🚀 go-pugleaf

>It looks as though I may never be able to enter the US without
>being imprisoned for two years. As the President of a not-for-profit
>Community net am I legally responsible for the members  of our organization?

Tough to say.  Many in the US would love to prosecute ISPs for what
their users do, however this has never been successful in a court
(with the exception of the Prodigy (?) case, where the provider
was deemed to be acting as an editor, and hence responsible for
material).  I would say that you would be responsible for their
email in so far as you would be responsible for their words
as representatives of your company.  From what you say, though, they
wouldn't be acting as a representative of your net, so I wouldn't
worry.

Really though, just my opinion.

>This is probably a tad extreme, Could you imagine holding the
>president of the CBC responsible for a play broadcast over the Radio,
>or TV, or the Internet?

Aren't they?  What would happen if the CBC was to broadcast a show
that had some of the seven Evil words during prime time, or
a show that contained explicit sex?  I am not too up on Canadian
laws, but the US makes this explicitly illegal, and the broadcasting
company would be liable.  I would imagine that the president would
have to take some flak for it.

>What is CIPS view of freedom of speech Internet or otherwise?

As a professional organization, I'm not sure if CIPS should be
taking a stand on the issue.


For those that are interested in the debate over the CDA and
censorship, there are several mailing lists and lobby groups that
specialize on this.  Here is a FAQ that delves into the issue
with more detail than I really can:

-Adrian.

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

Date: Wed, 13 Mar 96 22:44:37 PST
From: jblumen@interramp.com
Subject: File 4--CDA Frequently Asked Questions

The Internet Censorship FAQ


The Internet Censorship FAQ was created by Jonathan Wallace and Mark
Mangan, co-authors of Sex, Laws and Cyberspace, a new book on
Internet censorship from Henry Holt. (See
http://www.spectacle.org/freespch/ for more information.) Some of
the material in the following is taken from the book.

Please redistribute this FAQ freely in relevant forums.



Q: What threats of censorship exist for the Internet?

A: The principal threat of Internet censorship today is the
Communications Decency Act, a law passed by Congress and signed by
the President in January, 1996 which would apply quite radical
regulations to speech on the Internet.

Q: What is the Communications Decency Act (CDA)?

A: The CDA criminalizes "indecent" speech on the Internet.  One
section of the CDA  defines indecency as speech depicting or
describing sexual or excretory acts or organs in a patently
offensive fashion under conetmporary community standards. Each of
these clauses--indecent, depicting or describing, patently
offensive, and contemporary community standards--hides a landmine
threatening the future of freedom of speech in this country.

i."Indecent"

"Indecency" is a vague standard long used to prosecute explicit,
outspoken speech in the Western world (for example, Radcliffe Hall's
pathbreaking but actually very restrained lesbian novel, The Well of
Loneliness, was indecent because of the phrase, "And that night,
they were not divided.")  Indecency laws are completely
unconstitutional as applied to print media, while broadcast spectrum
scarcity has been used as a rationale to continue applying such
laws to broadcast media. Indecency laws in general, the CDA in
particular, contain absolutely no exception for speech with
scientific, literary, artistic or political value.

ii. "Depicting or describing"

The word "describes" confirms that pure text can be illegal under
the CDA. Courts in recent decades have tacitly acknowledged that
sexually explicit text cannot be held illegal under obscenity laws.
Books such as Henry Miller's Tropic of Cancer and James Joyce's
Ulysses, which were held years ago to be significant literary works
and not obscene, could fall prey to the broader, vaguer CDA language
if posted online.

iii. "Sexual or excretory acts or functions"

While the reaction of some observers to this, the core of the CDA's
prohibition, may be "So what?", pause for a second to imagine that
you enter your neighborhood bookstore and wave a magic wand.
Immediately, all books infringing this definition vanish from the
shelves. The shelves are now half or two thirds empty! Not only
trashy bestsellers, but 19th century classics such as Zola's La
Terre and Flaubert's Madame Bovary, modern literature such as Joyce,
Miller, Nabokov and Burroughs, nonfiction works on health, aids,
rape, and sexual fulfillment, and even
 all vanish from the shelves! All serious human discourse sooner or
later touches on earthy topics, as history, metaphor or information.
Under the CDA,   speech which is quite legal in a book or magazine
should be banned from the Internet.

iv. "Patently offensive"

This wording, which the CDA picked up from the Supreme Court's
so-called Miller standard of obscenity, allows a jury to decide that
material is illegal based on how the jury feels about it. Patent
offensiveness is an extremely subjective standard; coupled with the
contemporary community standard provision, below, it is a recipe for
disaster. In a case called Eckstein v. Melson, the owner of a
bookstore was threatened with prosecution if she continued carrying
obscene, patently offensive materials.  But when she asked the
prosecutor, the police and numerous other public officials to tell
her what she was carrying which was "patently offensive" (FBI agents
raiding her shop had seized novels by John Updike, among other
materials) no-one would tell her. A "patent offensiveness" standard
means that you engage in explicit speech at your own peril.

v. "Contemporary community standards"

The 1973 Miller case on obscenity held that local communities could
apply their own standards to determining whether material is
obscene. This  approach barely makes sense for works such as movies
or magazines, which distributors can refrain from showing or selling
in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas
(known as the Amateur Action case) upheld the conviction of two
California sysops under Tennessee standards. Their crime had been to
place obscene material on their California BBS which offended the
ncommunity of Memphis, Tennessee.  This result, now codified by the
CDA's use of the "community standards" wording, means that material
placed on the Internet anywhere must satisfy the standards of every
community that has Internet access anywhere in the U.S. In other
words, the standards of the most conservative community now apply to
the entire Internet.


Q: Is the CDA unconstitutional?

A: Yes. The basic U.S. rule on freedom of speech is the First
Amendment to the U.S. Constitution, which says:

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof, or abridging the freedom
of speech, or of the press, or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.

Supreme Court cases, notably including Butler v. Michigan (1957),
have held that indecency standards cannot be applied to printed
matter (that case overturned a law which banned books unfit for
children).  The extremist rationale of the CDA is that censorship
which would be impermissible for the printed word is appropriate for
the electronic word, and that works which are protected on paper are
subject to censorship on a computer screen.

There is no justification for treating the printed and electronic
word differently. The consequences of doing so will become most
apparent in the next century, as printed books and magazines
continue to decline in importance compared to the sheer volume of
words available online. If the full protection of the First
Amendment applies only to books and magazines printed on paper, then
the First Amendment will become a historical curiousity.

Q: What rationales are advanced by the supporters of the CDA?

A: The CDA's supporters advance two significant reasons for the law:
it is necessary to protect children; it is constitutional because
the Internet is no different than the telephone or broadcast media
and may be regulated similarly. We will deal with each of these
individually.

Q: Is the CDA necessary to protect children?

First, and as a dispositive matter, the constitutionality of the CDA
cannot turn on whether it protects children, despite the emotional
appeal of this issue. The Supreme Court in Butler v. Michigan did
not spend a lot of time considering the state of youthful minds and
the measures available to protect them; it held, instead, that
setting  all public discourse in Michigan at the level acceptable
for children would be "burning down the house to roast the pig." A
law banning books by Miller, Joyce, Burroughs and Nabokov might also
protect children who might get hold of them, but would be completely
unconstitutional under the First Amendment.

Proponents of the CDA have completely ignored the fact that no child
can connect  to the Internet without the help of an adult.  Signing
up for an Internet account typically involves presenting a credit
card to an ISP. Adults who wish to allow their children to surf the
Net unsupervised can sign them up through a child-safe service like
Prodigy. Childhood specialists universally criticize parents who
allow their children to vegetate in front of the TV unsupervised;
the Net raises the same issues of parental responsibility.
Ironically, the same Congress that mandated the V-chip--which would
allow parents to stop undesirable broadcasts at the TV--passed the
CDA which addresses the same problem by eliminating undesirable
speech from the entire Internet.

A mature, measured approach to the problem of explicit online speech
would involve parental supervision and local screening, not
wide-ranging censorship. See the Voters' Telecommunications Watch
Parental Control FAQ.

Q: Is  regulating the Net similar to regulating the telephone, radio
or or TV?

A: Not at all. The telephone and the broadcast media  are all
government-supervised monopolies, and Congress and the courts have
recognized the government's right to supervise content as a result.
However, the right of government intervention to ban indecent
language recognized for these other communications media, though
cited as a precedent for the CDA, is actually far less than the
profound censorship the CDA envisions.

The government and the phone company itself can play no role in
regulating the contents of private conversations.  In fact, the
phone company, as a common carrier, is legally required to carry any
kind of private communications without making any distinctions. In
the 1980's, disturbed by the growth of adult 900-line services,
Congress tried banning them; the Supreme Court held that indecent
speech could not be banned from phone lines. Instead, Congress
passed a law, which the Court upheld, mandating that 900-line
services require credit cards or, if billed by the local phone
company, be "reverse blocked" (you can't get access unless you
request it from the local phone company in writing.) These
regulations have allowed 900 line services to exist, while
significantly blocking access to minors.

By contrast, government involvement in radio and television is based
on the "scarcity" doctrine, which holds that government censorship
of content is justified by the government's role in assigning
broadcast frequencies on a scarce spectrum. The Supreme Court, in
the famous Pacifica (seven dirty words) case, held, as with the
telephone, that indecent language cannot be completely banned from
radio and television. Current FCC regulations allow indecent speech
on broadcast media after ten o'clock at night.

The Internet is not a "scarce" resource and anyone can attach a
computer to it without asking the government's permission. Nor is it
a government-licensed common carrier like the phone company.
Moreover, the regulations which have been held constitutional for
telephone, radio and TV merely seek to shift ("channel") explicit
speech to a time or place where children cannot access it, but not
to ban such speech entirely.

Q: Doesn't the CDA merely attempt to channel indecent speech on the
Internet?

A: The CDA is extremely ambiguous on this point--with the result
that the only safe thing to do is to avoid controversial speech
entirely, as many users are already doing.

Unlike laws pertaining to telephone, TV and radio, which clearly
spell out what is safe (take a credit card, broadcast after ten
p.m.), the CDA as written gives absolutely no guidance.

None of the methods of channeling decreed for other media works
well, or at all, on the Net. The only rational solution for
channeling speech on the Net is the parental control solution the
Congress rejected even as it was mandating the V-chip: promote the
use of child-safe ISP providers and local software to screen
undesirable speech.

Q: What about the argument that the Internet is "pervasive"?

A: Ithiel de Sola Pool, who in 1983 published a really prescient
book called Technologies of Freedom, predicted that the doctrine of
"pervasiveness" would someday be used to justify quite "radical"
censorship. That day has arrived.

"Pervasiveness" is an ill-thought out doctrine that has been around
since the 1880's, when a court allowed a local phone company to deny
service to a subscriber on the grounds that he used foul language.
The court's reasoning was that the wires might get crossed, and
another family might pick up its telephone to hear this man cursing!

The "pervasiveness" of radio was frequently cited by Herbert Hoover
and others to justify the FCC's role in the 1930's in censoring the
contents of radio broadcasts. The concept simply describes the fact
that a communications technology reaches into the home; radio, said
Hoover, must be "clean and safe for home consumption".  However,
courts, which have frequently mentioned the pervasiveness argument
in media cases, have never used it as a basis for upholding a scheme
of censorship unless "scarcity" (see above) was also present.

If pervasiveness, standing alone, justifies censorship, then it is
hard to see why the Supreme Court overturned the state law in Butler
v. Michigan, which outlawed books unfit for children. One would hope
that books are also pervasive, with at least one or two of them
invading most houses.

Proponents of the CDA would argue that books must be brought into
the house, while the Internet somehow comes in unbidden. The courts
have given some credence to this argument, holding that broadcast
waves pass the walls of your house whether you want them to or not.
However, the Supreme Court has most recently suggested that the
"pervasiveness" argument would not be valid for cable televsion,
which it characterized as an invited guest in the home. This
suggests that the Court would also find (as it should) that the
Internet is also invited into the home and is not "pervasive."

Q: What is being done to combat the CDA?

A: The American Civil Liberties Union, Center for Democracy and
Technology, and other organizations have filed lawsuits to hold the
CDA unconstitutional. One of these lawsuits is scheduled for a
hearing in federal court in Philadelphia at the end of March 1996,
during which a three-judge panel will determine if the CDA is
unconstitutional under the First Amendment. One of the authors of
this FAQ, Jonathan Wallace, is a plaintiff in that lawsuit. (See
http://www.spectacle.org/cda/cdamn.html for more information.)

Q: Has a federal court restrained enforcement of the CDA?

A: Only in part. The Philadelphia court said that one section of the
CDA, which refers to indecency without defining it, is vague.
However, upon a first look, the court did not think that the
companion section, referring to "sexual or excretory acts or
organs", was too vague. The court will take a more detailed look at
the constitutionality of the CDA after the preliminary injunction
hearing, which begins on March 21.

In the meantime, the government has agreed not to bring any
indictments under the CDA--but behavior that is occuring now may
still be prosecuted after the court reaches its decision, assuming
it leaves the CDA alive.

Q: What is the relationship between the CDA and obscenity laws?

A: Prior to the CDA, federal obscenity law already applied to
material distributed on the Internet, as the Amateur Action case
illustrates. Under that law, as interpreted by the 1973 Miller case,
obscene materials are those which are (i)prurient and (ii)patently
offensive under contemporary community standards and which (iii)
lack significant scientific, literary, artistic or political
("SLAP") value. Cases in recent decades have indicated that only
visual images--photographs and films--will be held obscene under
this standard, as pure text is always found to have at least minimal
literary value.

The CDA makes illegal a large zone of speech which obscenity laws
don't touch--material depicting or describing sexual or excretory
acts or organs, which is not prurient, but is patently offensive to
somebody, even though it has SLAP value.

Q: Is it true that the CDA outlaws putting abortion information on
the Internet?

A: Its true. One section of the CDA confirms that the federal postal
obscenity law, first passed in 1873, applies to cyberspace. That law
included a section which hasn't been enforced in decades, but which
is still on the books, making it illegal to pass abortion
information across state lines. Congressional backers of the CDA
claim they didn't intend to outlaw the communication of abortion
information on the Internet, and President Clinton has said that he
will not allow the Justice Department to enforce it.  Nevertheless,
the  law is on the books, and could be enforced in a future
presidential administration, if it is not thrown out by the federal
court.

Q: Where can I go for more information?

A: Check out the following organizations:

The American Civil Liberties Union http://www.aclu.org

Voter's Telecommunications Watch http://www.vtw.org

Electronic Frontier Foundation http://www.eff.org

Center for Democracy and Technology http://www.cdt.org


The Internet Censorship FAQ was created and distributed by Jonathan
Wallace,jblumen@spectacle.org, and Mark Mangan, markm@bway.net.

 -----------------------------
Jonathan Wallace
The Ethical Spectacle
http://www.spectacle.org
Co-author, Sex, Laws and Cyberspace
(Henry Holt, 1996)
http://www.spectacle.org/freespch/

--
Adrian Powell    Adrian.Powell@NorwestLabs.com       | These opinions are
home:            http://ugweb.cs.ualberta.ca/~adrian | not those of Norwest
phone:           (403) 438-5522                      | Labs, and may not be
fax:             (403) 434-8586                      | those of the author.