From: Declan McCullagh <declan@well.com>
Date: Mon, 1 Dec 1997 14:15:50 +0800
To: cypherpunks@toad.com
Subject: V Chips in PCs -- comments filed with the FCC
Message-ID: <v03007811b0a802c00e4d@[204.254.22.168]>
MIME-Version: 1.0
Content-Type: text/plain



A bunch of other groups filed comments last week, generally opposing a
requirement for Vchips in computers, but the ACLU's is the only one I have
in electronic form. An excerpt:

	Any FCC efforts to restrict content online, directly or
	indirectly, through a forced rating scheme would violate
	the First Amendment.  It would also have the effect of
	turning what the Supreme Court call the most
	participatory medium into a bland and homogenized medium
	that provides access to only self-rated or censored
	speech.

More info:
  http://cgi.pathfinder.com/netly/opinion/0,1042,1528,00.html

-Declan

================

Subject: Fwd: fcc comments v-chip
   Date: Tue, 25 Nov 1997 12:49:29 -0500 (EST)
  From:  PRIVACLU@aol.com
     To: declan@well.com


Before the
        FEDERAL COMMUNICATIONS COMMISSION
        Washington, DC
20554

________________________________
In the Matter of

          ET Docket No. 97-206
Technical Requirements to Enable Blocking of

Video Programming Based on Program
Ratings
_______________________________

        COMMENTS OF THE AMERICAN
CIVIL LIBERTIES UNION
Introduction
        The American Civil Liberties Union
(ACLU) is a nonpartisan organization
of more than 250,000 members nationwide
dedicated to defending the
principles of liberty and equality embodied in
the Bill of Rights. For
nearly a century, the ACLU has sought to preserve
and strengthen the
First Amendment as a bulwark against all forms of
governmental
censorship.
        The ACLU has previously submitted extensive
comments to the Federal
Communications Commission (FCC) in opposition to
government-prescribed
ratings systems for television programming that single
out sex,
violence, or other controversial subjects on television because
we
believe they infringe the fundamental principles of free expression.
 We
adhere to our prior views. We respectfully submit these comments on
the
different issues raised by the FCC's proposal for emerging
technology
and urge the Commission to refrain from entering into the
censorship
business.
        In particular, the ACLU urges the Commission not to
expand the
application of the proposed rules to include any and all
equipment
capable of displaying or receiving video programming, including
personal
computers and Digital Television (DTV), Multi-point
Distribution
Systems, Direct Broadcasting Systems (DBS) and other
emerging
technologies. The ACLU believes that Congress has not directed the
FCC
to mandate the inclusion of the V-Chip in these emerging technologies.

Furthermore, such an expansive reading of the Telecommunications Act
would
run afoul of the First Amendment protections accorded to speech
on
interactive media, such as the Internet, as a result of the
landmark
Supreme Court decision Reno v. ACLU. 117 S.Ct. 2329 (1997).
Finally, we
urge the FCC to abstain from prohibiting distribution services
from
deleting or modifying ratings information from television programming
as
a violation of the First Amendment.

I. THE FCC IS NOT REQUIRED TO
MANDATE INCLUSION OF BLOCKING TECHNOLOGY
IN PERSONAL COMPUTERS CAPABLE OF
RECEIVING VIDEO PROGRAMMING UNDER THE
1996 TELECOMMUNICATIONS
ACT.

        Section 551(c) of the Telecommunications Act of 1996 ("the Act"),
the
Parental Choice in Television Programming, directs the FCC to
"require
in the case of an apparatus designed to receive television signals
...
that have a picture screen 13 inches or greater in size
(measured
diagonally), that such apparatus be equipped with a feature
designed to
enable viewers to block display of all programs with a
common
rating...". Section 551 (e)(2) requires the Commission to consult
with
the television manufacturing industry to find an effective date
for
inclusion of the V-chip in televisions.  In contrast, with regard
to
technologies like the Internet, Congress directed the FCC in
section
552(d)(4)(A) of the Act to determine the availability of
alternative
blocking technology that enables parents to block programming
based on
identifying programs without ratings.
        Although the language of
the Act addresses the need for traditional
television manufacturers to
comply with the provision at issue, the
Commission's current Notice of
Proposed Rulemaking (NPRM) calls for
expansion of the Telecommunications Act
of 1996, to mandate inclusion of
blocking devices in all technology capable
of displaying broadcast video
programming, even in apparatus that is not
primarily designed for
television viewing.  Specifically, the NPRM includes
a requirement for
personal computer manufacturers to include V-chip
technology. Paragraph
22 of the NPRM, states in pertinent part:
"In
addition, personal computer systems, which are not traditionally
thought of
as television receivers, are already being sold with the
capability to view
television and other video programming. Section
551(c) of the
Telecommunications Act makes it clear that the program
blocking requirements
were intended to apply to any "apparatus designed
to receive signals" that
has a picture screen of 13 inches or larger.
Accordingly, we believe that
the program blocking requirements we are
proposing should apply to any
television receiver meeting the screen
size requirements, regardless of
whether it is designed to receive video
programming that is distributed only
through cable television systems,
MDS, DBS, or by some other distribution
system.  These requirements
would also apply to any computer that is sold
with TV receiver
capability and a monitor that has a viewable picture size
of 13 inches
or larger, as we currently do of closed captioning." (emphasis
added)

        The NPRM broadly states that the rules should apply to any
computer
"regardless of whether it is designed to receive video programming
that
is distributed only through cable television systems, [satellite], or
by
some other distribution system." Under the broadest interpretation
the
rules could be extended to cover any video programming viewed using
a
computer.  Despite this confusion, the FCC has not publicly
offered
clarification as to what types of personal computer technology
would
fall under the purview of the proposed rules.
        In addition, the
NPRM statement that Section 551 (c) of the Act
"makes it clear that program
blocking requirements were intended to
apply to any apparatus" capable of
receiving television signals, is
plainly contrary to the expressed view of
Congress  and a conclusion
with which the ACLU strongly disagrees.  Congress
instead suggested in
Section 551 (d) (4) et seq., that as new video
technology is developed,
the Commission determine the availability of less
restrictive and more
informative alternatives.  Thus, Congress did not
propose the mandatory
inclusion of V-chip technology, but directed the
Commission to determine
whether other features could be used to provide
greater user choice over
content.
        We believe that the rush to embrace the
V-chip for traditional
televisions has been more damaging to the development
of other user
friendly tools that do not require the state imposition of a
rating and
blocking system.  Previously submitted comments by the
television
manufacturing industry also make clear that the FCCs haste
in
establishing schedules for the inclusion of the V-chip in
televisions
may result in poorly adapted equipment that may quickly become
obsolete.
        The expansion of V-chip technology into the computer realm makes
even
less sense. Interactive media is subject to even more rapid change
than
television and that change increasingly allows for more user choice
and
control.

II. THE FCC MAY NOT REQUIRE COMPUTERS TO INCLUDE CENSORING
TECHNOLOGY IF
THEY ARE CAPABLE OF RECEIVING VIDEO PROGRAMMING VIA THE
INTERNET OR BY
OTHER MEANS:

        Currently, there are at least three ways to
view video programming on
personal computers.  The first model is where
video programming can be
viewed on "PC-TVs," computers that include built-in
television receivers
or have an added plug-in circuit board to provided
video reception
capability. Second, a personal computer user has her Web
browser
connected to an Internet Service Provider (ISP) with the
appropriate
enabling technology to permit a multimedia connection to the
Internet.
With this connection, a user who is on the Web can go to any
number of
sites to download or view video/audio objects. Until now, the slow
speed
of Internet dial-up connections has meant that it could take
several
minutes to view online video clips. However, with new high
speed
connections, large video files may be downloaded or viewable in a
matter
or seconds -- making it possible to view video programming online
in
real time, like television and radio. Webcasting offers access to a
much
greater number of speakers or content providers than
traditional
broadcasting.
        PC-TVs and webcasting have only recently
become available, with new
models and features being marketed forth daily.
Both offer a much
greater spectrum of data, including programming
information, than is
possible by traditional broadcasting and under the
current ratings
scheme.  The potential to offer greater information means
does not mean
the FCC should expand the reach of its content restriction
through the
V-chip.  Instead, these technologies could offer transmission of
program
reviews or other detailed information about individual
programs.
        The Commission may not mandate blocking technology for computers
with
Internet software that provides the ability to view real-time
video
programs online. Unlike television, the Internet provides
inexpensive,
user controlled access and not government regulated or licensed
access.
Video programming displayed online may include traditional
broadcast
programming, but also includes a variety of authors and producers
that
have never before had the ability to gain wide distribution.  Such
an
application of the proposed rules not only runs counter to
the
Telecommunications Act, but represents an assumption of authority by
the
government over content on the Internet that has already been
rejected
by the Supreme Court.
        In the landmark case Reno v. ACLU, the
Supreme Court overturned
provisions of the Federal Communication Decency Act
(CDA) and declared
that the Internet is entitled to the highest level of
free speech
protection. The Court explicitly analogized the Internet to
the
traditional print media, saying that unlike broadcast media, which
has
been traditionally considered a more intrusive means of speech that
is
available to a fewer number of speakers, the virtually unlimited
access
and potential for speech means that the government requires a
compelling
reason to restrict lawfully protected speech.
        As the lead
attorneys and plaintiffs in the case, the ACLU successfully
argued that the
provisions of the CDA that would have made it a crime to
communicate
anything "indecent" online  violated the First Amendment.
The Court
rejected the CDA because it was an overbroad means of
addressing the
government's asserted interest in protecting minors from
inappropriate
material -- the very same reason offered today by the
Commission and
Congress in enacting V-Chip regulations.
        Moreover, the Court explicitly
rejected the notion that the government
has the authority to regulate
constitutionally protected speech online.
The Court stated, "the growth of
the Internet has been and continues to
be phenomenal.  As a matter of
constitutional tradition, in the absence
of evidence to the contrary, we
presume that governmental regulation of
the content of speech is more likely
to interfere with the free exchange
of ideas than to encourage it. The
interest in encouraging freedom of
expression in a democratic society
outweighs any theoretical but
unproven benefit of censorship." Reno v. ACLU,
117 S.Ct. 2329, -- ,
(1997).
        Although the ACLU believes that the same
First Amendment values apply
to each media,  the Court has repeatedly stated
that any government
regulation of broadcast television is justifiable only
because of the
intrusiveness of television coupled with the scarcity of
the
broadcasting transmission spectrum.   As the high court stated in
Reno
v. ACLU, neither of those rationale applies to the Internet.
        Any FCC
efforts to restrict content online, directly or indirectly,
through a forced
rating scheme would violate the First Amendment.  It
would also have the
effect of turning what the Supreme Court call the
most participatory medium
into a bland and homogenized medium that
provides access to only self-rated
or censored speech.

IV. THE FCC MAY NOT PROHIBIT OPERATORS THAT
DISTRIBUTE VIDEO PROGRAMMING
FROM DELETING OR MODIFYING PROGRAM RATINGS
CARRIED ON LINE 21 OF VBI.

        The NPRM states that the FCC proposes to amend
its rules to ensure that
ratings information is not deleted or modified
before transmission by
distributors.  Put plain, this means that the FCC is
selecting which of
the "speakers" -- from the programs writers, to its
producers, network
and local stations has the power to set a rating and
requiring all the
other speakers to agree with the given rating.  But by
removing the
power for any of these parties to modify ratings, the
government also
removes any flexibility from its proposed scheme -- it is
deciding that
national broadcasters make that decision, for all of their
writers,
producers, directors, affiliates and stations.   There is no room
for
disagreement and there is no choice but for distributors to agree
with
the designation.  Ratings must, by definition be national.  Leaving
one
that might appropriate in Mississippi but that is not in New York.

        Furthermore, there are serious First Amendment problems with
compelling
all program distributors from carrying ratings that they
find
objectionable or that they disagree with are critical.
Government
required ratings are a form of "forced speech" and diminish
any
discretion of programming distributors in determining the relevance
or
appropriateness of the proposed program rating.   That is,
mandating
labels compels private individuals and companies to say things
about
their creative offerings that they have no wish to say and with
which
they may disagree.  The Supreme Court has made clear that such
compelled
speech is as much a violation of First Amendment rights as
enforced
silence.  See, e.g., Riley v. National Federation of the Blind, 487
U.S.
781, 797 (1988); Pacific Gas & Electric Co. v. Public Utilities
Comm'n,
475 U.S. 1 (1986); Wooley v. Maynard, 430 U.S. 705, 714
(1977).
        Ratings prescribed by the FCC pursuant to the Act can hardly
be
defended as an innocuous effort to empower parents by supplying
them
with neutral information.  A truly non-coercive effort to
inform
parents, rather than censor what the government believes to
be
"negative" or dangerous ideas, would not rely on the minimal,
inevitably
misleading information conveyed by a letter or code that can be
read by
a computer chip. Parents are better served by fuller
information
(descriptions or reviews) that explains the context in which
violent or
sexual material is presented, and that enables them to make
viewing
decisions based on their own values and childrearing philosophies,
and
the personal maturity levels of their children.

Conclusion
        The ACLU
believes that the extension of the V-chip rules is unnecessary
and unwise
under the Telecommunications Act of 1996.  The ACLU believes
that the FCC
should not hastily embrace or extend plans to incorporate
V-chip technology
in emerging technologies. The FCC can and must
exercise its discretion and
consider alternatives such as media
literacy, promotion of educational
programming and episode reviews. We
believe that there are alternatives that
would not offend core First
Amendment values and accomplish the same
purpose.  In the final
analysis, violence and sex are dramatic, consistent
themes in human life
and history, and like other controversial subjects,
need to be
confronted and discussed rather than suppressed, whether through
direct
censorship laws or through more indirect, convoluted
governmental
ratings and information blocking systems.

Respectfully
submitted,

_______________________________________
Barry Steinhardt
ACLU
Associate Director

____________________________________
A. Cassidy
Sehgal
William J. Brennan Fellow of the ACLU