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Guest Column

Update on the CDA -- Direct from a Plaintiff
By Patricia Nell Warren

News stories on the CDA hearings have been sketchy, so I will cut deeper. My take so far: Evidently the government hopes to convince the courts that federal Internet censorship is not only constitutional and reasonable -- but technically and economically no big deal. The question is, will the judges buy it, as six days of hearings in Philadelphia federal district court go grinding along.

Right now, the Department of Justice and the 3-judge panel are hearing witnesses brought in by the combined attorneys for ACLU/ALA et al. During my 4-hour deposition on 3/19 by a Justice Dept. attorney, and then the first day of hearings on 3/21, listening to other witnesses, and testifying myself, the DOJ questions were definitely running to technical feasibility. The DOJ position seems to be:

  1. the CDA is only aimed at hard-core pornography, not at the general run of expression.... so why are all these plaintiffs in such a lather?

  2. it is reasonable for the government to step in and "protect children," since so many parents are inadequate to the job -- too irresponsible or too uneducated to learn how to operate blocking software on their home computers (a view that many parents should find insulting).

On 3/21, the first day of hearings, the courtroom was arrayed with equipment, for the benefit of the three-judge panel, U.S. District Judge Stewart Dalzall, District Judge Ronald Buckwalter and Chief Judge Dolores Sloviter. As the judges were offered a crash course in Internet 101, the courtroom was only half-full, the atmosphere quiet, with a few jokes. In response to one lawyer's assurance that the judges should feel free to ask any question they wanted, Judge Sloviter responded dryly, "This court is not shy." Mainstream media crews straggled in and out of the building all day.

It was not a dramatic setting for a lawsuit that promises to be the Roe vs. Wade of free speech. "Often you get this eye of the storm feeling around an important case," ACLU attorney Chris Hansen told me.

First witness was Scott Bradner of Harvard, one of the Internet's architects, who testified about technicalities for nearly four hours, into the afternoon -- responding to questions from the judges and cross-questioning from the Justice Dept. Bradner's testimony made it clear how complex the Net is, and how little it is understood by Congressional supporters of the CDA.

Next up was Ann Duvall, president of SurfWatch, makers of popular blocking software. Duvall gave the judges an actual guided tour of the Net (complete with a couple of unplanned system crashes). She noted that 70 percent of SurfWatch's customers are schools -- a hint that school-district uproars about "protecting students" will more and more complicate free-speech on the Net. Roughly 50 percent of the nation's school districts are now online, with AT&T rushing to help the rest log on. The DOJ attorney tried hard to bully away Duvall's credibility -- a tactic that may not have sat well with the judges, since she came across as a concerned parent who stepped forward to help create a reasonable alternative to government control.

Next was William Stayton, psychologist and Baptist minister, who testified that children are not harmed by exposure to sexual materials that are positive.

Late in the afternoon, the first plaintiffs -- Kiyoshi Kuromiya of Critical Path AIDS Project and myself -- were called to the witness stand. The DOJ asked Kiyoshi directly if he would comply with the law, and Kiyoshi retorted with great dignity that he didn't see how lifesaving information could possibly be "indecent." As for me, the government declined cross-questioning -- evidently to show the world that they are not after authors and literature. So the judges asked me a few questions about Wildcat Press and the credit-card device on the book-ordering page of the Web site. (Asking visitors to record a credit card number is one of the possible screening devices to weed out minors.)

The DOJ attorneys also declined to open the can of worms of free speech for minors. Three young YouthArts West writers -- Rheana Parrenas, 16; Hunter Allen, 17, and Christine Soto, 18 -- filed affidavits expressing their grave concern about minors' right to access positive information on the Net that some may deem "indecent". They worked diligently with ACLU attorney Ann Beeson, emailing drafts back and forth. YouthArts is the youth zine co-published by Wildcat Press and John Waiblinger, that is named in the case. A fourth affidavit was filed by Kit O'Connell, 17, one of the founders of "furryMUCKs." Kit joins a growing number of teenage victims of censorship panic -- he is now barred from participating in the very online community that he helped create, by the community's adoption of a rule that all players must be 18!

None of the four young people were deposed by the DOJ, or called to testify.

The broader atmosphere is also telling. Ever since the CDA became law, President Clinton is busy scoring brownie points with voters by arm wrestling TV executives into putting detectable ratings on all shows. This way, parents and schools can block "objectionable" shows by using the V-chip. With TV moguls so compliant, the government may hope to batter the more cantankerous Internet into similar docility. Purveyors of anything "objectionable" could show themselves in "good faith" compliance with the CDA by posting electronic tags on their sites. The tags would trigger blocking software on any computer logging in. One could show further "good faith" by reporting oneself to blocking-software manufacturers (this came out during Duvall's testimony) making sure that one's URL was on their X-rated list. One version of SurfWatch comes pre-blocked for a list of sites that their company has already viewed; the list is periodically updated.

However, these tags would have to top every single "offending" page. As Scott Bradner pointed out, a Net-user can log directly into any sub-page, thus evading a screening device on the welcome page..

So far, media coverage has been alarmingly light. With their minds on the election and the economy, many Americans seem to view the CDA as a good thing because it will "protect kids from porn." They see ACLU vs. Reno/ALA vs. DOJ as a tempest in a teapot that should worry only the computer nerds. For this reason, I was glad to see "Firing Line" air the major debate at USC the other night.

Next phase of the hearings: the government will call its own witnesses, and we'll get a clearer look at their strategy. Some weeks after the hearings, the 3-judge panel will deliver their opinion. Whoever they find against -- the government or ACLU/ALA et al -- that party will be appealing.


Patricia Nell Warren is the author of "The Front Runner" and other best-selling novels, as well as an active columnist and radio commentator. Her publisher is Wildcat Press. She can be reached at wildcatprs@aol.com.
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