COMMUNICATIONS DECENCY ACT OF 1996
Should WATPA wear a blue ribbon?
Having spent many, many hours exploring various Internet sites
for material related to the recently passed Telecommunications
Act of 1996, signed by the President February 8, 1996, I have
concluded that YES, WATPA should display the Blue Ribbon,
representing Freedom of Speech on the Internet. Additionally,
WATPA should also join the rapidly growing list of plaintiffs
supporting repeal of the Communications Decency Act provisions
of the legislation.
Attachment of the Communications Decency Act to the generally
acceptable provisions of the Telecommunications Act of 1996
(to foment greater competition among telecommunications
providers, update the Communications Act of 1934, allocate
additional "spectrum" for innovative wireless communications,
etc.), resulted from the failure of this Congress, one that
ostensibly prides itself on "less government", "family
values", and other "conservative" tenets, to stand up to a
vociferous but minuscule faction of the citizenry who would
impose their ideas of morality upon the entire Nation,
trampling well-established Constitutional rights. This
faction, represented by the Christian Coalition, Oklahomans
for Families and Children (formerly Oklahomans Against
Pornography), looks to government to take care of matters,
primarily "parental control," that are better left to
individual responsibility.
Imposition of the provisions of the CDA follow closely on
Congress's passage of legislation requiring installation of
"v-chips" in all new television sets. The v-chip, enabling
viewers to screen out television programs containing violent
material, attempts to provide a technological fix to free
parents from responsible action, such as pulling the plug,
regarding their children. The fact that widespread
availability of the v-chip will take decades to emplace, as
the existing stock of television sets are replaced, begs the
question of what the responsible adult is to do about such
programming today -
In a free society we look to government to address matters of
national defense, the environment, and social security. In a
free society, citizens should not tolerate government
interference in private matters - what we will view, read or
download, with whom we share our bed and what we keep under
it, matters of reproductive rights and other personal freedoms
should be left for individuals to responsibly decide. In a
free society, attempts to infringe upon these rights must be
aggressively fought 'ere we lose them, forfeiting control to
those claiming some higher moral ground or higher authority.
As one "netizen" put it:
The Bill of Rights -- The ORIGINAL Contract with
America Beware of Imitations. Accept No
Substitutes. Insist on the Genuine Articles.
I believe that within WATPA's Mission is an obligation to make
known to the community the factors impacting
telecommunications, including its regulation, use as an
information medium, and the place of unfettered public access
to information available online. If WATPA is committed to
Public Access, to what we as an organization perceive to be
the worthwhile benefits afforded by new technologies, our duty
and responsibility to the community is to embrace those who
would fight to protect the freedoms represented by the
internet and to amplify to the best of our abilities the facts
that underlie our support.
At least two major lawsuits have been brought in Federal
Courts regarding the Communications Decency Act. Excerpts
from them follow. The issues addressed in the suits, freedom
of speech, the right to peacefully assemble, freedom of
information, anonymity of speech, are basic to life in a free
society. Of particular interest is language from the suit
lead by the ACLU regarding the appalling lack of knowledge
demonstrated by those who passed the Act about what the
Internet is - and what it isn't. This is especially evident
in the discussion of "community standards" in light of the
global, unhierarchal and decentralized nature manifested by
the Internet. An article I read alluded to the fact that when
the Internet was conceived, its most significant attribute was
that it was to be absolutely without center - atomic bomb-
proof in fact, safe from capture, control or destruction by
enemies. These attributes, conceived and developed by the
military and scientific communities, have succeeded
splendidly. It has only now, with the ever more rapidly
diffusion of cheap computing to the masses, come to the
attention of those interested in power, control, and profit
that the Internet has grown beyond traditional controlling
forms. The empowerment that becoming "wired" conveys to users
is frightening to many who have traditionally had power -
their grip on virtual reality is for all practical purposes,
gone. And this threatens their established control of "real"
world matters.
The American Civil Liberties Union (ACLU) has initiated action
against the indecency provisions of the Telecommunications Act
of 1996. A Federal District Court Judge in Philadelphia has
issued an injunction against Department of Justice prosecution
of certain portions of the Act. ACLU has identified portions
of the Act that infringe on the First, Fourth, Fifth, and
Ninth Amendment Constitutional Amendments. Specifically,
COMMUNITY STANDARDS
One provision imposes criminal penalties for
"indecent" but constitutionally protected
telecommunications to individuals under the age of
18; another criminalizes the use of any
"interactive computer service" to "send" or
"display in a manner available" to a person under
18 any communication that "depicts or describes, in
terms patently offensive as measured by
contemporary community standards, sexual or
excretory activities or organs."
The plaintiffs, providers of and users of computer
communication systems, assert that the Act is
unconstitutional on its face and as applied because
it criminalizes expression that is protected by the
First Amendment; it is also impermissibly overbroad
and vague; and it is not the least restrictive
means of accomplishing any compelling governmental
purpose.
PRIVACY
The plaintiffs assert that The Act violates the
constitutional right to privacy encompassed in the
First, Fourth, Fifth, and Ninth Amendments because
it criminalizes private"e-mail" computer
correspondence to or among individuals under the
age of 18 if the correspondence is deemed "patently
offensive" or "indecent."
ANONYMOUS SPEECH
Plaintiffs further assert that the Act in effect
prohibits the right to anonymous speech, guaranteed
by the First Amendment, for vast portions of the
computer networks.
CRIMINALIZATION OF DISTRIBUTION OF ANY INFORMATION REGARDING
ABORTION
Finally, plaintiffs American Civil Liberties Union,
Planned Parenthood Federation of America, Inc., and
others also assert that 18 U.S.C. 1462(c), both
before and after amendment, is unconstitutional on
its face because it violates the First Amendment by
criminalizing the distribution or reception of any
information via "any express company or other
common carrier, or interactive computer service" of
"information . . . where, how, or of whom, or by
what means any" "drug, medicine, article, or thing
designed, adapted, or intended for producing
abortion . . .may be obtained or made."
THE NATURE OF THE ONLINE MEDIUM
The following paragraphs are from the formal complaint filed
by the ACLU in Federal District Court. While much of this
information is well known to experienced Internet users, it is
included here to enlighten and inform less experienced users
with Internet forms and computer media. A review of the
following quickly makes clear that anyone who sends or
receives anything over the Internet will likely be impacted by
the provisions of the CDA. The complete document and list of
plaintiffs may be found at URL: http://www.aclu.org on the
World Wide Web.
38. Online services use computers, phone lines, and
modems to connect users to networks that allow them to
communicate with thousands of other users throughout the
world, and to access extensive information databases from
a variety of sources. Most online services offer a
package of services that can include: electronic mail to
transmit private messages to one or a group of users or
to an established mailing list on a particular topic;
chat rooms that allow simultaneous online discussions;
discussion groups in which users post messages and reply
to online "bulletin boards"; informational databases; and
access to the Internet.
39. Textual, audio, and video files can all be
exchanged through computer communications networks
if the user has the right computer hardware and
software.
40. The Internet is the largest online network in
the world. It links a large number of smaller
networks set up by universities, industry,
nonprofit organizations, and government. While
estimates can only be approximations due to rapid
growth, the Internet is believed to connect at
least 59,000 computer networks, 2.2 million
computers, 159 countries, and 40 million users.
The Internet has no centralized distribution point.
41. Many users are connected to the Internet
through an Internet Service Provider (ISP). ISPs
provide connections, software, and tools for using
the Internet. Like the large commercial online
services, ISPs also often host online discussion
groups and chat rooms that are housed and
maintained through the ISP's computers.
42. Some businesses and institutions have a direct
connection to the Internet, which means they are
part of the vast network of computers that comprise
the Internet. Many universities in the United
States are directly connected to the Internet and
provide accounts on their participating computer to
students, faculty, and staff.
43. Some online services provide content as well
as access to computer networks. That is, in
addition to providing the technical ability to
subscribers to send and receive information and
messages, some online services create their own
information databases.
44. Electronic mail, or e-mail, is the most basic
online communication. Users are given a personal
e-mail address that allows them to exchange
messages or files with other persons and
organizations that have Internet e-mail addresses.
45. "Gopher" is a popular way to create and access
databased information on the Internet. Gopher is a
menu-driven program that allows the user to
"gopher" through multiple layers of menus to search
for information on a particular topic. A "gopher
site" is a database that provides content
associated with a particular person or
organization. As a reference service, gopher sites
often include links to related gopher sites that
are associated with other organizations or persons.
46. The "World Wide Web" (Web) is a popular way to
create and access databased information on the
Internet. The World Wide Web contains
sophisticated graphics and audio files in addition
to text files. Web sites are databases that
provide content associated with a particular person
or organization; they allow users to link instantly
to other documents and Web sites by clicking on
highlighted words in the text of the document being
viewed.
47. "Online discussion groups" are hosted by
online services or by particular networks connected
to the Internet. The host sets up a section on the
network devoted to the discussion of a particular
issue and any other online user with access to the
host network can post messages on the topic by
sending an e-mail message to the discussion group.
Users can also post responses to particular
messages.
48. "Online mailing lists," or "listservs" are
e-mail distribution lists. Internet users
subscribe to online mailing lists by sending
messages from their own e-mail addresses. Any
subscriber can then send a message that is
distributed to all the other subscribers on the
list.
49. "Chat rooms" are sections provided by online
services and some computer bulletin board systems
in which online users can engage in simultaneous
live interactive online discussion.
50. Online discussion groups, chat rooms, and
online mailing lists are sometimes moderated by
someone not necessarily connected with the online
service provider. Many of these "moderators" are
volunteers who simply are interested in a
particular topic. The moderators review incoming
messages before they are posted to determine
whether the messages are related to the subject
matter of the group or conform to other standards
set up by the moderator.
51. "Computer bulletin board systems" (BBSs) are
online networks that are independent of the
Internet and that usually cater to people
interested in specialized subject matter or to
people from a particular geographic region.
Subscribers dial directly from their computers into
the BBS host computer. BBSs often offer e-mail
services among users, online discussion groups, and
information databases.
52. A user with access to the Internet may use
most gopher sites and Web sites without providing
further identification or paying an additional fee.
A user with access to newsgroups, online discussion
groups, online mailing lists, and chat rooms may
generally use particular services without providing
further identification or paying an additional fee.
53. "Cyberspace" refers to the combination of all
of the online communications systems described
above.
54. Nobody owns cyberspace, and the ability of
anyone to control what goes into or through online
networks varies widely depending on the nature of
the system. Anyone can purchase the necessary
equipment to get online or to create her own web
page.
55. Users of online systems are also content
providers (that is, they are publishers), because
they can transmit and distribute their own
communications and can create a permanent archive
of information accessible by other users. There is
no limit to the number of people on either side of
the sending or receiving end of computer
communications.
56. Online communications are interactive. This
means, in part, that users of online systems must
seek out with specificity the information they wish
to retrieve and the kinds of communications they
wish to engage in. It also means that users can
easily respond to the material they receive or view
online.
57. Online systems provide users with a multitude
of options for controlling and limiting, if
desired, the kinds of information they access
through online networks. Commercial online
services like American Online, Prodigy, and
CompuServe provide features to prevent children
from accessing chat rooms and to block access to
some kinds of newsgroups based on keywords, subject
matter, or specific newsgroup. They also offer
screening software that automatically blocks
messages containing certain words, and tracking and
monitoring software to determine which resources a
particular online user (e.g., a child) has
accessed. They also offer children-only discussion
groups that are closely monitored by adults.
58. Online users can also purchase special
software applications to control access to online
resources. These applications allow users to block
access to certain resources, to prevent children
from giving personal information to strangers by
e-mail or in chat rooms, and to keep a log of all
online activity that occurs on the home computer.
59. Once information is posted to an international
online network like the Internet, it is not
possible to allow only residents of a particular
region or country to access that information; the
information becomes available to anyone in the
world who has access to the online network. There
is currently no technological method for
determining with specificity the geographic
location from which users access or post to online
systems.
60. Online users are given a password and user
name which they must use in order to sign onto
their online service. While some users use their
full proper name as their online user name, many
users have online names that are pseudonyms. These
users therefore may send, view, and receive online
communications anonymously.
61. There are forums for both "public" and
"private" communications in cyberspace. E-mail and
online mailing lists are private communications
between specified persons or group of persons.
Only the intended recipients of an e-mail message
receive the message; in this sense e-mail is like
regular mail. Similarly, only subscribers to an
online mailing list should receive the messages
posted to that mailing list. Web sites, gopher
sites, online discussion groups, and chat rooms, by
contrast, are public because anyone with online
access can access them or participate in them at
any time. These forums are the public libraries
and public squares of cyberspace.
CENTER FOR DEMOCRACY AND TECHNOLOGY (CDT)
The Center For Democracy and Technology (CDT) is a non-profit
public interest organization based in Washington DC. The
Center's mission is to develop and advocate public policies
that advance constitutional civil liberties and democratic
values in new computer and communications technologies. CDT
has organized the Citizens Internet Empowerment Coalition
(CIEC - pronounced "seek") to also bring suit. The following
information is provided about the CIEC organization, co-
plaintiffs, and position:
The Citizens Internet Empowerment Coalition is a
large and diverse group of Internet users,
businesses, non-profit organizations, and civil
liberties advocates, who share the common goal of
protecting the First Amendment and the viability of
the Internet as a means of free expression,
education, and commerce. CIEC was formed to
challenge the constitutionality of the
Communications Decency Act because they believe it
violates their free speech rights and condemns the
Internet to a future of burdensome censorship and
government intrusion.
CIEC members believe that parents, not the United
States Government, are the best and most
appropriate judges of what material is appropriate
for themselves and their children.
CITIZENS INTERNET EMPOWERMENT COALITION MEMBERS AND PLAINTIFFS
Named Plaintiffs in the CIEC Challenge to the Communications
Decency Act
American Library Association
America Online, Inc.
American Booksellers Association
American Booksellers Foundation for Free Expression
American Society of Newspaper Editors
Apple Computer, Inc.
Association of American Publishers
Association of Publishers, Editors and Writers
Citizens Internet Empowerment Coalition
Commercial Internet Xchange
Compuserve, Inc.
Families Against Internet Censorship
Freedom to Read Foundation
HotWired Ventures Ltd.
Interactive Digital Software Association
Interactive Services Association
Microsoft Corporation
Microsoft Network
NETCOM On-Line Communications Services, Inc.
Newspaper Association of America
OpNet
Prodigy, Inc.
Society of Professional Journalists
Wired Ventures Ltd.
MEMBERS OF THE CITIZENS INTERNET EMPOWERMENT COALITION
Americans for Tax Reform
Association of American University Presses, Inc.
Association of National Advertisers
Association of Research Librarians
Center for Democracy and Technology
Coalition for Networked Information
Media Access Project
Media Institute
National Assoc. of State Universities & Land Grant
Colleges
People for the American Way
Recording Industry Association of America
Special Libraries Association
Surfwatch Software, Inc.
Systems Software, Inc.
University of California Santa Barbara Library
And You!
Statement of CIEC Principals
As an individual user of the of the Internet, I join the
Citizens Internet Empowerment Coalition to challenge the
Communications Decency Act because I believe in:
* Promoting the continued development of the Internet as a
forum for the free exchange of valuable information and ideas.
* Promoting the ability of parents and other individual users
to supervise and assist their children in accessing the wealth
of information resources available on this global
communications medium, free from government censorship.
As an individual user of the Internet, I am subject to the
restrictions imposed by the Communications Decency Act. While
it is clear that I am subject to criminal penalties under this
law, I neither understand what materials would be illegal nor
how I can avoid prosecution.
I believe that the CDA will restrict my rights to free
speech under the United States Constitution and destroy the
Internet as a viable means of free expression, education, and
commerce.
Signed:
http://www.cdt.org/ciec/
http://www.cdt.org/cieclist.pl
http://www.cdt.org/ciec/join_ciec.html
A FINAL WORD
If one has been patient and sufficiently interested to read
this far, it becomes clear that the Communications Decency Act
of 1996 threatens each and every citizen. Toleration of the
restriction and/or reduction of Internet-based material to a
level suitable only for 9-year olds abrogates the most basic
tenets of responsible citizenship. WATPA as an organization
should do all in its power to publicize and protect the public
interest in assuring that the freedoms enjoyed in the "real"
world are maintained in the new realm of Cyberspace.
Bill Langham
February 29, 1996