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IP: Response to the San Jose Mercury News's March 3 story
From: Dave Farber <farber () central cis upenn edu>
Date: Fri, 08 Mar 1996 04:17:52 -0500
RESPONSE TO THE SAN JOSE MERCURY NEWS'S STORY ABOUT THE LOBBYING BEHIND PASSAGE OF "COMMUNICATIONS DECENCY AMENDMENT" By Stanton McCandlish and Mike Godwin Electronic Frontier Foundation The following is a detailed response to an article by Howard Bryant and David Plotnikoff in the March 3, 1996, edition of the San Jose Mercury News. We have focused on what we see as factual errors in the story, although we do occasionally comment on editorial tone where that tone suggests factual propositions that are not true. Text preceded by angle brackets is taken from the story as it appeared. We deal with each quoted passage in the order in which it appears in the text, and not in order of importance.
cyberspace decency standards because they were outgunned, outflanked,
The law, like all other [in]decency laws, does not actually establish a standard at all. None of the relevant terms, such as "indecent" or "patently offensive" are defined, and these terms are undefined in the original and amended laws the CDA modifies. We also dispute the claim that we were "out-thought". The CDA is not only clearly unconstitutional, it provably fails in its mission, by definition. The much-touted raison d'etre of the bill was to "protect children" from online "pornography". But the CDA, like all other US laws, just applies to the US. The Internet is global. Not all indecent (or any other kind of) material originates in the US. It is as easy to connect to web site in, or read a newsgroup posting from, a foreign site as a US one. Ergo, the CDA does not protect children from anything, including indecency or "pornography". This failure of very basic reasoning should demostrate to almost anyone that the fundmentalist lobbyists lauded in this article barely "thought" at all, much less out-thought EFF and other civil liberties groups. EFF and the other organizations opposing the CDA lost round one for other reasons, elaborated on below.
Historically, the Internet's motley core of entrepreneurs and free spirits had avoided the inside-the-beltway machinations of Washington.
This is not true. Earlier incarnations of EFF as well as CSPR and the ACLU (and Jerry Berman of the CDT) have been involved in policy process for quite some time, backed by the Internet community and large segments of the online services, computing, and communications industries. We invite the authors to examine the content presented at http://www.eff.org/pub and subdirectories thereof if they are unaware of the details of the years of effort the organizations slammed in this article have worked on legislative and legal issues. NB: It would have been quite accurate to say that the appearance, and even more the passage, of the CDA has spurred a larger segment of the industry and the online public to political action. But it is misleading to imply that there was little or no action before this.
emergence of the Communications Decency Act, a part of the sprawling telecommunications overhaul law enacted recently, forced a hastily assembled coalition of on-line industry groups and civil libertarians to play the politics of engagement with lawmakers and conservative and family groups.
The CDT-led Interactive Working Group evolved from industry/civil-liberties coalitions that have been around for several years. The online coalition predominantly represented by VTW, that one coalition formed shortly after the introduction of the CDA in its original separate bill form in early 1995. In addition, many other conservative organizations, such as Cato Institute and PFF, are on our side of this fence. Similarly, not all family-related organizations, by any means, are in favor of passage of unconstitutional and highly irrational censorship legislation. ***
Not only were they ill-equipped for the bruising, hardball environment of Capitol Hill,
This is a rather curious thing to say, given that CDT, EFF, VTW and ACLU all have successful and unsuccessful experience in the environment you refer to. Jerry Berman (CDT, previously EFF, previously ACLU) has lived and breathed policy work on the Hill for decades, and the ACLU has been around for over half a century doing this. We have not found the current debate "bruising" in any way. It has actually helped raise awareness of these issues. We would have preferred to see hearings, of course - had that occurred this legislation would most likely have died a richly deserved death.
but perhaps most importantly, they failed to make a critical realization: that the fight over standards had moved from legal and technical grounds to more emotional and moral grounds.
This is a false statement. It was very clear to all participants on our side of the fence that emotions and supposed morality were being used quite effectively by the theocrats to sway Congressional opinion, to confuse the public, and mislead the press. Archived messages from Declan McCullagh's "fight-censorship" mailing list forum can prove this, if anyone challenges this. It is rather sad that people, for whatever reason, in late 1995 and early '96, are by-and-large more easily emotionally fired up by hot-button phrases like "protect children" and "cyberporn", than they are by their civil liberties. We hope that the passage and eventual striking of this legislation will make offline and online citizens like more critical of such buzzphrases, and more wary of "solutions" that strip them of their free speech rights. At any rate, it would not have been in anyone's interest for EFF and other pro-speech organizations to have tried to appeal to emotional issues in the way the Christian Coalition and Family Research Coucil have. Doubling hysteria does not produce calm, nor does lying or concealing the truth advance justice. Fortunately for all of us, our legal system is not as susceptible to hype and frothing at the mouth as our legislative system. In the courts, it's the technical and legal ground that count, and we fully expect to win. This isn't just wishful thinking, either: 1) The Dept. of Justice told Congress that it already has all the legal authority it needs to prosecute "content crimes" involving materials that do not have constitutional protection (obscenity and child pornography). 2) DoJ has amply demonstrated its willingness and ability to perform these prosecutions (c.f. the "Operation Innocent Images" investigation, targetting numerous alleged child pornographers on AOL.) 3) DoJ has agreed that provisions in the CDA and other parts of the telecom bill are unconstitutional. 4) DoJ has agreed not to enforce these provisions. 5) The judge in our case also found the CDA unconstitutional, and concerned enough at the threat posed by the legislation to issue a temporary restraining order against enforcement of some provisions, pending hearing on a longer-term enforcement injuction and eventual ruling on constitutionality. 6) Both Gore and Clinton essentially acknowledged the unconstitutionality of the CDA, saying it would have to be settled in court. 7) Numerous legislators echoed this sentiment. We're unaware of any organization, governmental or private-sector, daring to claim that the CDA is constitutional, other than the fundamentalist groups behind the bill.
To many in Congress, the issue was protecting children from pornography -- not niceties of technology or constitutional speech protections, and certainly not the sovereignty of the Internet.
The real reason the bill passed is completely missed by Plotnikoff & Bryant: It was attached to a massive and complex bill that both parties wanted desperately to pass, and which was then put up for a vote less than 24 hours after reconciled in conference committee, with no hearings of any kind, and *without time for the majority of legislators to even read, much less contemplate* what they were passing. Immediately after passage, CDA repeal legislation was introduced, and several other lawmakers announced that they too would be introducing "patches" to the Telecom bill to fix various problems. In particular, the Mercury News's claim that the civil-libertarians were laughed from the bargaining table because they lied to and insulted legislators is false in three ways: 1) there were no lies, 2) there were no insults, and 3) *there was no bargaining table*. The civil libertarians were *never* part of the crafting of the bill. Nor were they invited to the bargaining table. Their overtures were, in fact, rebuffed.
''It was almost like a gunfight,'' says Brian Ek, the Washington point man for the Prodigy on-line service. ''We went in outgunned with the very real belief reinforcements were going to arrive, and they did not.''
We have no issue with what is said here, but it must be noted that the article implies the Ek is speaking on behalf of the civil liberties community, which he is not. The online service lobby and the civil liberties lobby had goals and agendas that were in many ways divergent. The civil libertarians were there predominantly to protect the public interest, and the industry were largely concerned with protecting themselves from liability. There was much crossover, with EFF strongly opposing system operator liability, and many online services loudly supporting free speech, but the core of the issue for each camp is different, and the lobbying efforts were different in many ways. This is to be expected. The purpose of the IWG coalition was to bring the civil-liberties groups and the industries, with their somewhat different agendas, into line with each other.
When the deal was done, the Internet interests were dazed and uncomprehending. Outmaneuvered at the last second, their fight was lost by a single vote -- cast by the most unlikely of players.
This is false. We recognized the likelihood of that outcome and had prepared in advance for it. This is easily documented.
As the lawmakers retreated to their private meeting that Wednesday morning, the coalition pushing for government restrictions was confident. Led by the National Law Center for Children and Families, the Family Research Council and a group called Enough is Enough, the coalition last spring began to leaflet, negotiate and jawbone with key political leaders, steering them toward the idea that controls were essential.
In reality, their lobbying dates back at least to summer of 1994, prior to the very first intruduction of the Exon Amendment, in the Democratic Congress in fall of 1994. The Mercury News also seems to be under the impression that the bill was first introduced in 1995.
The group's core appeal was based on a passionate calculus: Children had access to some of the most hardcore pornography available; the kids should come first.
Except that they did not seek legislation that addressed "hardcore pornography." Had they done so, there would have been little opposition. The Mercury News simply doesn't understand what the whole fight has been about, and nothing underscores it more than its supposition here that the fight was about "hardcore pornography."
That's where the famous Exon ''blue book'' came in. Sen. James Exon, a Nebraska Democrat who sponsored the decency provisions, compiled a collection of brutal images of pornography that can be found on the Internet, and he showed his book around the capital to vividly underscore his call for controls.
This is, last we heard, false. The images in question came from private BBS systems, not from the Internet. The effect was the same, so this isn't a vitally important point, but facts matter. The authors should have contacted Exon's staffers to find out precisely where this material was found. It has actually been questioned whether this material came from online sources at all, though sources internal to Exon's office were reported in at least one case to have said they came from BBSs. Have the reporters asked for, or seen, any copies of the blue book? The Mercury News, in effect, is repeatedly telling its readers that the debate was about "hardcore pornography," when in fact the legislation doesn't address that category of material.
With that -- with laptop computers fighting a losing battle of perception against kiddie porn -- Rice-Hughes and others knew the advantage was already beginning to shift their way.
The false implication here is that the civil libertarians did not also know this. The article authors neglect to mention that the laptops idea was abandoned at this point, and that preparations began for a legal battle, for lobbying and grassroots efforts, for increased industry response and for more media/public outreach.
''What we showed was that there was an evil being transmitted directly into the house, with no controls, with no way of stopping it,'' Rice-Hughes said. ''We wanted to know what they were going to do about it.''
The article authors fail to question this statement, which is false. See http://www.eff.org/pub/Net_info/Tools/Ratings_filters_labelling/ . Even more than with other media, there are ample means of preventing children and unwilling adults to be subject to "indecent" materials. *Already available* software and services will provide any of a number of desired "self-censorship" varieties, ranging from cutting off children's net connection when a dirty word appears or when someone asks for their address or real name - without displaying the offending material to the child; to "proxy" systems that prevent WWW or other internet connections to sites that have not been reviewed for "decency", to entire filtered usenet feeds for schools, which have been stripped of "inappropriate" materials. Rice-Hughes also lies when she says that there are "no [legal] controls". Obscenity, harmful-to-minors, and child pornography laws are not medium-dependent the way indecency regulations are, and *automatically* apply to all media, including the Internet. It has been illegal, since day one, to post child porn or obscene material on newsgroups or WWW pages. This is an incontrovertible legal fact, and many people have already been prosecuted for doing these things. One thing about emotional appeals in politics is that they eventually wear off when the real effects of a hyped new law are felt. That is happening now with the CDA, and people are increasingly disinclined to buy the Christian Coalition and NLCCF lines about "only protecting children".
Perhaps the most crucial insider connection was a former top obscenity prosecutor in the Justice Department, and a former smut-buster in Cleveland, named Bruce Taylor. Over 20 years, Taylor had gained a reputation for having a strong First Amendment background, but while maintaining a hard enforcement edge.
Where does the Mercury News come up with the idea that Taylor has a reputation for "a strong First Amendment background"? Compared to whom? It is also a bad idea to replace a clear term with a muddled one when reporting on legal matters. "Smut" and "pornography" have no legal meaning. When articles like this suggest that a law like the CDA will target "smut", or that the lobbyists behind that law are interested in combatting "porn", the first thing that pops into the typical reader's head is very hard-core pornography - material that is *obscene* in most if no all US jurisdictions. That is *not* what this legislation is about. The only changes the entire telecom bill makes to existing obscenity statues is to makes sure that information about where to get an abortion or how to induce one is explicitly banned online. The CDA portion of the *does not address obscenity at all*. The common failure on the part of journalists to differentiate between "indecency" and "porn" or "smut" has played a major role in the passage of the comms decency legislation.
It was late March when Sen. Dan Coats, R-Ind., approached Taylor and asked him to write decency standards for the telecommunications bill. Taylor was honored and took pride in the fact he was being called upon to win a battle, but knew he was in for the fight of his life. On-line services, cable TV companies and telecommunications firms had millions of dollars at their disposal, while his firm, the National Law Center for Families and Children, was only two years old and almost too tiny to notice.
We strongly question the assertion that Coats approached Taylor. We have reason to believe it was the other way around. It also seems to have escaped the Merc's notice that Taylor was involved in lobbying efforts long before his "two-year-old" organization was formed. In the 1980s, he chaired Citizens for Decency Through Law, founded by Charles Keating, who has since become famous for other reasons.
Before the bill passed Congress, Taylor ended up meeting or conducting exclusive discussions with numerous insiders, including Sens. Exon, Charles Grassley, R-Iowa, and Jesse Helms, R-N.C. ''They asked us: What was effective? What was constitutional? Would this fly? Would that fly?'' Taylor said. ''We had access to the Senate because
they trusted us. They knew we wouldn't lie to them. They didn't know thatabout the others.'' Another astounding example of the article authors' not questioning the statements made by their religious right informants. Literally everyone else involved in the debate knows and has said that the CDA is unconstitutional - including the Justice Department, a federal judge reviewing the new statute, legislators on *both* sides of the debate, industry leaders, and civil libertarians. The only players differing in opinion on this are the drafters of this legislation and their cohorts. In short, did they think Newt Gingrich was lying to them when *he* said the legislation was unconstitutional?
Another key Washington connection was Cathy Cleaver, director of legal studies for the Family Research Council, a Washington D.C.-based advocacy group. Cleaver, like Taylor, was asked by Coats to assist in writing decency provisions.
We believe that Cleaver and Taylor heavily lobbied to get this foot in the door.
''We had to change the status quo, which is always difficult to do,'' she said. ''We had to forge new ground. The truth was that everybody wanted this bill, but not everybody wanted all of its provisions.''
This is *not true*. Many legislators did not want this bill or anything like it. The House almost unanimously passed the Cox-Wyden bill, and bill written to directly counter the CDA. (They also accidentally passed something worse than the Exon CDA, when Rep. Henry Hyde sneaked a censorship provision into the last-minute "Managers' Mark Amendment" to the House telecom bill. Most Reps. never read the full text of it - they simply reviewed the summary of change made by that amendment, presented to them just before the final vote. That summary did *not* even mention that it contained anything approximating a censorship bill. Hyde *lied to* his colleagues in the House, and thus tricked them into signing off on unconstitutional legislation. On the Senate side, Leahy introduced another counter-CDA bill, which was also picked up in the House. Leahy's bill also passed, but was gutted in joint conference committee -- a committee we did not have access to, but to which Cleaver and Taylor did. The *facts* here clearly demonstrate that many legislators did not at all support the CDA, and in fact supported counter-CDA measures - including Cox & Wyden's bill to directly prohibit regulation of the Internet.
Beyond the emotions and the access, the winning coalition also benefited from missteps and miscalculations by Internet supporters. Most importantly, the Internet community failed to understand the historic tidal wave they faced -- that the political climate made some form of law regarding the Internet inevitable.
This is false. The tidal wave referred to here - and we think that for once the article authors have hit on a good metaphor - was all around us and very plain. EFF in particular had warned about it repeatedly even before the elections. An article Mike Godwin published in Wired in the summer of 1995 warned of a "backlash" against the Net for example. What Bryant and Plotnikoff report as a "misstep", "miscalculation" and "failure" was none of the above. We knew the day that Exon's bill was attached to the telecom bill that some form of his legislation was likely to pass. (Mike Godwin actually told David Plotnikoff this in an interview.) We mounted an offensive that probably would have completely succeeded if not for Hyde's deceit. The telecom bills sent to the conference committee would have contained *two* anti-censorship provisions, and only one pro-censorship provision - the CDA, which *did not pass the House*. However, Hyde, by getting passage of a clone of the CDA - and even worse version - in the MMA succeeded in making sure there were two of each, with one House and one Senate censorship provision that could be reconciled. As already noted, when this gutting began, our coalitions realized that passage of *something* that looked like Exon's bill was almost certain. We continued to work: 1) against passage; 2) to change the unconstitutional "indecency" provisions to constitutional "obscenity" provisions; and 3) in preparation for legal challenges. It is no accident that 3 of the legal challenges were filed immediately after the bill became law. The judge even commended our particular suit's attorneys on well-prepared case. There were months of preparations. In short, the notion that the civil libertarians were unprepared for passage is unsupportable by the (easily ascertainable) facts.
Had the Internet community relinquished a no-law-at-all position, Taylor said, some compromise could have been reached.
Taylor is lying, and the article authors are repeating this lie uncritically. Neither of the coalitions on our side ever held a "no-law-at-all" position! (The coalitions were, incidentally, essentially the same coalition, coordinated by the same most-active people; the real difference is that IWG met around a desk and had more major corporate representation, and the Coalition to Stop the CDA "met" virtually, and consisted mostly of non-profits and entrepreneurs - there was however, quite a bit of overlap, and the positions were consistent and coordinated). Our side had in fact voiciferously supported both the Leahy and Cox/Wyden bills. What Taylor falsely labels a "no-law-at-all" position was a "no-unconstitutional-law" position.
''The difference between the law and the no-law people was that we knew Congress was going to do something,'' he said.
Taylor is babbling here. Did he, or more to the point, the authors really believe that EFF did not know "Congress was going to do something"? In fact we knew quite well what Congress would probably do. We (unfortunately) successfully predicted the outcome, and warned people about it months in advance - at least two months before passage we (and ACLU, and CDT, and the American Reporter) told the press we were preparing lawsuits to challenge the CDA in court should it pass. You don't do that if you believe the legislature will not pass a bill.
As the legislative process rumbled along, some in the Internet community also became their own worst enemies by insulting lawmakers who opposed them -- hardly a way to influence people. Example: In late February, Exon offered the first draft of his indecency bill to the Electronic Frontier Foundation, one of the key Internet community players, for critique and feedback. Sources say the EFF added five provisions that, in essence, would have gutted it by calling for a study and not providing for power to prosecute offenders.
1) This is a non-sequitur, since criticizing a bill is not an insult. 2) EFF was never offered a first draft of anything Exon ever filed. 3) How to explain this graf, then? It is true that some, but fortunately not many, outraged Internet and online service users did indeed send insulting, and probably quite "indecent" messages and phone calls to Exon and other legislators, and to the President, regarding this legislation before and after its passage. We have never encouraged this, and have in fact actively discouraged this. Please see our various action alerts and newsletters of the last year, and http://www.eff.org/blueribbon/activism.html where you will see us again very clearly admonishing people NOT to do this since it is counterproductive. 4) It's very interesting that your reporters don't attribute the statements regarding EFF's role. We question why the sources for these false statements were unattributed. At any rate, as it's worth repeating, this section about EFF and Exon's imaginary invitiation to work on this bill is full of factual errors: 1) Exon did not contact us for input. 2) Exon never provided us with his "first draft" or any other draft. 3) EFF did not add provisions to his bill. We did not ever edit his bill, and were not part of the drafting or revision process at any point. 4) We did contact Exon with input though he did not ask for it, pointing out flaws in the legislation and suggesting truly workable and sensible alternatives. Exon's office did not respond directly. 5) EFF supported the Leahy, and later the Cox/Wyden alternatives to Exon's bill. 6) EFF did not come up with "five" or any other number of additional provisions. We disagreed with the original provision almost entirely, and were interested in removing them, not in adding to them. 7) EFF did not come up with the study idea. That was a provision of Leahy's anti-CDA bill, which we, and an almost unanimous US House of Representatives, supported. 8) The article authors claim that EFF proposed to "gut" the CDA and that this was insulting. This defies all reason. The CDA is unconstitutional. It *should* be gutted. We are gutting it in court. Exon cannot legitimately feel insulted - he had no business proposing this legislation in the first place, and never intended to work with us or any other part of the civil liberties community to resolve the constitutional issues. He did seem amenable, for a while, to working with industry reps to resolve liability issues, but ultimately failed to do even that much. 9) Finally, the authors also claim that EFF opposed there being any power to prosecute offenders. This is a ridiculous claim. As already pointed out, law enforcement and government prosecutors *already* have all the authority they need to enforce constitutional laws restricting online materials, including the child pornography and "hard core porn" the theocrats used as hotbutton phrases to cajole support of the CDA.
Exon was infuriated.
Whatever you say... This is actually highly unlikely. What almost no journalists have remembered to report since the beginning of the 1995/96 CDA is that Exon originally introduced the Communications Decency Amendment as an amendment to the failed 1994 Telecom Bill in almost the same form as he introduced it in separate legislation in 1995. EFF then commented on the bill and helped mobilize the grassroots to lobby against the CDA, and our position on the 1994 version was the same as it was later on the 1995/96 versions. Exon knew about our strenuous opposition the year before the article authors claim we "infuriated" him. His bill did not substantively change, and our position did not substantively change in the intervening months. From late 94 to early 95, Exon did not ask EFF's advice, nor take action to address our issues - issues we made plain to him.
''Exon was looking for input from both sides to forge something honest and reasonably constructed,'' Taylor said. ''Instead, EFF hoodwinked him. They lied to him, and for that reason, no one listened seriously to anything they said.''
Taylor is also ripe for a defamation suit right here.There is no evidence of any kind that EFF ever "hoodwinked" or lied to Exon. Taylor also lies in the last clause. Quite a few legislators and media figures, and many thousands of everyday citizens took us quite seriously. We repeat that with the Interactive Working Group's support, the Cox-Wyden bill passed the House almost unaminously. We don't mean passage like that of the CDA or the MMA - we mean passage after careful consideration with no one lied to or misled into believing that the provision did not exist. The House made a *considered and willful* decision to prevent Internet censorship when they passed that. It's a shame that promise was not fulfilled, but when the telecom bill came home to roost it was stuffed down the collective throat of Congress with no time to even look at what provisions it entailed. Most legislators simply threw up their hands and figured, "Ah well, we can fix this in the courts and in "patch" bills later this year." We have had more favorable and detailed media coverage on this issue than any other issue in our history. Our membership is larger than it has ever been before. Our action alerts and grassroots campaign like the Blue Ribbon effort have orders of magnitude more supporters than any previous EFF effort. Our online coalition-building efforts with VTW, CDT, ACLU and other organizations are vastly more effective and cohesive than anything we've done beore. The authors' suggestions that EFF simply faded away, became ineffectual, and weren't listened to are just counterfactual. Finally, as Jerry Berman has commented, the religious right groups have never had the kind of difficulty in passing a censorship bill before.
Later, the EFF ''would call everyone names,'' Taylor said.
This is false. The reporters cannot document any instance of EFF's doing this.
''(EFF lawyer Mike) Godwin would call us Nazi censors if we didn't agree with him. Talk about a way to get doors slammed in your face.''
We've already covered this, but it's worth underscoring it again, if only to point out what its significance is with regard to Taylor's other comments. You'd be hard pressed to find anyone involved deeply in issues of virtual community, electronic activism, or online discussion and debate who does not know Godwin's Law of Nazi Analogies (or at least some version of it): "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one", and the various corollaries like Miller's Paradox: "As a network evolves, the number of Nazi comparisons not forestalled by citation to Godwin's Law converges to zero." Godwin has long been on record as saying that demonizing political opponents by calling them "Nazis" is morally questionable, since it trivializes the Holocaust.
Compared with the well-marshaled, well-connected team of veteran lobbyists allied with Cleaver and Taylor, the group lined up on the other side of the debate resembled a community- college football squad facing the San Francisco 49ers.
As noted, Berman, and some other people on his team (who were part of EFF when the original CDA appeared) have been "veteran lobbyists" for a good many years. I'm not sure how Bryant and Plotnikoff come to the conclusion that organizations controlled by the likes of Cathy Cleaver and Ralph Reed - both in their 30s - are more seasoned Hill warriors than the CDT's Berman. And our staffers, together with those of CDT, VTW, and EPIC, are commonly regarded as far more knowledgeable about online legal and constitutional issues than, well, anyone else. We also note that, organizationally speaking, the experience of the ACLU and the other plaintiffs in our legal challenges, and that of our coalitional cohorts such as the National Writers Union, and People for the American Way - not to mention part of the Republican Party itself (the Rep. Liberty Caucus) are quite knowledgeable about the Hill and how it works. The theocrats won not on political "savvy" - their larger agendas have been almost completely ignored for a very long time. What they did have in 1995-6 is *political luck*. The Republicans regained control of Congress after a generation. Still, with any Republican but Henry Hyde in control of the House conferees, the CDA would have died in committee. With anyone but Hyde managing the House Telecom Bill, the Manager's Mark Amendment would not have included a CDA clone, and the CDA would have died in conference committee. Henry Hyde is not, by the way, known for being accessible on issues of this sort by civil-libertarian groups.
This junior college team was something called the Interactive Working Group, an ad-hoc coalition that included all the commercial on-line services,
There are thousands of commercial online services in this country. The implication that the entire online services industry, including the Internet service providers, were represented by, and defeated as, the IWG is false.
the Center for Democracy and Technology, the American Civil Liberties Union, the EFF and others. The working group had formed in 1994
This is only semi-correct. The core of this coalition was formed years ago as the Digital Privacy and Security Working Group and several other overlapping EFF-coordinated coalitions, the exact membership and focus of which has varied depending on the legislative/regulatory calendar, new developments in technology, shifts in legal precedent, etc. Topics have included encryption export, key escrow, online intellectual property and system operator & service provider liability among others. The coalition is now associated with CDT, not with EFF.
to explore general First Amendment issues, digital privacy regulations and other legislation that would impact the Net.
The coalition actually is concered with a rather broader set of issues, including Executive Branch regulation and Judicial Branch events, not to mention social and market developments, etc.
Exon's indecency provisions were the first threat to galvanize them into plying the halls of Congress as a united front.
Nonsense. Clipper, the Cantwell crypto export deregulation bill, the 1994 Telecom bill (pre-Exon) and many other issues dealt with by the floating EFF/CDT coalition predated the Communications Decency Amendment,in some cases by several years.
Of the large corporations behind consumer on-line services, only Microsoft, Apple and America Online had full-time legislative specialists in Washington last spring. The big consumer on-line services -- Prodigy,
This seems inconsistent with Bill Gates's public statements. He recently stated that Microsoft is only just now considering establishing a lobbying presence in DC (as a result of the passage of the CDA, as a matter of fact). MS sent representatives to coalition meetings, but unless something's gotten muddled here, we don't believe MS has ever had full-time lobbying operations in the Capital.
CompuServe, AOL, Microsoft, MCI and Apple -- met for the first time ever as a group on Jan. 30, 1995, just one week before Exon's bill was introduced in the Senate.
1) This is absolutely false. The Digital Privacy and Security Working Group and other pre-IWG forms of the EFF/CDT coalitional efforts contained representatives of MS, Prodigy and trade associations like Electronic Messaging Association, and the Computer & Communications Industry Association, U.S. Telephone Association, etc., representing AOL, CIS, MCI and the rest. 2) The article authors leave out other "big online consumer services" including GEnie and Delphi. They are not as large as the ones named, but are still bigger than most Internet service providers. In fact, the Mercury News article largely ignores ISPs, such as NetCom, Panix and AlterNet/UUNet.
''We were thrown into the biggest legislative battle in the history of our industry, literally one week after we organized,'' said Bill Burrington, America Online's assistant general counsel and director of public policy.
The authors confuse Burrington's meaning here. He refers to the organization of a new version of the coalition, with new members, to focus on a new task. The implication that coalition building was new to the online civil liberties community is incorrect, and in this case in particular many of the coalition participants had already been working with the CDT (and formerly EFF policy "wing") staff for quite some on other issues and with some other different participants. Burrington himself was new to the effort at the time -- AOL had previously been represented by its general counsel, Ellen Kirsch, and others.
Because both their members and their technology were so unfamiliar on Capitol Hill, the working group faced a doubly daunting task: schooling themselves in the ways of Congress while simultaneously schooling legislators on the complex technical concepts behind Internet controls.
This is largely true, but may falsely implies that the organizations behind these coalition efforts were strangers to the Hill.
''We were starting from absolute scratch with the majority of the lawmakers,'' Burrington says. ''Exon had his blue notebook, and we had our gray notebook computers loaded with parental control software demos.'' The Internet was such unfamiliar turf for lawmakers that even after a year of tutorials, perhaps 10 percent of them understood the details of what they were voting on when Congress finally passed the telecommunications act, Burrington estimates.
How is it that the authors can quote this point and fail to realize how it relates to the rest of the article? A predicate for lobbying people to craft sensible and constitutional laws is education about what they're regulating. It is difficult to see how the Hill's ignorance can be blamed on civil libertarians who engaged in immense public and private education efforts over the last five years.
Worse still, the working group's efforts weren't helped by the fact the Internet community was an unknown, faceless constituency in Washington. Actually, the Net denizens were worse than unknown: Given techno-myopia common inside the beltway, many were thought to be hackers, crypto-anarchists and porn entrepreneurs. While conservatives and members of the religious right could claim a large and well-organized base in almost any congressional district, the Net community always appeared to be from somewhere else.
It is difficult to find fault with this paragraph, although the reporters ignore the role the media, including newspapers, played in creating this impression.
Although the Net community tried to make its opposition to decency standards heard in Washington, anger and dismay festering on-line was never focused into a form that appealed to Congress.
This is false as well. The "standard" form that appeals to Congress is phone and snail mail campaigns, personal visits from constituents, and, increasingly, faxes. Congress appears to have about a 10-15 year "comfort curve", and we do not expect them to be really keen on email contact from constituents until some time between 2000 and 2005. There are always exceptions. Some legislators refuse to divulge fax number even to constituents much less to out-of-state callers, while on the other extreme, lawmakers like Sen. Pat Leahy broadly encourage email contact. Leahy in fact *asked EFF to conduct an email petition for him*, on encryption issues, in 1994. At any rate, despite that fact that a few legislators are quite comfortable with and enthusiastic about email, EFF, VTW, CDT and others involved in generating grassroots opposition the CDT and other idiot legislation *consistently* encouraged phone, snail, and when necessary fax contact, not email contact. We have in fact warned readers that email is likely to be ignored or otherwise unappreciated in many congressional offices.
efforts such as e-mail campaigns and Net-based petitions may actually have backfired with members of Congress.
With the exception of Leahy's request, and a similar one from Rep. Cantwell in 1994, EFF has not called for petitions or email campaigns, precisely because they are not effective. Attempting to point the finger at EFF for their ineffectiveness, or their use, is disingenuous.
''The tone and language of the e-mail they were bombarded with was not the way they were used to being addressed,'' said Prodigy's Ek. ''The perception they have in Washington of the typical Internet user is the guy with the broken glasses and the plastic pocket protector -- and the angry e-mail helped cement that perception.''
This illustrates the sloppiness of the Mercury News's use of pronouns. The "they" in Brian Ek's sentence refers not to the civil libertarians, but to unruly net users. As noted, EFF goes to great lengths to ensure that constituents realize that flaming Congress is counterproductive and must be avoided at all costs.
When Cox/Wyden sailed through the House by an overwhelming vote of 421-4, the on-line interests were elated. After months of just reacting to Exon, they finally had a ball of their own in play. And things just got better from there. As support for Cox/Wyden gathered, the working group was able to demonstrate specifics, such as an Internet content-labeling system, on the floors of the House and Senate. ''It was looking pretty good for us,'' Ek recalls. ''We had more filtering software for parents coming out all the time -- and (it) worked.''
Most people would say that a 421-4 vote in the house was pretty good for a "junior college" team. But here's where the article misses the most significant event of the entire debate - Hyde's trickery of House into passing an Exon-clone amendment in the Managers' Mark Amendment to the House version of the Telecom Bill. *That* is arguably what brought the whole house down. What the authors *still* don't get, but what the activists on our side of the issue immediately realized was that the legislative game was almost certainly over at that point.
In the fall, lawmakers from both chambers assembled in a conference committee to morph together the different versions of the telecommunications bill passed in each house. Ek sensed from conversations with key players that the more middle-of-the-road family groups, such as Enough as Enough, could be brought around to see parental control software as an acceptable answer.
Ek may have been right, in the long run. See McCandlish's article, "The CDA: Has It Fallen? Can It Get Up?" in EFFector Online 09.02 - the Christian Coalition itself ended up praising Tim Berners-Lee's new Internet filtering approach, calling it technology they "definitely would be a useful tool for us." CC spokesperson Hiedi Strup is either being hypocritical here, has realized they are going to lose and lose big in the CDA court challenges. At any rate Enough Is Enough is not a "middle-of-the-road family group", they are an extremist fundamentalist organization sharing offices with Taylor's organization in a single office suite on University Drive in Fairfax, Virginia.
''It looked like the more radical elements of the religious right seemed to be becoming more isolated,'' he said.
Here, the article again misses an absolutely vital part of the story: With two version of a censorship bill (one from each chamber), and two versions of an anti-censorship bill (both from the House), it was almost a stalemate, with pro-censorship forces at an advantage, but reason finally gaining some ground. At this point, the Christian Coalition, Ed Meese, and various other fundamentalist proposed to Henry Hyde - chairing the conference committee - a new "super-CDA" even worse that his own worsening of the Exon bill. He went for it completely and introduced this as a replacement. At this point, the tide was turned very pro-censorship on the committee. This is what generated the White compromise position.
Finally, at the end of November, after three months of inaction while
The inaction was not this long. There was quite a bit of action, including the afore-mentioned Hyde/Meese/Reed version of the CDA.
During the layoff, it appeared the on-line community had begun to embrace the idea that a bill would be approved,
False. The online community never "embraced" anything of the sort. They recognized the likelihood of passage, nothing more.
and that any bill without criminal sanctions against smut-peddlers was not politically viable.
Again the Mercury News communicates the false information that the CDA addressed "smut-peddlers." The bill was not about "smut" but about "indecency," a term of art that includes works of literary and artistic merit.
Toward that end, one Republican House member, Rick White, of Washington, tried to broker a compromise that used Cox/Wyden as a base and incorporated the criminal teeth of the Exon decency act.
This is false in every particular.
Instead of the broad decency language of Exon, it offered a more restrained ''harmful-to-minors'' standard thought to be more enforceable.
These are not the same "criminal teeth" of the Exon or Hyde versions. Note also that at this point we are not talking about the Exon version any more. It doesn't exist, and has been replaced with Hyde's Meese/Reed-authored legislation. A second error here is that enforceability was not the issue. Constitutionality was the issue. "Harmful to minors" has been treated in case law as a legal variant of obscenity, and as such it is constitutional. EFF did not support this legislation but were happy to see at least this much of a change for the better. It was not enough, though, either for the coalition, or the conference committee, and it failed as we see in the next section.
Almost a year's worth of lobbying died in a surprise vote of 17-16. The decency standard was a done deal; there was no chance it would be reconsidered before the final bill was assembled.
Over a year's worth. This began in 1994, as even the most basic research could have shown.
''The members said they were with us, yet it fell apart right there,'' said Jerry Berman, director of the Center for Democracy and Technology and leader of the working group. It was Conyers who was perhaps the biggest surprise. Why did one of the most liberal Democrats in the House provide one of the crucial votes to put decency standards over the top? ''The congressman is opposed to virtually all limits on freedom of speech,'' said his spokesman, Rodney Walker. ''As far as why he voted for (the decency standard), I'm afraid there just isn't a short answer. I'm sorry.''
We're curious why the authors of the article did not seek (or at least did not report on seeking) and answer from Schroeder, who has, since passage, introduced a bill to remove at least the unconstitutional abortion-info ban. Her answer would probably be more interesting. It's also notable that both Conyers and Schroeder voted against passage of the Telecom bill in the final vote.
With the votes tallied, it became clear the strategy set in motion months before by the pro- control coalition had worked marvelously.
The term "pro-control" signifies both ignorance and bias, we believe. The anti-CDA coalition was not anti-control.
debate moved from technology to child-porn and family safety, the on-line community found itself unable to fight on those terms.
That is false. We fought long and hard. We just didn't win. It is sophistry to claim that a losing opponent did not fight well simply because they lost.
''Everybody on the Net who followed this assumed we were able to go in and talk about this as a free-speech platform,'' said Ek.
Ek is in fact off-base here. Many of us, EFF included, did not assume this, and seized the high ground early. For example, Mike Godwin used the protecting-children theme himself to support parental empowerment technology. This is documented in Godwin's many publications on the issue, which the Mercury News's reporters could have had if they'd asked. It's also present in his testimony submitted to Sen. Grassley's hearing on a similar bill on July 24, 1995. The fact is, it is easier for ignorant, tired and/or busy legislators to pass a law that bans something, than it is for them to pass a law supporting something they have yet to fully understand.
The next stage: Decency regulations will be fought in court Postscript: Beyond Cox's involvement, California's big congressional delegation chose to stay on the sidelines of the decency-standard battle, although some members were involved in the overall telecommunications bill. Sen. Dianne Feinstein, for example, co-authored cable TV content-control provisions and was a co-sponsor of provisions mandating the ''V-chip'' TV control.
The authors neglect to mention that Feinstein also authored her own Internet censorship legislation, which was attached to the anti-terrorism bill (or, rather, one of the many anti-terrorism bills) in largely harmless form after it was pointed out that the original version was thoroughly unconstitutional. Another win for the junior college, perhaps.
Rep. Anna Eshoo, D-Palo Alto, came closest to the action as a member of the conference committee. Internet supporters, said her aide Lewis Roth, ''did a lot of talking to themselves (and) we got a lot of e-mail and faxes, but seldom did we hear from them directly. You certainly didn't see the politically savvy campaign of the Christian coalition.''
With all respect to Rep. Eshoo, she's mistaken here. EFF, VTW, CDT and other organizations generated enough phone calls to legislators offices that a typical excange ran like this: Caller: "Hi I'm calling about the Commu..." Staffer: "Communications Decency Act, right?" Caller: "Right, and..." Staffer: "You oppose it right?" Caller: "Yes..." Staffer: "Seems like every call we get says the same thing." Shabbir Safdar (shabbir () panix com) has documentary evidence of this phenomenon. Perhaps Eshoo misremembers, perhaps Silicon Valley people call even more frequently and in unison about other issues or maybe her staffers didn't keep her fully informed, I don't know. But the calls poured in and we can prove that.
Last week a group of 22 on-line services, content providers and public interest groups filed suit in federal court in Philadelphia, arguing that the Internet is a unique medium unsuited to old models of regulation. The plaintiffs say they expect judicial fast-tracking will land the new law where everyone said it would go -- the U.S. Supreme Court -- by the end of the year.
And finally, the authors neglect to mention the other lawsuits challenging the telecom bill - Sanger v. Reno challenges the abortion-info ban, and the _American_Reporter_'s case challenges the same provision that our case does and the CDT-led/industry case does. It is unclear why the Mercury News thought it was so unimportant to check basic claims about individuals and organizations involved in opposing the CDA with those very individuals and organizations. We ask again what the Mercury News plans to do to correct the record. We do not dispute the Mercury News's absolute right to have its own opinions about the quality of anyone's lobbying -- we do insist, however, that such opinions ought to be grounded in actual, verified facts. --Stanton McCandlish --Mike Godwin
Current thread:
- IP: Response to the San Jose Mercury News's March 3 story Dave Farber (Mar 08)