From: Ann Beeson <beeson@aclu.org>
Date: Wed, 4 Oct 95 09:10:25 PDT
To: infoaclu@aclu.org
Subject: ACLU Cyber-Liberties Update 10/4
Message-ID: <199510041605.MAA08420@pipe2.nyc.pipeline.com>
MIME-Version: 1.0
Content-Type: text/plain


October 4, 1995 
ACLU CYBER-LIBERTIES UPDATE                        **Premiere Issue** 
A bi-weekly online 'zine on cyber-liberties cases and controversies at the
state and federal level. 
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FEDERAL PAGE (Congress/Agency/Court Cases) 
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*	"Virtual" Child Pornography Bill is Overbroad and Fails to Protect Real
Children 
 
Despite the FBI's apparent success in raiding alleged child pornographers
on America Online, Senator Orrin Hatch decided we needed a new child
pornography law.  Hatch's bill would expand the existing child porn law to
include materials that are: 
	-visual depictions of what "appears to be . . . a minor engaging in
sexually explicit conduct;" and 
	-visual depictions "advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression that the material
is or contains a visual depiction of a minor engaging in sexually explicit
conduct." 
In its effort to outlaw "virtual" child pornography, the bill would
criminalize a wide range of constitutionally protected expression. 
 
Hatch attempts to justify the new bill by reference to a widely-publicized
Canadian case in which a pornographer copied pictures of clothed children
from catalogs and morphed them into child pornography.  Senator Hatch
claims that the case would not be covered under the existing federal child
porn statute, but that issue has never been decided by a United States
court.  While the application of the existing statute to these facts is far
from clear, the Hatch bill covers *much more* than just this case scenario.
 The statute would cover *any* image of a child engaged in sexual behavior,
including non-computer-generated drawings, cartoons, and visual images
created without the use of photos of real children or even real adults. 
 
In upholding child pornography laws, the Supreme Court has stated that "the
nature of the harm to be combated requires that the state offense be
limited to works that visually depict sexual conduct by children below a
specified age. . . .  [T]he distribution of descriptions or depictions of
sexual conduct, not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of live
performances, retains First Amendment protection." _New York v. Ferber_,
458 U.S. 747, 764-65 (1982). 
 
Hatch's "virtual child porn" law is clearly unconstitutional because it
would outlaw images produced without any involvement by an actual child. 
 
Bruce Taylor of the National Law Center for Families and Children argued at
a recent conference at Brooklyn Law School that a "virtual child porn" law
was needed because pedophiles use virtual porn to lure children.  Under
that rationale, if a pedophile used a piece of candy to lure a child into
sex we would have to outlaw candy.  In a free society, we cannot use
censorship laws to try to control "bad thoughts."  Outlawing all images
that might be stimulating to pedophiles would require a massive amount of
censorship and would *not* cure pedophilia. 
 
The ACLU reiterates its position on child pornography laws: 
 
"The ACLU believes that the First Amendment protects the dissemination of
all forms of communication.  The ACLU opposes on First Amendment grounds
laws that restrict the production and distribution of any printed and
visual materials even when some of the producers of those materials are
punishable under criminal law." 
 
"The ACLU views the use of children in the production of visual depictions
of sexually explicit conduct as a violation of childrens' rights when such
use is highly likely to cause:  a) substantial physical harm or, b)
substantial and continuing emotional or psychological harm.  Government
quite properly has the means to protect the interest of children in these
situations by the use of criminal prosecution of those persons who are
likely to cause such harm to children." 
 
The Hatch proposal only demonstrates the dangers of trying to protect
children indirectly through censorship laws. 
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*	Clipper II?  Your electronic privacy rights are at stake . . . again. 
 
In 1993, the ACLU and an overwhelming majority of industry condemned the
Clipper Chip -- the Administration's key escrow encryption scheme to equip
every telecommunications device with a "chip" that would allow anyone to
secure his private communications as long as the U.S. government held the
descrambling key.  The government insisted that Clipper would be merely a
voluntary standard, but government documents requested under the Freedom of
Information Act now confirm the suspicions of civil liberties advocates
that the government really believes key escrowed encryption will only meet
law enforcement standards if it is mandatory.  (See
URL:http://www.epic.org/crypto/) 
 
Now the Administration has returned with another scheme -- commercial key
escrow ("Clipper II").  At close range, Clipper II is a lot like Clipper I:

	*	Although supposedly "independent" of the government, key escrow agents
will have to meet standards set by the U.S. government, and will have to
reside in the U.S. or in a country with which the U.S. has entered a
bilateral agreement. 
	*	The proposal provides no privacy safeguards to prevent the compromise of
the key escrow agent or the key. 
	*	Offered as a "voluntary" standard, the proposal nevertheless forbids
interoperability with non-escrowed encryption in exported products. 
	*	While the government says it recognizes industry's need for strong
encryption, the proposal limits exportable encryption to 64 bits -- a
length widely recognized to provide inadequate security. 
 
On September 6, 7, and 15, 1995, the ACLU attended meetings held by the
National Institute for Standards and Technology (NIST) in Gaithersberg,
Maryland.  The meetings were called to solicit input from industry on the
Clipper II proposal.  Draft export criteria were considered on September
6-7, and the general industry response was very lukewarm -- except for a
few industries that have been meeting with the Administration and are
preparing to announce products that would fit the suggested criteria.  The
ACLU led one working group to vote 7-7 in favor of condemning the entire
proposal. 
 
On September 15th, NIST discussed the implementation of a federal key
escrow encryption standard.  By requiring federal agencies to use
commercial key escrow as a FIPS (Federal Information Processing Standard),
the Administration clearly hopes to drive industry to accept commercial key
escrow as the export standard as well. 
 
The ACLU issued the following statement on the current key escrow proposal:

 
The American Civil Liberties Union's Position 
on the Administration's Current Key Escrow Proposal: 
 
	*	Encryption is speech protected by the First Amendment.  The
Administration's current key escrow proposal, like the Clipper proposal,
continues to tread on the First Amendment rights of American individuals
and businesses to use encryption technologies to secure their private
communications.  The current proposal, like Clipper, should be rejected on
First Amendment grounds alone. 
	*	The current proposal will not accomplish its stated objectives because a
wide array of encryption is available around the globe and will continue to
be employed in place of American government-approved key escrow software. 
	*	The only key escrow proposal that could begin to satisfy the
government's objectives would be an outright ban on the sale of encryption
technologies other than those approved by the government and key escrowed. 
The ACLU fears that the current proposal, and similar proposals, are merely
the first step towards mandatory key escrow of encryption.  Mandatory key
escrow is completely unacceptable to both industry and privacy advocates. 
	*	The Administration should abandon its fruitless and unconstitutional
efforts to control the export of encryption technology.  No legislation is
needed -- the Administration has the power to lift the regulatory
restrictions that it created. 
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*	Call for Plaintiffs in Suit to Challenge Online Indecency Legislation 
	 
Most of you know that the House and Senate have now passed two different
versions of the telecommunications bill that would outlaw "indecent" speech
over the Internet and other online services.  This fall, a conference
committee of House and Senate members will work out the differences between
the two telco bills and will probably approve some form of online
censorship legislation. [For a copy of the legislation, send a message to
infoaclu@aclu.org, with "Online Indecency Amendments" in the subject line.]

 
While the ACLU and other advocacy groups continue to lobby Congress to
remove the censorship provisions from the telco bill, it is highly likely
that some restriction on online indecency will appear in the final bill
that emerges from the conference committee.  A coalition of civil liberties
organizations are preparing a constitutional challenge to this legislation
now.  The coalition includes the ACLU, Electronic Frontier Foundation,
Electronic Privacy Information Center, Media Access Project, and People for
the American Way.  We plan to be ready to file a lawsuit as soon as the
statute is signed into law -- which could be as early as October. 
 
An  important first step in planning the lawsuit is the selection of 
plaintiffs.  We need to put together a set of plaintiffs that disprove the
stereotype created by proponents of the legislation that people opposed to
the bill are "pedophiles and pornographers."   We believe that the best
plaintiffs for this challenge will be persons or entities that provide
material that some may deem  "indecent" but that has serious artistic,
literary, and educational value to our society.  We need plaintiffs who use
online networks to discuss or distribute works or art, literary classics,
sex education, gay and lesbian literature, human rights  reporting,
abortion information, rape counseling, and controversial political speech. 
 
Please contact Ann Beeson at the ACLU if your organization is interested in
being a plaintiff in this ground-breaking litigation that will define First
Amendment rights in cyberspace.  212-944-9800 x788, beeson@aclu.org. 
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STATE PAGE (Legislation/Agency/Court Cases) 
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*	Overbroad Searches and Seizures Threaten Electronic Privacy 
 
The latest threat to your civil liberties results from law enforcement's
overzealous attempts to find evidence of crime or wrongdoing in cyberspace.
 As we move into the information age, traditional search and seizure rules
will need to be refined to ensure fairness and respect for electronic
privacy rights.  Several recent cases illustrate how privacy rights can be
violated when law enforcement conducts investigations in cyberspace. 
	*	The ACLU recently wrote to America Online to inquire about their
cooperation in the FBI's recent raid of alleged child pornographers who
used the online service.  The ACLU asked, among other things, whether AOL
revealed any information about individual users that was not sought by
subpoena or court order; whether AOL turned over all private e-mail
messages of suspects or whether they turned over only messages related to
the alleged crime; whether AOL also turned over the names, addresses, and
e-mail messages of persons who had communicated with the suspects; whether
AOL set up accounts for the purpose of allowing government investigators to
have access to public chat rooms; and what information AOL regularly keeps
about its users' online activity and how long the information is kept. 
	*	In Cincinnati, Ohio, a computer bulletin board operator filed a civil
rights suit  against the Hamilton County Sheriff's Department after the
department raided the BBS and seized computer equipment, files, and
personal communications.  The case argues that the indiscriminate search
and seizures violated the BBS operator's free speech and privacy rights. 
See _Emerson v. Leis_, S.D. Ohio, No. C-1-95-608.  The subscribers to the
BBS have filed a separate class action suit against the sheriff's
department.  See _Guest v. Leis_, S.D. Ohio.  Law enforcement seized the
entire BBS -- all the hardware, software, files, and private communications
-- in an effort to obtain 45 files on the BBS that were allegedly obscene. 
The case asserts that the 45 files represented only 3% of the total
resources on the board. 
	*	In California, Colorado, and Virginia, the Church of Scientology has
brought three copyright infringement actions against anti-scientologists
who use online communications to criticize the church.  The cases raise
important questions about the breadth of computer communications seizures
in civil cases.  The ACLU of Southern California and the ACLU of Colorado
continue to monitor the cases in their states. 
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*	Nine States This Year Passed Online Censorship Legislation 
 
While online activists have been busy fighting the pending federal attempts
to censor online communications, state legislatures have been carelessly
crafting online censorship bills at home.  And if you think Congress is
full of Luddites, just wait until to hear what your state legislators have
come up with. 
 
At least nine states (CT, GA, IL, KS, MD, MT, NJ, OK, VA) have passed
legislation this year to regulate online content, and several others
considered such bills, with some still pending.  These bills seek to
criminalize a wide range of online speech and content, including: 
 
	*	speech that "harasses, annoys, or alarms" 
	*	materials deemed "indecent," "obscene" or "harmful to minors" 
	*	information related to "terrorist acts" or "explosive materials" 
 
The state bills, like the federal bills, raise serious free speech and
privacy concerns.  None of the bills indicates an understanding of the
unique nature of the online medium.  Some bills purposefully, and other
bills inadvertently, fail to clarify that only the initiators of the
illegal images may be held liable -- so service providers can be held
liable for the pedophiles and pornographers that use their networks. 
 
The laws would, at best, require service providers to snoop in private
e-mail in order to avoid criminal liability.  At worst, these laws would
force providers to shut down their networks altogether. 
 
The draconian effect of these state bills doesn't stop at state borders.  A
message you post to the Internet today in New York City could travel the
fifty states and the globe by tomorrow.  You'd better be careful that the
message isn't "obscene" according to an Oklahoman, "annoying" to a
Connecticutter, "solicitous" of a minor in Illinois, or related to
"terrorism" as defined by a Georgian. 
 
The wave of online censorship at the state level is far from over.  The
ACLU is considering constitutional challenges to the online censorship laws
that passed this year.  But given the continuing media hype over
"cyber-porn," we are certain to see more censorship bills from the states
next year. 
 
With the help of affiliate offices in fifty states, the ACLU continues to
monitor these state attempts to infringe on your online free speech rights.
 [For a synopsis of all the online censorship bills passed or considered by
the states this year, send a message to infoaclu@aclu.org with "Update of
State Bills" in the subject line of the message.] 
 
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*	Saving the Best for Last:  Good News on Cyber-Liberties 
 
ARIZONA:  Another troubling application of existing obscenity laws to
cyberspace was averted when charges were dropped against Arizona Department
of Public Safety Officer Lorne Shantz.  Shantz, who ran a community
bulletin board, lost his job and endured several months of hassle and
humiliation when he was arrested for allegedly "obscene" files on the
board.  Shantz maintains that he was unaware of the existence of the files,
which represented only a minuscule fraction of all the information on the
board. 
COLORADO:  Federal Judge John Kane ordered the Church of Scientology to
return computers and hundreds of files seized by Federal marshals and
Scientology officials in a copyright infringement action.  The judge ruled
that the seizures were overbroad, and said that "The public interest is
best served by the free exchange of ideas." 
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ONLINE RESOURCES FROM THE ACLU 
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keyword ACLU. 
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ACLU Cyber-Liberties Update 
Editor: Ann Beeson (beeson@aclu.org) 
American Civil Liberties Union National Office 
132 West 43rd Street 
New York, New York 10036 
 
To subscribe to the ACLU Cyber-Liberties Update, send a message to
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