HotWired: The Netizen

The Hydra

by Brock N. Meeks (brock@well.com) and Declan McCullagh (declan@well.com)
Washington, DC, 11 June 1996
   
   A bill that would attempt to "fix" the potential harm of the
   Communications Decency Act was dropped into the legislative boneyard
   late yesterday by freshman Representative Zoe Lofgren (D-California).
   The bill, dubbed the "Internet Freedom and Child Protection Act,"
   provides neither.
   
   Introducing these "repeal the CDA" bills has become a kind of sport.
   In March, Representative Anna Eshoo (D-California) introduced her bill
   and word on the Hill is that several other members are waiting in the
   wings with their own favorite flavor of "repeal CDA" legislation. It's
   as if introducing ill-thought Internet bills somehow absolves them of
   their original sin: passing the draconian CDA by an overwhelming
   margin. Suddenly, it seems, Congress has gotten religion, and these
   bills are a kind of congressional confessional.

   Lofgren's bill merely tries to streamline the CDA, while adding a few
   twisted government mandates into the mix. Under Lofgren's bill, you
   can still be sent to Club Fed for two years and fined US$250,000 if
   you send "any comment, request, suggestion, proposal, image, or other
   communication which is obscene, lewd, lascivious, filthy, or indecent,
   with intent to annoy, abuse, threaten, or harass another person."
   
   And there's still that little constitutional question about
   criminalizing "indecent" speech. Who decides what is annoying or what
   the exact definition of that word, in the context of cyberspace, is
   supposed to mean? Good grief, if this law went into effect, a lot of
   us would have been jailed yesterday.
   
   Then there are her loopy additions. All Internet service providers,
   under government mandate, will become vendors of "blocking software"
   such as SurfWatch or Cyber Patrol. Lofgren's bill says that all new
   ISP customers must be provided, either free or at a fee, "screening
   software that is designed to permit the customer to limit access to
   material that is unsuitable for children." Of course, nowhere does she
   define what "unsuitable" means.
   
   However, such vagueness didn't stop Lofgren from proposing that the
   Federal Communications Commission move into the business of setting
   commercial software standards. Under this bill, the FCC is required to
   "prescribe minimum technical standards for screening software."
   
   So what moved Lofgren to introduce such a bill? "If the court strikes
   [the CDA] down, there's going to be some interest on the part of
   Congress to do something," Lofgren said. "In that case, I hope that
   [the bill] might be the vehicle to do something responsible and
   rational." Lofgren, who voted for the CDA as part of the overall
   Telecommunications Act of 1996, said she wasn't wedded to the language
   in her bill. "I'm open for amendments," she said, adding, "If there's
   a need to clarify or collaborate with industry in the future, that
   could be incorporated."
   
   One irony of this development is that Lofgren wears a "white hat" on
   other cyberspace issues. For example, she supports lifting current
   restrictions on encryption exports, and on her congressional homepage
   she links to the Voters Telecommunications Watch CDA update Web site.
   
   There seems to be no shortage of lawmakers waiting to wade into a kind
   of "CDA: The Sequel" round of legislating if the CDA is overturned.
   
   Such congressional efforts are ill-timed, at best. "We appreciate
   these efforts to do better than the [CDA], but we really believe that
   Congress should wait to get guidance from the Supreme Court," said
   Jerry Berman, executive director of the Center for Democracy and
   Technology. "We have asked the Supreme Court to address how the
   Internet should be treated under the First Amendment," in our court
   case, he said. "Until we know what the First Amendment parameters are,
   it will be difficult to craft any kind of legislation that protects
   free speech, privacy, and children."
   
   How does the FCC feel about a new proposed role as "software
   commissioner?"
   
   Frankly, they'd rather not be involved, according to Mark Corbitt,
   technology policy advisor to Chairman Reed Hundt. Corbitt noted that
   Hundt is on the record saying it "would be a good idea to let the
   private sector to have an opportunity to address" such issues, "prior
   to federal involvement." As to whether the FCC has the authority or
   jurisdiction to become involved in setting commercial software
   standards, Corbitt said: "The commission pretty much has jurisdiction
   on what the Congress agrees it shall have jurisdiction on."
   
   You know, with friends like these, who the hell needs enemies?
   
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