From: Declan McCullagh <declan@well.com>
Date: Thu, 13 Nov 1997 10:33:19 +0800
To: fight-censorship@vorlon.mit.edu
Subject: Re: CDA: The Sequel -- introduced in the U.S. Senate
Message-ID: <v03007800b0900374bd99@[168.161.105.216]>
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Danny,

Trying to deny that CDT supported the White harmful to minors "compromise"
is a sad attempt at history revisionism. As Marc Rotenberg said, "CDT
supported the White measure and went to great pains to blame the members of
the conference committee who did not endorse it."

Which is of course true. After the vote you lost on the harmful to minors
"compromise":

     -- Comm Daily reported: Jerry Berman, exec. dir. of Center for
	Democracy & Technology, which had tried to forge
	compromise on issue, said he had been betrayed "by
	liberal Democrats, who are supposed to be protectors of
	the Constitution.

     -- IISR reported: Jerry Berman, executive director of the
	Center for Democracy and Technology, called the [vote on
	the] White proposal "a significant defeat for civil liberties
	in cyberspace.

     -- EETimes reported: "The House came within an inch of
	getting it right," says Jerry Berman, Center for
	Democracy and Technology.

Either the world's population of journalists are in a vast clandestine
conspiracy to misrepresent your organization's position or ... CDT (gasp!)
did in fact embrace the HTM so-called compromise.

You must remember, after all, that CDT declined to sign a December 5, 1995
coalition letter that told Congress to "to reject *all* proposals to impose
new government censorship regulations on cyberspace." Why didn't you sign
it?  (http://www.epic.org/cda/hyde_letter.html)

Instead, as I recall, CDT was up on stage with the anti-porn advocates to
unveil the "compromise." (I admit my memory's fuzzy on this point. I'm sure
you'll clarify.)

Where was I then? When the news of the "compromise" broke in December 1995,
I was in Cambridge having brunch with Harvey Silverglate (who's now
defending the Au Pair case) and other local free-speech advocates. As I
wrote in a post to f-c at the time, all of us were astonished to see the
headline in the New York Times: "Civil liberties groups accept compromise."
Of course it was CDT that accepted it. ACLU said at the time here on f-c
that "no true civil liberties group" would ever agree to supporting that
kind of censorship.

Also, contrary to what you claim, I'm not an "opponent" of filtering
software. Parents have the right to use it with their children. I believe,
however, that public institutions must abide by the First Amendment when
installing it.

I'm glad you provided this opportunity to clarify these issues. Now perhaps
we can move on to discussing the Coats bill.

-Declan


On Wed, 12 Nov 1997, Daniel J. Weitzner wrote:

> Declan,
>
> It's kind of you to get the word out about this new Coats bill, but you
> have managed to seriously mischaracterize CDT's position on the White
> legislation of 1995.  We did not believe that Congress should have passed
> the White Compromise, and certaily never "embraced" it, as you write.
> Based on my initial reading of the Coats bill, we will certainly oppose it.
>
> The Coats bill, with it's emphasis on age verification as a means to
> "protect" kids and provide online publishers with liability limitation, is
> actually a direct result of Justice O'Connor's dissenting opinion in the
> CDA case and her desire to try to "zone" cyberspace.  Following Larry
> Lessig, she suggests that instead of relying on individually-controlled
> blocking and filtering software, it is better for the government to require
> that certain content be placed behind age verification firewalls.  Prof.
> Lessig prefers this zoning to what you have characterized as "censorware."
> I hope that you, as an opponent of user empowerment filtering tools like
> Larry, do not prefer this O'Connor/Lessig approach too?
>
> I can't remember whether you were actually around in 1995, either as
> journalist or activist, so let me remind you of what we and other civil
> liberties advocates like Marc Rotenberg of EPIC said.
>
> In the New York Times (12/2/95, p.A1)
>
>    "While it does embody much of the original Exon proposal, it does so in
> a way
> that tries to embody a constitutionally recognized standard," said Jerry
> Berman, director of the Center of Democracy and Technology, a nonprofit group
> that focuses on civil rights and technology issues.
>
> and Jerry went on to say:
>
> "I don't think we need any legislation at all."
>
> Marc seemed to take a similar position:
>
> "It is preferable to the Exon bill, but ultimately this issue will be
> resolved in the courts, which is where it should be resolved," said Marc
> Rotenberg....
>
> Both CDT and EPIC recognized that as a plain matter of constitional law,
> the "harmful to minor" standard is more broadly accepted by courts around
> the country, but that the legislation was still an unwise infringement on
> Internet speech.
>
> We still believe that.
>
> We can certainly have a discussion about the various legislative strategies
> employed during the final days of the CDA debate and House-Senate
> conference, but frankly I think there's more important work to do.
>
> I hope that future discussions on this list can focus on how to defeat
> misguided efforts like the Coats bill, instead of misleading
> characterization of the past.
>
> Finally, Declan, I would suggest that when you want to characterize CDT
> positions you talk to someone at CDT, or at least find some documentation
> of your assertions.  I know that you recognize you have an obligation as a
> journalist to check facts and sources with some care.  That sort of care
> would also help in discussions among activists.  I'm never exactly sure
> whether you think of yourself as a journalist or activist when writing to
> FC, but whichever it is, I hope you'll try to avoid this confusion in the
> future by talking to us.