CDA Court Challenge: Update #3

[Declan McCullagh <declan@eff.org>]

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                           The CDA Challenge, Update #3
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         By Declan McCullagh / declan@well.com / Redistribute freely
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April 1, 1996


PHILADELPHIA -- Chief Judge Dolores Sloviter's mouth fell open in
astonishment this afternoon when net.culture guru Howard Rheingold
testified that some online communities elect cyberjudges to hear
disputes. Sloviter asked if realspace judges "can escape to this 
community?" Judge Stewart Dalzell wondered: "How are they selected?
Is there impeachment?" 

The court's questions of Rheingold -- who appeared in a glowing blue
suit, an iridescent pink shirt, and the first tie he's worn in a
decade -- showed that the judges hearing our challenge to the CDA are
trying hard to understand the Net. But while the three-judge panel was
fascinated by Rheingold, they just didn't connect with him.

This was due largely to the skilled lawyering of the Department of
Justice's Patricia Russotto -- the Marcia Clark of this case. During
her cross-examination, Russotto repeatedly steered Rheingold away from
describing relatively understandable online communities like the WELL
-- and towards hangouts like MUDs and MOOs that he said are inhabited
by "dwarves, wizards, and princesses." Belittling those online
communities, Russotto repeatedly dismissed them as "these fantasy
worlds" and tried to confuse the judges by tossing a string of
acronyms at them, staccato.

Judge Dalzell rose to the challenge: "All right, I'll take the bait.
What's a MUD?"

Like Dalzell, Judge Sloviter is enjoying this case. As the chief judge
of the U.S. Third Circuit Court of Appeals, she usually deals with
lawyers, not expert witnesses, and clearly likes to quiz them herself.
Responding to Rheingold's description of MUDs, she said: "I don't know
about being a wizard, but I'd be a princess."

Eventually the line of questioning turned to BBSs, and Russotto tried
once again to damage Rheingold's credibility, saying he had stated
under oath that BBSs were "open to everyone" but had just testified
that adult BBSs were not. He clarified, and rallied when asked if he
let his 11-year old daughter surf the Net unsupervised: "I teach her
that just as there are nutritious things to put in your body, there
are nutritious things to put in your mind."

Russotto continued, rapidfire:
  "Do you really think that Hamlet depicts sexual or excretory acts in a
   patently offensive manner?"
  "You have not participated in virtual communities built around
   trading sexually-explicit images, correct?"
  "You are aware that sexually-explicit networks can form around a BBS?"
  "Virtual communities can form around such a BBS?"
  "Some Usenet newsgroups carry sexually-explicit materials?"
  "An ISP can decide to carry certain newsgroups?"
  "The particular server you're on could decide to carry the alt.sex
   and alt.binaries hierarchy?"

The tension had heightened earlier in the day, just before lunch, when
Russotto tried to prevent Rheingold from testifying. When we
introduced the celebrated author of "Virtual Communities" as our
witness, Russotto objected: "We would submit that his expert opinion
is not relevant to this case." Battering Rheingold with a quick series
of questions, the DoJer forced Rheingold to stumble. ACLU attorney
Chris Hansen quickly rescued his witness and Sloviter overruled
Russotto's objection: "The court will hear Mr. Rheingold."

Over lunch in the courthouse cafeteria, I talked with Rheingold, who
was understandably nervous from the drumming he had experienced
minutes earlier. Of course, the very fact that we were chatting like
old friends demonstrated the power of a virtual community -- we had
communicated in one form or another every day for the last year, but
we had never met in person before.

Like the man himself, Rheingold's testimony was interesting and
colorful, unlike that of Bill Burrington, the director of public
policy for America Online, who was the first witness of the day. A
good number of courtroom observers, including myself and some
reporters, snoozed through most of Burrington's statements.

I was more-or-less awake enough to realize that Burrington was once
again characterizing AOL as a "resort pool with lifeguards" next to
the wild, untamed ocean of the Internet, with its predators and
sharks: "There is a channel to the Internet. You can be whisked out
into the sea." His evils-of-the-Net description confused Judge
Sloviter, who asked: "When you say whisked out into the sea, you don't
mean involuntarily whisked?"

Tony Coppolino from the DoJ cross-examined Burrington. Coppolino seems
to be the most cyber-savvy DoJer and the leader of their legal team on
this case. Like Russotto, he doesn't pass up an opportunity to damage
the credibility of our witnesses:
  Judge Sloviter: "How many newsgroups are available on AOL?"
  Burrington: "Up to 20,000."
  Judge Dalzell: "I thought someone said 30,000."
  Coppolino: "I have a stipulation here saying 15,000."

Pressed by Coppolino, Burrington admitted that AOL didn't carry
Playboy or Penthouse because the material was "inappropriate for
families and children." Later Coppolino suggested that AOL has
problems with pedophiles and child pornographers, asking Burrington to
describe a case where an AOLer found children's names from a chat room
then sent them sexually-explicit images. Burrington parried: "This is
the first such incident. We terminated his account immediately and are
cooperating with Federal law enforcement."

When HotWired honcho Andrew Anker took the stand, the questioning
turned to alt.sex.bondage. Judge Sloviter started by asking: "What is
alt.sex.bondage? What does that mean?"

Turns out that HotWired had published a story about the newsgroup,
though by the end of the questioning, the judges seemed convinced that
HotWired was a net.porn haven and were surprised when Anker estimated
that much less than 10 percent of his web site's content was
sexually-explicit. Again, Judge Dalzell tossed us a few sympathetic
questions: "If you were to label your web site as adult, would it
scare off advertisers?"

After some brief testimony by ACLU plaintiff Stephen Donaldson of Stop
Prisoner Rape, Barry Steinhardt took the stand. Steinhardt is the
associate director of the ACLU -- I first got to know him when he
blasted CMU for censoring its USENET feed years ago -- and was subject
to an antagonistic cross-examination from Craig Blackwell. Blackwell
relied on his boss Tony Coppolino for technical tips, and stumbled a
few times, like when he confused AOL with a web site on the Internet:
  Blackwell:  "The ACLU has two Internet sites, right?"
  Steinhardt: "No. We have one Internet site and we are a content
               provider on America Online."

During the DoJ's questioning of Steinhardt, a few points emerged:
  * The content the ACLU posts to the web and AOL is educational.
  * The ACLU controls content on its web site but not in AOL chat
    rooms and discussion groups.
  * The ACLU is concerned that the CDA subjects it to liability for
    "indecent" material, including George Carlin's monologues it has
    placed online.
  * The DoJ is trying to draw a distinction between "indecent" images
    of couples engaged in sexual intercourse and educational
    "indecent" material that they will claim is not going to be
    prosecuted under the CDA.

We're still wondering who the DoJ will call as their pro-CDA
witnesses. The two prime suspects are someone supposedly from the
Department of Defense and a computer scientist from Carnegie Mellon
University.

I suspect that the DoD guy is the gent who's been sharing the second
row of courtroom seats with me -- a grey-haired gentleman always
sporting a nondescript grey flannel suit. He's been sitting on the DoJ
side of the courtroom (the ACLU is on the left, of course), and after
court adjourned he was confabbing with them about plans to meet later
in the day.

I walked over and asked Grey Flannel Suit if he was with the DoJ, and
he replied: "I just do some computer work for them." I was asking Grey
Flannel for his name when DoJ attorney Jason Baron jumped between us:
  Baron:     "He can't talk to you."
  McCullagh: "Why don't you let him make that decision for himself?"
  Baron:     "I make decisions for him."
  McCullagh: "What's his name?"
  Baron:     "He has no comment."

I'll bet anyone five bucks that Grey Flannel is from the NSA.

The other pro-CDA witness is almost certainly Dan Olsen, a Mormon who
is the head of the computer science department at Brigham Young
University and the incoming director of the Human Computer Interaction
Institute at Carnegie Mellon University. (The HCI Institute at CMU is
known as a dumping ground for faculty who can't make the cut in the
justly-renowned CMU computer science department.)

Of course, CMU is the school that is considering what cyberlibertarian
attorney Harvey Silverglate calls an "Orwellian speech code," and
erotic USENET newsgroups are still banned from almost all campus
computers. Since CMU spawned Marty Rimm, who tried to sell his
unethical research to the DoJ and whose study helped pass the CDA,
it's appropriate that CMU affiliates are helping the DoJ defend the
damned CDA after all.

Today's testimony ended our case, with the exception of one of our
witnesses who couldn't make it earlier. Albert Vezza is the associate
director of MIT's Lab for Computer Science and a PICS guru who will be
testifying for us on April 12 or April 15. With the exception of
Vezza, those two days will be devoted to the DoJ's arguments alleging
that the CDA is constitutional and should be upheld by the court.

Stay tuned for more reports.


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We're back in court on 4/12, 4/15, and 4/26. The DoJ will reveal the
identity of their expert witnesses on 4/3 or 4/8.

Mentioned in this CDA update:
  Howard Rheingold         <http://www.well.com/~hlr/>
  CMU and the Rimm study   <http://www.cs.cmu.edu/~declan/rimm/>
  CMU's HCI Institute      <http://www.cs.cmu.edu/~hcii/>
  Dan Olsen at BYU         <http://www.cs.byu.edu/info/drolsen.html>
  Censorship policy at BYU <http://advance.byu.edu/pc/releases/guidelines.html>
  Censorship at CMU        <http://joc.mit.edu/>
  USENET censorship at CMU <http://www.cs.cmu.edu/~kcf/censor/>
  HotWired / WIRED         <http://www.hotwired.com/>
  PICS information         <http://www.w3.org/pub/WWW/PICS/>

These and previous CDA updates are available at:
  <http://fight-censorship.dementia.org/top/>
  <http://www.epic.org/free_speech/censorship/lawsuit/>

To subscribe to the fight-censorship list, send "subscribe" in the
body of a message addressed to:
  fight-censorship-request@andrew.cmu.edu
 
Other relevant web sites:
  <http://www.eff.org/>
  <http://www.aclu.org/>
  <http://www.cdt.org/>

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