On February 8th US President Clinton signed the Telecommunications Act of 1996 -- a bill designed to open up competition among the nation's telephone carriers, computer on-line services and cable TV. Tacked onto the bill is a measure initially introduced as an amendment by Nebraska Republican Senator James Exon, an amendment that's come to be known as the Communications Decency Act. The CDA makes it illegal to post so-called "indecent" language on a computer network that could be accessed by anyone under eighteen. The Act also criminalizes "annoying" computer or telephone transmissions under so-called anti-harassment provisions and opens the door for the Federal Communications Commission to begin regulating the Internet as a broadcast medium similar to TV and radio. "Indecent" is a legal term that generally means any language referring to sex and excretory functions that may otherwise be protected by the Constitution and legally published in newspapers and magazines.

The signing of the CDA sparked a flurry of protest in cyberspace. Thousands of Internet sites turned their screens to black in mourning for free speech and many thousands of Internet sites are sporting a blue ribbon as part of a campaign against Internet censorship. But despite these campaigns the CDA's sponsors are pushing their measure through the courts hoping to win the most restrictive legislation possible. How did the wide-open Internet come to crossroads? Senator Exon said he was struck with the need for controlling smut on the Internet when he saw how easily his grandchildren were able to access pornography using their family computer. Exon, who admits he's never been on the Internet himself, embarked on a crusade to force what he considers indecency off the net, a campaign that was picked up by a majority in Congress and signed into law by the president. Recently Exon defended his support of the CDA by making the issue part of the so-called "cultural war" that's been inflaming congress since Clinton was elected. According to Senator Exon, "There is enough of the self-serving philosophy of the 'hands-off elite'. They seem to rationalize that the framers of the Constitution planned and plotted at great length to make certain that above all else, the profiteering pornographer, the pervert, and the pedophile must be free to practice their pursuits in the presence of children on a taxpayer created and subsidized computer network. This is nonsense." But despite the powerful image of children's need for protection in a dangerous world, a Federal judge ruled, days after President Clinton signed the Telecommunications bill, that the term "indecency" used in the CDA is "vague" and possibly unconstitutional. Still, most of the CDA's prohibitions remain unchallenged, including provisions criminalizing transmissions using the word abortion or imparting crucial health related information. Although the Justice Department says it will not prosecute anyone under the CDA until after the Supreme Court rules on the issue, officials also warn that after the court rules they may still prosecute Internet users who violate the CDA while the court is considering the case. Plaintiffs in the burgeoning lawsuits against the CDA say they have been advocating alternatives to censorship on the net from the beginning. A classȘaction lawsuit coordinated by the Center for Democracy and Technology (including 37 organizations ranging from America Online to the American Library Association and People for the American Way) was combined with another lawsuit sponsored by the ACLU and Planned Parenthood and filed the day Clinton signed the measure. Supporters of the suit are encouraging anyone with a valid e-mail address to sign on as a plaintiff and nearly 30,000 individuals have taken up the call. A three-judge federal court panel has been hearing witnesses in often boring and sometimes contentious proceedings as part of an expedited court schedule written into the Act that includes a direct appeal of the panel's decision, due in late April, to the Supreme Court. Particularly disturbing to free speech advocates is the CDA's use of the term "indecent" to define material that should be banned from the Internet. "Indecent" is a legal term that applies to material that is sexually explicit and maybe offensive to some in the community, although still protected by the First Amendment. Indecency is not the same as obscenity -- material that has been deemed not deserving of Constitutional protection.

To be obscene the material would have to meet a three part legal test set up by the Supreme Court in a 1973 decision:

"1. Would the average person, applying contemporary standards of the state or local community find that the work, taken as a whole, appeals to the prurient interest?

2. Does the work depict or describe in a patently offensive way sexual conduct specifically defined by the applicable state law?

3. Does the work lack serious literary, artistic, political, or scientific value?" Fundamentally the CDA means that language deemed "indecent" that might be legally published in a magazine or newspaper, included in a film or book is now prohibited from the Internet. An example of "indecent" speech are the so-called "Seven Dirty Words," a monologue by comedian George Carlin that was at the heart of a five year court-battle between the Pacifica Foundation and Federal Communications Commission -- more on that later.

To insure that people under 18 can't receive "indecent" material, anyone who puts information on the net that may violate the law would be required to set up a means to prevent teenagers from logging in. In order to achieve that goal, information providers would have to identify everyone who tries to access onȘline information -- to screen out those under 18 years. One way to achieve that is to require credit card numbers as proof of age before a netsurfer couldaccess a particular site.

Anti-choice stalwarts included a sneak attack against abortion with the CDA in the guise of the 1873 antiȘobscenity Comstock Act making it a crime to send information on birthȘcontrol or abortion through the mail. The Comstock Act was used to jail birth control pioneer Margaret Sanger but was revised in 1971 to remove the parts criminalizing the distribution of contraceptive information -- although the parts restricting abortion information remain on the books. Attorney General Janet Reno has officially said the Department of Justice won't prosecute for abortion-related speech on the Internet -- in a letter dated February 9th, Reno formally pointed out the passage of the CDA she wouldn't be enforcing.

Despite Reno's promise not to prosecute, pro-choice groups had already filed a lawsuit challenging the anti-abortion parts of the law. That challenge was part of a broad suit against the entire CDA brought by dozens of advocates, including the American Civil Liberties Union, Electronic Frontier Foundation, Planned Parenthood, major on-line service providers like CompuServe and America On-line and smaller Internet content providers active in AIDS and safe-sex education like Critical Path based in Philadelphia.

Calling the CDA "Medical McCarthyism in the electronic age," Eleanor Smeal of the Feminist Majority Foundation said, "The Telecommunications Act is transforming the Internet from an information superhighway to an information roadblock invoked by high-tech censorship. Ironically, just as more women's organizations are going on-line, Congress is moving to criminalize women's constitutional right to send and receive medical information. The women of this nation will not tolerate an on-line abortion ban, any more than we will allow a ban on abortion services."

The Comstock Act provisions of the CDA amount to an Internet gag rule that would effect pro-choice organizations using the net. Information about abortion services and availability would be prohibited as would support networks for pro-choice doctors and information about drugs like RU-486. The ban would effect bulletin boards and World Wide Web sites and the trade in abortion-related medical technology. The overall impact would affect millions of women. The Feminist Majority on-line alone receives 14,000 calls a typical day and as many as 92,000 calls in one day. These contacts would all end under the CDA.

President Clinton signed the Telecommunications bill, stating that he "objected" to the abortion speech gag rule while claiming the law wouldn't be prosecuted by his Justice Department. It was the second time in a week the President had signed a bill he says he doesn't intend to enforce -- the other bill bans people with HIV from the military.

Former California governor turned radio talk-show host Jerry Brown says the crackdown on the Internet is an attempt by "men with money and power" to "snuff-out any creativity or ingenuity that threatens their hegemony." According to Brown, CDA is ultimately a reaction against demands for justice by African-Americans, Native people, women and other oppressed people in America."

The lawsuit against the CDA was heard by Federal District Judge Ronald L. Buckwalter on February 15th, and the judge granted a limited "temporary restraining order" allowing enforcement of the CDA except for offenses that may include "indecent" material. Buckwalter wrote in his opinion granting the TRO:

"Where I do feel that the plaintiffs have raised serious, substantial, difficult and doubtful questions is in their argument that the CDA is unconstitutionally vague in the use of the undefined term, 'indecent.' This strikes me as being serious because the undefined word 'indecent,' standing alone, would leave reasonable people perplexed in evaluating what is or is not prohibited by the statute. It is a substantial question because this word alone is the basis for a criminal felony prosecution."

Indecency -- as opposed to obscenity -- was the issue in 1973 when New York City community radio station WBAI played a recording of a skit by comedian George Carlin called the "Seven Dirty Words" that made fun of America's double standard when it comes to commonly used "dirty words." The part of Carlin's monologue in question was an attack on that hypocrisy while the United States was still carrying to completion the carnage of the Vietnam war. According to Carlin;

"The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) ."

After a complaint was filed with the Federal Communications Commission a long legal battle ensued that culminated in a five to four United States Supreme Court decision upholding the right of the FCC to ban language that's normally protected by the First Amendment from the airwaves. In their 1978 majority decision, the five Justices in the majority, lead by archȘconservative Nixon appointee Justice William Rehnquist wrote that, "Our society has a tradition of performing certain bodily functions in private and of severely limiting the public exposure or discussion of such matters." Rehnquist is now Chief Justice of the Supreme Court.

The majority Justices agreed that, since broadcasting was "all pervasive" in society then Carlin's monologue could be seen as an "intrusion into the home." The court held that playing the "Seven Dirty Words" during the afternoon when children could be among the listeners is a case of the "pig entering the parlor, instead of the barnyard" and they argued that if the FCC refused to renew WBAI's license because of the Carlin routine, that wasn't censorship because broadcasting the seven words is a "public nuisance."

One of the counter-arguments made by WBAI and its parent Pacifica Foundation in the legal battle was that the FCC was unfairly reducing adults to hearing only material that's fit for children. But the court's majority ruled that adults had the opportunity to purchase tapes, records or to see an "indecent" performance in the theater. Interestingly, in the 1978 decision the majority argued that since the FCC can't bring criminal penalties against broadcasters, then regulations prohibiting "indecent" material on the air aren't serious enough to warrant First Amendment protection. But the CDA now mandates fines up to half a million dollars and prison sentences of up to two years for even sending "indecent" material as private e-mail.

Laws with similar intent regulating Dial-A-Porn sex phone lines don't go nearly as far as the CDA which actually criminalizes speech between two adults in a non-commercial conversation. The DA also has anti-harassment provisions that may chill political expression by prohibiting "lewd, lascivious, filthy, obscene, or indecent" speech when it is intended to be "annoying" even when that speech is normally protected by the Constitution. "Annoying" speech could be a letter someone writes to their Senator about their vote on the CDA, that might be intended to annoy them to express a political view.

In FCC vs. Pacifica Foundation, there were also opinions presented by the four dissenting Justices. Justice Brennan accused the majority of limiting the First Amendment to "social values of five members of this court" and of trying to "shut off discourse solely to protect others from hearing it." Brennan argues that the "radio can be turned off" and maintained that the courts decision could "lead to the banning of Shakespeare, Joyce, Hemmingway... and the Nixon tapes." The famous Watergate tapes included multiple statements by the former President excised with words "expletive deleted" in their place.

Justice Brennan argued the majority decision against Pacifica reflected "majoritarian tastes" that prevents an "unoffended minority" from receiving a program. Brennan added that George Carlin's seven dirty words are important parts of the speech of many subcultures in the United States including what Brennan called the "black vernacular" and that banning their broadcast "interferes with communication with listening audiences that don't share the court's view." Brennan then includes in his opinion the following passages from the Bible that could be banned from the airways as "indecent":

Samuel 25:22: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall"

II Kings 18:27 and Isaiah 36:12: "[H]ath he not sent me to the men which sit on the wall, that they may eat their own dung, and drink their own piss with you?"

Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed whoredoms in their youth; there were their breasts pressed, and there they bruised the teats of their virginity.";

Ezekiel 23:21: "Thus thou calledst to remembrance the lewdnes of thy youth, in bruising thy teats by the Egyptians for the paps of thy youth."

Mike Godwin is staff council for the anti-censorship Electronic Frontier Foundation. He says the CDA is an attack on free speech, adding that "we're going to see a lot of efforts at both the Federal level and the State level to try and make government feel comfortable about the immense power the Internet gives to individuals." A problem for the government is that the decentralized format of the Internet, with a myriad of information providers and a mass of users of that information, makes it difficult to regulate. This has forced the powers-that-be to introduce the CDA with its strict criminal penalties to force identification requirements on people who use the net, through the use of credit cards and other means to insure that users of a particular site are not minors. But according to Godwin, the Internet is "a very bottom-up network and top-down approaches to regulating it almost always are doomed to failure."

Godwin says, rather than relying on over-broad regulation, authorities should focus on the problem they want to solve. In the case of children's access to the net, Godwin suggests "the effective approach is to empower parents to make choices for their children. The threat of a US Attorney's prosecution is not going to effect someone in Thailand or Singapore who is mailing offensive material over the global Internet."

Steve Chase, the head of America Online Inc., the largest computer onȘline service in the United States, told the National Press Club in March, "This censorship issue is going to be one of the hot issues over the next year or two." Case says AOL and the other large on-line services favor giving parents new software products that allow them to better control what their kids see in cyberspace.

The use of software blocks was the issue earlier this year, before the CDA was passed by Congress, when the German government pressured Compuserve, another large on-line service, into imposing a temporary ban on worldwide access by its customers to a number of sites that carried mostly softcore pornographic pictures. The company recently restored access to most of the targeted news groups after providing software controls that let parents restrict the on-line activities of their kids.

EFF's Godwin says that the root of the controversy lies in governments' traditional role to "be able to control content in mass media" -- he adds, "every country in the world has some kind of control over broadcasts, and many control content even in one-toȘone telephone communication." According to Godwin, "here we have this medium, the Internet, that empowers individuals just with laptop computers to reach large audiences, and governments are kind of troubled by this, especially in countries that don't have a long tradition of civil liberties, into thinking maybe we should order them to shut down." He points to Germany as a country without a long tradition of democracy, where the government's first choice was to pressure providers into blocking objectionable material.

Surprisingly, in the United States, the push to control content on the Internet came in part from members of Congress who had long reputations as supporters of free speech. Wired magazine covers on-line issues, and its reporters tried mightily to get responses from erstwhile congressional liberals who voted for the CDA but were reluctant to discuss the reasons for their votes.

Representative Patricia Schroeder, a liberal Democrat from Colorado, has opposed the anti-abortion speech parts of the CDA but has also voted to keep the prohibitions against indecent language in the Act. Schroeder says, "I voted for the 'no indecency for kids' provision because, in my view, all doubts about the competing provisions had to be resolved in favor of children. I'd be the first to say that the options before us weren't perfect, and the process was abysmal. The House had no hearings on this issue, no committee deliberation, and no floor debate. A better process would have given us better options. My requests for a more open process were ignored -- not too surprising from a Republican majority, which rushed through too much legislation by a similarly slipshod process."

Jerry Berman is the director of the Center for Democracy and Technology, and he agrees that offensive and dangerous material is present on the Internet and should be controlled, "The information highway has a lot of material on it which is very troublesome and which our children should not get a hold of." But Berman adds the CDA isn't the answer, "The problem is that we should not try to put forward solutions that are really fig leaves that will not solve the problem." Berman says software controls that allow parents to block objectionable material from their own computers with a readily available program like "Surfwatch", and others called Net Nanny and CyberSitter," are part of a solution that will "...let us really look at the user end of the Internet, what kinds of technologies can we bring on line to make it possible for parents to screen out and control what they see or what they interact with on the Net and what their children interact with?"

During hearings in a Philadelphia courtroom, held before a three-judge panel, including Judge Buckwalter, in late March, lawyers for the government sparred with free-speech advocates over the potential for controlling access to "sexy" Internet sites. Government lawyers used a popular program to illustrate their contention that the Internet is dangerous to children. They searched for the words "little" and "women" and got a screen pointing to a World Wide Web site featuring "Hot Pictures of Naked Women." ACLU lawyer Stefan Presser called the governments tactic "a pretty obvious attempt to try and shock the court -- one with minimal effect."

Robert Croneberger, director of the Carnegie Library, said making sure all resource materials in his library weren't offensive would entail inspecting his entire online card catalogue manually. He estimated it would take 180 additional staffers to search 2 million entries. Trying to name a research subject that wouldn't be affected by removing all references to sex, government lawyer Patricia Russotto asked Croneberger about gardening.

"Plants procreate" Croneberger said, eliciting an outburst of laughter from the courtroom, including the three judges. "What about Abraham Lincoln?" she tried next. "Actually I have read many journals about his sex life -- or a purported lack thereof," he said. "Geology?" Russotto asked. "Well," Croneberger said. "Probably only if you put the rock together with roll."

As courts in the United States are set to try and regulate the Internet, officials in Great Britain have concluded that legislation will never in itself control the global Internet. According to a report by the BBC, Great Britain is proposing a voluntary regulation of the Net led by the industry itself.

British Science and Technology Minister Ian Taylor told a recent conference that, "An imposed regulatory regime is not likely to solve all our problems," he said, "The British government's preference is for a voluntary approach. It is in the commercial interest (of industry) to meet public concerns." Taylor said the Internet's explosive growth has been largely the result of its freedom from legal controls, adding that Britain is concerned that new laws may stunt further development of the Internet's commercial potential. According to the BBC, the European Parliament is looking at harsher media laws and the European Council of Ministers is deciding on a common European approach in June. But, the BBC goes on to report that the Council, along with the European Commission are generally opposed to wider Internet legislation.

In France the death of President Francois Mitterand was followed by the publication of the book "Le Grand Secret" by Mitterand's personal physician, claiming the French President had secretly suffered from prostate cancer for 11 years prior to his death from the disease in January. The French courts banned the book, prompting an Internet enthusiast, Pascal Barbraud, the owner of the Web Cafe in Besancon, to hold an "Internet party" where all 190 pages of the book were scanned onto his Web site.

Barbraud's Web site was flooded by an estimated 7,000 computers per hour trying to download the file. Commenting to reporters, Barbraud said "It's only a small step between banning books and burning them in public. That's where the real danger lies." Attempts by the French to take the book off the Net were thwarted when "Le Grand Secret" was put up on Web sites around the world, prompting some officials to threaten drastic action such as encrypting the entire national network. Even repressive Singapore and Indonesia have had to face the difficulties of trying to police the Internet and are resigned to allowing criticism of their governments to be posted on the Net even as newspapers and broadcast media are tightly censored.

In the United States the Internet has also been used effectively to circulate information repressed by major tobacco companies. A box containing 4,000 pages of internal documents from Brown and Willliamson, the third largest tobacco company in the United States, was sent to a researcher at the University of California, San Francisco, medical school with the return address, "Mr. Butts" (the pro-smoking character from Doonesbury). When the documents were made available at the UCSF library, private investigators hired by Brown and Williamson -- makers of Kool, Pall Mall and Lucky Strike -- camped out in a lobby monitoring anyone who used the materials.

The company claimed the papers had been stolen but California courts ruled that since the documents sent to the school were not the originals but photocopies, the library couldn't be prosecuted for the theft of the originals. After the decision, library officials put the documents on the University's "Tobacco Control Archives" Web site where it became an instant hit for thousands of Internet users who downloaded messages like a letter to Brown and Williamson, signed by movie star Sylvester Stallone. In the letter the action film hero agrees to a half million dollar deal for allowing characters in five of his movies to smoke Brown and Williamson cigarettes.

The head of research for the UCSF library is Robin Chandler, she says the explosive growth of the Internet "gives a new avenue of publishing available to people." Referring to Daniel Ellsberg, whose release of the Pentagon Papers in the 1970's was almost blocked by the courts and who had to rely on the NewYork Times to publish the once secret internal history of the Vietnam war, Chandler says, "now, essentially if you have a scanner, and if you have a server, anyone out there can put up any information that they want to."

Whether or not the Communication Decency Act can shut down the freeȘwheeling Internet will put Chandler's observations to the test.

Paul DeRienzo can be reached at pdr@echonyc.com or check out his web page at www.wbai.org. Paul also has a radio show called Let 'em Talk on WBAI-99.5-FM in New York City every Wednesday night (early Thursday morning) at 1:30 AM.

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