IP: The CDA Challenge, Update #3

[Dave Farber <farber () central cis upenn edu>]

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                            The CDA Challenge, Update #3
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          By Declan McCullagh / declan () well com / Redistribute freely
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 April 1, 1996




 PHILADELPHIA -- Chief Judge Dolores Sloviter's mouth fell open in
 astonishment this afternoon when net.culture guru Howard Rheingold
 testified that some online communities elect cyberjudges to hear
 disputes. Sloviter asked if realspace judges "can escape to this
 community?" Judge Stewart Dalzell wondered: "How are they selected?
 Is there impeachment?"


 The court's questions of Rheingold -- who appeared in a glowing blue
 suit, an iridescent pink shirt, and the first tie he's worn in a
 decade -- showed that the judges hearing our challenge to the CDA are
 trying hard to understand the Net. But while the three-judge panel was
 fascinated by Rheingold, they just didn't connect with him.


 This was due largely to the skilled lawyering of the Department of
 Justice's Patricia Russotto -- the Marcia Clark of this case. During
 her cross-examination, Russotto repeatedly steered Rheingold away from
 describing relatively understandable online communities like the WELL
 -- and towards hangouts like MUDs and MOOs that he said are inhabited
 by "dwarves, wizards, and princesses." Belittling those online
 communities, Russotto repeatedly dismissed them as "these fantasy
 worlds" and tried to confuse the judges by tossing a string of
 acronyms at them, staccato.


 Judge Dalzell rose to the challenge: "All right, I'll take the bait.
 What's a MUD?"


 Like Dalzell, Judge Sloviter is enjoying this case. As the chief judge
 of the U.S. Third Circuit Court of Appeals, she usually deals with
 lawyers, not expert witnesses, and clearly likes to quiz them herself.
 Responding to Rheingold's description of MUDs, she said: "I don't know
 about being a wizard, but I'd be a princess."


 Eventually the line of questioning turned to BBSs, and Russotto tried
 once again to damage Rheingold's credibility, saying he had stated
 under oath that BBSs were "open to everyone" but had just testified
 that adult BBSs were not. He clarified, and rallied when asked if he
 let his 11-year old daughter surf the Net unsupervised: "I teach her
 that just as there are nutritious things to put in your body, there
 are nutritious things to put in your mind."


 Russotto continued, rapidfire:
   "Do you really think that Hamlet depicts sexual or excretory acts in a
    patently offensive manner?"
   "You have not participated in virtual communities built around
    trading sexually-explicit images, correct?"
   "You are aware that sexually-explicit networks can form around a BBS?"
   "Virtual communities can form around such a BBS?"
   "Some Usenet newsgroups carry sexually-explicit materials?"
   "An ISP can decide to carry certain newsgroups?"
   "The particular server you're on could decide to carry the alt.sex
    and alt.binaries hierarchy?"


 The tension had heightened earlier in the day, just before lunch, when
 Russotto tried to prevent Rheingold from testifying. When we
 introduced the celebrated author of "Virtual Communities" as our
 witness, Russotto objected: "We would submit that his expert opinion
 is not relevant to this case." Battering Rheingold with a quick series
 of questions, the DoJer forced Rheingold to stumble. ACLU attorney
 Chris Hansen quickly rescued his witness and Sloviter overruled
 Russotto's objection: "The court will hear Mr. Rheingold."


 Over lunch in the courthouse cafeteria, I talked with Rheingold, who
 was understandably nervous from the drumming he had experienced
 minutes earlier. Of course, the very fact that we were chatting like
 old friends demonstrated the power of a virtual community -- we had
 communicated in one form or another every day for the last year, but
 we had never met in person before.


 Like the man himself, Rheingold's testimony was interesting and
 colorful, unlike that of Bill Burrington, the director of public
 policy for America Online, who was the first witness of the day. A
 good number of courtroom observers, including myself and some
 reporters, snoozed through most of Burrington's statements.


 I was more-or-less awake enough to realize that Burrington was once
 again characterizing AOL as a "resort pool with lifeguards" next to
 the wild, untamed ocean of the Internet, with its predators and
 sharks: "There is a channel to the Internet. You can be whisked out
 into the sea." His evils-of-the-Net description confused Judge
 Sloviter, who asked: "When you say whisked out into the sea, you don't
 mean involuntarily whisked?"


 Tony Coppolino from the DoJ cross-examined Burrington. Coppolino seems
 to be the most cyber-savvy DoJer and the leader of their legal team on
 this case. Like Russotto, he doesn't pass up an opportunity to damage
 the credibility of our witnesses:
   Judge Sloviter: "How many newsgroups are available on AOL?"
   Burrington: "Up to 20,000."
   Judge Dalzell: "I thought someone said 30,000."
   Coppolino: "I have a stipulation here saying 15,000."


 Pressed by Coppolino, Burrington admitted that AOL didn't carry
 Playboy or Penthouse because the material was "inappropriate for
 families and children." Later Coppolino suggested that AOL has
 problems with pedophiles and child pornographers, asking Burrington to
 describe a case where an AOLer found children's names from a chat room
 then sent them sexually-explicit images. Burrington parried: "This is
 the first such incident. We terminated his account immediately and are
 cooperating with Federal law enforcement."


 When HotWired honcho Andrew Anker took the stand, the questioning
 turned to alt.sex.bondage. Judge Sloviter started by asking: "What is
 alt.sex.bondage? What does that mean?"


 Turns out that HotWired had published a story about the newsgroup,
 though by the end of the questioning, the judges seemed convinced that
 HotWired was a net.porn haven and were surprised when Anker estimated
 that much less than 10 percent of his web site's content was
 sexually-explicit. Again, Judge Dalzell tossed us a few sympathetic
 questions: "If you were to label your web site as adult, would it
 scare off advertisers?"


 After some brief testimony by ACLU plaintiff Stephen Donaldson of Stop
 Prisoner Rape, Barry Steinhardt took the stand. Steinhardt is the
 associate director of the ACLU -- I first got to know him when he
 blasted CMU for censoring its USENET feed years ago -- and was subject
 to an antagonistic cross-examination from Craig Blackwell. Blackwell
 relied on his boss Tony Coppolino for technical tips, and stumbled a
 few times, like when he confused AOL with a web site on the Internet:
   Blackwell:  "The ACLU has two Internet sites, right?"
   Steinhardt: "No. We have one Internet site and we are a content
                provider on America Online."


 During the DoJ's questioning of Steinhardt, a few points emerged:
   * The content the ACLU posts to the web and AOL is educational.
   * The ACLU controls content on its web site but not in AOL chat
     rooms and discussion groups.
   * The ACLU is concerned that the CDA subjects it to liability for
     "indecent" material, including George Carlin's monologues it has
     placed online.
   * The DoJ is trying to draw a distinction between "indecent" images
     of couples engaged in sexual intercourse and educational
     "indecent" material that they will claim is not going to be
     prosecuted under the CDA.


 We're still wondering who the DoJ will call as their pro-CDA
 witnesses. The two prime suspects are someone supposedly from the
 Department of Defense and a computer scientist from Carnegie Mellon
 University.


 I suspect that the DoD guy is the gent who's been sharing the second
 row of courtroom seats with me -- a grey-haired gentleman always
 sporting a nondescript grey flannel suit. He's been sitting on the DoJ
 side of the courtroom (the ACLU is on the left, of course), and after
 court adjourned he was confabbing with them about plans to meet later
 in the day.


 I walked over and asked Grey Flannel Suit if he was with the DoJ, and
 he replied: "I just do some computer work for them." I was asking Grey
 Flannel for his name when DoJ attorney Jason Baron jumped between us:
   Baron:     "He can't talk to you."
   McCullagh: "Why don't you let him make that decision for himself?"
   Baron:     "I make decisions for him."
   McCullagh: "What's his name?"
   Baron:     "He has no comment."


 I'll bet anyone five bucks that Grey Flannel is from the NSA.


 The other pro-CDA witness is almost certainly Dan Olsen, a Mormon who
 is the head of the computer science department at Brigham Young
 University and the incoming director of the Human Computer Interaction
 Institute at Carnegie Mellon University. (The HCI Institute at CMU is
 known as a dumping ground for faculty who can't make the cut in the
 justly-renowned CMU computer science department.)


 Of course, CMU is the school that is considering what cyberlibertarian
 attorney Harvey Silverglate calls an "Orwellian speech code," and
 erotic USENET newsgroups are still banned from almost all campus
 computers. Since CMU spawned Marty Rimm, who tried to sell his
 unethical research to the DoJ and whose study helped pass the CDA,
 it's appropriate that CMU affiliates are helping the DoJ defend the
 damned CDA after all.


 Today's testimony ended our case, with the exception of one of our
 witnesses who couldn't make it earlier. Albert Vezza is the associate
 director of MIT's Lab for Computer Science and a PICS guru who will be
 testifying for us on April 12 or April 15. With the exception of
 Vezza, those two days will be devoted to the DoJ's arguments alleging
 that the CDA is constitutional and should be upheld by the court.


 Stay tuned for more reports.




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 We're back in court on 4/12, 4/15, and 4/26. The DoJ will reveal the
 identity of their expert witnesses on 4/3 or 4/8.


 Mentioned in this CDA update:
   Howard Rheingold         <http://www.well.com/~hlr/>
   CMU and the Rimm study   <http://www.cs.cmu.edu/~declan/rimm/>
   CMU's HCI Institute      <http://www.cs.cmu.edu/~hcii/>
   Dan Olsen at BYU         <http://www.cs.byu.edu/info/drolsen.html>
   Censorship policy at BYU <http://advance.byu.edu/pc/releases/guidelines.html>
   Censorship at CMU        <http://joc.mit.edu/>
   USENET censorship at CMU <http://www.cs.cmu.edu/~kcf/censor/>
   HotWired / WIRED         <http://www.hotwired.com/>
   PICS information         <http://www.w3.org/pub/WWW/PICS/>


 These and previous CDA updates are available at:
   <http://fight-censorship.dementia.org/top/>
   <http://www.epic.org/free_speech/censorship/lawsuit/>


 To subscribe to the fight-censorship list, send "subscribe" in the
 body of a message addressed to:
   fight-censorship-request () andrew cmu edu


 Other relevant web sites:
   <http://www.eff.org/>
   <http://www.aclu.org/>
   <http://www.cdt.org/>


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