From: nobody@REPLAY.COM (Anonymous)
Date: Sat, 9 Dec 95 06:03:56 PST
To: cypherpunks@toad.com
Subject: Congress vs. the Internet
Message-ID: <199512091405.PAA27249@utopia.hacktic.nl>
MIME-Version: 1.0
Content-Type: text/plain



NY Times, 9 Dec 1995, Op-Ed.

Congress vs. the Internet

   The courts have upheld free speech. Why won't
   legislators?

By Shari Steele (EFF staff counsel)

San Francisco. While the courts continue to uphold the
freedom of speech on the Internet, the First Amendment is
under attack on Capitol Hill. On Wednesday, House members
of a House-Senate conference committee said they would
support a stringent new measure that would not only bar
words and ideas on the worldwide computer network that
one might hear on TV or read in this newspaper, but would
make criminals out of anyone transmitting these materials
electronically, including on-line servces.

This measure goes against the spirit of three sensible
court decisions on copyright law handed down in recent
weeks, all involving the Church of Scientology.

The first decision, issued by a Federal judge in
California last month, held that Internet service
providers, the gatekeepers to the information highway,
cannot be held liable for copyright infringement when
they have no knowledge of the content of their users'
messages.

This decision is important, because, like the telephone
company, the system's providers merely offer a conduit
for communications. If they can be held liable for the
content of messages, they are more likely to monitor
those messages and censor any that include language that
might get them in trouble.

Just as we don't want the phone company censoring our
telephone calls, we should be very troubled by any
copyright law interpretation that would assign liability
to those who provide Internet service.

The second and third decisions were issued last week by
a Federal judge in northern Virginia. In those cases, the
judge, Leonie M. Brinkema, admonished the Church of
Scientology for using lawsuits to silence its on-line
critics. After two of its former members posted
electronic criticism of Church of Scientology writings,
the church brought charges against them, their Internet
service providers and The Washington Post for including
two sentences from church documents in an article on the
case.

Judge Brinkema dismissed The Washington Post and two of
its reporters from the suit and held the Church of
Scientology and its affiliate responsible for the
newspaper's legal fees. "Although the Religious
Technology Center brought the complaint under traditional
secular concepts of copyright and trade secret law, it
has become clear that a much broader motivation prevailed
-- the stifling of criticism and dissent of the religious
practices of Scientology and the destruction of its
opponents," the judge wrote. The judge called this
motivation "reprehensible."

While the results of these preliminary decisions are
encouraging, they provide little solace to the larger
threat of on-line censorship.

Court decisions in the copyright realm, as these are, do
not address the damage Congress is doing to the First
Amendment h the name of protecting children from
obscenity, which remains ill-defind.

These early court victories are important, and the
on-line world breathed a collective sigh of relief over
the wise judgments.

But not all battles can be won in court. If Congress
presses forward with its attempt to criminalize
constitutionally protected speech, I fear that the First
Amendment will be left behind as more and more of what we
say is in the form of on-line communications.

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