IP: EFFector 14.13: Action Alert; Case Updates

[David Farber <dave () farber net>]

    EFFector       Vol. 14, No. 13       July 3, 2001     editors () eff org

    A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

     IN THE 173nd ISSUE OF EFFECTOR (now with over 27,600 subscribers!):

      * Conviction of Scientology Critic Raises Free Speech Issue
      * EFF Housewarming Party and BayFF at our New Location on Shotwell
        Street - Tuesday, July 10th
      * Help Working Assets Donate to EFF
      * CHIPA: The Talk of the Librarian Conference
      * EFF-Recommended Reading: Heins's Not in Front of the Children
      * Thank you to EFF Volunteer Michael Mathews
      * Pretrial Appeal of Anonymous Speech Victory Denied

    For more information on EFF activities & alerts: http://www.eff.org

    To join EFF or make an additional donation:
    http://www.eff.org/support/
    EFF is a member-supported non-profit. Please sign up as a member
    today!
      _________________________________________________________________


Conviction of Scientology Critic Raises Free Speech Issue

   Electronic Frontier Foundation Concerned US Court Violated Free Speech 
Rights

     Electronic Frontier Foundation Media Release

     For Immediate Release: June 22, 2001

     Contact:

      Cindy Cohn, EFF Legal Director,
        cindy () eff org,
        +1 415 436 9333 x108

    San Francisco - The Electronic Frontier Foundation (EFF) today
    expressed concern over a California court conviction of H. Keith
    Henson in a case involving online criticism of the Church of
    Scientology (CoS). In a decision which appears to have violated his
    constitutional right to free speech, a jury in Riverside County
    convicted Henson of threatening the free exercise of religion by
    members of the CoS.

    "We are deeply concerned that the decision violates Mr. Henson's free
    speech rights," said EFF Legal Director Cindy Cohn. "Since he does not
    appear to have made any credible threat of physical attack as required
    for conviction under the U.S. Constitution, Mr. Henson has a legal
    right to express criticisms online without fearing a prison term."

    On April 26, 2001, Henson was convicted of threatening to interfere
    with the CoS members' freedom to enjoy their constitutional right to
    the free exercise of religion. Although official trial documents are
    not yet available, the verdict seems based on Henson's activities
    while picketing the CoS desert compound and postings on the Internet
    alt.religion.scientology newsgroup. It appears that the postings
    admitted into evidence included only fragments of longer postings or
    threads taken out of context. For example, the defense was apparently
    prohibited from showing that a comment about "cruise missiles" was
    made in response to a joke about actor Tom Cruise. The trial judge
    also allegedly forbid Henson from explaining why he was protesting
    Scientology.

    Henson was also accused of making and attempting to make terrorist
    threats against the CoS, however the jury convicted only on a single
    misdemeanor charge under a California "hate crime" statute. EFF is
    concerned that the jury may have convicted Henson on this one charge
    based on misinformation and mislabeling of evidence introduced at
    trial.

    The basic requirements for conviction under California Penal Code
    section 422.6 are that "force or the threat of force" must be involved
    and that "the speech itself threatened violence against a specific
    person or group of persons and that the defendant had the apparent
    ability to carry out the threat."

    Neither of these requirements appear to have been met in Henson's
    case. For instance, Henson's discussions apparently included
    long-range missile systems in connection with the CoS desert compound.
    Such statements seem inadequate to substantiate a reasonable fear that
    he would actually launch or have the ability to launch a missile
    attack against anyone.

    Furthermore, a recent decision by the 9th Circuit Court of Appeals,
    Planned Parenthood v. American Coalition of Life Activists, clarified
    that strong advocacy is protected expression stating, "it doesn't
    matter if the speech makes future violence more likely; advocating
    'illegal action at some indefinite future time' is protected."

    Following his conviction, Henson took refuge in Canada where, based on
    information Scientology sent to authorities, he was arrested in a
    shopping mall parking lot, by a heavily armed paramilitary unit.
    However, Canadian officials later released Henson and accepted his
    application for asylum.

    In a May 30th phone interview with the Toronto Star newspaper,
    Henson's wife said that he is being targeted by the CoS because he has
    been working to expose the group as a crime syndicate for five years.

    EFF Executive Director Shari Steele commented, "EFF is deeply
    disturbed by these possible violations of Mr. Henson's constitutional
    rights. This trial seems intended to punish Mr. Henson for his
    opposition to a powerful organization, using the barest thread of
    legal justification to do so. EFF joins Mr. Henson's American counsel
    in urging the California Court of Appeals to set aside this verdict
    and confirm Mr. Henson's right to protest publicly a group that he
    opposes."

    For more information on the Henson case, see:
      http://freehenson.da.ru/

    For the public alt.religion.scientology postings, see:
      http://groups.google.com/groups?q=Henson&hl=en&safe=off&meta=site%3D
    groups%26group%3Dalt.religion.scientology.*

    Related media coverage:
      http://www.laweekly.com/ink/01/31/news-holland.shtml
      http://www.politechbot.com/cgi-bin/politech.cgi?name=henson

   About EFF:

    The Electronic Frontier Foundation is the leading civil liberties
    organization working to protect rights in the digital world. Founded
    in 1990, EFF actively encourages and challenges industry and
    government to support free expression, privacy, and openness in the
    information society. EFF is a member-supported organization and
    maintains one of the most linked-to websites in the world:
      http://www.eff.org/

    Special thanks to Kathleen Hunt for contributing to this media
    release.

                                   - end -
      _________________________________________________________________

EFF Housewarming Party and BayFF at our New Location on Shotwell Street -
Tuesday, July 10th

   Come Celebrate Our 11th Anniversary, See Our New Home, Enjoy Live Music, and
   Learn More About the Work We Do

      WHAT: EFF's Housewarming "BayFF"
      WHEN: Tuesday, July 10th, 2001 at 7:00 PM Pacific Time
      WHERE: Electronic Frontier Foundation
      454 Shotwell Street
      San Francisco, CA 94110

    This is a night to celebrate! July 10th is:
      * EFF's eleventh birthday
      * The one year anniversary of BayFF's exciting re-launch
      * EFF's formal welcome of the public to our new home

    This event is free and open to the general public. There will be
    plenty of food, drink, music, live music, and good company, including
    EFF co-founder John Perry Barlow.

    The Electronic Frontier Foundation ( http://www.eff.org ) is the
    leading civil liberties organization working to protect rights in the
    digital world. For more information, please see EFF's website.

    An RSVP is appreciated. Please contact: Katina Bishop - +1
    415-436-9333 x101 - katina () eff org

                                   - end -
      _________________________________________________________________

Help Working Assets Donate to EFF

    For those of you who are Working Assets Long Distance customers, you
    may be getting a piece of mail this week that lets you designate a
    nonprofit for Working Assets to send $25 to. It doesn't cost you
    anything, ALL nonprofits are qualified, and EFF will get $25 for each
    person who wrote in their info. Please spread the word!

    All you have to do is:
     1. Write in the following info on the short form sent by Working
        Assets:
          Group Name: Electronic Frontier Foundation
          Contact Name: Katie Lucas
          Phone: 415-436-9333 ext 104
          Group Address: 454 Shotwell Street, San Francisco, CA 94110
     2. Mail it in with your next bill payment. It has to be *received* by
        JULY 15, 2001.

    Thank you in advance from everyone at EFF!

                                   - end -
      _________________________________________________________________

CHIPA: The Talk of the Librarian Conference

    Expressing frustration with the inadequacy of Internet blocking
    mechanisms, librarians swarmed four conference sessions focused on the
    Children's Internet Protection Act (CHIPA or CIPA) at the American
    Library Association (ALA) conference June 16-18 in San Francisco.

    Traveling to the conference from the heartland, many librarians
    clearly had CHIPA on their minds, which was not surprising given the
    Federal Communications Commission (FCC) July 1, 2001, deadline for
    "undertaking to comply" with CHIPA.

    The CHIPA law, or more precisely a combination of the laws called
    CHIPA and another called the Neighborhood Children's Internet
    Protection Act (NCIPA), affects funds allocated through the Library
    Services and Technology Act (LSTA), Title III of the Elementary and
    Secondary Education Act, and the Universal Service discount program
    known as E-Rate (Public Law 106-554).

   Undertaking to Comply

    According to Marc Seifert, Deputy Chief of the Common Carrier Bureau
    of the FCC, and according to FCC rules, "undertaking to comply" may
    refer to a variety of actions, such as educational efforts, attending
    conferences, such as the ALA conference sessions about CHIPA, giving
    notice for and holding public hearings on the issue, and not
    necessarily purchase orders for Internet blocking devices. Seifert
    confirmed that "participants in E-Rate have a one year grace period"
    and that the law requires no library to actually install Internet
    blocking software until July 1, 2002, for the FCC-administered E-Rate
    program, and that libraries who "undertake to comply" prior to July 1,
    2002, may later lawfully refuse to install Internet blocking software
    and refuse to participate in the E-Rate program starting July 1, 2002.

    Seifert mentioned one valid exception: libraries that have to operate
    under state or local procurement laws that would prevent completion of
    purchase of the technology protection measure by the program deadline.
    At one session, an audience member wondered what would happen if the
    state or local procurement law included requirements that any software
    purchased be "effective", in which case no software could effectively
    comply with CHIPA requirements to block obscene, child pornographic,
    and for minors only, harmful to minors content, since none of the
    products even certify to CHIPA compliance. Would such a procurement
    policy provide a permanent exemption to CHIPA requirements? No clear
    answer was forthcoming on this question.

    Tom Sussman, an attorney from Ropes & Gray Law, explained in detail
    what libraries need to do between now and October 28, 2001, to comply
    with the law. He divided libraries into three classes: those that
    receive E-Rate and LSTA funding, those that receive only LSTA funding,
    and those that receive neither E-Rate nor LSTA funding. The E-Rate and
    LSTA funding pertinent to CHIPA consists of grants and discounts on
    Internet services and related equipment.

    The law requires the first class of libraries to an Internet safety
    policy developed pursuant to a public hearing. The policy has to
    address a list of things required by the statute, such as access by
    minors to inappropriate matter on the Internet, safety and security
    when minors use e-mail, chat, and other Internet services,
    unauthorized access by minors, unauthorized disclosure of personal
    identification information of minors, and measures designed to
    restrict access of minors to harmful materials. In addition, libraries
    must implement and enforce a "technology protection" measure,
    ostensibly Internet blocking software, and to certify to the FCC that
    the policy is in place.

    Libraries participating only in the LSTA program need not certify with
    the FCC or install blocking software. These libraries are required
    only to create an Internet safety policy based on public hearings.

    Sussman also opined, "They [Congress] passed a law that was badly
    written, not well-considered and motivated by an election year, and it
    stinks. That's my considered legal opinion. It's a long-standing
    tenant of interpretation is that Congress is presumed to be rational."

   The Antidote to Excess Access

    One session focused on librarian response to criticisms of library
    policies opposing Internet blocking. Participants viewed a video
    called "Excess Access" prepared by the American Family Association
    (AFA), which portrayed a balding middle-aged man viewing what appeared
    to be heterosexual pornography on a library Internet terminal, then
    apparently molesting a teenage boy in the library's restroom.

    Footage of Jonathan Katz' "Gay American History" was shown as the kind
    of book that libraries should not permit in their collections.

    The film criticized the ALA's Library Bill of Rights and portrayed a
    parent complaining to a librarian, who said that her hands were tied
    due to the ALA's policies, implying that library policies are dictated
    by the national organization, rather than by a local library board.

    Following the film, Pat Schuman, President Elect of the ALA,
    facilitated a roleplay session for librarians to practice handling the
    tough questions they receive from the right-wing religious and
    political extremists about library policies and practices related to
    Internet use. Some bemoaned the harassment activities that take place
    among a very small minority of library patrons, but reported that the
    Internet seems to have had little effect on frequency of such
    activity, which has apparently has occurred as long as libraries have
    been around.

    David Burt, Market Research for Internet blocking software company
    N2H2, was featured in "Excess Access", which is available from the
    American Family Association website or by calling +1 662-844-5036.
    Some librarians commented that they are using the video as an
    educational tool.

   Librarians on the Front Lines

    Librarians who attended any of the ALA CHIPA sessions received a
    certificate of attendance which could be used as part of CHIPA
    compliance certification.

    The librarians are really on the front lines of the struggle over
    Internet censorship in libraries, so it was heartening to see the
    support they gave each other in handling a difficult issue.

    Judith Krug, Director of the ALA's Office of Intellectual Freedom,
    commented that "libraries are one of the most popular, if not the most
    popular institution in the community." She announced that the ALA has
    raised over $600,000 toward the $1.3 to $1.5 million ALA plans to
    raise for the CHIPA legal challenge.

    Daniel Mach, member of ALA's Jenner & Block legal team, provided
    information at the conference sessions about the legal challenges to
    CHIPA filed by the ALA, the ACLU, and other organizations like EFF, on
    March 20, 2001. A special three-judge district court in Philadelphia
    will hear the challenges with any appeals going directly to the
    Supreme Court, as provided by the legislation.

   Latebreaking News

    After the ALA conference ended, EFF learned that the legal challenges
    against CHIPA filed by the American Library Association and the
    American Civil Liberties Union, along with help from EFF and other
    organizations, are scheduled to go to trial on February 14, 2002,
    under the name ALA v. United States.

    Please see the Newsbytes article below for more information:   http://
    www.newsbytes.com/news/01/1/167368.html

   Background

    For more information on the CHIPA legal challenge:
      http://www.eff.org/Legal/Cases/ALA_v_US/

    For the American Library Association resources on CHIPA:
      http://www.ala.org/cipa/

    For more information on opposing online censorship:
      http://www.eff.org/br/

                                   - end -
      _________________________________________________________________

EFF-Recommended Reading: Heins's Not in Front of the Children

    The latest book from Marjorie Heins, entitled Not in Front of the
    Children: "Indecency," Censorship, and the Innocence of Youth (ISBN:
    0-374-17545-4), is an indispensible resource for EFF members or anyone
    concerned about issues of censorship, obscenity, and harmful to minors
    content in any era. Heins, who currently works on the Free Expression
    Policy Project at the National Coalition Against Censorship, traces
    with insight historical trends and their relevance to today's
    struggles over censorship on behalf of children.

    From Huckleberry Finn to Harry Potter, from Internet blocking /
    censorware to the V-chip, censorship exercised on behalf of children
    and adolescents is often based on the assumption that they must be
    protected from "indecent" information that might harm their
    development -- whether in art, in literature, or on a website. But
    where does this assumption come from, and is it true?

    In Not in Front of the Children, Marjorie Heins explores the
    fascinating history of "indecency" laws and other restrictions aimed
    at protecting youth. From Plato's argument for rigid censorship,
    through Victorian laws aimed at repressing libidinous thoughts, to
    contemporary battles over sex education in public schools and violence
    in the media, Heins guides us through what became, and remains, an
    ideological minefield. With examples drawn from around the globe, she
    suggests that the "harm to minors" argument rests on shaky
    foundations.

    There is an urgent need for informed, dispassionate debate about the
    perceived conflict between the free-expression rights of young people
    and the widespread urge to shield them from expression that is
    considered harmful. Not in Front of the Children will spur this
    long-needed conversation.

    For an excerpt from the book, see:   http://www.eff.org/Censorship/
    200105_heins_book_excerpt.html

    Prior to working at NCAC, Marjorie Heins served as an attorney at the
    American Civil Liberties Union. She is also the author of Sex, Sin,
    and Blasphemy: A Guide to America's Censorship Wars.

                                    [end]
      _________________________________________________________________

Thank you to EFF Volunteer Michael Mathews

    The Electronic Frontier Foundation would like to thank Michael Mathews
    for his software dontation to us. Michael wrote a great little utility
    called Quickmirror that we use to back up important directories on our
    Windows computers to our Linux server running Samba. It works great
    and we really appreciate it. Thank you Michael.

      Website: http://quickmirror.netfirms.com/
      Author name: Michael Mathews
      Author e-mail address: quickmirror () hotmail com

                                   - end -
      _________________________________________________________________

Pretrial Appeal of Anonymous Speech Victory Denied

    EFF won another victory in our fight to protect anonymous Internet
    speech last week when the Ninth Circuit denied 2TheMart's petition to
    take an interlocutory (pretrial) appeal of a lower court decision
    quashing a subpoena requesting the identity of posters on an Internet
    message board. This means that the district court's opinion protecting
    the anonymous posters against disclosure of their identity stands.

    The decision was the first in the country to address the standard for
    compliance with a subpoena where the "J. Doe" (who used the pseudonym
    NoGuano) was not a party to the case, and no allegations of liability
    against Doe had been made. The court held that the identities would
    not be turned over unless (1) the subpoena was issued in good faith
    and not for any improper purpose; (2) the information sought relates
    to a core claim or defense; (3)the identifying information is directly
    and materially relevant to that core or defense; and (4) information
    sufficient to establish or disprove that claim or defense is
    unavailable from any other source.

    More information on the case can be found at:
    http://www.eff.org/Legal/Cases/2TheMart_case/
    The cite for the case is: John Doe v. 2themart.com Inc., 140 F. Supp.
    2d 1088, 1092 n.2 (W.D. Wash 2001)

                                   - end -
      _________________________________________________________________

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