From: "L. McCarthy" <lmccarth@ducie.cs.umass.edu>
Date: Tue, 7 Feb 95 22:47:49 PST
To: cypherpunks@toad.com (Cypherpunks Mailing List)
Subject: Re: Effects of S.314 (Communications Decency Act)
In-Reply-To: <v03001400ab5e06968201@[140.174.229.225]>
Message-ID: <199502080649.BAA02589@ducie.cs.umass.edu>
MIME-Version: 1.0
Content-Type: text/plain


[As always, IANAL. This citizen likes to think he has a reasonable capability
and obligation to assess the laws to which he may be subjected, though.]

After perusing it a couple of times, I'm still not sure I understand why the
specific provisions of the CDA would provoke the extreme monitoring measures
mentioned here. I agree with Sam that it's rather odd that EPIC hasn't put it
on their list of privacy-related bills in the 104th Congress. 

As a start, I'll try to speculate on sore points and their possible
immediate implications. 

+ "This Act may be cited as the `Communications Decency Act of 1995'."

Who elected Miss Manners to Congress ?  Any bill with `decency' in its title
deserves to die in committee, IMNSHO.

+ SEC. 2. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE 
+ COMMUNICATIONS ACT OF 1934.
[...]
+ (B) by striking out `makes any comment, request, suggestion, or
+         proposal' in subparagraph (A) and inserting `makes, transmits, or
+         otherwise makes available any comment, request, suggestion, proposal,
+         image, or other communication';

I take this section to be extending the ban on harassing phone calls and such
to cover all forms of electronic communication. I'm further assuming that the
subparagraph (A) mentioned above attempts to enumerate possible linguistic and
technical means of conveying the harassing content. What disturbs me is the
phrase "or otherwise makes available". I'm reminded of the arrest in Florida
a few years back of a couple whose lovemaking had been witnessed through their
bedroom window by a neighbor's curious child. My lay understanding of this
language is that passively presented information, such as the contents of a
WWW page or .plan file, could be construed as illegally obscene or harassing
under this act.

+ SEC. 5. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS.
+ Section 2511 of title 18, United States Code, is amended--
[...]
+ (A) by striking `wire, oral, or electronic communication' each place it
+         appears and inserting `wire, oral, electronic, or digital
+         communication', and

Is this the crucial threatening passage ?  Adding electronic communication to
a list presumably subject to "interception and disclosure" sounds ominous.
Without seeing the original legislation, though, I can't tell whether this
totally overturns the ECPA and similar statutes, or does something less 
drastic.

BTW, what sort of "digital communication" is neither "wire communication" nor
"electronic communication" ?

+ SEC. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
[...]
+ `, except a cable operator may refuse to transmit
+   any public access program or portion of a public access program which
+   contains obscenity, indecency, or nudity'
[...]
+ `a cable operator may refuse to transmit any leased
+   access program or portion of a leased access program which contains
+   obscenity, indecency, or nudity.

The battle over "obscenity" has been fought long and hard.

"Indecency" seems a remarkably nebulous term (and, of course, ludicrously
Victorian). I'd be interested in seeing a legal definition, and alarmed if
there isn't one (yet).

Don't even get me started on the "nudity" portion. I'm sure Jesse Helms is
already licking his lips over this one.

-L. Futplex McCarthy