From: "Declan B. McCullagh" <declan+@CMU.EDU>
Date: Tue, 16 Apr 1996 18:20:41 +0800
To: cypherpunks@toad.com
Subject: CDA Court Challenge: Update #7 (Ducks on the Net)
Message-ID: <MlQivta00YUuQxjmpq@andrew.cmu.edu>
MIME-Version: 1.0
Content-Type: text/plain




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                        The CDA Challenge, Update #7
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     By Declan McCullagh / declan@well.com / Courtesy of The Netly News
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   From the Netly News at <http://pathfinder.com/Netly/daily/nnhome.html>:

   We've become fans of Declan McCullagh's dispatches from Philadelphia
   where a three-judge panel is determining the fate of the so-called
   Communications Decency Act. McCullagh, as you probably know, is an
   activist with the EFF whose free-speech stance mirrors our own.
   We'd be happy to run an opposing viewpoint, but we don't know anyone
   who's actually pro-CDA. Still, if you are and would like to use this
   bully pulpit to pitch your ideas to an extremely hostile audience,
   drop us a line. In the meantime, here's a piece we asked McCullagh to
   do for us as the hearing winds down.
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In this update: Ducks on the Net!
                More on BYU's Dan Olsen's censorhappy boondoggle
                Grey Flannel Suit wears Blue Pinstripe, surfs for porn


April 15, 1996

PHILADELPHIA -- Ducks were a hit at the most recent Communications
Decency Act hearing in Philadelphia's Federal court.

Yes, ducks.

Last Friday the Department of Justice's cybersleaze expert took the
stand to show how easily children can stumble across online porn --
but the three-judge panel limited his demonstration to G-rated GIFs
that he sucked down from alt.binaries.pictures.animals. (The judges
already had hundreds of pages of dirty downloads in large black
binders, courtesy of the Feds.)

After the second or third image of waterfowl cartoons, Judge Stewart
Dalzell said: "I'm sure we can agree that this is a cute duck." U.S.
Third Circuit Court of Appeals Chief Judge Dolores Sloviter ruled: "I
think we've seen enough of the ducks."

Justice Department attorneys had reserved the day to defend the
constitutionality of the CDA, arguing that the criminal provisions of
the law and a system to label sexually-explicit materials combine to
form the best way to prevent children from stumbling across cyberporn.

Key to the DoJ strategy was the testimony of Dan Olsen, Jr., their pet
censorhappy toady from Brigham Young University who testified that to
comply with the CDA, everyone who uses "indecent" speech should label
it as "-L18," meaning unsuitable for those less than 18 years old.

An intense cross examination by the ALA/CIEC's Bruce Ennis forced the
BYU computer scientist to admit that his proposal has fatal problems:

  * Web browsers, IRC clients, newsreaders, and even the telnet
    application must be rewritten to recognize the "-L18" string.

  * Everyone who posts or publishes "indecent" materials must comply,
    including folks overseas.

  * "-L18" relies on the poster or publisher to decide what is
    "decent" or not -- unlike PICS, which our witness testified allows
    third parties to rate content, including non-U.S. material.

On the fight-censorship mailing list, online activist Carl Kadie
has pointed out why Olsen's plan is unconstitutional:

  1. "The Government generally can not compel speech (including self-labels)"
  2. "It would restrict 17-year olds to material suitable for 5-year olds."

Given the braindead nature of Olsen's scheme, it's not surprising that
he has no expertise in protocol design or distributed computing
environments like the Internet. He also admitted during
cross-examination that he invented the "-L18" boondoggle in the last
two weeks and was unaware that similar proposals like "KidCode"
already exist.

An odd mix of prudish themes and Orwellian overtones laced his
testimony. Olsen, the incoming director of the Human Computer
Interaction Institute at Carnegie Mellon University, testified that he
found both Playboy centerfolds and "the seven dirty words" patently
offensive. (He'll fit in nicely at his new job. CMU still bans the
alt.binaries.pictures.erotica.* hierarchy from campus computers.)

When asked if a list of URLs looked like a bunch of porn sites, Olsen
hesitated: "I don't know, but I wouldn't go there."
Judge Dalzell interrupted: "The 'Chick of the Day' could be poultry!"
Judge Sloviter said: "Are you sure it isn't a duck?"

In response to Bruce Ennis' question about how ISPs can check the ages
of their users, Olsen replied: "The only people who might have this
would be the Social Security Administration. I'm sure they have that
information."

So Olsen proposes that the _Social Security Administration_ would
control who is allowed to access to the Net?


+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
       GREY FLANNEL SUIT SURFS NET FOR PORN, WEARS BLUE PINSTRIPE
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

The DoJ's net.sex expert who testified in the morning was Grey Flannel
Suit -- AKA Howard Schmidt, Special Agent, Director of the Air Force
Office of Special Investigations, Computer Crime Investigations.

Schmidt started surfing the Net to show how easily a child could
stumble across cyberporn. His smooth demonstration was interrupted
when ALA/CIEC attorney Ann Kappler pressed for details and Schmidt
reluctantly allowed that he had run his initial searches without
SurfWatch activated. Schmidt admitted: "SurfWatch would not have
allowed the search." He also had typed in URLs from the paper copy of
Playboy Magazine -- which children are prevented from buying.

Kappler told me over lunch: "He left himself wide open." The judges
seemed to agree.

No matter what our Philly panel decides, this case is headed for the
Supreme Court. Today is the last day of our hearing, followed by
closing arguments on June 3. [As of late 4/15, this has been
rescheduled to 5/10. -DBM] Then the three-judge panel will issue an
opinion by the end of the summer. The losing side will appeal to the
Supreme Court, which returns from summer recess on October 7.

Stay tuned for more reports.


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We're back in court 4/15 for the last day of the hearing and 5/10 for
closing arguments. The 4/26 date is no longer necessary since we
finished a day early.

Mentioned in this CDA update:

  Carl Kadie's note on how Olsen's plan is unconstitutional
    <http://fight-censorship.dementia.org/fight-censorship/dl?num=2174>
  CDA Update #6, with more details on Dan Olsen's proposal
    <http://fight-censorship.dementia.org/fight-censorship/dl?num=2143>
  Net-Guru David Reed's article: "CDA may pervert Internet architecture"
    <http://fight-censorship.dementia.org/fight-censorship/dl?num=2093>
  Social Security Admin.  <http://www.ssa.gov/>
  Dan Olsen at BYU        <http://www.cs.byu.edu/info/drolsen.html>
  Fight-Censorship list   <http://fight-censorship.dementia.org/top/>
  BYU's censorship policy <http://advance.byu.edu/pc/releases/guidelines.html>
  Rimm ethics critique    <http://www.cs.cmu.edu/~declan/rimm/>
  Int'l Net-Censorship    <http://www.cs.cmu.edu/~declan/zambia/>
  CMU net-censorship      <http://www.cs.cmu.edu/~kcf/censor/>
  University censorship   <http://joc.mit.edu/>
  Grey Flannel Suit       <howardas@aol.com>
  Carl Kadie's CAF site   <http://www.eff.org/CAF/>

This report and previous CDA Updates are available at:
  <http://fight-censorship.dementia.org/top/>
  <http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/>
  <http://www.epic.org/free_speech/censorship/lawsuit/>

To subscribe to the fight-censorship mailing list for future CDA
updates and related net.censorship discussions, send "subscribe" in
the body of a message addressed to:
  fight-censorship-request@andrew.cmu.edu

Other relevant web sites:
  <http://www.eff.org/>
  <http://www.aclu.org/>
  <http://www.cdt.org/>
  <http://www.ala.org/>

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