Luxembourg don't give a damn what our laws are. So my
son, who's 10, can still view 'Sexy European Girls?'" asked U.S.
District Court Judge Stewart Dalzell.

"That's correct," replied Scott Bradner of Harvard University, who
took the stand today to describe net.technology. Bradner told me
afterwards he thought Friday's hearing went well -- he had come to
Philadelphia to testify because this "is such an important issue."

Judge Dalzell's remark hints that he, at least, is starting to
understand the Internet -- and the consequences of the court's
eventual ruling. This comes not a picosecond too soon for those 
of us who have been fidgeting in our seats, wincing as Department
of Justice attorneys misuse technical terms and hoping the judges
can sort through the cyberconfusion in just six days of hearings.

Dalzell has a keen sense of humor and seems sympathetic to our
arguments. In fact, I'd guess he's been doing some out-of-court
web-surfing himself. In an _astounding_ question at the end of the
day, he asked Bradner: "Isn't it true that the exponential and
incredible growth of the Internet came about because the government
kept their hands off of it?"

Bradner gladly agreed. (What else would he say?)

The other two judges aren't quite as reflective. 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 -- that is, when he's not dozing. During one of
his more alert moments, Buckwalter asked if labeling all online
content is possible: "Your problems are technical and financial? If
thse problems are solved and we agree on the definition of indecent,
is it possible?" "Yes, it is," our witness replied. Buckwalter also
asked earlier: "What do you mean by saying the Internet is a very
democratic medium? Isn't there someone who steers discussion?" As
proof, he held up a copy of a recent Atlantic magazine article that
claimed the most popular USENET newsgroups are moderated and are
therefore "quasi-authoritarian."

I suggested to our attorney, Chris Hansen from the ACLU, that he
clarify what percentage of newsgroups were moderated. On redirect,
Hansen posed that question to Donna Hoffman of Vanderbilt University.
She replied that most newsgroups are unmoderated. Later, Bradner of
Harvard University added that moderated newsgroups amount to less
than 10 percent of the total.

Dolores Sloviter is the third judge on the panel. As the chief judge
of the U.S. Third Circuit Court of Appeals, she penned a sparkling
decision upholding free expression in a phone sex case. In this
hearing, Sloviter's questions are the most pointed and incisive. When
Robert Cronenberger of Pittsburgh's Carnegie Library was testifying,
Sloviter asked him if under the CDA "would something have to be
removed from your collection?" Cronenberger replied: "We don't know.
We would be afraid that someone might find something indecent or
patently offensive."

The Department of Justice attorneys are an interesting lot. Jay Baron
is a short, heavyset man who tries hard to land roundhouse punches
during cross-examination but instead comes across as prone to
malapropisms. I think he was the DoJer who confused <http://www.eff.org/>
with <http://www.itef.org/> and "ISP" with "IP address." Before the
hearing resumed for the afternoon, I introduced myself to him. He
recognized me as a plaintiff and said he included one of my articles
on Marty Rimm as evidence (!) and used it during depositions.
<http://www.cs.cmu.edu/~declan/rimm/>

Tony Coppolino is more reserved and didn't say much when we chatted,
except to say that his office is busy enough with this case that they
won't be sending anyone to the Computers, Freedom and Privacy
conference next week.

I was impressed by the poise of Patricia Rosado, the DoJ's point
person on porn. Yesterday she floated the MacKinnonesque theory that
porn is harmful not just to minors, but also to women. Today she
greeted our witnesses with a barbed, stinging cross-examination.

Unfortunately for Rosado, she was up against Cronenberger, a likable
gent who came across as a traditional librarian close to the judges'
own ages -- not a net.geek like Donna Hoffman and Scott Bradner. (At
one point, Judge Sloviter demanded that Bradner explain URLs and
linking in English, not net-ese.)

The judges gladly related to Cronenberger's description of the Net as
a library -- finally, something they could grasp! The ACLU's Chris
Hansen expanded on this in a brilliant redirect, pointing out that the
concept extends beyond that of a traditional library, allowing a user
to link "from the fourth floor of Wiedner Library in Boston to the
third floor of the Carnegie Mellon University library in Pittsburgh."

Rosado from the DoJ rallied with questions like:

  DoJ: "You can do a keyword search on the seven dirty words?"
  DoJ: "Would a search on Abraham Lincoln turn up articles about sex?"
  R.C.: "I've read many articles about his sex life, or lack
         of sex life.
  DoJ: "Would a search on travel turn up articles about sex?"
  DoJ: "Would a search on geology turn up articles about sex?"
  R.C. "Only if rock is put together with roll!" <laughter>)
  DoJ: "Would a search on food turn up articles about sex?"
  DoJ: "You exercise discretion as to what you make available. You don't
        carry everything, do you?"
  DoJ: "You select materials that reflect the local community standards?"

Not surprisingly, the DoJ is trying to keep the hearing focused on
porn and sex. (At least it keeps Buckwalter awake!) Not the truly
extreme stuff that obscenity laws already ban online, but the softcore
Playboy-style cyberpix that would be permitted in the absence of the
CDA. The Justice Department asked Vanderbilt's Hoffman:

  DoJ: "You stated in your deposition that you were generally familiar
        with the web page called Bianca's Smut Shack?"
  Judge Dalzell immediately looked up, startled: "Bianca's WHAT?"
  DoJ: "Bianca's SMUT Shack."
  Judge Dalzell: "Oh, okay."

Other DoJ questions included a passing reference to would-be cyberporn
researcher Marty Rimm, who claimed that pornographers were using the
Net to recruit customers. (Last month, the DoJ attached Rimm's study
as an exhibit in their response to our complaint and cited it as
evidence of the pervasiveness of nasty stuff on USENET.) Some examples:

  DoJ: "You will concede, will you not, that this law will not have a
        profound adverse effect [on password-protected smutty sites]?"
  DoJ: "Pornographers are using USENET newsgroups to advertise, are
        they not?"
  DoJ: "Tell us about bots and spiders."
  Judge Dalzell, trying hard: "That's an acronym, right?"

My fellow plaintiffs are wonderful. Kiyoshi Kuromiya testified the
first day, followed by Patricia Nell Warren. Warren and I had dinner
on Thursday with Jonathan Wallace of the Ethical Spectacle; we talked
about the political and social forces behind the push for the CDA. I
asked Wallace why he came down from New York City -- he told me
because "this is the most important free speech case in 60 years."

Today I sat next to the DoJ's net.experts, who kept leaning forward to
whisper technical data into the ears of the Justice Department's
attorneys. One of the two experts was from Brigham Young University.
The other was Steve Nesbitt from the Department of Defense. One or
both likely will be testifying as expert witnesses for the DoJ, but
Justice isn't releasing the list until April 3.

Stay tuned for more reports.


-----------------------------------------------------------------------------

We're back in court on 4/1, 4/12, 4/15, and 4/26. The DoJ will be
taking depositions from our remaining witnesses the week of March 24.

For more information and breaking updates, check out:
  http://fight-censorship.dementia.org/top/

To subscribe to the fight-censorship announcement list, send email with 
"subscribe fight-censorship-announce" in the body to:
  majordomo at sojourn.com

Other relevant web sites:
  http://www.eff.org/
  http://www.cs.cmu.edu/~declan/rimm/
  http://www.cdt.org/
  http://www.aclu.org/

-----------------------------------------------------------------------------