Monday was the third and final day of testimony from Citizens Internet Empowerment Coalition (CIEC) and ACLU witnesses. Testimony resumes on April 12 and 15 when the Justice Department will call witnesses to defend the constitutionality of the CDA. CIEC and ACLU lawyers will have an opportunity to rebut the DOJ testimony during a final session scheduled for April 26.
HOW IS THE CIEC CASE FAIRING?
The first three days of testimony have established a solid record for the basis of the legal challenge. The CIEC legal challenge to the CDA is based on two arguments:
The court has heard testimony from Internet businesses, access providers, and Libraries, and commercial and non commercial content providers describing the nature of the Internet and how it functions (including a live demonstration of the Net and parental control technologies), as well as numerous examples of constitutionally protected materials which would be prohibited under the CDA. The Judges, while giving little indication of their positions, are asking numerous questions and appear to have taken a keen interest in the Internet.
After 3 days of hearings and cross examination by Justice Department attorneys, a picture of the government's strategy for defending the CDA is beginning to emerge. Although we will learn much more when testimony resumes on April 12, the government appears to be arguing that CDA will restrict only the most extreme sexually explicit material, and that the defenses to prosecution are broad and do not place undue burdens on content providers. In other words, the terms "indecent" and "patently offensive" should be construed narrowly, and the defenses construed broadly.
Under this argument, the government appears to be overlooking several fundamental aspects of past indecency cases and the actual language of the CDA. In past indecency cases, including the Pacifica case which the authors of the CDA cite as precedent for the legislation, the term "indecent" has been read very broadly to prohibit material even if it has redeeming social, literary, educational, or scientific value. In addition, during the debate on the CDA, Congress explicitly rejected the "harmful to minors" standard, which includes a test for redeeming value.
The government also appears to be arguing for a broad interpretation of the CDA's defenses. The defenses available under the CDA provide immunity for content provides who take "good faith, reasonable steps", including adult access codes or credit card verification, to restrict minors access to "indecent" material. Throughout the course of the testimony, the DOJ has asked questions of witnesses implying that implementing PICS standards or other HTML tags would be relatively easy for content providers, suggesting that they believe content labeling would be a "good faith" defense under the CDA. Here again however, it is important to note that the House/Senate Conference committee rejected parts of the White amendment which would have created a more explicit defense for content labeling.
SUMMARY OF TODAY'S TESTIMONY
Bill Burrington, Director of Public Policy for America Online, told the Court that while AOL can and does exert some control over content on its on network, it is impossible for service providers to control content on the global Internet. Testifying both on behalf of AOL as well as the entire commercial online services industry (including Compuserve, Prodigy, Microsoft Network, etc.), Burrington stated that while some online material may be inappropriate for children, "... effective protection of children from exposure to inappropriate material can only occur at the level of individual users".
Burrington outlined the various parental control measures available on commercial online services. On America Online, parents have the ability to restrict their children's access to Usenet newsgroups, binary downloads, chat rooms, and other features of the service. He also argued that the "indecency" restrictions imposed by the CDA will effectively ban constitutionally protected speech for adults and reduce online-speech to information and discourse only appropriate for children. Burrington argued that fear of criminal liability under the CDA could motivate AOL to remove health related information, online forums, and other content from the service.
HotWired CEO Andrew Anker testified that some of the material available on HotWired, including a recent stories on the poet Allen Ginsburg and the atl.sex.bondage newsgroup could be considered "indecent", but that it would be impossible and extremely expensive for the company to verify the age of every visitor to the site. In response to a question from the Justice Department, Anker stated, "I don't understand what indecent and patently offensive mean, or what community's standards apply". As a result, Anker stated, HotWired fears criminal liability under the Communications Decency Act.
Stephen Donaldson of Stop Prisoner Rape, a group dedicated to educating the public about prison rape and helping victims recover, testified that because some of the content on his World Wide Web site uses sometimes explicit images and "street language" to describe prison conditions, he fears criminal liability under the CDA.
Similarly, Barry Steinhardt of the ACLU testified that some of the material on the ACLU's web site, including the '7-dirty words' in the text of the Pacifica Decision, and because the ACLU hosts chat sessions on America Online, the ACLU could face huge fines and prison terms unless it censors itself and its members. When asked if he felt that the text of the bible or Shakespeare's Hamlet could be considered "indecent" under the CDA, Steinhardt argued that community standards vary throughout the United States and that in some places, "That kind of material ... has been the subject of censorship" in parts of the US, and "there are many people who regard that material as Indecent."
Howard Rheingold, author and expert on the subject of Cyberspace Communities, described some of the many benefits the online world can bring to education and a sense of community. Rheingold argued that, although it is technically possible to restrict minor's access to MUDs and MUSEs, it is difficult to determine what material should be would be illegal under the CDA.