IP: from an open letter from the ACLU on the Censorship bill

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

Many reasons could be cited why S. 652 should be rejected;  we will focus on
just three areas where the conferees have needlessly chosen to attack
essential First Amendment values.


 I.  The "Deregulation" Bill Will Establish a Big Government Censorship
Regime with New Speech Crimes for the Internet and Online Communications.


Title V of the telecommunications bill as adopted by the conference committee
will:


-    Subject first-year college students under 18 to two years in prison and
$100,000 fine if they engage in overly salacious dating patter online (even
in their private e-mail).


-    Subject parents to the same prison term and fine if they provide their
own teen-ager with online materials that the parents have decided have merit
if the material is deemed to violate the bill.


-    Subject adults merely looking on their own home computer at something
deemed obscene to prison for five years for the first peek, plus another ten
years if they look again.  This is not far-fetched.  Electronic "footprints"
are left behind whenever a user       goes somewhere in cyberspace.  Some of
the censorship groups backing the bill      openly support prosecuting
anyone who looks at such material as way of "drying up" demand for it -- so
these groups have an incentive to pressure prosecutors to follow those
footprints back to the
adults at home.


-    Effectively reduce voluntary communications among consenting adults to
those appropriate only for children.  Much of what consenting adults -- even
married consenting adults -- prize about some of  their communications could
well be deemed by outsiders as indecent if addressed to minors.  The bill
will infantalize all communications in cyberspace as users worry about how
to avoid prosecution if prohibited material is sought out by someone
underage.  The educational value of the Internet would be reduced to the
equivalent of the children's section in the video store.


-    Define its new speech crimes so broadly that it will hold access and
service providers criminally liable for content they did not create unless
the providers have legal departments large and skilled enough to utilize
limited and vague defenses.
 Even then, the defenses would have to be established in costly and
time-consuming court proceedings.  The predictable effect will be enormous
self-censorship, coerced by the government's failure to precisely define what
is being made criminal and the threat of prison for transgressors.


-    Subject all Americans to the most narrow of community standards found in
the most socially limiting of locations.  Even those who have chosen to
adopt the social mores of such locations should not insist on imposing those
mores on the millions of Americans who have chosen to live elsewhere. 


These proposals violate the Constitution.  They are also profoundly bad
public policy.
          
Title V of the bill is unconstitutional because it takes speech protected by
the First Amendment and tries to regulate it in a way that violates what the
Supreme Court has said must be the touchstone for regulating protected
speech.  For example, the bill fails to use the constitutionally required
"least restrictive means" to obtain its putative goals.  It also fails to
take into account the particular characteristics of interactive media in the
online environment, rendering its attempt to create new speech crimes
constitutionally impermissible.  Title V also unconstitutionally invades the
privacy rights of those who communicate online.   


Cyberspace is the first genuinely mass medium in human history, where many
individuals can speak to many others at the same time, and where the
"start-up" costs of "publishing" are so minimal that almost all users are
potential publishers.  This is a democratic and truly libertarian
communications medium without a centralized governing body.  There is no
network president or standards department, for example, ultimately overseeing
everything that is broadcast -- in fact there is no "network" but instead an
endless series of independent areas like newsgroups, chat rooms, bulletin
boards and web sites.  The conference bill tries to force cyberspace into the
mold of the old media
with a government-dictated, centralized command structure.  


Cyberspace gives its users -- including parents concerned about their
children --  an unprecedented power over what materials are  accessed, or
not accessed, from their computers.  Parents, for example,  already have
available software and other technology that will let them control what
their children access from their computer.


Tragically, the conferees have rejected further private sector development of
user empowerment technologies.  Instead, the conference bill imposes the most
restrictive regime of government  regulation over content on what should be
the least governmentally  restricted of all media.  In doing so, the bill
would strangle cyberspace, violating the free speech and privacy rights of
all those who communicate online.  


The ACLU believes that all adults have the right to choose for themselves
what they see or say online.  The conferees have chosen to invest a minority
of  censorship extremists with the coercive power of the criminal law and
Federal prison in order to impose on the rest of us their constricted view of
what we should say or see. 


This is a truly historic turning point.  Title V of the bill from the
conference committee confronts the Congress with a stark choice: 
     
-    Will the 104th Congress be seen in history as one who stood up for the
freedom of communications in cyberspace and the Internet, or will it be
counted as a tool of certain censorship groups determined to impose their
conception of "proper" speech on all of us?


-    Will the 104th Congress stand up for the continuing vitality of private
sector development of interactive media, or will it impose a big-government
bureaucratic regulatory regime on cyberspace and the content of its
communications?


-    Will the 104th Congress stand up for empowering users -- including
parents concerned about their children -- to control what material is
accessed from their computers, or will it give the coercive power of federal
prison sentences to censorship groups who care more about interfering with
what other adults see or say than about protecting their own children?