IP: Response to the San Jose Mercury News's March 3 story

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

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