The Real Plan: Making the Net Safe for Censorship

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Wed, 16 Jul 1997 14:16:47 -0500
From: Marc Rotenberg <rotenberg@epic.org>
To: fight-censorship@vorlon.mit.edu
Subject: The Real Plan: Making the Net Safe for Censorship


Here is an example of a proposal being presented
at the White House today.

The minds boggles at the number of unconstitutional
provisions contained in such a brief text.

Never has a freedom won in a Supreme Court decision
been given up so quickly.

Marc Rotenberg
EPIC.

----------

http://www.safesurf.com/online.htm

The Online Cooperative Publishing Act
                                     (SafeSurf's Proposal for a Safe
Internet Without Censorship)


       Any law that seeks to regulate the Internet must first recognize the
uniqueness of the medium.  The Internet is not the print media or the
       broadcast industry.  It is also not another form of phone
conversation or a 900 number calling system.  Instead, the Internet is the
       manifestation of humankind's quest for limitless two-way interaction
with thought.  The hyper-text layout allows us to change topics on
       a whim, travel to distance places, or gather world opinion on a
subject in a matter of minutes. 

       This distinctive nature of the Internet must be protected and even
promoted by any legislation that claims to be fair to this medium.  The
       interaction between the one receiving data and the one publishing it
are where the core of the law should focus.  Both sides have rights,
       the publisher has the First Amendment and the receiver has the right
to be secure from harm in his home.  Proper Internet law should
       encourage a cooperative transfer of ideas in the form of data.  (It
should be noted that it was the universal acceptance of basic rules of
       cooperation, rather than anarchy, that built the Internet. )

       Any law that attempts to give one side or the other is given an
unreasonable burden in conducting the transfer of data is doomed to
       failure.  The CDA was too burdensome on the publisher.  Its goal was
to stop the flow of data, rather than to regulate it for the benefit
       of all parties. 

       On the other hand, without a proper law, parents can purchase and
activate measures to protect their children from adult material and still
       not feel secure in their homes from unwanted material.  This is
because negligent publishing of data eventually allows material that can
       harm the child to enter the home.  Once this material is experienced
by the child, its damage is done.  There is no "oops" factor, no way
       to undo the unwanted intrusion into a child's innocence. 

       Most importantly, any Internet law must not censor thought.  It may
regulate the labeling on the packaging but never the content. 

       With the goal of achieving a greater spirit of cooperation between
the publisher and the receiver of online data, we propose the Online
       Cooperative Publishing Act. 

       It shall contain the following provisions:

       1.      The right to be able to identify the adult rating of online
content before it enters one's home shall be established.  This shall be a
       civil right giving the violated person or family the presumption in
a suit against negligent publishers.

       2.      Negligent publishing of data shall be defined as placing
adult oriented material on the Internet in such a way or in such a location
       that it prevents its rating from being known.

       3.      A rating shall be defined as a PICS compatible label that
identifies degrees of adult content in a way that can be understood by
       computer filtering systems and is issued by a ratings service that
has a minimum of 5,000 documented individuals using its system to
       mark their data.

       4.      A publisher is defined as anyone who places computer data
where it can be accessed by the general public without the use of a
       credit card or other secure verified ID or password given out only
to adults.  Content that can be only be accessed by the use credit cards
       or other secure verified IDs is not subject to this law.

       5.      The code used to surround content published on the Internet
shall be defined as packaging.  All government identification
       requirements shall be limited to the code of the packaging.  Nothing
in this law shall be construed to require any altering or censorship
       of the content.

       6.      Three types of online publishing shall be defined:

             a) Publishers who accurately identify their data with a
recognized labeling system. 

             These publishers shall be considered to have satisfied the
labeling requirement of the law.  The right to publish shall be
             completely protected for those who accurately label their
material.  They shall be protected from all civil suits that argue
             negligent posting of data.  Only grossly mislabeled material
can be prosecuted.  (Note: This is not a protection for
             obscene material.  This law will offer no protection for
obscene material.)

             b) Publishers who mislabel their data to the degree that it
enables a minor using a label filtering
             system to gain access to harmful material.

             Data shall be considered to be mislabeled if it is posted in a
newsgroup, directory or other joint area that has been labeled
             as free from material harmful to minors.  Tampering with
another's label shall be crime.

             These publishers may be criminally prosecuted for subverting a
rating system to entice children to harmful material.  The
             mislabeling must be to the extent that it is completely
unreasonable to accept it as accurate.  Only ratings that are too
             lenient can be prosecuted.

             Posting unlabeled adult material to an area that has declared
itself safe for children or tampering with another's label shall
             be a severe criminal assault on the rights of the receiver.

             Sending unsolicited email to a minor that contains
pornographic material or an invitation to a pornographic Web Site, shall
             be considered negligent enticement and may be criminally
prosecuted.  A bulk email service sending pornographic email
             must show that it took reasonable measures to insure that
every recipient was an adult.  (Example: The addresses used
             were from the membership list of Adult Check or other such
adult verification services.)

             c) Publishers who do not label their data at all.

             Negligence in the absence of damages shall not be a criminal
offense (but it may be a civil violation of the rights of the
             receivers of that data) unless the data is deemed to be
harmful to minors.  Then the publisher will be prosecuted for
             negligence.

             These publishers may be sued in civil court by any parent who
feels their children were harmed by the data negligently
             presented.  The parents shall be given presumption in all
cases and do not have to prove the data actually produced harm
             to their child only that the material reasonably could be
considered to have needed a label warning to protect children.



         7.      Internet Service Providers are considered publishers of
only that material of which they directly control or gain revenue via a
         percentage of sales.  Web Site designers may be held liable if
they fail to attach ratings to Web sites, containing material harmful to
            minors, they design for a fee. They may, by written agreement,
assign the task of rating to another legally responsible party.

       8.      Not every document is required to be labeled, only the
default or index document of each directory.  In the case of an entire web
          domain being of one rating, only its default top level document
needs to be labeled with instructions to apply it to the entire site.