All Tomorrow's Parties -- CDA II -- from the Netly News

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Fri, 27 Jun 1997 07:15:50 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship@vorlon.mit.edu
Subject: All Tomorrow's Parties -- CDA II -- from the Netly News



http://cgi.pathfinder.com/netly/opinion/0,1042,1113,00.html

The Netly News
June 26, 1997

All Tomorrow's Parties
by Team Netly (thenetlynews@pathfinder.com)

The fun-loving "trolls" of Bianca's Smut Shack
celebrated today's Communications Decency Act
ruling by sleeping in. Christopher Miller and
David Thau stumbled awake at 10:10 am today,
just in time to read the decision that said it
was legal to post "indecent" material on your
web site -- something clearly important to the
Biancanauts, who are travelling cross-country in
a psychedelic RV commemorating the summer of
love.

"It's kind of weird to celebrate the overturning
of something that's clearly unconstitutional,
but of course we have something to celebrate
because it's going to keep us from jail," said
Thau.

The celebration may be premature. The CDA II,
after all, is expected to crawl out of the grave
like a flesh-dripping zombie. But you'd never
know it from the high-bandwidth rhetoric that
flooded the Net today after the Supreme Court
decision.

The Electronic Privacy Information Center cried
that "today's opinion defines the First
Amendment for the next century." Histrionics
also were flying furiously around San
Francisco's South Park, where the faithful
rallied. "The Internet freedom fighters are as
strong as the students at Tiananmen Square,"
said the Electronic Frontier Foundation's Mike
Godwin -- to a crowd composed almost entirely of
journalists. "Today is the first day of the new
American Revolution, the Digital Revolution.."
(A phrase that happens to be trademarked by
Wired, a sponsor of the rally.)

The victorious shouts of the way-new stalwarts
were matched by the angry screams of the
censor-happy CDA supporters. "The safety net is
gone," says Donna Rice-Hughes, communication
director for Enough Is Enough. "There is no law
against an adult sending a naked picture of
himself to a child over the Internet or through
e-mail."

If Rice-Hughes has her way, the high court's
decision to drive a stake through the heart of
the much-reviled law will mean the threat to
free speech online has expired only for a while.

"Frankly, this ruling provides a road map on how
to more specfically draft legislation," says
Heidi Stirrup, director of government relations
for the Christian Coalition. "Our beleaguered
American family has been put on notice by the
Court that it will do nothing to help the family
even when the president and Congress work
together against a problem that everyone says is
bad -- providing indecent material to children."

This isn't entirely true. The ruling -- which
talked of "vast democratic fora" online -- does
not mean that the Internet is now a free-speech
zone where anything goes. After all, the CDA
only restricted "indecent" materials, an
undefined category that could include art,
literature, even humor and sex ed. materials.
Distributing obscenity -- sexual works without
"redeeming value" -- will remain a crime. The
Court noted this in its ruling today:
"Transmitting obscenity and child pornography,
whether via the Internet or other means, is
already illegal under federal law for both
adults and juveniles."

President Clinton, who endorsed the act, also
vowed not to give up. "We can and must develop a
solution for the Internet that is as powerful
for the computer as the v-chip will be for the
television, and that protects children in ways
that are consistent with America's free speech
values," he said.

"We're certainly going to support Congress'
efforts to develop another bill to protect kids.
They're not going to stop and we're going to
help them to do it," says Bruce Taylor,
president of the National Law Center for
Children and Families.

Taylor predicts that a CDA II might stress
labelling all your web pages with PICS or RSACi
if you want to stay out of jail: "Remember I
told you nobody's going to do PICS? It's a
monster nobody wants to feed. Who's going to
rate 10 zillion web sites?"

Well, nobody -- unless you force people to use
it.

Which is what some members of Congress are
trying. Sen. Patty Murray (D-Wash.) is preparing
to introduce a bill that will try to convince a
dubious public to rate its pages with RSACi, a
self-rating system backed by Microsoft. (A
company which, just coincidentally, is
headquartered in her state.) Nevermind that even
MSNBC stopped ratings its pages with RSACi
because the system proved unworkable for news
sites.

Murray's proposed bill, called the "Childsafe
Internet Act of 1997," says someone who
"includes a rating" on their site "may not be
held liable" for "any material on the site that
is unsuitable for minors." That's the carrot.

Then the stick: you can't post material
"unsuitable for minors" on a site that's rated
for kids. "Whoever accesses a site on the
Internet rated by the person establishing the
site as having no material unsuitable for minors
and knowingly makes available on or through the
site any comment, request, suggestion, proposal,
image, or other material unsuitable for minors,
shall be imprisoned... for not more than two
years," the bill says.

The constitutionality of such legislation was
affirmed in today's minority opinion of Justices
O'Connor and Rehnquist, in which they talk of
"zoning laws" for the Internet. Real world
zoning laws are what keep children out of porno
stores and require buildings to be
wheelchair-accessible. These laws passed
constitutional muster long ago, and the
underlying intent of the CDA was largely to
shield minors from indecent material. Trouble
is, Internet technology isn't yet capable of
ensuring the existence of adult-only zones. Yet.

Thus argued O'Connor: "Until gateway technology
is available throughout cyberspace, and it is
not in 1997, a speaker cannot be reasonably
assured that the speech he displays will reach
only adults because it is impossible to confine
speech to an 'adult zone.'"

What all this means is Congressional attempts to
pass another law to muzzle the Net won't need to
be a flat ban on "indecency." Rather, they'll
rely on PICS and RSACi. (Ironically, a
technology designed to head off the CDA might be
the linchpin of CDA II.) Next month President
Clinton plans to meet with industry leaders in
much the same way he met with broadcast
executives last year and came up with a V-Chip.
His goal this time: to do the same for the Net.

Meanwhile, slap-happy netizens will probably
still be partying down -- the D.C.-based CIEC
folks are hanging out in the 18th Street Lounge
right now -- basking in the high court's warm
and fuzzy afterglow, and happily smoking a bowl
of their own rhetoric.

###