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

media.1187: When the San Jose Mercury News libels a guy ...


media.1187.5: 664/668: The Neighborhood of the Beast (mnemonic)  Mon 4 Mar
96 18:06
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    'What we showed was that there was an evil being transmitted directly
 into the               house, with no controls, with no way of stopping
 it.'                        Donna Rice-Hughes, Enough is Enough
 
 How the decency fight was won
 
 Savvy political veterans trounced naive free speech advocates when
 congressional debate shifted to family safety from on-line technology
 
 Published: March 3, 1996
 
 By HOWARD BRYANT and DAVID PLOTNIKOFF Mercury News Staff Writers
 
 The Internet's free speech supporters lost their historic battle over
 cyberspace decency standards because they were outgunned, outflanked,
 out-connected and out-thought in the most crucial battle of the on-line
 community's brief history.
 
 Historically, the Internet's motley core of entrepreneurs and free spirits
 had avoided the inside-the-beltway machinations of Washington. But
 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.
 
 Not only were they ill-equipped for the bruising, hardball environment of
 Capitol Hill, 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. 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.
 
 ''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.''
 
 The decency act President Clinton signed recently provides six-figure
 fines and federal prison for people who make available indecent material
 -- words or images -- in on-line areas that may be accessible to minors.
 
 Whatever the perspective on the law -- that it's free-speech sabotage or
 vital protection of vulnerable youths -- it's a historic move by the
 federal government to regulate private and public communication in a
 medium that's reshaping personal and business life almost daily.
 
 The yearlong battle over the act actually culminated shortly before
 Christmas, when a group of members of the House broke away from a meeting
 in an overheated, standing-room-only Capitol hearing room. They headed
 behind closed doors to settle on which of two competing Internet content
 provisions would survive and make it into what would become the behemoth
 Telecommunications Act of 1996.
 
 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.
 
 Here's how it all happened.
 
 Filled with confidence: Coalition began in spring to shift focus to
 children
 
 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.
 
 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.
 
 Removing technology as a base issue proved to be a remarkable feat,
 considering the fundamental issue was technology. To do that, the
 coalition used the vision of America's living rooms. Members were
 convinced: When lawmakers learned what their children, and the children of
 their constituents, could see on-line, children and adults engaging in sex
 acts with animals and each other, they would have no choice but to react
 accordingly.
 
 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.
 
 By contrast, ''the other side would send their people to these senators,
 literally with laptops, to show them how the technology worked,'' said
 Donna Rice-Hughes of Enough is Enough.
 
 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.
 
 ''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.''
 
 Even more critically, the coalition forces were tightly connected to key
 players in Washington. For instance, Enough is Enough Executive Director
 Dee Jepsen is the wife of former Iowa senator Roger Jepsen, and that
 provided after-hours access to Washington's power brokers working on the
 telecom bill.
 
 ''There were a lot of calls at midnight to the senators and their
 staffs,'' Rice-Hughes said.
 
 Smut-buster joins in: Former prosecutor helped write decency standards
 
 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.
 
 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.
 
 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 that
 about the others.''
 
 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 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.''
 
 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.
 
 Had the Internet community relinquished a no-law-at-all position, Taylor
 said, some compromise could have been reached.
 
 ''The difference between the law and the no-law people was that we knew
 Congress was going to do something,'' he said.
 
 Own worst enemy: Arrogance diminished hope of credibility
 
 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.
 
 Exon was infuriated.
 
 ''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.''
 
 Later, the EFF ''would call everyone names,'' Taylor said. ''(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.''
 
 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.
 
 This junior college team was something called the Interactive Working
 Group, an ad-hoc coalition that included all the commercial on-line
 services, the Center for Democracy and Technology, the American Civil
 Liberties Union, the EFF and others. The working group had formed in 1994
 to explore general First Amendment issues, digital privacy regulations and
 other legislation that would impact the Net.
 
 Exon's indecency provisions were the first threat to galvanize them into
 plying the halls of Congress as a united front.
 
 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,
 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.
 
 ''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.
 
 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.
 
 ''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.
 
 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.
 
 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. Indeed, some even say
 efforts such as e-mail campaigns and Net-based petitions may actually have
 backfired with members of Congress.
 
 ''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.''
 
 Counter proposal: Free speech advocates find allies in Congress
 
 In mid-June, shortly after an overwhelming Senate vote to pass Exon's
 decency act, the working group seemed to be finding a way to turn the
 tide, when it found two House members willing to sponsor a bipartisan
 counter-attack -- Ron Wyden, D-Ore. and Chris Cox, R-Newport Beach. Their
 bill focused on software that would put parents in control, sidestepping
 the main censorship question. It specifically barred Federal
 Communications commission from Internet regulation.
 
 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.''
 
 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.
 
 ''It looked like the more radical elements of the religious right seemed
 to be becoming more isolated,'' he said.
 
 Finally, at the end of November, after three months of inaction while
 Congress was embroiled in the federal budget dispute with Clinton,
 lawmakers returned their attention to the telecommunications bill and the
 question of objectionable material on the Internet.
 
 During the layoff, it appeared the on-line community had begun to embrace
 the idea that a bill would be approved, and that any bill without criminal
 sanctions against smut-peddlers was not politically viable.
 
 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. Instead of the
 broad decency language of Exon, it offered a more restrained
 ''harmful-to-minors'' standard thought to be more enforceable.
 
 Thus the stage was set for a showdown Dec. 6. As House members of the
 conference committee met, White's compromise was approved, much to the
 delight of Internet industry advocates.
 
 Over in a flash: With a one-word change compromise hopes end
 
 But delight turned to horror a few minutes later as Rep. Bob Goodlatte,
 R-Va., offered a one-word amendment substituting the ''indecency''
 standard for White's ''harmful to minors.'' Said one Net lobbyist in the
 Capitol that day: ''This was the ghoul of Exon coming out of the closet
 right in front of us.''
 
 Two liberal Democrats, Pat Schroeder of Colorado and John Conyers of
 Michigan, voted for the indecency language, and in a flash it was over.
 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.
 
 ''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.''
 
 With the votes tallied, it became clear the strategy set in motion months
 before by the pro- control coalition had worked marvelously. Once the
 debate moved from technology to child-porn and family safety, the on-line
 community found itself unable to fight on those terms.
 
 ''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.
 
 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.
 
 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.''
 
 On Feb. 15, one week after Clinton signed the Communications Decency Act
 into law as part of the Telecommunications Act of 1996, a federal judge in
 Philadelphia issued a temporary restraining order partially blocking its
 enforcement. The judge ruled the term ''indecent'' was unconstitutionally
 vague.
 
 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.