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   Volume 4.04	                                  March 17, 1997
                            Published by the
              Electronic Privacy Information Center (EPIC)
                            Washington, D.C.
                  ** SPECIAL ISSUE: THE CDA ON TRIAL **
Table of Contents
[1] Reno v. ACLU: The Communications Decency Act on Trial
[2] Background on the Litigation
[3] EPIC Statement on Supreme Court Argument
[4] The CDA and International Censorship
[5] EPIC Bookstore: First Amendment Reading
[6] Upcoming Conferences and Events
[1] Reno v. ACLU: The Communications Decency Act on Trial
On March 19, the United States Supreme Court will hear oral argument
in Reno v. ACLU, the first case to address the issue of free speech in
cyberspace.  The legal challenge to the Communications Decency Act was
initiated by the ACLU, EPIC and other organizations last February.
The high court's consideration of the case is likely to produce a
landmark constitutional decision, which is expected by July.
Immediately following the oral argument, the Reno v. ACLU plaintiffs
and lawyers will hold a news conference to offer in-depth analysis and
commentary (approximately 11:30 a.m. ET).  The event will be cybercast
live via RealAudio on the World Wide Web.
Links to the cybercast will be available at:
[2] Background on the Litigation
The Communications Decency Act passed Congress last February as part
of an omnibus telecommunications reform bill.  The CDA makes it a
crime, punishable by up to two years in jail and/or a $250,000 fine,
for anyone to engage in speech that is "indecent" or "patently
offensive" on computer networks if the speech can be accessed or
viewed by a minor.  The American Civil Liberties Union, joined by EPIC
and 18 other plaintiffs, filed its legal challenge to the Act on
February 8, 1996, the day it was signed into law by President Clinton.
Several weeks later, a second challenge was filed by nearly 30
plaintiffs, led by the American Library Association. That suit, known
as ALA v. DOJ, was subsequently consolidated with the ACLU case.
Although the two cases are consolidated and the legal teams have
worked together, each plaintiff group has filed separate briefs
throughout the litigation.
A three-judge panel in Philadelphia was appointed to hear the
plaintiffs' motion for preliminary injunction, and five days of
hearings were scheduled during March and April of last year.  The
panel consisted of Chief Judge Dolores K. Sloviter, Judge Stewart
Dalzell, and Judge Ronald L. Buckwalter. The proceedings included five
days of live testimony, written testimony, documentary evidence, and
detailed stipulations about the nature of the Internet.  On June 12,
the court issued a preliminary injunction barring the government from
enforcing the challenged provisions of the CDA.  The opinion makes
clear that the lower court agreed with the plaintiffs' view that the
CDA's ill-conceived effort to censor speech in the unique medium of
cyberspace violates the First Amendment.
On December 6, the Supreme Court noted probable jurisdiction in the
government's appeal of the lower court decision.  The government filed
its brief on January 21; the plaintiffs' briefs were filed on February
20. Eleven amicus ("friend of the court") briefs were also filed in
support of the plaintiffs (several of which are available online).
The government filed its reply brief on March 7.  The Supreme Court
will hear oral arguments for one hour, with the time divided equally
between the two sides.  Plaintiffs will be represented by Bruce J.
Ennis; the government by Seth Waxman of the Solicitor General's
[3] EPIC Statement on Supreme Court Argument
             Supreme Court Internet Decision Will Have a
             Profound Impact on Individual Privacy Rights
March 19, 1997
Washington, DC
Contact: David Sobel, EPIC Legal Counsel 202/544-9240
The U.S. Supreme Court's consideration of Reno v. ACLU sets the stage
for a decision of historic significance, one that will establish a
constitutional framework for reviewing government regulation of the
Internet.  The issues extend beyond the Communications Decency Act and
go to the very essence of the information infrastructure.   The
Electronic Privacy Information Center (EPIC) has consistently stressed
both the free speech and the privacy implications of the case since
joining with the American Civil Liberties Union in challenging this
ill-advised and unconstitutional attempt to impose governmental
content regulation on emerging global electronic media. EPIC is
participating in the litigation as both plaintiff and co-counsel.
As the three-judge panel in Philadelphia recognized, the legislation's
vague "indecency" standard will have an obvious impact upon the free
speech rights of millions of Americans who use computer networks to
receive and distribute information. Less apparent is the assault on
privacy rights that the legislation, if upheld, will engender.
To avoid potential criminal liability under the CDA's "indecency"
provision, information providers would, in effect, be required to
verify the identities and ages of all recipients of material that
might be deemed inappropriate for children.  If upheld, the statutory
regime would thus result in the creation of "registration records" for
tens of thousands of Internet sites, containing detailed descriptions
of information accessed by particular recipients.  These records would
be accessible to law enforcement agencies and prosecutors
investigating alleged violations of the statute.  Such a regime would
constitute a gross violation of Americans' rights to access
information privately and anonymously.
Two years ago, the Supreme Court upheld the right to anonymous speech
in McIntyre v. Ohio Elections Commission.  EPIC believes that the
Court's rationale in that case applies with even greater force to the
Internet "indecency" provisions now under review.  The Court noted in
McIntyre that
     The decision in favor of anonymity may be motivated by fear
     of economic or official retaliation, by concern about social
     ostracism, or merely by a desire to preserve as much of one's
     privacy as possible. ...
     Anonymity is a shield from the tyranny of the majority. It
     thus exemplifies the purpose behind the Bill of Rights, and
     of the First Amendment in particular: to protect unpopular
     individuals from retaliation -- and their ideas from
     suppression -- at the hand of an intolerant society.
Whether the millions of individuals visiting sites on the Internet are
seeking information on teenage pregnancy, AIDS and other sexually
transmitted diseases, classic works of literature or avant-garde
poetry, they enjoy a Constitutional right to do so privately and
anonymously.  The Communications Decency Act seeks to destroy that
right.  If upheld, the CDA would render the Internet not only the most
censored communications medium, but also the most heavily monitored.
EPIC is confident that upon review of the legislation and its impact
upon free speech and privacy rights in emerging electronic media, the
Supreme Court will affirm the lower court decision invalidating the
CDA as fundamentally at odds with the Constitution.
[4] The CDA and International Censorship
Following the passage of the CDA in the United States, dozens of other
countries followed suit and imposed restrictions on Internet content,
citing the CDA as justification for their efforts at censorship.  In
many countries, the legal bans cover a broad range of material,
including news services and political discussions.  Not surprisingly,
Singapore has played a leading role in restricting Net content.
According to the U.S. State Department's description of Singaporean
law, "access to web pages that undermine public security, national
defense, racial and religious harmony, and public morals is banned. In
addition, content that tends to bring the Government into hatred or
contempt, or that excites disaffection against the Government is
forbidden."  In China, human rights groups critical of the govern-
ment's record  are "filtered," as are many U.S. newspapers. With the
help of Bay Networks, an American company, China is setting up its own
Intranet that will not permit the online distribution of critical
material. Arab countries met in Dubai last October to discuss setting
up an Arab Intranet where political discussion could be banned.  The
European Union and the OECD are currently discussing Internet content
In response to these trends, the Parliamentary Human Rights Foundation
recently convened a meeting in Brussels to draft "Open Internet Policy
Principles."  Among the consensus principles is a strong statement in
support of freedom of expression:
     There should be no regulation of Internet content by
     government. We understand the fundamental rights of freedom
     of expression, as embodied in Art. 19 of the Universal
     Declaration of Human Rights ("Everybody has the right ...
     to seek, receive and impart information and ideas through
     any media and regardless of frontiers" ) and in Art. 19(2)
     of the International Covenant on Civil and Political Rights
     ("Everyone shall have the right to freedom of expression;
     this right shall include freedom to seek, receive and impart
     information and ideas of all kinds, regardless of frontiers,
     either orally, in writing or in print, in the form or art or
     through any other media of his choice") -- to apply with full
     force to Internet communication.
The full text of the Open Internet Policy Principles is available at:
Free speech and human rights advocates from around the world have
joined together in the Global Internet Liberty Campaign to fight these
restrictions.  Members include EPIC, ACLU, Human Rights Watch, and
groups from around the world.  More information on GILC is available
Other information on international censorship efforts is available
from the Fight Censorship list archives at:
[5] EPIC Bookstore: First Amendment Reading
The EPIC Bookstore offers a wide range of books on civil liberties,
privacy, and on-line freedom.  With the Communications Decency Act
being argued before the Supreme Court this week, we are featuring four
titles that look at the history, technology, policy and practice
behind the First Amendment:
* Make No Law: The Sullivan Case and the First Amendment by Anthony
Lewis -- Few cases have done more to shape the First Amendment than
this historic decision.
* Technologies of Freedom by Ithiel De Sola Pool -- One of the early
works on why regulating speech in cyberspace is a bad idea.
* Intellectual Freedom Manual by The Office for Intellectual Freedom,
American Library Association -- Good advice for protecting freedom in
the on-line world.
* Censored: The News That Didn't Make the News-And Why: The 1995
Project Censored Yearbook by Carl Jensen -- Sometimes it's the press
and not government that keeps important stories under wraps. Here's
what the big shots missed in 1995.
We also have an extensive collection of other titles on freedom of
expression.  Visit the EPIC Bookstore and celebrate the First
Amendment with a good book on free speech!  It can be found at:
[6] Upcoming Conferences and Events
Eurosec'97: the Seventh Annual Forum on Information Systems Quality
and Security. March 17 - 19, 1997. Paris, France. Sponsored by XP
Conseil. Contact: http://ourworld.compuserve.com/homepages/eurosec/
CyberRights Congress. March 20-21, 1997. Washington, DC. Sponsored by
the First Amendment Congress.  Contact:
Culture and Democracy revisited in the Global Information Society.
May 8 - 10, 1997. Corfu, Greece. Sponsored by IFIP-WG9.2/9.5. Contact:
CYBER://CON.97: Rules for Cyberspace?:Governance, Standards and
Control. June 4 - 7, 1997. Chicago, Illinois. Sponsored by the John
Marshall Law School. Contact: cyber97@jmls.edu.
Ethics in the Computer Society: The Second Annual Ethics and
Technology Conference. June 6 - 7, 1997. Chicago, Ill. Sponsored by
Loyola University Chicago. http://www.math.luc.edu/ethics97
Public Workshop on Consumer Privacy. June 10-13, 1997. Washington, DC.
Sponsored by the Federal Trade Commission. Contact:
INET 97 -- The Internet: The Global Frontiers. June 24-27, 1997. Kuala
Lumpur, Malaysia. Sponsored by the Internet Society. Contact:
inet97@isoc.org or http://www.isoc.org/inet97
Privacy laws & Business 10th Anniversary Conference. July 1-3, 1997.
St. John's College, Cambridge, England. Contact:
AST3: Cryptography and Internet Privacy. Sept. 15, 1997. Brussels,
Belgium. Sponsored by Privacy International and EPIC. Contact:
pi@privacy.org. http://www.privacy.org/pi/conference/brussels/
19th Annual International Privacy and Data Protection Conference.
Sept. 17-18, 1997. Brussels, Belgium. Sponsored by Belgium Data
Protection and Privacy Commission.
International Conference on Privacy. September 23-26, 1997. Montreal,
Canada. Sponsored by the Commission d'Acces a l'information du Quebec.
Managing the Privacy Revolution '97. October 21-23, 1997. Washington,
DC. Sponsored by Privacy and American Business. Contact:
(Send calendar submissions to alert@epic.org)
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Thank you for your support.
---------------------- END EPIC Alert 4.04 -----------------------

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