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Fight Fiercely (and vigorously ), Haah- vaahd!, Th
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Computer underground Digest Fri May 10, 1996 Volume 8 : Issue 35
ISSN 1004-042X
Editor: Jim Thomas ([email protected])
News Editor: Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.35 (Fri, May 10, 1996)
File 1--Fight Fiercely (and "vigorously"), Haah-vaahd!
File 2--The nail picture
File 3--FW: American Reporter v. Reno -- Day 1
File 4--Re: Cyber Projects
File 5--Cornell Internet Law Symposium: A Forward (fwd)
File 6--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Tue, 7 May 96 15:53 CDT
From: Glen L. Roberts <[email protected]
Subject: File 1--Fight Fiercely (and "vigorously"), Haah-vaahd!
PRESS RELEASE
Contact: Glen L. Roberts (814) 678-8801
Underpinnings of Web Attacked
"Banyan Revival Bets Heavily on the Web" reads a headline in the 3/96 issue
of Web Week. Banyan Systems International is apparently looking for
corporate success through the Internet and it's world wide web. Now,
however, they appear to be attacking the entire structure of the web.
The fundamental key to the brilliant success of the world wide web is
hypertext linking. These allow every document on the web to link to
(reference) any other document on the web. Hence, the name: "world wide
web." Every page on the web is an individualistic creation of that web
master, but includes links to other webs, making a never seen before collage
of expression. Each piece adds to the rest.
"In my continuing presentations about privacy, I found the web to be an
excellent medium, rather than abstractly talking about risks, I can point
people directly to resources and they can make their own decisions," said
Glen L. Roberts, host of Full Disclosure Live. He says that technology is
forging ahead and our only assurance that it is used for good is a true
understanding of it. "Hands on is the best way."
One of his most recent web pages has come under attack by Banyan Systems
International. While betting on the web for a corporate revivial, they have
asked Roberts' information service provider (ISP) to terminate all access to
Banyan's web page! Banyan never contacted Roberts about his web page, but
rather placed a number of demands on his ISP, which if implemented would
open the door for all hypertext links to be prohibited. "They are asking for
the death of the web," said Roberts. "The beauty of the web is that I can
place my web page on any ISP or even multiple ISPs. Freedom of expression is
the king of the web, not the whim of corporate America."
Corporate attacks on his political expression are not new to Roberts.
Harris Corporation accused him of criminal and civil infractions for writing
about their cellular phone interception equipment.
The web page in question can be accessed at:
http://pages.ripco.com:8080/~glr/stalk.html
Banyan's letter to his ISP follows.
This letter follows my attempt to contact you by telephone today. Banyan
Systems Incorporated has learned that one or more parties operating on your
system (http://pages.ripco.com:8080/~glr/stalk.html) are misappropriating
Banyan's on-line "whitepages" directory, Switchboard(tm). Furthermore,
these parties expressly encourage and instruct users of your system to
access Switchboard in order to engage in "stalking" -- privacy -- spying --
snooping", some of which activities are subject to federal, and state
criminal laws, and all of which entail potential liability for damages to
one or more personal privacy rights. Attached for your information are
photocopies of computer screens containing the offending text.
We intend vigorously to protect our legal rights and the integrity of our
products and services, as well as to insure strict performance of your
obligations in this matter.
While we continue to pursue our own investigation into these activities and
consult with law enforcement agencies as necessary, we require you to take
the following measures:
1. immediately terminate all access to Switchboard via your system by
any programmatic means;
2. immediately stop further misappropriation of Switchboard in any form
and its misuse for criminal purposes;
3. immediately implement effective procedures to preclude any linkage
whatsoever to Switchboard in the future without our express written consent;
and
4. promptly and without delay confirm to me in writing that you have
undertaken these measures.
You may contact me at (508)898-1000, ext. 1662.
Sincerely,
Richard L. Bugley
Vice President and General Counsel
RLB/smc
Enclosure
Banyan Systems Inc., 120 Flanders Road, P.O. Box 5013, Westboro, MA
01581-5013 Tel 508-898-1000 Fax 508-898-1755
--------------------------
Glen L. Roberts
Articles, Catalog, Links, Downloadable Programs:
http://pages.ripco.com:8080/~glr/glr.html
Offset Printing Services & Prices:
http://pages.ripco.com:8080/~glr/printing.html
------------------------------
From: [email protected]
Date: Fri, 3 May 96 21:42:51 PDT
Subject: File 2--The nail picture
A NAIL THROUGH THE GENITALS: The Outer Limits of Speech
By Jonathan Wallace, [email protected]
co-author, Sex, Laws and Cyberspace (Henry Holt 1996)
http://www.spectacle.org/freespch
Wired reporter Brock Meeks, my fellow plaintiff in the anti-CDA case
ACLU vs. Reno, recently began a report from the Computers, Freedom and
Privacy conference with these words:
"He smokes, he drinks, he swears on occasion. And his face twists
into a kind of ironic smile when he reels off the phrase, 'female
genitalia nailed to a board.'"
Brock is describing Bruce Taylor, ex-prosecutor, head of the National
Law Center for Children and Families, and one of the architects of the
Communications Decency Act. Taylor is talking about genitals nailed to
a board because that image has become a "poster child", so to speak,
of the pro-CDA forces. To them, it represents the kind of horrifying
image that must be banned from cyberspace.
Every activist movement has its poster children. The pro-choice
faction has the picture of the dead woman slumped in a pool of blood
after a botched abortion. The pro-lifers have photos of fully formed
fetuses. The major difference is that every other group shows you the
picture--Taylor only likes to talk about this one. "But there's a
small problem," Meeks wrote. "No one's ever seen this picture.
Taylor, unfortunately, doesn't carry a copy with him to back up his
claims."
The picture Taylor loves to talk about is one of the GIF's for which
California sysops Robert and Carleen Thomas were convicted in Memphis,
Tennessee. On September 7, 1993, federal postal inspector David
Dirmeyer, on an undercover assignment as "Lance White", logged on to
the Thomas's Amateur Action BBS and downloaded a GIF described as
"HAIRLESS PUSSY NAILED TO A TABLE." The AABBS was membership only;
Thomas had filled out and faxed an application form, with address and
phone number information included, and Robert Thomas had attempted to
screen him but had gotten only the "Lance White" answering machine.
The GIF's were come-ons for videos the Thomases sold; each GIF was a
freeze-frame from a video. On September 17, Dirmeyer ordered video K17
(in the Thomas' numbering scheme, K stood for "kinky"), which Thomas's
online catalogue described as follows: "He makes her sit on a table
and then nails her hairless pussy to the table! The girls scream with
pain throughout the whole video! Excellent Action!"
At trial, prosecutor Dan Newsom of Memphis introduced video K17, and
then a GIF that he said had been taken from it. The ensuing dialog
between the lawyers provided one of the trial's many moments of
bizarre comedy. Defense attorney Richard Williams rose to call to the
court's attention that video K17 showed only one nail being driven
through the actress's genitals. The proffered GIF showed two nails.
"Is that an oversight?" he asked, challenging his adversary to prove
that the image came from the video. "Why don't we wait and do it
after lunch?" Judge Julia Smith Gibbons suggested. That afternoon,
prosecutor Newsom admitted that he had erred in attributing the GIF to
the video.
The Thomases were convicted, and the meme of the transfixed genitals
passed into the meme pool and cyberspace history, later being
resurrected by Bruce Taylor as his proof that the Net requires
regulation.
The nail-through-the-genitals picture almost certainly represents the
outer limits of speech. At a post-trial hearing, Judge Gibbons made
an unusual reference to the press coverage the case had received. She
protested the inference that a conservative Memphis prosecutor had
successfully convicted the Thomases for speech that would have been
acceptable elsewhere: "This was far at the extreme end of the scale of
what might be considered obscenity....this was way worse than anything
I have seen."
Judge Gibbons is right. If we are to have obscenity laws at all--if
they serve any purpose--then it is hard to imagine what else they
cover if they do not prohibit photographs of nails through a woman's
genitals.
But if you take a step back, and ignore the knee-jerk reaction most of
us feel to the description of the picture, you can ask yourself the
question, "Why is this picture illegal? Whom are we protecting by
forbidding it?"
Hovering behind the AABBS case and Bruce Taylor's contemptuous words
is the philosophy of University of Michigan law professor Catharine
MacKinnon, who wrote:
"What pornography does, it does in the real world, not only in the
mind....In pornography, women are gang raped so that they can be
filmed. They are not gang raped by the idea of a gang rape.... It is
for pornography, and not by the ideas in it, that women are hurt and
penetrated....so that sex pictures can be made...."
MacKinnon is the best-known proponent of the proposition that
pornography is violence, that it is made through, and causes, violence
against women. MacKinnon's proposed anti-pornography ordinance, held
unconstitutional in federal court, defined as pornography materials
which present women as "dehumanized sex objects.... tied up or cut up
or mutilated or bruised or physically hurt....being penetrated by
objects or animals...." The words could have been written with the
nail picture in mind.
In writing about the AABBS case, I had never seen the picture, only
read various descriptions in the trial transcript. What I imagined was
a sadomasochistic ritual captured on film, a woman being tormented for
the entertainment of a sick, and sickening audience. During April
1996, I finally had the opportunity to see the photo in question, and
was quite startled by what I saw.
The picture captures the torso of a thin woman, who is standing by a
table. Her labia is extended, and someone else's hands are holding a
nail which has passed through the extended lip and a hammer with which
the nail is apparently being pounded. Her body is completely at rest;
there is no indication in the picture that she is experiencing any
pain.
In fact, what we are likely seeing is a woman with a previously
pierced labia, pretending (or conspiring to pretend) that a nail is
being hammered through it. One acquaintance told me: "Its a pretty
common party trick in the pierced community. I've done it myself."
(Thereby giving me a glimpse of an extremely unfamiliar world.) A few
years ago, at the circus museum in Coney Island--now closed--I saw a
man put a nail through a pierced place in his tongue--same trick,
different anatomical part.
Years ago, when I took up scuba diving and saw my first barracuda and
moray eel, I realized that I had to put aside significant
preconceptions. The word "barracuda", the word "moray eel" came with
significant baggage already attached, pertaining to their wild
viciousness and their propensity to attack. In order to learn what
these animals really were, I had to strip the words of any
significance and start again. I went through a similar mental process
when I saw the nail picture.
Once you clearly understand what you are seeing in the picture, it is
neither "prurient" or "patently offensive" (two of the three prongs of
the Miller test of obscenity.) It is not prurient because it did not
turn me on, and I suspect it would not arouse the average human being.
In fact, the picture has a clinical aura, like an illustration from a
medical textbook.
One of the absurdities of the Miller standard is that it applies local
community standards--in the AABBS case, those of Memphis,
Tennessee--then gives itself an out by allowing the jury to convict
even if they do not find the work prurient. The prosecution is allowed
to present an expert to testify that the intended audience finds the
work prurient. The complete unfairness of this result is illustrated
by the fact that the beliefs or reactions of the users of the material
are irrelevant for all other purposes. If the jury finds the work
prurient, it is irrelevant that those who buy it do not. If the jury
finds the work patently offensive, it is irrelevant that the users do
not. So what Miller really says is: If someone finds this prurient,
and you think it is patently offensive that they do, you can lock them
up.
The nail picture is not patently offensive either, if it portrays a
consensual party trick that hurt nobody. (It would be patently
offensive, but still not necessarily prurient, if it portrayed an
actual scene of torture.) Looking at it, one is left with the feeling
that here is another tempest in a teapot. After looking at the picture
for awhile, one feels nothing about it; it is hard to believe that it
is the subject of all this fuss.
Another insight granted by the nail picture is that the third prong of
the Miller test also makes no sense. If the work is prurient and
patently offensive, says Miller, you still can't convict if it has
some scientific, literary, artistic or political (SLAP) value. On
this one test alone, we don't trust the jury to apply their local
standards; we apply a national "reasonable person" standard.
But who made judges literary critics? In no other arena do we let any
legal consequence, let alone prison, rest on a judge's unqualified
evaluation of whether something is art. A glance at the case law of
recent decades confirms that judges, while not admitting that they are
not critics, have found two main ways to avoid the issue.
First, they never hold pure text to be obscene any more; instead,
courts have all but conceded that all prose has at least minimal SLAP
value. Why, then, is this not true of pictures? Why is a judge
qualified to decide whether a picture is "artistic" if he or she
cannot safely make this determination for prose?
The second may be called the "Mapplethorpe" approach. The Cincinnati
police closed an exhibit of photographs by the famous New York
photographer, arrested a museum curator, and put him on trial for
obscenity. The verdict: the pictures had SLAP value; most of the
exhibit was flowers and portraits, while a few photographs showed
subjects like the artist nude with a whip inserted in his anus.
The court actually reasoned backwards, however. Because it was
Mapplethorpe--who had acquired a significant reputation in the art
world--it could not be obscene, and must have SLAP value. But this
kind of determination rests on very thin ice. The same photograph,
attributed to Mapplethorpe or anonymous, then becomes obscene or not
under the same community standards. We are supposed to be a nation of
laws, not of men.
I have the same reaction to the nail picture as to the Mapplethorpe
self-portrait. Both have a clinical feel to them; neither is prurient
to me, though they both are mildly alienating or disengaging--an
effect considered artistic by many. One cannot attribute entirely
dissimilar motives to the author of the nail picture and to
Mapplethorpe. Both may have intended to provoke or to produce
discomfort; but so did Joyce, Burroughs, and Nabokov, all of whose
work is now clearly First Amendment-protected. So we are left with the
question: who is harmed?
I seriously doubt that anything about the nail picture will make
anyone want to hammer a nail through someone else, or have a nail
hammered through them. The picture is too static and clinical for
that. It does not advocate or incite.
No-one is arguing that the nail picture should be seen by minors,
though. The Thomases didn't do that. In order to see the nail picture,
you had to join AABBS, faxing them an application with an original
signature, paying them some money, and undergoing a phone screening.
There was no allegation that the nail picture ever reached a minor, or
even that it was ever seen by anyone (other than the jury) who was
offended by it. The nail picture, according to the decision in the
AABBS case, may not be shown to consenting adults. Why? Because
obscenity laws careen on from decade to decade, fueled by knee jerk
reactions, while no-one (with the possible exception of Professor
MacKinnon) has any idea what societal interests we are attempting to
protect.
I believe that Milton's statement in The Aeropagitica is broad enough
to cover the nail picture. "Read any books whatever come to thy hands,
for thou art sufficient both to judge aright, and to examine each
matter....Prove all things, hold fast that which is good...." Bad
ideas, Milton said, "serve in many respects to discover, to confute,
to forewarn, and to illustrate."
I learned something from the nail picture. If the law had succeeded
in preventing me from seeing it, I would have been poorer.
For me, the nail picture had SLAP value; it sparked a thought
process. But if you prevent anyone from seeing it, then, again in
Milton's words, you censure us "for a giddy, vicious, and ungrounded
people; in such a sick and weak state of faith as to be able to take
nothing down but through the pipe of a licenser."
------------------------------
Date: Wed, 1 May 96 20:23:17 PDT
From: [email protected]
Subject: File 3--FW: American Reporter v. Reno -- Day 1
The American Reporter v. Reno, Day 1 (April 29)
In the back corner of the space reserved for lawyers and witnesses sat
the familiar triumvirate of Schmidt, Baron, and Olsen. Schmidt opted
not for the grey flannel, but instead had a grey double-breasted suit,
a blue shirt, and a fat flowery tie; Olsen, an academic blue blazer
and smug smirk; and Baron, a dark suit and defensive, searching little
eyes. Three censors, will travel.
The dingy, closed federal courtroom in Philadelphia paled in
comparison to this huge, new Ceremonial courtroom in downtown
Manhattan--light, airy, with dark wood and green marble. I was a few
minutes early and had the pleasure of overhearing Fred Cherry speaking
to one of the only other souls in the room. He nodded towards Olsen,
"I think I saw him on Declan's list, the famous censor at the Carnegie
Watermelon Institute." He said he wanted to join his case with this
one, but "I've been accused of having been put up to this by the
ACLU."
Cherry is a thin, bent, wiry old man with thick, matted mess of of
grey hair, a dusty presence and a worn, blue raincoat. He has
weathered skin and large, carved features--big ears, a prominent nose,
a long bony chin, and a bright smile that sparkles in his blue eyes.
"Among other things," he pronounced to his audience of one, "I'm a
connoisseur of pornography." Randall Boe, an attorney for the American
Reporter, entered the courtroom and Cherry jumped up to hand him some
papers. Boe thanked him in stride and approached his table.
All rose as the Honorable Denise Coat, Jose Cabranas, and Leonard Sand
entered the room. Cabranas sat in the middle and was clearly in
charge. From way back in the bleachers he looked a bit like a middle
aged Gregory Peck, with a deep, raspy voice. On his left sat Sand, a
bespectacled man with a full white beard and a little voice. Judge
Coat was petite and generally quiet, but could be clearly heard when
she spoke up.
The ACLU/ALA case in Philadelphia has been criticized for being a big
mish-mash of a crowd of plaintiffs, who are mere fodder for an even
bigger legal team. It is a grand scale effort of sometimes varying
agendas. When Joe Shea of the American Reporter filed his suit
against Reno he decided not to conjoin it with the ACLU's. Perhaps he
felt that the point of his case would be lost in a political struggle,
of which he would play no part; perhaps he had a personal gripe with
the ACLU.
Regardless, rather than a combined effort by AIDS groups, parenting
organizations, publishers of Holocaust information, Gay activists, and
any and everyone else caught by the vague language of the CDA, Shea
has a single point which drives to the heart of the debate: Is the
Internet like print media or like television?
Shea's case focuses on an article recently printed by his Web-based
news service in which the author criticized the CDA and mentioned all
of the seven dirty words. Putting a timely spin on the comparison of
media, Harpers magazine has recently published the exact same article.
His case then asks the question, "An article that can clearly be
published by print-based news services is now illegal an equivalent
service online?" Shea hopes that the judges will be forced to decide
explicitly whether the Internet is like the "scarce," "pervasive"
broadcast media or like books, magazines and newpapers. It is within
this comparison that the the Constitutionality of the CDA must be
considered.
For all the grandiose aims and political shuffling I felt like I was
simply having an odd case of deja-vu, run at a faster rpm. Up on the
panel were three old scholars of the law, which the attorneys for both
sides were going to school in new technologies. Only one of these
cases can make it to the Supreme Court, so out came Gordon Gallagher
of Pencom Systems Incorporated, who hit the ground running--right into
acronyms and the alphabet soup of Internet jargon.
Gallagher knew the Internet backwards and forwards, up and down. He
soon dove into a mess of TCP/IP, proxy servers, Sun Sparc stations,
mail servers, and Web browsers. Judge Sand asked once, "can we can
slow down for the computer illiterate?" But the schedule was
deliberately breakneck and the task of teaching the intricacies of the
Internet in two hours almost impossible. So Bo took it back to the
basics and asked Gordon to demonstrate a Web browser. There were
seven screens in the courtroom: three for the judges, one for each
team of lawyers, one for the clerks, and another for the audience.
The proceedings stalled ... Gallagher said they were logged into
Schmidt's account and it had shut off after five minutes of no use.
Special Agent Schmidt hustled up to fix the problem.
Gallagher took the court on a browser ride to The American Reporter,
The Breast Cancer Information Clearinghouse, the Safer Sex page and
the Ethical Spectacle. Olsen sat smirking with Baron, as Gallagher
occasionally overqualified his answers to judges' questions, delving
into the nuances of the technology. Randy Boe, however, was clear and
well spoken in his questions, and adept at bringing Gallagher back to
the important issues and technological discrepancies. William Hoffman
for the Justice Department spent just a few minutes on
cross-examination and Gallagher stepped down.
Schmidt, the Air Force computer crime guy, took his oath and was back
on the stand, showing the judges just how easy it was to find smut.
He gave the same routine as in Philadelphia, holding the judges' hands
through the use of the browser, giving an effective layman's tutorial.
This time, however, there was less time to fool around with Liberty
Bells and legal resources. Schmidt got straight to business--clicking
on to a search engine and typing "XXX." Then, instead of searching on
"Jasmine," he found some good porno by entering "sleepingbeauty."
As in the ACLU case, Schmidt walked the judges up to the links then
pointed them to the printed copy of the site in evidence.
At the first lewd stop, Las Vegas Showgirls, the Special Air Force
Porn Agent carefully clicked one page shy and referred the judges to
what everyone would see if he were to click there. Cabranes looked at
the screen and the papers and said "Why don't you just go ahead and do
it, for the public interest."
Schmidt was taken off guard and obviously uncomfortable with the idea
of clicking onto his favorite smut as the entire court looked on.
"You want me to click on it?"
"Yes," said Cabranes.
Soon the seven screens became focal points of the room. Cherry had
been alternately nodding off and now perked up and leaned into the
public's screen, which sat directly in front of him. The clerks off
to the side were now huddled around their screen, like four friends
around a campfire. I was a few rows back and had a difficult time
seeing past Cherry's disheveled head. There was some kind of woman
sprawled back, grabbing herself, and Schmidt was getting increasingly
uncomfortable. His lawyer, William Hoffman, a nerdy dude with a high
pitch to his voice and a little lisp, jumped in and asked if they
could skip hitting the porn links. Cabranes could care less--we were
in New York City for fucksake.
"Whatever you think appropriate. That's fine."
Schmidt made it through only half of his testimony before the end of
the day. He was not available to continue the next day and will have
to finish up his smut tour next week.
In the meantime, the proceedings continue this April 30 and Olsen will
most likely be back to talk about his ingenuous rating scheme.
Everything is moving at a jittery speed and the judges may simply not
have a grounded enough understanding in how the Web works to begin
diving into rating systems and the like. Everyone's worried about
making it first to the hallowed halls of the highest court in the
land. In any case, hopefully the time will be taken to do it right.
Mark Mangan
[email protected]
co-author, Sex, Laws and Cyberspace
http://www.spectacle.org/sexlaws
-----------------------------
Jonathan Wallace
The Ethical Spectacle
http://www.spectacle.org
ACLU v. Reno plaintiff
http://www.spectacle.org/cda/cdamn.html
Co-author, Sex, Laws and Cyberspace
(Henry Holt, 1996)
http://www.spectacle.org/freespch/
------------------------------
Date: Fri, 3 May 1996 14:00:50 +0100 (BST)
From: Richard K. Moore <[email protected]>
Subject: File 4--Re: Cyber Projects
________________________________________________________________
5/03/96, Fred G. Athearn wrote (to cr-deliberate):
> Marilyn> Does anyone have any ideas for projects we can do
> Marilyn> together?
>
>These are a few general areas that seem hot:
>
> Intellectual Property vs. Fair Use,
> Cyber-smut vs. Free Speech,
> The War on Crime Terrorism vs. Encryption & Privacy
> [ Electronic Freedom March - added by someone else ]
________________________________________________________________
One of my favorite parables is the one about Nasrudin, who looked
for his keys where the light was good instead of where he had lost them.
I'd say we want to avoid spending time on projects which either:
- are being handled adequately by others
- aren't getting at the root of the problem
Also, I'd favor projects where there is an identifiable
constituency who have a self-interest in getting involved. Simply getting
masses of socially-concious netizens to agree with us may, unfortunately,
result in little more than lots of message massage.
For me, the central cyber issues are:
(1) Beyond CDA: the Bill of Rights (as a whole) and Cyberspace
(2) Cyber economics: the monopolist pirate raid on the wired
future.
re/ (1)
^^^^^^^
I believe that cyber "rights" are a consequence of how cyberspace
is "modelled". The corporatist position, which is all but a fait accompli,
is that cyberspace is an info-distribution channel like television, and
hence has no inherent rights of access, privacy, free speech, etc. --
concerns of children etc. are supposedly central (although we all know
that's bullshit -- what could be more harmful to children than the
television trash they're subjected to?).
I see the "battle" as making a case that we should look at First
Class Mail as the proper precedent for private email, and Public Gatherings
as the precedent for email lists & conferences, etc. In other words, we
should demand that our standard civil liberties be mapped onto cyberspace
appropriately. We're not asking for new rights, simply the proper legal
interpretation of existing rights (such as they are).
To me, this a "deep cut" at the problem -- if we choose this field
of battle, we'd have some hope of coalition with ACLU, Center for
Consitutional Rights, small publishers, consumer groups, etc. And if we
have any success, that would automatically benefit things like encryption,
wiretaps, fair-use, censorship, etc.
re/ (2)
^^^^^^^
I believe the so-called Reform bill is a modern Enclosures Act --
the theft of the Public Commons by greedy promoters. And this public
commons is a grand one indeed, being essentially the central nervous system
and perceptual organs of our future society.
The law doth punish man or woman
That steals the goose from off the common,
But lets the greater felon loose,
That steals the common from the goose.
Anon, 18th cent., on the enclosures.
(courtesy of John Whiting)
The main problem here is that the public at large understands
neither the wonderful potential of cyberspace for "people's networking" (to
give it an inadequate moniker), nor the true consequences of the new
telecom regime.
The public is saturated with a porn-terrorist-hacker image of
Internet -- when possibly a majority of messages sent are day-to-day
corporate and governmental inter-department mail. And the public is told
the Reform act is only to their benefit, with promises of cyber gadgets and
virtual entertainment -- with no discussion of what a digital
infrastructure _could_ make available to them if it were open and cheap
(which the technology should, by rights, provide).
It seems to me the first step here is purely educational -- until
there's more general understanding of the real issues, it would be
pointless to attempt to rouse any sizable constituency around any actions
or agenda.
We have some natural allies in this field of battle, and ones with
significant economic self-interest involved. These include all the small
independent operators in the communications, media, and publication
industries, together with everyone in public-sector-related businesses
(education, municipal governments, etc.). There are also probably some
professional associations who would have an identifiable commonality of
interests, plus consumer groups and the like.
Again, I see this as a "deep cut" tack on the problem -- one which
can attract a wider constituency, and in the long run accomplish more, than
shorter-term defensive battles such as trying to defend
voice-over-Internet, or decriminalizing PGP -- battles fought while public
opinion is hostile or indifferent to our cause.
I'm forwarding Craig Johnson's "THE REGULATORS MEET THE INTERNET"
to the recipients of this message. My hope would be that those who make
submissions to the FCC do so from a "deep-cut" perspective re/ the proper
role of regulation over society's communication infrastructure.
------------------------------
Date: Fri, 19 Apr 1996 19:42:32 -0500 (CDT)
From: David Smith <[email protected]>
Subject: File 5--Cornell Internet Law Symposium: A Forward (fwd)
---------- Forwarded message ----------
From--Mark Eckenwiler <[email protected]>
Subject--Cornell Internet Law Symposium
Date--Tue, 16 Apr 1996 13:20:21 -0400 (EDT)
Mike, here's my quick summary of the Internet Law Symposium sponsored
by the Cornell Journal of Law & Public Policy, 4/12-4/13/96:
Friday night (4/12), Bruce Taylor of the National Law Center for
Families and Children gave a predictable keynote speech explaining why
the CDA is constitutional & A Good Idea. Among his observations and
arguments:
- The S Ct says we can regulate obscenity because the courts can
enforce morality. (Oops -- try "valueless speech".)
- "Patent offensiveness" under the CDA requires not only offense, but
also an intent to offend. BT claimed that an image put up on the WWW
might or might violate the law depending on whether a U Penn Law
Student (as part of a safe-sex page) or Al Goldstein did it.
- The CDA doesn't apply to speech with lit/art/politcal merit.
- He heavily conflated smut/porn/indecency/kidporn/obscenity.
Heavily, as in using the terms interchangeably.
- He urged acceptance of the CDA as the expression of the will of the
majority, them folks what ain't bin to kollidj like us but who still
love (and want to protect) their kids.
- As Bruce does in every speech he ever gives, he made reference to
the famous GIF (at issue in the Robert & Carleen Thomas case) of a
woman's genitals nailed to a board. He didn't bother mentioning that
this image was deemed obscene, or that the CDA is superfluous as to
obscenity.
In the rather odd position of giving a rebuttal to the keynote
address, I tried to accomplish some basic things to start: explaining
the contours of the obscene/indecent/HTM/kid-porn classifications;
taking Bruce & Co. to task for working so hard to blur those
distinctions and to treat "indecent" material as if it's all "smut" or
"porn"; and explaining just how big the sweep of indecency/patent
offensiveness is.
I made a point of calling Bruce on his repeated claims that the third
Miller prong (art/literature/etc.) is also a part of the indecency
standard. [On Saturday, he even claimed that indecency also includes
a prurience prong -- as if the Carlin monologue ever got anybody all
hot'n'bothered.]
I spent a good deal of time focussing on the narrow basis for Pacifica
(pervasisveness/accessibility to kiddies/time channeling) and how
those things don't apply to the net.
Following in the Godwin tradition, I moralized as a parent in my own
right -- quoting Brandeis (from Olmstead) and Frankfurter (Butler
v. Michigan) on the limits of well-intentioned legislation designed to
protect children.
I also beat Bruce over the head with the 4/11 NYT story about Patrick
Trueman & the AFA going after CompuServe over the "adults-only" area
-- so much for the good-faith defenses meaning anything.
My closer was an example of a book that could easily be viewed as
"patently offensive" under the standards of many communities: a book
about a bunch of men getting drunk and discussing homosexual love
(and/or slicing people in half), including one young reveler's account
of his night in bed with one of the older men present. (Payoff: it's
_The Symposium_, from which the Cornell Symposium & all others get
their name. While we at this Symposium can engage in robust/indecent
speech, the CDA denies that same right to those in the online world
&c. &c.)
I used exactly one Dirty Word in my speech, and that in summarizing
_Cohen_. Bruce would only call it "the F word" (and/or spell it out!)
duirng the Q&A that followed (and this after saying "bullshit" at
CFP). I did manage to work in "shit" and "cunt" on Saturday as
examples of how Chaucer could fail the CDA's standard.
Saturday (in brief):
Morning panel was Bob Peters, Llew Gibbons from Temple Law, Marjorie
Hodges from the Cornell OIT, & Adam Lehman of AOL. Bob hogged the
floor and told many of the same legal lies BT had peddled the night
before. (Best one: fn. 18 of Pacifica is good law, and means the CDA
is constitutional.) Llew talked about alternative models like the
private market and a contract model between customer-wanting-kid-
friendly-service and ISPs (which sounds as if it's what Judge Dalzell
grasped on Friday).
Margie Hodges talked about the specific problems faced by
universitiess under the CDA. Adam talked about role of ISPs who can't
know how to comply with the CDA.
Best a.m. moment: Bob Peters admitting "I have never been on the
Internet." 2d best: Margie Hodges incredulously asking him to repeat
it to make sure she heard right.
P.M. panel: Alan Davidson of CDT (on crypto policy), Pam Samuelson
(guess), Llew (more crypto -- specifics of Leahy bill), and BT & me on
the CDA once again.
More BT gems from the panel discussion:
- making "indecent" speakers go into a special area is like making
smokers go outside.
- the CDA is like a sex harassment law
- Pacifica fn. 18 ("banning indecency merely regulates form, not
content"), cited in the committee report, is good law.
My response was pretty predictable:
- First Amendment protects *un*popular speech, and bars forcing it
into more palatable forms (see Texas v. Johnson)
- Smoking isn't speech -- duh
- Indecency is *broad* (with numerous examples from literature)
During Q&A I asked Bruce if he thought a "click here only if you're
18" intermediate page on a web site is a valid CDA defense. He gave a
non-answer about "in context".
Bruce asked me if I would oppose the CDA if the standard were the
variable obscenity std. (Answer: since adults have a right to receive
such stuff, a blanket ban is no more acceptable as to it than as to
indecency.) Jeez, I could smell that Q coming a mile away.
Much else was said. The above is merely a representative sample,
mostly WRT the CDA debate.
------------------------------
Date: Sun, 7 Apr 1996 22:51:01 CST
From: CuD Moderators <[email protected]>
Subject: File 6--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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