From: Declan McCullagh <declan@well.com>
Date: Thu, 20 Mar 1997 13:00:42 -0800 (PST)
To: Bill Stewart <stewarts@ix.netcom.com>
Subject: Re: Report from Supreme Court on CDA arguments
In-Reply-To: <3.0.1.32.19970320124236.0062d868@popd.ix.netcom.com>
Message-ID: <Pine.GSO.3.95.970320125620.8134E-100000@well.com>
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Is it possible that the technology that helps us to claim the CDA is not
the least restrictive means to accomplish the gvt's (disputed) goal
of protecting junior *also* helps the gvt argue it's easier to comply?

In other words, if the justices disagree with us on the LRM argument
(perhaps saying that kiddies can log in from the mall or at a
friend's house w/out censorware) -- then censorware *helps* the gvt claim
a revised CDA is constitutional?

David Sobel, a lawyer at EPIC and co-counsel in the CDA suit, told me the
Justice Department could use this combination to argue just that: "I think
if there were a large installed base of technology that could make
compliance with a CDA-type statute feasible, then a court might not have
the same problems with it. If you were looking at a technological
environment where there's a large installed base of PICS-compliant
browsers, then the argument would be that to comply with the CDA you have
to self-rate your stuff."

-Declan





On Thu, 20 Mar 1997, Bill Stewart wrote:

> One of the main arguments about technology for the good guys is that
> the CDA's infringements on free speech are not the least restrictive
> means for accomplishing their (claimed) objective - technology gives us
> some options today (like censor-filters) - and advances in technology
> _strengthen_ the pro-free-speech case, because they provide more alternatives
> that are less restrictive than the censorship approach.
> 
> At 06:45 PM 3/19/97 -0500, Declan wrote:
> >http://cgi.pathfinder.com/netly/editorial/0,1012,744,00.html
> >     Justice Scalia, who noted that he uses a
> >computer, pointed out that technology is rapidly
> >changing. "So much of your argument is based on
> >what's currently available," he said to Ennis.
> >"This technology is changing so quickly. Is it
> >possible that this statute is unconstitutional
> >now but could be [constitutional] in four or five
> >years?" Ennis replied: "Not as it's written."
> >
> >     During a subsequent press conference, Ennis
> >added that indeed, the technology is changing,
> >and is giving parents more control over what
> >their children do and see online. "Precisely
> >because the technology is changing, the
> >government should not be trying to enforce this
> >law," he said. The ACLU attorneys who joined
> >Ennis were grinning: the justices appeared to
> >understand the nature of communications online,
> >noted that teens have rights, and focused on free
> >speech, not porn.
> 
> 
> #			Thanks;  Bill
> # Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com
> # You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp
> #     (If this is a mailing list, please Cc: me on replies.  Thanks.)
> 
> 
>