lambda bulletin 3.04
CDA and the Supreme Court : Justice O'Connor explains how the Decency Act could have been sustained
SHORT-CIRCUITS: -> China's Tunnel Shows Some Light -> Church of Scientology Strikes Back in France
Hyperlinks War : Will Berners-Lee be indicted for complicity?
See also:
The June 26 decision by the U.S. Supreme Court to slam the Communications Decency Act could hide a less glorious menace on future Internet censorship.
The Court voted against the CDA's constitutionality by a 7-2 vote - Chief Justice William Hubbs Rehnquist (left) and Justice Sandra Day O'Connor (below) concurred in part and dissented in part. In her dissenting opinion, Justice O'Connor explained in detail why "the CDA can be applied constitutionally in some situations."
"I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create "adult zones" on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. ... [T]he undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access. ...
The creation of "adult zones" is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults. States have also denied minors access to speech deemed to be "harmful to minors." The Court has previously sustained such zoning laws, but only if they respect the First Amendment rights of adults and minors. ... Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the regulated speech. If they cannot, the law does more than simply keep children away from speech they have no right to obtain-it interferes with the rights of adults to obtain constitutionally protected speech and effectively 'reduce[s] the adult population . . . to reading only what is fit for children.'"
Justice O'Connor quotes from a 1957 Court decision in the last sentence: a "Michigan criminal law banning sale of books-to minors or adults-that contained words or pictures that 'tende[d] to . . . corrup[t] the morals of youth'". The Court struck down this law (Butler v. Michigan, 1957), along with federal one in 1989 "that made it a crime to transmit indecent, but nonobscene, commercial telephone messages to minors and adults" (Sable Communications v. FCC, 1989), along with another federal law that prohibited "the mailing of unsolicited advertisements for contraceptives" (Bolger v. Youngs Drug Products, 1983).
But, she added, if a "zoning law" for the Internet is more clearly established, indecency provisions like the CDA may pass constitutional muster.
She wrote: "The Court sustained a New York law that barred store owners from selling pornographic magazines to minors in part because adults could still buy those magazines (Ginsberg v. New York, 1968). ... The Court did not question-and therefore necessarily assumed-that an adult zone, once created, would succeed in preserving adults' access while denying minors' access to the regulated speech. Before today, there was no reason to question this assumption, for the Court has previously only considered laws that operated in the physical world, a world that with two characteristics that make it possible to create "adult zones": geography and identity."
According to O'Connor, "The electronic world is fundamentally different. ... [C]yberspace allows speakers and listeners to mask their identities. Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed "locations" on the Internet. ... Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws. This transformation of cyberspace is already underway ... [U]ser-based zoning is accomplished through the use of screening software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities, both of which search addresses and text for keywords that are associated with "adult" sites and, if the user wishes, blocks access to such sites. ... The Platform for Internet Content Selection (PICS) project is designed to facilitate user-based zoning by encouraging Internet speakers to rate the content of their speech using codes recognized by all screening programs."
After explaining that she "agree[s] with the Court that we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today," she concluded the opinion with the words: "Insofar as the [CDA] provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, [these provisions] can and should be sustained."
It's no surprise that Senator Patty Murray (D-Washington) promised to introduce the Child-Safe Internet Act of 1997, C|Net reported. "[The] ruling by the Supreme Court leaves open a large vacuum. No one wants to return home after work to find a child downloading pornographic material," Murray said in a statement. It was also no surprise that President Clinton plans to discuss a "technological" approach, such as a V-chip for computers. No surprise again that "family values" organisations like Morality in Media, Family Research Council, Focus on the Family, the National Coalition for the Protection of Children & Families and Enough is Enough all urged, after the Court's decision, for "technical progress" in order to have a CDA-II law that could meet constitutional requirements for restricted speech.
The last attempt to create with the Internet a real and effective counter-power for freedom of information came from China early in June, Reuters reported. Tunnel, a new Chinese-language weekly newsletter, became "mainland China's first unrestricted magazine to be distributed by electronic mail and its aim is to break through the present lock on information and controls on expression," its anonymous founders stated.
They said the strength of the magazine derived from its virtually untraceable distribution system, added the news agency from Beijing. The use of anonymous and non-traceable remailers should indeed lead Chinese authorities to block incoming messages according to their headers and sender addresses. China is thought to have acquired Western router technology to block and filter subversive materials sent online. "For safety reasons," Reuters wrote, "the daring magazine was written and compiled in China, then sent out to a site in the United States from where it was distributed by e-mail back into China, said Chinese sources who declined to be identified." The number 8, vol. 1, edition of Tunnel, released June 29, was dedicated to Hong Kong's reunification with China.
At the same time, the Paris-based Intelligence Newsletter revealed that two Chinese officials were recently appointed to tighten the belt on telecommunications. Both are former directors of the State Council's Information Bureau in Beijing: Ma Yuzhen, who earlier served as an Ambassador to Britain, is the new Chief of Diplomatic Staff in the former British colony. The second, Zeng Jianhui, an ex-reporter at the news agency Xinhua, was named "Mr. Internet" in Hong Kong. The newsletter said Zeng visited Singapore last year to become familiar with state of the art filtering technologies.
One of the most famous legal battles on the Internet is between the CoS and one of its most critical ex-members, Arnie Lerma, was partially settled on June 17 by a District Court in Virginia. Without clearly establishing if CoS documents put online by Lerma breaches CoS copyright policy, Lerma was ordered to pay $19,500 for legal fees. Meanwhile in France, a French former Scientology member, Roger Gonnet, who publishes a Web site called "Secticide", received letters of complaints from Helena Kobrin (picture above), main legal counsel of CoS's Religious Technical Center. As Planete Internet magazine reported, the letter threatened to sue Gonnet for "inside secrets," which the cult states breaches its copyrights. Gonnet says he received two e-mails in June, and that his provider, Havas Online, also received a complaint by e-mail to push it to censor the critic's web site. "Nothing so far could convince us that our user breaches copyright," one Havas Online official told Planete Internet. RTC's Kobrin was the main counsel in the Lerma case (where the Kobrin picture comes from).
A report by Jerome Thorel English proof-reader: Ken N. Cukier