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Citizens Internet Empowerment Coalition Trial Update No. 9
Pre-Trial Update - April 13, 1996 5:30 pm ET
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http://www.cdt.org/ciec/
ciec-info@cdt.org
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CIEC UPDATES intended for members of the Citizens Internet
Empowerment Coalition. CIEC Updates are written and edited by the
Center for Democracy and Technology (http://www.cdt.org). This
document may be reposted as long as it remains in total.
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** 40,000 Netizens Vs. U.S. Department of Justice. **
* The Fight To Save Free Speech Online *
Contents:
o Government Argues CDA is Necessary and Not Overly Restrictive
* Government Witness Proposes Content Labeling Standard
* SurfWatch Blocks Government Expert
o How To Unsubscribe from this list
o More Information on CIEC and the Center for Democracy and Technology
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Quote of the Day: "Come on line with us, and your kids won't see
what is in [DOJ lead attorney] Mr. Coppalino's book"
of sexually explicit images found online.
-- Judge Stewart Dalzell, suggesting how service providers might market
PICS compatible Internet services
(1) GOVERNMENT ARGUES CDA IS NECESSARY AND NOT OVERLY RESTRICTIVE
The second phase of the legal challenge to the Communications Decency Act
began on Friday as the Department of Justice presented its defense of the
new law before the three judge panel in Philadelphia. Although basic
outline of the government's defense has been known for some time, Friday
marked the first time that the Government has presented witnesses in
defense of the CDA.
Based on Friday's testimony, the basis of the government's defense appears
to be that sexually explicit material is easily available to minors on the
Internet, and that the CDA, combined with a system for labeling sexually
explicit material, is necessary to prevent minors from accessing sexually
explicit material online.
Three witnesses testified at the Friday hearing:
* Howard Schmidt, Special Agent, Director of the Air Force Office of
Special Investigations, Computer Crime Investigations, and
* Dan Olsen, Chair of the Brigham Young University Computer Science
Department
* Albert Vezza, of MIT and the World Wide Web Consortium. (Vezza was
called by the Citizens Internet Empowerment Coalition).
DOJ EXPERT CLAIMS THAT SPEAKER-BASED LABELING IS AN EFFECTIVE SOLUTION
The government also called Dan Olsen, form Brigham Young University, who
testified that a content labeling system he has developed can effectively
prevent minors from accessing sexually explicit material online. Olsen
proposed that content providers who offer sexually explicit material should
include a "-L18" (for under 18) tag on their sites, and that World Wide Web
browsers should be programmed to recognize this tag and prevent minors from
accessing tagged sites.
Despite Olsen's academic affiliation and research credentials, his standing
as an expert on Internet standards setting is questionable at best. Olsen
does not sit on the Internet Engineering Task Force or any other body
charged with developing protocols for the Internet, nor does he have any
other direct experience with the Internet standards process. This fact was
challenged by CIEC attorney's, who initially objected to Olsen's testimony.
The court overruled the objection, stating that they would hear Olsen's
testimony "for what it's worth".
Olsen, who admitted he came up with the idea for a -L18 tag only since the
government asked him to testify in this case, suggested that the burden of
preventing minors from accessing objectionable material online should fall
primarily on content providers, rather than the recipients of the material.
During cross examination by CIEC attorney Bruce Ennis and ACLU attorney
Chris Hansen, Olsen admitted that his proposal contains several critical
shortcomings. Among these:
* The standard for what material should receive a -L18 tag is difficult
to determine.
* Relying on speakers to label their material requires that listeners
trust the judgment of the speaker, and limits the ability of listeners
to make decisions based on their own personal or family values.
* The -L18 proposal contains no flexibility - it is either on or off.
* It is basically impossible for a content provider to determine who is
an adult and to ensure that only adults have access to adult-oriented
materials.
Ennis argued that, as a result, the only effective method to prevent minors
from accessing inappropriate material online is to rely on end users and
parents to control what material comes into their homes using parental
control technologies such as SurfWatch, CyberPatrol, AOL's Parental Control
features, PICS, etc.
Interestingly, although Olsen's proposal is conceptually similar to
KidCode, a content labeling standards proposed by Nathaniel Borenstein last
summer. Olsen stated he didn't know what KidCode was nor had he ever heard
of it.
Finally, Olsen testified that, because the government was involved in the
initial development of the Internet, he believes that the government has a
role in determining appropriate technical standards for content labeling.
This testimony was particularly striking because it in many ways represents
the worst nightmare of CDA opponents -- that the law will permit Government
will dictate technical protocols and standards for content on the Internet.
Although this remains a significant concern, CIEC and ACLU attorneys
effectively demonstrated that Olsen's proposed solution is poorly conceived
and impractical.
SURFWATCH FOILS GOVERNMENT EXPERT
Howard Schmidt conducted a live demonstration of the Internet, taking the
court on a tour of world wide web sites devoted to legal issues, a site
promoting the City of Philadelphia, and several search engines. He then
showed the court several usenet newsgroups and decoded pictures of ducks
from the alt.binaries.pictures.animals newsgroup. Schmidt then showed the
court sites containing sexually explicit images, although no he did not
actually display any sexually explicit materials.
Schmidt's demonstration was intended to show how easily a child can access
sexually explicit materials online. Throughout the course of the court
proceedings, the government has sought to show that minors can
inadvertently stumble upon "indecent" or "patently offensive" material in
the normal course of using the Internet, particularly through search
engines, and that parental control software such as SurfWatch and
Cyberpatrol are not effective at preventing minors from accessing such
material.
While Schmidt claimed that minors can "inadvertently" stumble upon sexually
explicit material on the Internet, the Judges appeared unconvinced and
asked several pointed questions. Judge Sloviter repeatedly asked "Can one
inadvertently come across this material?".
Schmidt's claim that minors can inadvertently access sexually explicit
material on the Internet highlights a critical issue in this case. If the
government can demonstrate that minors can easily and inadvertently receive
indecent or patently offensive material on the Internet, the gvt. can argue
that the Internet is a "pervasive medium" similar to television and radio,
and that broad content regulations like the CDA are the only way to protect
minors.
In his testimony, Schmidt cited examples of sexually explicit web sites
which were not blocked by SurfWatch. Schmidt testified that he had found
these sites by searching for terms such as "sex" and "xxx" on popular
Internet search engines. During cross examination by CIEC attorney Ann
Kappler however, Schmidt revealed that he had run his initial searches
WITHOUT SurfWatch running. Kappler noted that SurfWatch prevents searches
for terms like "sex" or "xxx", and that had Schmidt been running the
program when he conducted his initial search, he would have been unable to
access any of the sites he claimed SurfWatch didn't block.
In response to relentless questioning by Kappler, Schmidt reluctantly
admitted that "SurfWatch would not have allowed the [initial] search".
PICS - AN EXAMPLE OF A LESS-RESTRICTIVE ALTERNATIVE TO THE CDA
In addition to the two government witnesses, the CIEC called Albert Vezza
of MIT and the World Wide Web Consortium to explain the Platform For
Internet Content Selection (PICS) to the court.
PICS is a set of protocols which will permit voluntary multiple,
independent third party rating systems to operate on the Internet and
commercial online services, as well as permit content providers to rate
their own material. The PICS standards are being developed at MIT through
the World Wide Web Consortium with the support of most of the online
industry, including America Online, Prodigy, Netscape, Microsoft, Apple,
and others.
Vezza explained to the court that PICS, unlike Dan Olsen's "-L18" tag, will
allow for tremendous flexibility in rating content, and that many ratings
systems are possible. And, because PICS would be controlled at the user
level, parents and other users would have tremendous control over what
material they access.
Vezza also testified that PICS is far less restrictive and far more
effective at preventing children from accessing inappropriate material than
the Communications Decency Act. Vezza testified that because a substantial
amount of sexually explicit material is available on sites outside the
United states, and because PICS allows parents to utilize trusted
third-party rating systems, it is inherently more powerful and flexible
than the broad restrictions imposed by the CDA.
Vezza also pointed out that the PICS standards will allow parents to block
access to all unrated sites if they choose. As a result, Vezza said,
"children could be protected without mandating any one rating system, from
foreign sites, and from sites with indecent or patently offensive material
that has not been rated".
The Judges appeared extremely interested in Vezza's testimony, and asked
numerous questions. Judge Stewart Dalzell, who has taken a keen interest in
the case, stated for the second time since the trial began that the world
wide web has developed almost entirely because the government has stayed
out of the way. At one point, Dalzell stated "There must be powerful
market forces driving this process". Dalzell then stated rhetorically that
he could imagine a marketing advantage for implementing PICS standards and
that providers would sell their services by saying, "come on line with us
and your kids won't see what is in Mr. Coppalino's book", referring to the
book of evidence containing sexually explicit images found online.
TESTIMONY TO RESUME MONDAY APRIL 15
Testimony will resume on Monday April 15 with Government witness Dan Olsen.
The trial is proceeding more quickly than initially expected, and it is
possible that all testimony from both sides will be concluded on Monday.
It is possible that the hearing originally scheduled for April 26 will be
canceled, and that the closing arguments, scheduled for June 6, will be
moved to up to mid-May. CDT will post an update as more information
becomes available.
FOR MORE INFORMATION
More information on the case, including the text of the complaint,
supporting documents, transcripts from the first three days of testimony,
and back issues of CIEC Trial Bulletins can be found on the Citizens
Internet Empowerment Coalition Web Site:
http://www.cdt.org/ciec
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(2) Subscription Information
As CIEC members, you have been invited to join this list in order to
receive news updates and other information relevant to the CIEC challenge
to the Communications Decency Act. To subscribe, visit
http://www.cdt.org/ciec and join the Coalition.
If you ever want to remove yourself from this list, send email to
ciec-members-request@cdt.org
with 'unsubscribe ciec-members' in the SUBJECT LINE (w/o the 'quotes').
Leave the body of your message blank.
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(3) For More Information
For more information on the CIEC challenge, including the text of the
complaint and other relevant materials:
* World Wide Web -- http://www.cdt.org/ciec/
* General Information about CIEC -- ciec-info@cdt.org
* Copy of the Complaint -- ciec-docs@cdt.org
* Specific Questions Regarding the
Coalition, incuding Press Inquiries -- ciec@cdt.org
* General information about the
Center for Democracy and Technology -- info@cdt.org
--
end ciec-update.9
4/13/96
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