----------------------------------------------------------------- _______ _ _ ____ _ _ _ _ |__ __| (_) | | | _ \ | | | | | (_) | |_ __ _ __ _| | | |_) |_ _| | | ___| |_ _ _ __ | | '__| |/ _` | | | _ <| | | | | |/ _ \ __| | '_ \ | | | | | (_| | | | |_) | |_| | | | __/ |_| | | | | |_|_| |_|\__,_|_| |____/ \__,_|_|_|\___|\__|_|_| |_| Citizens Internet Empowerment Coalition Trial Update No. 9 Pre-Trial Update - April 13, 1996 5:30 pm ET ----------------------------------------------------------------- http://www.cdt.org/ciec/ ciec-info@cdt.org ----------------------------------------------------------------- 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. ------------------------------------------------------------------ ** 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 ---------------------------------------------------------------------- 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 ----------------------------------------------------------------------- (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. ----------------------------------------------------------------------- (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