CDA II
by Team Netly, 1997-06-26

The fun-loving "trolls" of Bianca's Smut Shack celebrated today's Communications Decency Act ruling by sleeping in. Christopher Miller and David Thau stumbled awake at 10:10 am today, just in time to read the decision that said it was legal to post "indecent" material on your web site — something clearly important to the Biancanauts, who are travelling cross-country in a psychedelic RV commemorating the summer of love.

"It's kind of weird to celebrate the overturning of something that's clearly unconstitutional, but of course we have something to celebrate because it's going to keep us from jail," said Thau.

The celebration may be premature. The CDA II, after all, is expected to crawl out of the grave like a flesh-dripping zombie. But you'd never know it from the high-bandwidth rhetoric that flooded the Net today after the Supreme Court decision.

The Electronic Privacy Information Center cried that "today's opinion defines the First Amendment for the next century." Histrionics also were flying furiously around San Francisco's South Park, where the faithful rallied. "The Internet freedom fighters are as strong as the students at Tiananmen Square," said the Electronic Frontier Foundation's Mike Godwin — to a crowd composed almost entirely of journalists. "Today is the first day of the new American Revolution, the Digital Revolution.." (A phrase that happens to be trademarked by Wired, a sponsor of the rally.)

The victorious shouts of the way-new stalwarts were matched by the angry screams of the censor-happy CDA supporters. "The safety net is gone," says Donna Rice-Hughes, communication director for Enough Is Enough. "There is no law against an adult sending a naked picture of himself to a child over the Internet or through e-mail."

If Rice-Hughes has her way, the high court's decision to drive a stake through the heart of the much-reviled law will mean the threat to free speech online has expired only for a while.

"Frankly, this ruling provides a road map on how to more specfically draft legislation," says Heidi Stirrup, director of government relations for the Christian Coalition. "Our beleaguered American family has been put on notice by the Court that it will do nothing to help the family even when the president and Congress work together against a problem that everyone says is bad — providing indecent material to children."

This isn't entirely true. The ruling — which talked of "vast democratic fora" online — does not mean that the Internet is now a free-speech zone where anything goes. After all, the CDA only restricted "indecent" materials, an undefined category that could include art, literature, even humor and sex ed. materials. Distributing obscenity — sexual works without "redeeming value" — will remain a crime. The Court noted this in its ruling today: "Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles."

President Clinton, who endorsed the act, also vowed not to give up. "We can and must develop a solution for the Internet that is as powerful for the computer as the v-chip will be for the television, and that protects children in ways that are consistent with America's free speech values," he said.

"We're certainly going to support Congress' efforts to develop another bill to protect kids. They're not going to stop and we're going to help them to do it," says Bruce Taylor, president of the National Law Center for Children and Families.

Taylor predicts that a CDA II might stress labelling all your web pages with PICS or RSACi if you want to stay out of jail: "Remember I told you nobody's going to do PICS? It's a monster nobody wants to feed. Who's going to rate 10 zillion web sites?"

Well, nobody — unless you force people to use it.

Which is what some members of Congress are trying. Sen. Patty Murray (D-Wash.) is preparing to introduce a bill that will try to convince a dubious public to rate its pages with RSACi, a self-rating system backed by Microsoft. (A company which, just coincidentally, is headquartered in her state.) Nevermind that even MSNBC stopped ratings its pages with RSACi because the system proved unworkable for news sites.

Murray's proposed bill, called the "Childsafe Internet Act of 1997," says someone who "includes a rating" on their site "may not be held liable" for "any material on the site that is unsuitable for minors." That's the carrot.

Then the stick: you can't post material "unsuitable for minors" on a site that's rated for kids. "Whoever accesses a site on the Internet rated by the person establishing the site as having no material unsuitable for minors and knowingly makes available on or through the site any comment, request, suggestion, proposal, image, or other material unsuitable for minors, shall be imprisoned... for not more than two years," the bill says.

The constitutionality of such legislation was affirmed in today's minority opinion of Justices O'Connor and Rehnquist, in which they talk of "zoning laws" for the Internet. Real world zoning laws are what keep children out of porno stores and require buildings to be wheelchair-accessible. These laws passed constitutional muster long ago, and the underlying intent of the CDA was largely to shield minors from indecent material. Trouble is, Internet technology isn't yet capable of ensuring the existence of adult-only zones. Yet.

Thus argued O'Connor: "Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an 'adult zone.'"

What all this means is Congressional attempts to pass another law to muzzle the Net won't need to be a flat ban on "indecency." Rather, they'll rely on PICS and RSACi. (Ironically, a technology designed to head off the CDA might be the linchpin of CDA II.) Next month President Clinton plans to meet with industry leaders in much the same way he met with broadcast executives last year and came up with a V-Chip. His goal this time: to do the same for the Net.

Meanwhile, slap-happy netizens will probably still be partying down — the D.C.-based CIEC folks are hanging out in the 18th Street Lounge right now — basking in the high court's warm and fuzzy afterglow, and happily smoking a bowl of their own rhetoric.


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