IP: CDT's Senate Letter Urging Rejection of CDA II (S.1482)

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

Date: Wed, 11 Mar 1998 17:41:44 -0500
To: farber () central cis upenn edu
From: Daniel Weitzner <djw () cdt org>




Dave,


As you and your readers may well know, the Senate Commerce Committee is
'marking up' Senator Coats' CDA II.  CDT sent this letter to all members of
the Committee to urge them to oppose the bill.


Welcome back from Japan.


Danny
-----








March 11, 1998


Dear Senator:


        We write to urge you to oppose S.1482, the Communications Decency
Act II (CDA II), sponsored by Senator Coats in the upcoming Senate Commerce
Committee markup.  This new well-intentioned but misguided effort to censor
constitutionally-protected speech on the Internet is unconstitutional and
ineffective.  It goes down the same mistaken path as did the first
Communications Decency Act approved unanimously by the committee only to be
struck down by a 9-0 vote of the United States Supreme Court.


        CDA II (S.1482) appears to cover a more narrow range of speech than
its predecessor, but still suffers from fundamental constitutional
infirmities which will surely lead to yet another round of litigation.
Moreover, both CDA I & II are ultimately ineffective at addressing a very
real problem: the availability of inappropriate material online to
children.  We urge you to oppose S. 1482 for the following reasons:


*       CDA II will be no more effective the CDA I: On the global Internet,
national censorship laws, no matter what their design or intent, will never
be effective at protecting children from material their parents consider
inappropriate.  Even if it were possible to eliminate all of the
inappropriate material from US-based Web sites, foreign sites that contain
the same material today would remain available.  CDA II will drive the
activity off shore.  But, because the Web makes Denmark as close as Durham,
nothing will be gained.


*       CDA II's federally-imposed "harmful to minors" standard is
unconstitutional on the Internet:  The core of CDA II is to set a single
national defining speech which may not be made available to minors over the
Internet.  The US Supreme Court has never approved of a single, national
obscenity standard, nor has it approved a "harmful to minors" statute based
on a national, as opposed to a local standard.  In fact, the leading
Supreme Court opinion which upheld obscenity law (and which is the basis
for harmful to minors jurisprudence) demands that a diversity of local
community standards, not a single national standard, be allowed to develop.
(See Miller v. United States.)


*       CDA II would create a "least common denominator" standard, allowing
the most conservative jurisdiction in the country to set the standard for
the entire nation: If enacted, the 'harmful to minors' standard would
presumably apply no matter where in the country the speaker is located, or
where the recipient of the speech happens to be.  The proposed statute
allows a prosecutor in a jurisdiction with the most stringent standards to
bring into court a speaker from a jurisdiction with the most lenient
standards.  Thus, in order to avoid prosecution, everyone on the Internet


would be forced to speak in a manner consistent with the standards of the
most conservative jurisdiction in the country, or risk federal prosecution.


        Given the uncertainly about the standard to be applied, a wide
range of speech considered appropriate for some minors, but not others,
could be criminalized by the statute.


*       Application to all "commercial" transactions on the Web would
stifle emerging electronic commerce and reach a far broader range of speech
than intended:  While the bill is described as targeting only purveyors of
sexually-explicit speech, it in fact reaches to any entity that publishes,
for "commercial distribution," material found to violate the statute.
"Commercial distribution" is not defined, but could well include a
newspapers online Web site where access is available by subscription, where
commercial advertising is associated with the offending speech, or where a
non-profit organization solicits financial contributions together with the
speech.


*       International enforcement of Internet censorship laws would embroil
the United States government in unholy alliances with anti-democratic
regimes contrary to international human rights law:  Some may argue that we
should enact this law and then enforce it internationally, with the
cooperation of foreign governments.  Yet, it stands to reason that we will
only obtain foreign cooperation from governments if we, the United States,
help them enforce their own Internet censorship laws.  This would
inevitably entangle the United States in aiding and abetting the violation
of individual human right to freedom of expression through "assistance" to
governments that do not share our commitment to freedom of expression and
democracy.


        The infirmities of the proposed legislation ought not to lead to
the conclusion that there is nothing to be done about the very real problem
of Internet speech that is inappropriate for children.  Increased awareness
to this issue has encouraged parents around the country to become more
involved in their children's use of the Net, and has spurred the
development of blocking, filtering and other content selection tools that
assist parents in creating a positive experience for their children,
consistent with their own family values.  Rather than continuing to propose
unconstitutional and ineffective censorship laws, we hope that Congress can
lend its support to the effort to encourage parents to take responsibility
for their children's Internet usage, and to encourage the development of
tools which can help parents.  These efforts not a continuing cycle of
hasty legislation and time-consuming litigation will ultimately make the
Internet a safe place for children and realize our most cherished First
Amendment values.


        We are anxious to work with you on this very important issue.
Please contact Daniel Weitzner <djw () cdt org>, CDT's Deputy Director, for
more information at 202-637.9800.




Sincerely Yours,






Jerry Berman
Executive Director


======================================================================
Daniel J. Weitzner, Deputy Director             djw () cdt org
Center for Democracy and Technology             +1 202.637.9800 (v)


1634 'Eye' St., NW Suite 1100                   +1 202.637.0968 (f)
Washington, DC 20006                            http://www.cdt.org/