Cyberspace,

By Claudia Lynch, Benchmarks Editor (lynch@unt.edu)

The Symbol of the Resistance to the CDA

The legal battles of the 21st Century may well be waged in and over that nebulous region we have come to know as cyberspace. If you've been paying attention to the news even a little bit during the past year you will have noticed that "obscenity on the Internet" has become a very hot topic (pun intended). All the talk started with the publication of TIME Magazine's cover story on "Cyberporn" last July.1 The article gave credence to a flawed study about on-line pornography by a fellow named Marty Rimm.2 This attention couldn't have come at a worse time for the Internet. Just as the "Information Superhighway" was becoming accessible to ordinary Americans (as opposed to the scientists and educators who had been the predominant users before), political forces rose up to regulate it.

The Communications Decency Amendment

What politician wouldn't love to claim that they had made cyberspace safe for the children of America? Apparently not many, because despite severe questions as to it's constitutionality, Title V of the Telecommunications Act of 1996 - commonly known as the "Communications Decency Amendment" or CDA - was passed by Congress on February 1, 1996 and signed into law by President Clinton on February 8, 1996. On that same day, the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), Planned Parenthood and several other plaintiffs sought to overturn the CDA on the grounds that it is a violation of the First Amendment rights of all Internet users. On February 15, 1996, a Federal Judge found it unconstitutional and issued a restraining order against enforcement of some CDA provisions.3 Since then the CDA has been tied up in court, also challenged by such groups as the Citizens Internet Empowerment Coalition (CIEC), the American Library Association, America Online, Compuserve, Prodigy, Microsoft, NETCOM On-Line Communications Services Inc., The Commercial Internet eXchange, The Newspaper Association of America, Wired Magazine, Hotwired, and Families Against Internet Censorship. Hearings wound up on May 10, 1996 and a decision may have been reached by the time this issue of Benchmarks is published. Observers believed that the CDA would not be upheld, but of course no one knows for sure or whether or not the government would appeal if it weren't upheld.

Other Looming Cyberspace Battles

Battles like that about the CDA and those that follow are sure to cause consternation for lots of people in the months and years to come. In many cases they are representative of the conflicts that exist at the core of American society - business interests vs. citizens interests, government regulation vs. self-regulation, and interpretation of the U.S. Constitution. If nothing else, they should provide for some interesting discussions and open up whole new areas of practice for lawyers.

• Copyright issues: This is a battle that has been raging for some time now. Do the same rules of copyright hold on-line as they do in the print and audio world? What about electronic libraries or personal electronic mail?
  

  The current threat to Internet users is HR2441, the "National Information Infrastructure Act of 1995." If passed in it"s current form it would:
  

  • make it a copyright violation to simply browse the Net without a license from copyright owners.
    
  • subject computer system operators - such as on-line services and networks at schools and libraries - to potentially crippling liability for the copyright violations of their users.
    
  • cripple "distance education" efforts especially vital to rural communities and the disabled.
    
  • make it illegal to manufacture, import or distribute devices and software (including computers and VCRs) needed by industry, schools and libraries to make "fair use" of encrypted information by overruling long-standing Supreme Court precedent.4
    
• Long Distance Voice Communication: On March 4, 1966, America's Carriers Telecommunication Association (ACTA) filed a petition with the Federal Communications Commission (FCC) to "stop companies from selling software and hardware products that enable use of the Internet to voice long distance services."5 This action either threatens the fledgling Internet Telephony industry or protects the nations telecommunications carriers, depending on your point of view.
  
• Privacy issues: All sorts of privacy issues are coming up due to the ease of coding, storing and retrieving data on individuals. Data are available on a variety of topics including financial, medical, and other personal information. Other privacy issues include employers spying electronically on their employees and the ability of individuals to encrypt their on-line messages. The Electronic Privacy Information Center (EPIC) has all sorts of information about privacy issues on its Web pages (http://www.epic.org/).
  
• The status of the Internet: EFFector Online (March 6, 1996, Vol. 9 No. 3), a publication of the Electronic Frontier Foundation, reported that U.S. Customs decided that the Internet is not a place and fined people accordingly. ACD, a "virtual" software company with engineers in both California and Hungary but no real physical business infrastructure was fined $85 when a shipment of software was sent from Hungary to the US with "Country of Origin" marked as "Internet" on the customs forms. This was a kind of silly case, since the shippers should have put Hungary as the country of origin, but it points out some problems that will surely crop up as more and more companies exist only in cyberspace.
  

References

• American Civil Liberties Web pages (http://www.aclu.org/).
  
• Center for Democracy and Technology Web pages (http://www.cdt.org/).
  
• Computer Professionals for Social Responsibility Web pages (http://www.cpsr.org/dox/home.html)
  
• Digital Future Coalition alert (http://www.ari.net/dfc/alert.html).
  
• Electronic Frontier Foundation Web pages (http://www.eff.org/).
  
• Electronic Privacy Information Center Web pages (http://www.epic.org/).
  
• The Ethical Spectacle Web pages (http://www.spectacle.org).
  

1 TIME, July 3, 1995 (Vol. 146, No.1)

2 Rimm's study has been largely discredited. A variety of references are available on this topic, but perhaps the best starting point is Declan McCullagh's web page "Marty Rimm's Moral Mazes" ( http://www.cs.cmu.edu/afs/cs.cmu.edu/Web/People/declan/rimm/rimm.html).

3 One such provision was that the word "abortion" could not appear in any text that was accessible via the Internet. Also banned were the famous "seven dirty words" ( http://www.spectacle.org/freespch/musm/seven.html).

4From http://www.ari.net/dfc/alert.html. For more information about the bill see http://www.ari.net/dfc/info/Copyright.html

5 See http://www.fcc.gov/Bureaus/CommonCarrier/PublicNotices/da960414.txt and http://www.fcc.gov/Bureaus/Miscellaneous/Factsheets/comments.hlp

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