Interesting People mailing list archives
IP: CDA Court Challenge: Update #4
From: Dave Farber <farber () central cis upenn edu>
Date: Thu, 04 Apr 1996 07:24:06 -0500
----------------------------------------------------------------------------- The CDA Challenge, Update #4 ----------------------------------------------------------------------------- By Declan McCullagh / declan () well com / Redistribute freely ----------------------------------------------------------------------------- April 3, 1996 NEW YORK -- This afternoon the action shifted to a Manhattan courtroom, where a panel of Federal judges tried to decide what to do with a CDA challenge filed after ours. The lone plaintiff is Joe Shea, who declined to join the ACLU/ALA coalition lawsuit and is suing on behalf of the American Reporter. Shea has been pressing the NYC court to rule on his case before ours is decided. While we've taken pains to net.educate our judges with live -- albeit buggy -- demos and six days of hearings, Shea is relying on hardcopy to argue his case. This strategy is dangerous: if a relatively ill-educated NYC court upholds the CDA, that precedent can hurt our case. In court today, U.S. Second Circuit Court of Appeals Judge Cabranes proposed that Shea and the assistant U.S. Attorney defending the CDA adopt the record of the Philadelphia case to avoid duplication of evidence, testimony, and exhibits. Shea's attorney, Randall Boe, was reluctant to agree, even though he would be allowed to present additional evidence. (The DoJ's crack civil team declined to show today.) The court wasn't happy with Boe's response. It gave Shea and the government until April 17 to decide to include the entire record of the Philly lawsuit -- and said that if they don't, the court would appoint its *own* computer expert to demo the Net and blocking software on April 30. Another possibility is that the New York court could stay its decision until the Philly court issues its opinion. At the request of the Pennsylvania three-judge panel, Marjorie Heins from the ACLU was in NYC today to describe the latest in our case; she also suggested that the Judge Cabranes' court had the option to wait. This could happen -- my friend Eric Freedman of Hofstra Law School tells me it is by no means unusual for one Federal court to defer to parallel proceedings in another. No matter what the panels of judges decide, the two cases will be consolidated on appeal to the Supreme Court. (If we lose, we have 60 to 90 days to file our appeal. If the DoJ loses, they have 20 to 30 days to file theirs.) Bruce Taylor has a unique perspective on the hearings. He's the guy who helped *write* the be-damned CDA and he's been its most vocal supporter over the last year as president of the National Law Center for Children and Families. I met Taylor last week at the Computers, Freedom, and Privacy conference and we sucked down a few beers in the hotel bar before he went cue-to-cue with Brock Meeks. Taylor told me today that the assistant US atty for the Southern District of New York was "just parroting what's happening in Philadelphia" and had come down from NYC on Monday to observe the proceedings. A former porn-prosecutor, Taylor wears his successful convictions as a badge of honor: "Comstock was an amateur!" He says his side is doing well: "I've worked with the civil division before... They're very good litigators who do their homework." (Of course, Taylor conveniently has deluded himself into believing the CDA is constitutional.) Today we also officially learned the identities of the DoJ's two expert witnesses. Since the DoJ is calling only two witnesses and we're calling just one more, we should finish before April 26. (The DoJ's fax to our legal team today says: "At this point, defendants do not plan to call additional witnesses.") If this works out, we'll complete testimony on April 12 and reserve April 15 for rebuttal. As I reported in a previous dispatch, the first pro-CDA witness is Dan R. Olsen, Jr., the incoming director of the Human Computer Interaction Institute at Carnegie Mellon University. Currently the head of the computer science department at Brigham Young University, Olsen will testify about the "technical issues related to the 'safe harbor' defenses" under the CDA. Olsen will be deposed, probably in Washington, DC, on April 8. Olsen was unwilling to tell me much in email earlier today: "I understand your interest, having read your home page. I would be happy to go over all of this with you when I actually move to CMU in July and the case has completed. Until the case is resolved, it would be inappropriate to discuss it. Thanks for your interest." Note that BYU's rather Orwellian computer usage policies say: "DON'T: Use BYU resources to view or transmit pornography... All the activities and circumstances covered by this policy must comply with the University's standards of Christian living... The University community may direct questions or requests for exceptions to this policy, as well as report any instances of noncompliance or deviations to the Advancement Vice President." How appropriate that a faculty member at such a school would take a job as an administrator at equally-censorhappy Carnegie Mellon University -- which is considering a truly heinous speech code and still censors its USENET feed! I predict lots of cybersmut when the second government witness testifies. He's Special Agent Howard A. Schmidt from the Air Force Office of Special Investigations, and will "present a demonstration and testify concerning access to information, including sexually explicit material, that is available online, including through the Internet." Schmidt will be deposed on April 9. Brock Meeks reports that Schmidt apparently is a member of the High Technology Crime Investigation Association and has participated in a "Law Enforcement Panel on Computer Forensics" for the 18th National Information Systems Security Conference in Baltimore last October. He also likes boats and fishing; hiking and camping. It's a cinch that the April 12 hearing will be the best-attended. How often do you get a chance to see a DoD Special Agent pull up smutty GIFs on dual 8' projection screens in a Federal courtroom? The question is, of course, which GIFs? On the WELL, folks are betting that the salacious collection will include at least one snapshot of female genitals nailed to a table. At least, that the image that Bruce Taylor delights in using as an example of cybernastiness. Still no word on the true identity of Grey Flannel Suit. Stay tuned for more reports. ----------------------------------------------------------------------------- We're back in court on 4/12, 4/15, and possibly 4/26. Mentioned in this CDA update: The American Reporter <http://www.newshare.com/Reporter/today.html> Joe Shea <joeshea () netcom com> DoD's Howard Schmidt <howardas () aol com> MU's HCI Institute <http://www.cs.cmu.edu/~hcii/> Dan Olsen at BYU <http://www.cs.byu.edu/info/drolsen.html> BYU's censorship policy <http://advance.byu.edu/pc/releases/guidelines.html> Censorship at CMU <http://joc.mit.edu/> Brock Meeks on Howard Schmidt: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2039> Brock Meeks' CyberWire Dispatch on Bruce Taylor: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2040> Joe Shea's complaints about ACLU wanting to "stand alone in the limelight": <http://fight-censorship.dementia.org/fight-censorship/dl?num=2014> <http://fight-censorship.dementia.org/fight-censorship/dl?num=2036> <http://fight-censorship.dementia.org/fight-censorship/dl?num=2037> This 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 mailing list for future CDA Updates and similar discussions, 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/> ----------------------------------------------------------------------------- (This CDA Update was compiled from various firsthand reports.) -----------------------------------------------------------------------------
Current thread:
- IP: CDA Court Challenge: Update #4 Dave Farber (Apr 04)