EFFector       Vol. 14, No. 13       June 29, 2001     editors@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

IN THE 173rd ISSUE OF EFFECTOR (now with over 27,600 subscribers!):

For more information on EFF activities & alerts: http://www.eff.org

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Immediate action needed!

Electronic Frontier Foundation ACTION ALERT

(Issued: June 29, 2001 / Deadline: July 1, 2001)

The Web version of this alert can be found at:


South Korean nonprofit organizations, including the Collaboration Action Group Against Information and Communication Censorship, have called for worldwide protests over the enforcement starting July 1, 2001, of Internet content rating provisions of the Korean Communications Decency Act (KCDA).

According to the Korean Progressive Network (JinboNet), the Korean Ministry of Information and Communication (KMIC) slipped the provision requiring Internet content rating of all websites into the KCDA in April 2001, even though the content rating provisions were explicitly removed in response to protests prior to the original passage of the legislation last year.

The KCDA also apparently prohibits most forms of online protest starting July 1, such as posting protest messages on Internet message boards, sending many protest messages to one server (like the KMIC server), and virtual sit-ins, also known as denial of service (DoS) protests.

What YOU Can Do Now:

Prior to July 1, activists around the world, and hundreds of Korean organizations, are taking the following actions:

These Korean organizations have invited concerned international organizations and individuals to take action in solidarity with the Korean anti-censorship movement.

The Electronic Frontier Foundation is pleased to support JinboNet and the other Korean organizations opposed to government-mandated Internet content rating systems.

Blue Ribbon Campaign:

EFF's participation in the effort to oppose Internet censorship in Korea is part of our larger campaign to highlight dangers to online freedom of expression and press. Launched in 1995, the Blue Ribbon Campaign for Online Free Speech remains one of the largest Net-based grassroots political movements. For more infomration about the campaign, including latest Internet free expression news, ways you can help, and links to more resources, see:   http://www.eff.org/br/

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world:


Will Doherty, EFF Online Activist / Media Relations
+1 415 436 9333 x111
Katina Bishop, EFF Offline Activist / Education Dir.
+1 415 436 9333 x101

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Electronic Frontier Foundation Concerned US Court Violated Free Speech Rights

Electronic Frontier Foundation Media Release

For Immediate Release: June 22, 2001


Cindy Cohn, EFF Legal Director,
  +1 415 436 9333 x108

San Francisco - The Electronic Frontier Foundation (EFF) today expressed concern over a California court conviction of H. Keith Henson in a case involving online criticism of the Church of Scientology (CoS). In a decision which appears to have violated his constitutional right to free speech, a jury in Riverside County convicted Henson of threatening the free exercise of religion by members of the CoS.

"We are deeply concerned that the decision violates Mr. Henson's free speech rights," said EFF Legal Director Cindy Cohn. "Since he does not appear to have made any credible threat of physical attack as required for conviction under the U.S. Constitution, Mr. Henson has a legal right to express criticisms online without fearing a prison term."

On April 26, 2001, Henson was convicted of threatening to interfere with the CoS members' freedom to enjoy their constitutional right to the free exercise of religion. Although official trial documents are not yet available, the verdict seems based on Henson's activities while picketing the CoS desert compound and postings on the Internet alt.religion.scientology newsgroup. It appears that the postings admitted into evidence included only fragments of longer postings or threads taken out of context. For example, the defense was apparently prohibited from showing that a comment about "cruise missiles" was made in response to a joke about actor Tom Cruise. The trial judge also allegedly forbid Henson from explaining why he was protesting Scientology.

Henson was also accused of making and attempting to make terrorist threats against the CoS, however the jury convicted only on a single misdemeanor charge under a California "hate crime" statute. EFF is concerned that the jury may have convicted Henson on this one charge based on misinformation and mislabeling of evidence introduced at trial.

The basic requirements for conviction under California Penal Code section 422.6 are that "force or the threat of force" must be involved and that "the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat."

Neither of these requirements appear to have been met in Henson's case. For instance, Henson's discussions apparently included long-range missile systems in connection with the CoS desert compound. Such statements seem inadequate to substantiate a reasonable fear that he would actually launch or have the ability to launch a missile attack against anyone.

Furthermore, a recent decision by the 9th Circuit Court of Appeals, Planned Parenthood v. American Coalition of Life Activists, clarified that strong advocacy is protected expression stating, "it doesn't matter if the speech makes future violence more likely; advocating 'illegal action at some indefinite future time' is protected."

Following his conviction, Henson took refuge in Canada where, based on information Scientology sent to authorities, he was arrested in a shopping mall parking lot, by a heavily armed paramilitary unit. However, Canadian officials later released Henson and accepted his application for asylum.

In a May 30th phone interview with the Toronto Star newspaper, Henson's wife said that he is being targeted by the CoS because he has been working to expose the group as a crime syndicate for five years.

EFF Executive Director Shari Steele commented, "EFF is deeply disturbed by these possible violations of Mr. Henson's constitutional rights. This trial seems intended to punish Mr. Henson for his opposition to a powerful organization, using the barest thread of legal justification to do so. EFF joins Mr. Henson's American counsel in urging the California Court of Appeals to set aside this verdict and confirm Mr. Henson's right to protest publicly a group that he opposes."

For more information on the Henson case, see:

For the public alt.religion.scientology postings, see:

Related media coverage:

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world:

Special thanks to Kathleen Hunt for contributing to this media release.

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EFF Housewarming Party and BayFF at our New Location on Shotwell Street - Tuesday, July 10th

Come Celebrate Our 11th Anniversary, See Our New Home, Enjoy Live Music, and Learn More About the Work We Do

WHAT: EFF's Housewarming "BayFF"
WHEN: Tuesday, July 10th, 2001 at 7:00 PM Pacific Time
WHERE: Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110

This is a night to celebrate! July 10th is:

This event is free and open to the general public. There will be plenty of food, drink, music, live music, and good company, including EFF co-founder John Perry Barlow.

The Electronic Frontier Foundation ( http://www.eff.org ) is the leading civil liberties organization working to protect rights in the digital world. For more information, please see EFF's website.

An RSVP is appreciated. Please contact: Katina Bishop - +1 415-436-9333 x101 - katina@eff.org

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Help Working Assets Donate to EFF

For those of you who are Working Assets Long Distance customers, you may be getting a piece of mail this week that lets you designate a nonprofit for Working Assets to send $25 to. It doesn't cost you anything, ALL nonprofits are qualified, and EFF will get $25 for each person who wrote in their info. Please spread the word!

All you have to do is:

  1. Write in the following info on the short form sent by Working Assets:
      Group Name: Electronic Frontier Foundation
      Contact Name: Katie Lucas
      Phone: 415-436-9333 ext 104
      Group Address: 454 Shotwell Street, San Francisco, CA 94110
  2. Mail it in with your next bill payment. It has to be *received* by JULY 15, 2001.

Thank you in advance from everyone at EFF!

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CHIPA: The Talk of the Librarian Conference

Expressing frustration with the inadequacy of Internet blocking mechanisms, librarians swarmed four conference sessions focused on the Children's Internet Protection Act (CHIPA or CIPA) at the American Library Association (ALA) conference June 16-18 in San Francisco.

Traveling to the conference from the heartland, many librarians clearly had CHIPA on their minds, which was not surprising given the Federal Communications Commission (FCC) July 1, 2001, deadline for "undertaking to comply" with CHIPA.

The CHIPA law, or more precisely a combination of the laws called CHIPA and another called the Neighborhood Children's Internet Protection Act (NCIPA), affects funds allocated through the Library Services and Technology Act (LSTA), Title III of the Elementary and Secondary Education Act, and the Universal Service discount program known as E-Rate (Public Law 106-554).

Undertaking to Comply

According to Marc Seifert, Deputy Chief of the Common Carrier Bureau of the FCC, and according to FCC rules, "undertaking to comply" may refer to a variety of actions, such as educational efforts, attending conferences, such as the ALA conference sessions about CHIPA, giving notice for and holding public hearings on the issue, and not necessarily purchase orders for Internet blocking devices. Seifert confirmed that "participants in E-Rate have a one year grace period" and that the law requires no library to actually install Internet blocking software until July 1, 2002, for the FCC-administered E-Rate program, and that libraries who "undertake to comply" prior to July 1, 2002, may later lawfully refuse to install Internet blocking software and refuse to participate in the E-Rate program starting July 1, 2002.

Seifert mentioned one valid exception: libraries that have to operate under state or local procurement laws that would prevent completion of purchase of the technology protection measure by the program deadline. At one session, an audience member wondered what would happen if the state or local procurement law included requirements that any software purchased be "effective", in which case no software could effectively comply with CHIPA requirements to block obscene, child pornographic, and for minors only, harmful to minors content, since none of the products even certify to CHIPA compliance. Would such a procurement policy provide a permanent exemption to CHIPA requirements? No clear answer was forthcoming on this question.

Tom Sussman, an attorney from Ropes & Gray Law, explained in detail what libraries need to do between now and October 28, 2001, to comply with the law. He divided libraries into three classes: those that receive E-Rate and LSTA funding, those that receive only LSTA funding, and those that receive neither E-Rate nor LSTA funding. The E-Rate and LSTA funding pertinent to CHIPA consists of grants and discounts on Internet services and related equipment.

The law requires the first class of libraries to an Internet safety policy developed pursuant to a public hearing. The policy has to address a list of things required by the statute, such as access by minors to inappropriate matter on the Internet, safety and security when minors use e-mail, chat, and other Internet services, unauthorized access by minors, unauthorized disclosure of personal identification information of minors, and measures designed to restrict access of minors to harmful materials. In addition, libraries must implement and enforce a "technology protection" measure, ostensibly Internet blocking software, and to certify to the FCC that the policy is in place.

Libraries participating only in the LSTA program need not certify with the FCC or install blocking software. These libraries are required only to create an Internet safety policy based on public hearings.

Sussman also opined, "They [Congress] passed a law that was badly written, not well-considered and motivated by an election year, and it stinks. That's my considered legal opinion. It's a long-standing tenant of interpretation is that Congress is presumed to be rational."

The Antidote to Excess Access

One session focused on librarian response to criticisms of library policies opposing Internet blocking. Participants viewed a video called "Excess Access" prepared by the American Family Association (AFA), which portrayed a balding middle-aged man viewing what appeared to be heterosexual pornography on a library Internet terminal, then apparently molesting a teenage boy in the library's restroom.

Footage of Jonathan Katz' "Gay American History" was shown as the kind of book that libraries should not permit in their collections.

The film criticized the ALA's Library Bill of Rights and portrayed a parent complaining to a librarian, who said that her hands were tied due to the ALA's policies, implying that library policies are dictated by the national organization, rather than by a local library board.

Following the film, Pat Schuman, President Elect of the ALA, facilitated a roleplay session for librarians to practice handling the tough questions they receive from the right-wing religious and political extremists about library policies and practices related to Internet use. Some bemoaned the harassment activities that take place among a very small minority of library patrons, but reported that the Internet seems to have had little effect on frequency of such activity, which has apparently has occurred as long as libraries have been around.

David Burt, Market Researcher for Internet blocking software company N2H2, was featured in "Excess Access", which is available from the American Family Association website or by calling +1 662-844-5036. Some librarians commented that they are using the video as an educational tool about the threats to library autonomy and freedom to read.

Librarians on the Front Lines

Librarians who attended any of the ALA CHIPA sessions received a certificate of attendance which could be used as part of CHIPA compliance certification.

The librarians are really on the front lines of the struggle over Internet censorship in libraries, so it was heartening to see the support they gave each other in handling a difficult issue.

Judith Krug, Director of the ALA's Office of Intellectual Freedom, commented that "libraries are one of the most popular, if not the most popular institution in the community." She announced that the ALA has raised over $600,000 toward the $1.3 to $1.5 million ALA plans to raise for the CHIPA legal challenge.

Daniel Mach, member of ALA's Jenner & Block legal team, provided information at the conference sessions about the legal challenges to CHIPA filed by the ALA, the ACLU, and other organizations like EFF, on March 20, 2001. A special three-judge district court in Philadelphia will hear the challenges with any appeals going directly to the Supreme Court, as provided by the legislation.

Latebreaking News

After the ALA conference ended, EFF learned that the legal challenges against CHIPA filed by the American Library Association and the American Civil Liberties Union, along with help from EFF and other organizations, are scheduled to go to trial on February 14, 2002, under the name ALA v. United States.

Please see the Newsbytes article below for more information:


For more information on the CHIPA legal challenge:

For the American Library Association resources on CHIPA:

For more information on opposing online censorship:

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The latest book from Marjorie Heins, entitled Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (ISBN: 0-374-17545-4), is an indispensible resource for EFF members or anyone concerned about issues of censorship, obscenity, and harmful to minors content in any era. Heins, who currently works on the Free Expression Policy Project at the National Coalition Against Censorship, traces with insight historical trends and their relevance to today's struggles over censorship on behalf of children.

From Huckleberry Finn to Harry Potter, from Internet blocking / censorware to the V-chip, censorship exercised on behalf of children and adolescents is often based on the assumption that they must be protected from "indecent" information that might harm their development -- whether in art, in literature, or on a website. But where does this assumption come from, and is it true?

In Not in Front of the Children, Marjorie Heins explores the fascinating history of "indecency" laws and other restrictions aimed at protecting youth. From Plato's argument for rigid censorship, through Victorian laws aimed at repressing libidinous thoughts, to contemporary battles over sex education in public schools and violence in the media, Heins guides us through what became, and remains, an ideological minefield. With examples drawn from around the globe, she suggests that the "harm to minors" argument rests on shaky foundations.

There is an urgent need for informed, dispassionate debate about the perceived conflict between the free-expression rights of young people and the widespread urge to shield them from expression that is considered harmful. Not in Front of the Children will spur this long-needed conversation.

For an excerpt from the book, see:   http://www.eff.org/Censorship/200105_heins_book_excerpt.html

Prior to working at NCAC, Marjorie Heins served as an attorney at the American Civil Liberties Union. She is also the author of Sex, Sin, and Blasphemy: A Guide to America's Censorship Wars.


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Thank you to EFF Volunteer Michael Mathews

The Electronic Frontier Foundation would like to thank Michael Mathews for his software dontation to us. Michael wrote a great little utility called Quickmirror that we use to back up important directories on our Windows computers to our Linux server running Samba. It works great and we really appreciate it. Thank you Michael.

Website: http://quickmirror.netfirms.com/
Author name: Michael Mathews
Author e-mail address: quickmirror@hotmail.com

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Pretrial Appeal of Anonymous Speech Victory Denied

EFF won another victory in our fight to protect anonymous Internet speech last week when the Ninth Circuit denied 2TheMart's petition to take an interlocutory (pretrial) appeal of a lower court decision quashing a subpoena requesting the identity of posters on an Internet message board. This means that the district court's opinion protecting the anonymous posters against disclosure of their identity stands.

The decision was the first in the country to address the standard for compliance with a subpoena where the "J. Doe" (who used the pseudonym NoGuano) was not a party to the case, and no allegations of liability against Doe had been made. The court held that the identities would not be turned over unless (1) the subpoena was issued in good faith and not for any improper purpose; (2) the information sought relates to a core claim or defense; (3)the identifying information is directly and materially relevant to that core or defense; and (4) information sufficient to establish or disprove that claim or defense is unavailable from any other source.

More information on the case can be found at:
The cite for the case is: John Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1092 n.2 (W.D. Wash 2001)

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