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EPIC Alert 4.04 [1997] EPICAlert 4





EPIC ALERT



Volume 4.04 March 17, 1997

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.

http://www.epic.org/

** SPECIAL ISSUE: THE CDA ON TRIAL **

Table of Contents


[1] Reno v. ACLU: The Communications Decency Act on Trial
[2] Background on the Litigation
[3] EPIC Statement on Supreme Court Argument
[4] The CDA and International Censorship
[5] EPIC Bookstore: First Amendment Reading
[6] Upcoming Conferences and Events

[1] Reno v. ACLU: The Communications Decency Act on Trial

On March 19, the United States Supreme Court will hear oral argumentin Reno v. ACLU, the first case to address the issue of free speech incyberspace. The legal challenge to the Communications Decency Act wasinitiated by the ACLU, EPIC and other organizations last February.
The high court's consideration of the case is likely to produce alandmark constitutional decision, which is expected by July.

Immediately following the oral argument, the Reno v. ACLU plaintiffsand lawyers will hold a news conference to offer in-depth analysis andcommentary (approximately 11:30 a.m. ET). The event will be cybercastlive via RealAudio on the World Wide Web.

Links to the cybercast will be available at:

http://www.epic.org/cda/

and
TARGET="new">http://www.aclu.org/issues/cyber/trial/appeal.html


[2] Background on the Litigation

The Communications Decency Act passed Congress last February as partof an omnibus telecommunications reform bill. The CDA makes it acrime, punishable by up to two years in jail and/or a $250,000 fine,
for anyone to engage in speech that is "indecent" or "patentlyoffensive" on computer networks if the speech can be accessed orviewed by a minor. The American Civil Liberties Union, joined by EPICand 18 other plaintiffs, filed its legal challenge to the Act onFebruary 8, 1996, the day it was signed into law by President Clinton.
Several weeks later, a second challenge was filed by nearly 30plaintiffs, led by the American Library Association. That suit, knownas ALA v. DOJ, was subsequently consolidated with the ACLU case.
Although the two cases are consolidated and the legal teams haveworked together, each plaintiff group has filed separate briefsthroughout the litigation.

A three-judge panel in Philadelphia was appointed to hear theplaintiffs' motion for preliminary injunction, and five days ofhearings were scheduled during March and April of last year. Thepanel consisted of Chief Judge Dolores K. Sloviter, Judge StewartDalzell, and Judge Ronald L. Buckwalter. The proceedings included fivedays of live testimony, written testimony, documentary evidence, anddetailed stipulations about the nature of the Internet. On June 12,
the court issued a preliminary injunction barring the government fromenforcing the challenged provisions of the CDA. The opinion makesclear that the lower court agreed with the plaintiffs' view that theCDA's ill-conceived effort to censor speech in the unique medium ofcyberspace violates the First Amendment.

On December 6, the Supreme Court noted probable jurisdiction in thegovernment's appeal of the lower court decision. The government filedits brief on January 21; the plaintiffs' briefs were filed on February20. Eleven amicus ("friend of the court") briefs were also filed insupport of the plaintiffs (several of which are available online).
The government filed its reply brief on March 7. The Supreme Courtwill hear oral arguments for one hour, with the time divided equallybetween the two sides. Plaintiffs will be represented by Bruce J.
Ennis; the government by Seth Waxman of the Solicitor General'soffice.


[3] EPIC Statement on Supreme Court Argument

Supreme Court Internet Decision Will Have a Profound Impact on Individual Privacy Rights
March 19, 1997Washington, DC
Contact: David Sobel, EPIC Legal Counsel 202/544-9240 http://www.epic.org/cda/

The U.S. Supreme Court's consideration of Reno v. ACLU sets the stagefor a decision of historic significance, one that will establish aconstitutional framework for reviewing government regulation of theInternet. The issues extend beyond the Communications Decency Act andgo to the very essence of the information infrastructure. TheElectronic Privacy Information Center (EPIC) has consistently stressedboth the free speech and the privacy implications of the case sincejoining with the American Civil Liberties Union in challenging thisill-advised and unconstitutional attempt to impose governmentalcontent regulation on emerging global electronic media. EPIC isparticipating in the litigation as both plaintiff and co-counsel.

As the three-judge panel in Philadelphia recognized, the legislation'svague "indecency" standard will have an obvious impact upon the freespeech rights of millions of Americans who use computer networks toreceive and distribute information. Less apparent is the assault onprivacy rights that the legislation, if upheld, will engender.

To avoid potential criminal liability under the CDA's "indecency"
provision, information providers would, in effect, be required toverify the identities and ages of all recipients of material thatmight be deemed inappropriate for children. If upheld, the statutoryregime would thus result in the creation of "registration records" fortens of thousands of Internet sites, containing detailed descriptionsof information accessed by particular recipients. These records wouldbe accessible to law enforcement agencies and prosecutorsinvestigating alleged violations of the statute. Such a regime wouldconstitute a gross violation of Americans' rights to accessinformation privately and anonymously.

Two years ago, the Supreme Court upheld the right to anonymous speechin McIntyre v. Ohio Elections Commission. EPIC believes that theCourt's rationale in that case applies with even greater force to theInternet "indecency" provisions now under review. The Court noted inMcIntyre that
The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. ...

Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.

Whether the millions of individuals visiting sites on the Internet areseeking information on teenage pregnancy, AIDS and other sexuallytransmitted diseases, classic works of literature or avant-gardepoetry, they enjoy a Constitutional right to do so privately andanonymously. The Communications Decency Act seeks to destroy thatright. If upheld, the CDA would render the Internet not only the mostcensored communications medium, but also the most heavily monitored.

EPIC is confident that upon review of the legislation and its impactupon free speech and privacy rights in emerging electronic media, theSupreme Court will affirm the lower court decision invalidating theCDA as fundamentally at odds with the Constitution.


[4] The CDA and International Censorship

Following the passage of the CDA in the United States, dozens of othercountries followed suit and imposed restrictions on Internet content,
citing the CDA as justification for their efforts at censorship. Inmany countries, the legal bans cover a broad range of material,
including news services and political discussions. Not surprisingly,
Singapore has played a leading role in restricting Net content.
According to the U.S. State Department's description of Singaporeanlaw, "access to web pages that undermine public security, nationaldefense, racial and religious harmony, and public morals is banned. Inaddition, content that tends to bring the Government into hatred orcontempt, or that excites disaffection against the Government isforbidden." In China, human rights groups critical of the govern-
ment's record are "filtered," as are many U.S. newspapers. With thehelp of Bay Networks, an American company, China is setting up its ownIntranet that will not permit the online distribution of criticalmaterial. Arab countries met in Dubai last October to discuss settingup an Arab Intranet where political discussion could be banned. TheEuropean Union and the OECD are currently discussing Internet contentrestrictions.

In response to these trends, the Parliamentary Human Rights Foundationrecently convened a meeting in Brussels to draft "Open Internet PolicyPrinciples." Among the consensus principles is a strong statement insupport of freedom of expression:

There should be no regulation of Internet content by government. We understand the fundamental rights of freedom of expression, as embodied in Art. 19 of the Universal Declaration of Human Rights ("Everybody has the right ...
to seek, receive and impart information and ideas through any media and regardless of frontiers" ) and in Art. 19(2)
of the International Covenant on Civil and Political Rights ("Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form or art or through any other media of his choice") -- to apply with full force to Internet communication.

The full text of the Open Internet Policy Principles is available at:

TARGET="new">http://www.phrf.org/conference

Free speech and human rights advocates from around the world havejoined together in the Global Internet Liberty Campaign to fight theserestrictions. Members include EPIC, ACLU, Human Rights Watch, andgroups from around the world. More information on GILC is availableat:

TARGET="new">http://www.gilc.org

Other information on international censorship efforts is availablefrom the Fight Censorship list archives at:

TARGET="new">http://www.eff.org/~declan/global/


[5] EPIC Bookstore: First Amendment Reading

The EPIC Bookstore offers a wide range of books on civil liberties,
privacy, and on-line freedom. With the Communications Decency Actbeing argued before the Supreme Court this week, we are featuring fourtitles that look at the history, technology, policy and practicebehind the First Amendment:

* Make No Law: The Sullivan Case and the First Amendment by AnthonyLewis -- Few cases have done more to shape the First Amendment thanthis historic decision.

* Technologies of Freedom by Ithiel De Sola Pool -- One of the earlyworks on why regulating speech in cyberspace is a bad idea.

* Intellectual Freedom Manual by The Office for Intellectual Freedom,
American Library Association -- Good advice for protecting freedom inthe on-line world.

* Censored: The News That Didn't Make the News-And Why: The 1995Project Censored Yearbook by Carl Jensen -- Sometimes it's the pressand not government that keeps important stories under wraps. Here'swhat the big shots missed in 1995.

We also have an extensive collection of other titles on freedom ofexpression. Visit the EPIC Bookstore and celebrate the FirstAmendment with a good book on free speech! It can be found at:

http://www.epic.org/bookstore/


[6] Upcoming Conferences and Events

Eurosec'97: the Seventh Annual Forum on Information Systems Qualityand Security. March 17 - 19, 1997. Paris, France. Sponsored by XPConseil. Contact: http://ourworld.compuserve.com/homepages/eurosec/

CyberRights Congress. March 20-21, 1997. Washington, DC. Sponsored bythe First Amendment Congress. Contact:
http://www.oklahoman.net/connections/congress/

Culture and Democracy revisited in the Global Information Society.
May 8 - 10, 1997. Corfu, Greece. Sponsored by IFIP-WG9.2/9.5. Contact:
http://www.math.aegean.gr/english/eevents/econf/ecnew/ewc97.htm
CYBER://CON.97: Rules for Cyberspace?:Governance, Standards andControl. June 4 - 7, 1997. Chicago, Illinois. Sponsored by the JohnMarshall Law School. Contact: cyber97jmls.edu.

Ethics in the Computer Society: The Second Annual Ethics andTechnology Conference. June 6 - 7, 1997. Chicago, Ill. Sponsored byLoyola University Chicago. http://www.math.luc.edu/ethics97
Public Workshop on Consumer Privacy. June 10-13, 1997. Washington, DC.
Sponsored by the Federal Trade Commission. Contact:
http://www.ftc.gov/os/9703/privacy.htm
INET 97 -- The Internet: The Global Frontiers. June 24-27, 1997. KualaLumpur, Malaysia. Sponsored by the Internet Society. Contact:
inet97isoc.org or http://www.isoc.org/inet97
Privacy laws & Business 10th Anniversary Conference. July 1-3, 1997.
St. John's College, Cambridge, England. Contact:
infoprivacylaws.co.uk.

AST3: Cryptography and Internet Privacy. Sept. 15, 1997. Brussels,
Belgium. Sponsored by Privacy International and EPIC. Contact:
piprivacy.org. http://www.privacy.org/pi/conference/brussels/

19th Annual International Privacy and Data Protection Conference.
Sept. 17-18, 1997. Brussels, Belgium. Sponsored by Belgium DataProtection and Privacy Commission.

International Conference on Privacy. September 23-26, 1997. Montreal,
Canada. Sponsored by the Commission d'Acces a l'information du Quebec.

Managing the Privacy Revolution '97. October 21-23, 1997. Washington,
DC. Sponsored by Privacy and American Business. Contact:
http://shell.idt.net/~pab/conf97.html

(Send calendar submissions to alertepic.org)


The EPIC Alert is a free biweekly publication of the ElectronicPrivacy Information Center. To subscribe, send email toepic-newsepic.org with the subject: "subscribe" (no quotes) or usethe subscription form at:

http://www.epic.org/alert/subscribe.html

Back issues are available at:

http://www.epic.org/alert/


The Electronic Privacy Information Center is a public interestresearch center in Washington, DC. It was established in 1994 tofocus public attention on emerging privacy issues such as the ClipperChip, the Digital Telephony proposal, national ID cards, medicalrecord privacy, and the collection and sale of personal information.
EPIC is sponsored by the Fund for Constitutional Government, anon-profit organization established in 1974 to protect civil libertiesand constitutional rights. EPIC publishes the EPIC Alert, pursuesFreedom of Information Act litigation, and conducts policy research.
For more information, email infoepic.org, HTTP://www.epic.org orwrite EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington, DC20003. +1 202 544 9240 (tel), +1 202 547 5482 (fax).

If you'd like to support the work of the Electronic PrivacyInformation Center, contributions are welcome and fullytax-deductible. Checks should be made out to "The Fund forConstitutional Government" and sent to EPIC, 666 Pennsylvania Ave.,
SE, Suite 301, Washington DC 20003. Individuals with First Virtualaccounts can donate at http://www.epic.org/epic/support.html
Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for theright of privacy and efforts to oppose government regulation ofencryption and funding of the National Wiretap Plan.

Thank you for your support.

END EPIC Alert 4.04












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