H.R. 1501 & H.R. 3028 Threaten Online Free Speech, Privacy and Other Rights

(Issued: Oct 25, 1999 / Deadline: Nov. 10, 1999)

Mandatory Filtering & Other Problems in Juvenile Justice Bill

The bloated Juvenile Justice bill (H.R. 1501), passed by both houses of Congress in different forms and currently in conference committee, contains, in the House version ( http://www.eff.org/censorship1999/hr1501_1999_bill.html ), a requirement that publicly-funded libraries (and schools) install Internet content filters on their computers to block access to illegal content (child porn, obscenity) for all users and to block legal but somewhat explicit content ("material harmful to minors") for kids.

The principal problems with this legislation are:

It is physically impossible for any software to block "illegal" content, since only a court can deem it illegal on a case-by-case basis. The software can't predict what is and isn't legal.
Filtering software is notoriously imprecise, and does not perform as advertised (or as believed by Congress) - it both fails to block a wide range of "obscene", "indecent" or "harmful-to-minors" material, and accidentally (or in some cases maliciously) blocks material that is not in any way pornographic, including a wide range of news coverage, political content and health-related material, even sites that provide facts about filtering software in some cases. Even conservative groups oppose this legislation, since their own sites are frequently censored for "intolerance".
Much of this material is First Amendment-protected, even for minors, making the bill unconstitutional.

Institutions that do not comply with these requirements would be stripped of vital E-Rate funding.

Additionally, the Senate version ( http://www.eff.org/censorship1999/hr1501_sp1344_1999_bill.html ) of the Juvenile Justice bill contains a provision that will force large Internet service providers to give filtering software to their customers, free or at-cost. Aside from interfering in the ISP and software market for no legitimate reason (remember, filtering simply doesn't work the way Congress mistakenly thinks it does), this provision really makes no sense: Some filtering software is available for free over the Internet; any ISP, by definition, already provides their customers with free access to filtering software.

As if all this weren't enough, the Senate version also includes a ban on online advertising or sale of firearms or explosives, and a provision to encourage the formation of an industry cartel to restrict access to constitutionally protected content ("violent" material, depictions of illegal activity, etc.)

Finally, both versions of the bill have numerous threatening surveillance and other anti-privacy provisions.

Cybersquatting Bill Threatens Free Speech, Privacy, Fair Use, and Justice

The "Trademark Cyberpiracy Prevention Act," H.R. 3028, is about to be voted on in the House of Representatives and would be disastrous to the free speech and privacy rights of domain name holders. EFF urges you to contact your Representative today and tell him or her to vote no on this bill. (The bill has already passed the Senate, and is expected to be voted on any day now in the House.)

With the stated goal of preventing trademark infringement and dilution in the Internet domain name space, the misguided "Trademark Cyberpiracy Prevention Act" the would make domain name holders legally liable in civil actions brought by trademark holders sharing the same name or one that is "confusingly similar."

This bill undermines fair use and First Amendment freedoms in granting all trademark holders new rights greatly in excess of those already granted by existing trademark law. TCPA's provisions would enable bad-acting trademark holders to sue satirists and critics into silence.

The legislation is an assault on anonymous speech; it effectively forces domain name holders to give up their privacy or have an increased likelihood of liability (and for no real reason, since there isn't any connection between anonymous use of the Internet and trademark violations).

The bill will have a chilling effect on free expression because it effectively encourages registrars to reject the registration of any domain name that they believe has a remote possibility of being infringing.

The TCPA bill also sets up a system whereby US-based companies would be able to take away domain names - without notice - from foreign companies and individuals who can't afford to travel to the US to defend themselves (assuming they even know about the action against them at all.)

Attacked domain name holders would have to file their own lawsuits to prove their innocence, and do not even have affirmative defenses to assert when sued, only factors for optional court consideration. Domain name holders must not be treated guilty until proven innocent.

Months' worth of international cooperation could be undermined in the Internet Corporation for Assigned Names and Numbers (ICANN), working to come to a balanced consensus on intellectual property, domain names and individual rights. Congress should not be second-guessing the Commerce Dept. (which is overseeing transition to the new administration of the Domain Naming System), nor suddenly wading into a highly contentious area of global technology policy.

WHAT YOU CAN DO

Contact your Representative and Senators, and urge them to pressure the Juvenile Justice Bill conferees to remove the senseless and highly controversial Net censorship provisions from the bill. SEPARATELY contact your Representative again (one issue per call, or the message may get confused) and ask them to vote against the "Trademark Cyberpiracy Prevention Act".

(To find out who your legislators are and to get their contact information, please see EFF's Contacting Congress Factsheet. You should send a letter, fax or email, or make a phone call to the office of, your Representative (and your two Senators, in the case of the Juvenile Justice bill). For good measure, you may wish to send a similar letter of opposition to the offices of the President and Vice-President as well.)

Short sample message about the Juvenile Justice Bill for phone calls or telegrams (faxes & letters should be more detailed):

I'm a constituent, and am contacting you to oppose controversial and misguided provisions of the Juvenile Justice Bill currently in conference. I urge you to pressure the conferees to delete the following sections:

House version, Sections 1401-1403 - unconstitutional mandatory filtering, opposed by liberals and conservatives alike

Senate version, Section 1504 - mandatory ISP provision of filters

Senate version, Sections 1561-1564 - unconstitutional ban on online advertising that's legal in print;

Senate version, 401-406 - formation of industry cartel to restrict access to First Amendment-protected content that some find offensive.

Both versions, various sections - anti-privacy provisions regarding "clone pagers", increased uncontrolled sharing among agencies of personally identifiable information about citizens, and more surveillance.

These provisions have not been examined much less approved by both houses of Congress, and should certainly not be passed as riders on the Juvenile Justice Bill.

Short sample message about the "Trademark Cyberpiracy Prevention Act" for phone calls or telegrams (faxes should be more detailed; it is too late for postal letters, House may vote any day now):

I'm a constitutent contacting you to oppose the antidemocratic and misguided "Trademark Cyberpiracy Prevention Act", H.R. 3028. I urge Rep. [Rep.'s name here] to vote AGAINST this legislation. Some of the flaws in the bill:

It undermines fair use and free expression;

grants all trademark holders vast new rights, at the expense of every individual's rights;

threaten online privacy with anti-anonymity provisions that implicate First Amendment-protected anonymous speech;

treats accused domain name holders as guilty until proven innocent;

allows bad-acting trademark holders to steal domain names without notice and to shut down critics' Web sites.
effectively encourages registrars to reject any and all domain name registrations they imagine could conceivably be infringing, thereby chilling free expression and harming online commerce; and
undermines the work of ICANN (Internet Corporation for Assigned Names and Numbers, the new non-profit created with the guidance of the Commerce Dept. to administer the Domain Naming System).

This bill desperately needs to be examined in hearings, but is being rushed to a vote by intellectual property interests. Passage of this bill will thwart ongoing attempts to reach an international consensus on intellectual property, domain names and individual rights.

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