ARTS & FARCES internet

On February 1, 1996, despite a flurry of protests, Congress voted to pass the Telecommunications Reform bill by a huge margin. Only 14 members of Congress voted against the legislation; the vote was 416 to 9 in the House and 91 to 5 in the Senate. The bill, as passed, contains an unchanged version of the Communications Decency Act—originally introduced on February 1, 1995—calling for jail sentences and fines for any Internet content provider who distributes “indecent materials” to minors. Anyone found guilty of knowingly transmitting indecent material over the Internet would face up to two years in prison and fines of up to US$250,000. As soon as the bill was passed, the American Civil Liberties Union (ACLU) announced its intention to file a lawsuit challenging the bill as unconstitutional.

Representative Henry Hyde (R-IL) added a technical amendment to the bill at the last minute that, among other things, prohibits discussion of abortion on the Internet. Hyde dug up a law from 1873, called the Comstock Act, to support his language. Even though the courts have pretty much neutered the Comstock Act, the law remains on the books.

On February 9, 1996, President Clinton signed the Telecommunications Reform bill into law, stating, “Today, with the stroke of a pen, our laws will catch up with the future.” The new law removes almost all regulatory barriers for telecommunications and cable television companies and opens local telephone, long-distance telephone, and cable television to new competition.

The new law:

1. Subjects anyone found guilty of knowingly transmitting “indecent material” over a computer network to fines of up to US$250,000 and a two-year prison sentence.
2. Forces local telephone companies to open their networks to competitors, providing consumers with a choice of local telephone carriers.
3. Deregulates cable television rates and allows cable companies to provide new services like telephone and Internet access.
4. Reduces restrictions on television and radio station ownership.
5. Mandates that television manufacturers include a device—known as the “V-chip”—in new television sets that allows parents to block “objectionable content.”

Television broadcasters are preparing for a fight with the White House over violence on television. Meanwhile, local and long-distance telephone company executives promised to start competing in each other’s markets within the year. Simultaneously our rights of expression and privacy are being whittled away.

Communications Decency Act and the net

Before the ink was even dry on the new law, the ACLU filed a lawsuit in Philadelphia challenging provisions of the bill with the position that the government has no mandate to dictate Internet content. Here’s an excerpt from the “Obscene or Harassing Use of Telecommunications Facilities” section of the new law that covers “indecent material” on the Net:

“Anyone who, in interstate or foreign communications, uses an interactive computer service to display in a manner available to a person under 18 any comment, request, suggestion, proposal, image, or other communication that, in context depicts or describes in terms patently offensive as measured by contemporary community standards sexual activities or organs shall be fined or imprisoned not more than two years or both.”

Can you understand that? I consider myself to be reasonably intelligent, and this passage makes almost no sense at all to me. Is it OK to present “patently offensive” material out of context? What “contemporary community standards” exist on the Internet? Those of New York City? Memphis? Paris? Tokyo? Beijing? Baghdad? Is it OK to conduct these activities in your home state or just in the state that houses the server that houses the information?

Congress and the White House don’t have a collective clue between them. The same week the bill was signed into law, the Justice Department acknowledged that parts of the new law were probably unconstitutional. The U.S. Constitution does not provide any free-speech protection to “obscene” material. “Indecent” material, however, is protected speech under the first amendment to the Constitution. This is nothing more than a cheap attempt by Congress to be able to go home in an election year and get up and holler that they’re trying to do something about cyberporn. Congress knows it’ll be overturned and they knew it when they voted for it, but they get to stump on it. Actually, it’s not a cheap attempt at all—it’s pretty damn expensive.

On the same day that President Clinton signed the new law, February 9, 1996, Sen. Patrick Leahy (D-VT) introduced a bill to repeal the Communications Decency Act, citing the chilling effect on free speech almost guaranteed by the new law.

On February 14, 1996, the U.S. Department of Justice filed a 60-page brief in response to the ACLU’s lawsuit, citing that concerns about “overly broad interpretation” of the new law were misplaced speculation. The benefits of protecting children from pornographic images, argued the Justice Department, was in the public interest. The basis for the Justice Department’s argument? The infamous Marty Rimm Internet porn study. This study—referred to facetiously as the Rimmjob—was used as the basis for a Time magazine cover story. Rimm’s study was widely discredited almost immediately, perhaps most articulately by Donna Hoffman and Thomas Novak.

Rimm, while a student at Carnegie Mellon University, studied pornography on the Internet and erroneously concluded that it comprised the majority of content on the Internet. It was quickly discovered that not only was his research methodology severely flawed, his study hadn’t even been subject to peer review. Only later was it discovered that Marty Rimm had a history of publicity-seeking “studies.”

On February 15, 1996, a federal judge temporarily blocked the U.S. government from enforcing the Communications Decency Act portions of the Telecommunications Reform bill. Stating that the term “indecent” was unconstitutionally vague and not defined, Philadelphia Federal District Court Judge Ronald L. Buckwalter’s opinion simultaneously upheld the portion of the same law that makes Internet-based “patently offensive” material (as measured by “contemporary community standards”) a felony. More specifically, Buckwalter stated that his order in no way changes current law against displaying obscene material to children regardless of the medium. Buckwalter’s opinion also upheld the language outlawing discussion of abortion on the Net.

Well that sure clears everything up.

Buckwalter’s ruling ensures a quick judicial review of the Communications Decency Act based on a review process established by Congress when they wrote the new law. The constitutionality of the Communications Decency Act will be reviewed by a three-judge federal panel (one of the panel members is Buckwalter). Any appeals to the opinion of the panel will be heard by the Supreme Court.

Privacy and deregulation

Perhaps even more disturbing than the Communications Decency Act language that was tacked onto the Telecommunications Reform bill is the careful wording that would allow the Federal Communications Commission (FCC) to regulate the Internet. Here is the cornerstone legislation for deregulating the telecommunications industry except for the Internet. Deregulation indeed.

Another little-reported feature of the Telecommunications Reform bill is the broad latitude it gives the telephone companies to traffic in personal information about us. A section of the new law allows the telephone companies to use any data they have on us—who we call, when we call, how long we talk, how many telephone orders we place, everything we do with the telephone—in any way they want. The only catch is that the telephone companies have to provide the same access to our personal information to their competitors. Of course, the language of the bill calls for only “aggregate customer information” to be used, but in this new age of deregulation, just how is that going to be assured?

Two days of mourning

Internet denizens were quick to respond to President Clinton’s signing of the Telecommunications Reform bill. Hundreds, perhaps thousands, of Web authors protested the new law by switching their Web pages to black backgrounds or displaying blue ribbons.

Supporters of the legislation called the black-background protest “misguided.” Sadly, they were right. If we were really serious about lodging a protest against the new law, we would have shut down our entire servers, replacing everything—Web servers, Gopher servers, and FTP archives—with a single black page with a notice about the protest. We would have gone truly “dark” for a short period of time. But none of us did. We were all too busy with more important things

Winners and losers

While the losers in the Telecommunications Reform bill were easy to identify—all of us lost a goodly portion of our free speech rights—the winners were a little harder to pick out. The new law was welcomed by just about every big company in the telecommunications industry, although some were a little more nervous than the others. Major mega-merger deals were being cut in the back of the room before the ink on Clinton’s signature was dry (Nynex and Bell Atlantic executives could be seen rubbing their hands and licking their lips in anticipation on the C-SPAN feed I saw).

The biggest winners were probably the seven Regional Bell Operating Companies (RBOCs). When AT&T was split in 1984, the RBOCs were prohibited from entering the long-distance telephone market, a US$70 billion market. The Telecommunications Reform bill changes all that, but it remains unclear how quickly we, as consumers, will see any real competition. The RBOCs say that they’ll be fighting the likes of AT&T, MCI, and Sprint within the year; AT&T says it will probably begin to feel the heat in about two years. Before any RBOC can compete in the long-distance telephone market, it must meet a set of specifically defined criteria for opening connections to its local telephone network to its competition. The advantage is that the RBOCs control their own destiny, at least on their home turf. Best of all, the RBOCs are best positioned to provide one-stop-shopping: expect to see your local phone company offer a bundle of services including local, long-distance, cellular telephone service, Internet connectivity, and maybe even cable television quicker than any of the competitors. In fact, here in Saint Paul, the local telephone company (US West) now owns the local cable company (Continental Cablevision).

AT&T has already hedged its bets in the coming competition with the local phone companies by splitting itself in to three separate companies (and in the process laying off 40,000 employees) and writing off billions in business mistakes. At least those 40,000 newly unemployed will have the option of buying local telephone service from AT&T. Just like it was before 1984.

Cable television companies were also pleased with the passage of the new law. With cable price deregulation and freedom from the restraints preventing them from providing other services, the cable companies were giddy with the new law.

Imagine the possibilities of buying phone service from your cable company and cable television service from your local phone company. And long distance from either of them. This is supposed to be competition? This is supposed to benefit the American people? Hold onto your wallets and pocketbooks, the prices of all these services—with the possible exception of long distance telephone service—will probably go up. By the turn of the millennium we’ll probably have only a handful of choices for all of our telecommunications needs. That’s four years from now, kids.

Communications Decency Act timeline

• On February 1, 1995, S.314 is introduced by Senators Exon (D-NE) and Gorton (R-WA) and is referred to the Senate Commerce committee.
• On February 21, 1995, HR.1004 is introduced by Rep. Johnson (D-SD) and is referred to the House Commerce and Judiciary committee.
• On March 23, 1995, S.314 is amended and attached to the Telecommunications Reform bill by Sen. Gorton (R-WA). Language contained in the amendment provides some content provider protection, but continues to infringe on both email privacy and free speech.
• On April 7, 1995, Sen. Leahy (D-VT) introduces S.714 as an alternative to the Exon/Gorton bill. Leahy’s bill commissions the Department of Justice to study the problem and report if additional legislation is necessary.
• On May 24, 1995, the House Telecommunications Reform bill (HR.1555) leaves committee in the House with the Leahy alternative attached by Rep. Klink (D-PA) and without the Communications Decency Act.
• On June 14, 1995, the Senate passes the Communications Decency Act as attached to the Telecommunications Reform bill (S.652) by a vote of 84 - 16. Leahy’s bill (S.714) is defeated but supported by 16 Internet-savvy Senators.
• On June 21, 1995, several prominent House members publicly announce their opposition to the Communications Decency Act, including Rep. Newt Gingrich (R-GA), Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR).
• On June 30, 1995, Representatives Cox (R-CA) and Wyden (D-OR) introduce the Internet Freedom and Family Empowerment Act (HR.1978) as an alternative to the Communications Decency Act.
• On August 4, 1995, the House votes by overwhelming majority—421 - 4—to attach HR.1978 (Internet Freedom and Family Empowerment Act) to the Telecommunications Reform bill (HR.1555). At the same time, however, the House votes to attach the Managers Amendment to the Telecommunications Reform bill (HR.1555), containing new criminal penalties for online speech. Late in the day, the House’s Telecommunications Reform bill (HR.1555) with both the Internet Freedom and Family Empowerment Act (HR.1978) and the Managers Amendment is passed into conference with S.652 (the Senate’s Telecommunications Reform bill).
• On September 26, 1995, Sen. Feingold (D-WI) urges the Telecommunications conference committee members to drop the Managers Amendment and the Communications Decency Act from the Telecommunications Reform bill.
• On December 7, 1995, the House half of the Telecommunications conference committee votes the “indecency standard” for online speech into the Telecommunications Reform bill.
• On January 31, 1996, the House and Senate prepare to pass the Telecommunications conference committee report for the Telecommunications Reform bill and push for a floor vote.
• On February 1, 1996, the House and Senate pass the Telecommunications Reform bill (S.652/HR.1555) by overwhelming majorities of 414 - 16 and 91 - 5 respectively.
• On February 5, 1995, Sen. Leahy (D-VT) introduces a new bill to repeal the Communications Decency part of the Telecommunications Reform bill.
• On February 9, 1996, President Clinton signed the Telecommunications Reform bill into law.

Communications Decency Act overturned

In what should have come as no great surprise to anyone with even a whiff of a clue, a three-judge panel overturned the Communications Decency Act in mid-June 1996. The Communications Decency Act was passed by Congress, as part of the Telecommunications Act of 1996, on February 1, 1996 and signed by President Clinton on February 9, 1996.

The Communications Decency Act was tacked onto the Telecommunications Reform bill so our elected leaders could do some chest-thumping and hand waving against pornography and supporting family values. Everyone with any sense knew the Communications Decency Act would be overturned if for no other reason than the language with regard to “indecent material” and “patently offensive” was vague and overly broad. Never mind that content that would have been perfectly legal to print or display on film would have been felonious on the Net.

What no one was counting on was that three Philadelphia judges would “get it” with the depth and breadth that they did. The three judges in the Federal District Court of Philadelphia—Ronald Buckwalter, Stewart Dalzell, and Dolores Sloviter—not only found that the Communications Decency Act was unconstitutional but virtually impossible to implement and defend against violation. In a ruling that simply reeks of endangered common sense, the judges explained that filtering software offers the most effective way for individuals to block objectionable material on the Internet and that Congress and state governments should leave the issue to individual (and parental) choice. But the three judges didn’t stop there. In granting the American Civil Liberties Union‘s request for a preliminary injunction against the law, Judge Sloviter stated that if the law was allowed to stand it would have “a chilling effect” on free expression.

The Department of Justice deftly articulated its complete ignorance of the Internet, arguing that heavy regulation was necessary because the Net was comparable to the broadcast medium and that only the threat of punishment would prevent pornographers from using the Internet to distribute their content.

Each judge issued a separate opinion, and contrary to published reports, a consensus was not reached as to why the panel found the Communications Decency Act unconstitutional.

• Judge Buckwalter considered the law to be too vague and with no consideration of the community standards and redeeming social value tests present in current obscenity law.
• Judge Dalzell considers the Internet to be a new medium that should be afforded special protection under the First Amendment, stating: “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.”
• Judge Sloviter seemed most concerned about the law being overly broad and applicable to speech that is fully protected by the First Amendment. She, like Judge Buckwalter, was also concerned that the community standards rule of existing law is ineffective on the Net and that no consideration of redeeming social value was provided.

The Department of Justice could appeal the Federal District Court of Philadelphia’s ruling to the Supreme Court.