CDA Trial reports

Rohit Khare (
Tue, 26 Mar 96 16:45:06 -0500

Note the Smut Shack promo in part #2... RK


Begin forwarded message:

Date: Mon, 25 Mar 1996 18:31:10 -0500 (EST)
From: "Donald E. Eastlake 3rd" <>
Subject: FWD: CDA Court Challenge: Day #1

Date: Mon, 25 Mar 1996 09:38:00 -6
From: Peter Trei <>

Date: Fri, 22 Mar 96 02:25:26
From: <>

The CDA Challenge, Day #1
By Declan McCullagh / / Redistribute freely

March 21, 1996

PHILADELPHIA -- In the shadow of the Liberty Bell in downtown
Philadelphia, the future of online liberty is being decided.

I arrived halfway through the first day of the hearing in our lawsuit
challenging the Communications Decency Act. Overall, it went well,
though there were a few surprises, like a series of computer crashes
and the Department of Justice's embrace of the rhetoric of crusading
anti-porn activist Catharine MacKinnon.

But most importantly, the judges are engaged in the case. CDT
installed a T1 line, which is the first time a courtroom has had a
live net-connection -- judges tend to insist on paper. When Ann Duvall
of SurfWatch demoed the web and her software this afternoon, the
judges paid attention, asked questions, and were proud when they
figured out the concept of a hierarchy of pages on a web site.

Her demonstration wasn't without problems. The Macintosh laptop she
used to demonstrate Netscape and SurfWatch crashed three times as
Duvall tried to click on the Philadelphia Phillies web site. (A great
idea, though -- at least one judge appeared interested in the team.)
Jonah Seiger and the other CDTers fixed the problem quickly, but then
net.latency prevented Duvall from accessing the Louvre or Playboy web
sites. Penthouse worked properly, though: "Blocked by SurfWatch."

As I'm typing this, I saw a mention that a local television station, WCAU
News 10, is going to broadcast a special on the hearing early tomorrow
morning. Today's press corps included CNN, CBS, NBC, the Washington Post,
the New York Times Online, the Philadelphia Inquirer, the Los Angeles
Times, and plenty of local reporters.

The most interesting witness might have been Dr. William R. Stayton, a
psychologist and sex therapist who testified that minors were not
necessarily harmed by sexually-explicit materials. Stayton is an
American Baptist minister, and holds faculty appointments at LaSalle
and the University of Pennsylvania.

The DoJ's only female attorney present cross-examined Stayton,
spinning her arguments around a twisted MacKinnon-esque logic that
I've never heard even from honorary net.mascot Senator James Exon.

Seems as though she wasn't just trying to establish that nekkid photos
are *harmful to minors* -- she was trying to establish that they're
*harmful to women.* She asked questions like:

"Do these pictures depict a healthy view of women as sexual beings?"

"Do you believe the pictures are a factor in leading minors to view
women as sex objects?"

"Do you believe that these pictures are part of a socialization
process that depicts women as sex objects?"

Stayton rallied, replying:

"There's nothing inherently harmful about letting a six-year old view
these images."

Undaunted, DoJ counsel continued, quoting from the Attorney General's
1986 Commission on Pornography, page 343, entered into evidence as
exhibit 80. Seems as though that section talks about how nonviolent
and nondegrading sexual materials are still harmful to minors.

Chris Hansen from the ACLU on redirect asked: "Why is it not harmful
for minors to access sexual materials?" Stayton: "We are born sexual
beings... Our children are bombarded with sexuality on all sides...
50% of kids are sexually active by 15-16 years old. 85% are active by 18."

To illustrate their point, the DoJ showed the judges and Stayton
examples of dirty pictures taken from the Internet, complete with
URLs. The pictures were _not_ hardcore; they seemed to consist of solo
naked women in various lewd and explicit poses. The DoJ did this to
demonstrate the types of _nonobscene_ materials available online that
they would be unable to prosecute without the CDA.

I would report in more detail on the types of images, but as I and
members of the press started to page through the exhibit book after
the hearing, someone from the DoJ came over and told us we weren't
allowed to look at them "since they weren't available to the public."
I argued with him, and he maintained that since they weren't _entered
into the record_ then the public had no right to see them.

How odd that the Feds are unwilling to divulge the URLs of the dirty
pix they use in their case!

I also met Cathy Cleaver, who's the director of legal studies for the
Family Research Council, and a strong supporter of the CDA. She says
she thought the hearing went well for her side. I politely disagreed.

By the end of the day, the judges might have been starting to "get
it." When Kiyoshi Kuromiya testified about his Critical Path AIDS
Project web site, which carries safe sex information, the judges
grilled him about the number of minors in the USA with HIV. Later, one
Patricia Warren from Wildcat Press: "Is it easier to create an ezine
than a magazine?" Another asked her if "gay and lesbian information is
likely to be censored?"

Tomorrow morning Professor Donna Hoffman of Vanderbilt University will
testify. (She was instrumental in debunking Marty Rimm's fraudulent
cyberporn study. <>)

Stay tuned for more reports.


The DoJ's case has been rescheduled to April 12th and April 15th.

For more information and breaking updates, check out:

Other relevant web sites:
Peter Trei
Senior Software Engineer
Purveyor Development Team
Process Software Corporation

Begin forwarded message:

Date: Mon, 25 Mar 1996 18:32:28 -0500 (EST)
From: "Donald E. Eastlake 3rd" <>
Subject: FWD: CDA Court Challenge: Day #2

Date: Mon, 25 Mar 1996 09:38:34 -6
From: Peter Trei <>

Date: Sat, 23 Mar 96 22:49:05
From: SMTP%"declan+@CMU.EDU" ""Declan B. McCullagh""

The DoJ also quizzed Donna Hoffman about anonymous remailers. They
wanted to make sure that she wasn't an expert on them, had conducted no
studies of remailers, and had collected no statistics on their use.


The CDA Challenge, Day #2
By Declan McCullagh / / Redistribute freely

March 22, 1996

PHILADELPHIA -- At 2:21 pm today, one of the judges hearing our
challenge to the Communications Decency Act finally "got it."

"The folks in Luxembourg don't give a damn what our laws are. So my
son, who's 10, can still view 'Sexy European Girls?'" asked U.S.
District Court Judge Stewart Dalzell.

"That's correct," replied Scott Bradner of Harvard University, who
took the stand today to describe Bradner told me
afterwards he thought Friday's hearing went well -- he had come to
Philadelphia to testify because this "is such an important issue."

Judge Dalzell's remark hints that he, at least, is starting to
understand the Internet -- and the consequences of the court's
eventual ruling. This comes not a picosecond too soon for those
of us who have been fidgeting in our seats, wincing as Department
of Justice attorneys misuse technical terms and hoping the judges
can sort through the cyberconfusion in just six days of hearings.

Dalzell has a keen sense of humor and seems sympathetic to our
arguments. In fact, I'd guess he's been doing some out-of-court
web-surfing himself. In an _astounding_ question at the end of the
day, he asked Bradner: "Isn't it true that the exponential and
incredible growth of the Internet came about because the government
kept their hands off of it?"

Bradner gladly agreed. (What else would he say?)

The other two judges aren't quite as reflective. In an incomprehensible
decision last month, Judge Ronald Buckwalter granted us only a _partial_
restraining order preventing the Feds from enforcing the CDA.

Now he's justifying his original mistake by taking a critical stance
during this hearing -- that is, when he's not dozing. During one of
his more alert moments, Buckwalter asked if labeling all online
content is possible: "Your problems are technical and financial? If
thse problems are solved and we agree on the definition of indecent,
is it possible?" "Yes, it is," our witness replied. Buckwalter also
asked earlier: "What do you mean by saying the Internet is a very
democratic medium? Isn't there someone who steers discussion?" As
proof, he held up a copy of a recent Atlantic magazine article that
claimed the most popular USENET newsgroups are moderated and are
therefore "quasi-authoritarian."

I suggested to our attorney, Chris Hansen from the ACLU, that he
clarify what percentage of newsgroups were moderated. On redirect,
Hansen posed that question to Donna Hoffman of Vanderbilt University.
She replied that most newsgroups are unmoderated. Later, Bradner of
Harvard University added that moderated newsgroups amount to less
than 10 percent of the total.

Dolores Sloviter is the third judge on the panel. As the chief judge
of the U.S. Third Circuit Court of Appeals, she penned a sparkling
decision upholding free expression in a phone sex case. In this
hearing, Sloviter's questions are the most pointed and incisive. When
Robert Cronenberger of Pittsburgh's Carnegie Library was testifying,
Sloviter asked him if under the CDA "would something have to be
removed from your collection?" Cronenberger replied: "We don't know.
We would be afraid that someone might find something indecent or
patently offensive."

The Department of Justice attorneys are an interesting lot. Jay Baron
is a short, heavyset man who tries hard to land roundhouse punches
during cross-examination but instead comes across as prone to
malapropisms. I think he was the DoJer who confused <>
with <> and "ISP" with "IP address." Before the
hearing resumed for the afternoon, I introduced myself to him. He
recognized me as a plaintiff and said he included one of my articles
on Marty Rimm as evidence (!) and used it during depositions.

Tony Coppolino is more reserved and didn't say much when we chatted,
except to say that his office is busy enough with this case that they
won't be sending anyone to the Computers, Freedom and Privacy
conference next week.

I was impressed by the poise of Patricia Rosado, the DoJ's point
person on porn. Yesterday she floated the MacKinnonesque theory that
porn is harmful not just to minors, but also to women. Today she
greeted our witnesses with a barbed, stinging cross-examination.

Unfortunately for Rosado, she was up against Cronenberger, a likable
gent who came across as a traditional librarian close to the judges'
own ages -- not a net.geek like Donna Hoffman and Scott Bradner. (At
one point, Judge Sloviter demanded that Bradner explain URLs and
linking in English, not net-ese.)

The judges gladly related to Cronenberger's description of the Net as
a library -- finally, something they could grasp! The ACLU's Chris
Hansen expanded on this in a brilliant redirect, pointing out that the
concept extends beyond that of a traditional library, allowing a user
to link "from the fourth floor of Wiedner Library in Boston to the
third floor of the Carnegie Mellon University library in Pittsburgh."

Rosado from the DoJ rallied with questions like:

DoJ: "You can do a keyword search on the seven dirty words?"
DoJ: "Would a search on Abraham Lincoln turn up articles about sex?"
R.C.: "I've read many articles about his sex life, or lack
of sex life.
DoJ: "Would a search on travel turn up articles about sex?"
DoJ: "Would a search on geology turn up articles about sex?"
R.C. "Only if rock is put together with roll!" <laughter>)
DoJ: "Would a search on food turn up articles about sex?"
DoJ: "You exercise discretion as to what you make available. You don't
carry everything, do you?"
DoJ: "You select materials that reflect the local community standards?"

Not surprisingly, the DoJ is trying to keep the hearing focused on
porn and sex. (At least it keeps Buckwalter awake!) Not the truly
extreme stuff that obscenity laws already ban online, but the softcore
Playboy-style cyberpix that would be permitted in the absence of the
CDA. The Justice Department asked Vanderbilt's Hoffman:

DoJ: "You stated in your deposition that you were generally familiar
with the web page called Bianca's Smut Shack?"
Judge Dalzell immediately looked up, startled: "Bianca's WHAT?"
DoJ: "Bianca's SMUT Shack."
Judge Dalzell: "Oh, okay."

Other DoJ questions included a passing reference to would-be cyberporn
researcher Marty Rimm, who claimed that pornographers were using the
Net to recruit customers. (Last month, the DoJ attached Rimm's study
as an exhibit in their response to our complaint and cited it as
evidence of the pervasiveness of nasty stuff on USENET.) Some examples:

DoJ: "You will concede, will you not, that this law will not have a
profound adverse effect [on password-protected smutty sites]?"
DoJ: "Pornographers are using USENET newsgroups to advertise, are
they not?"
DoJ: "Tell us about bots and spiders."
Judge Dalzell, trying hard: "That's an acronym, right?"

My fellow plaintiffs are wonderful. Kiyoshi Kuromiya testified the
first day, followed by Patricia Nell Warren. Warren and I had dinner
on Thursday with Jonathan Wallace of the Ethical Spectacle; we talked
about the political and social forces behind the push for the CDA. I
asked Wallace why he came down from New York City -- he told me
because "this is the most important free speech case in 60 years."

Today I sat next to the DoJ's net.experts, who kept leaning forward to
whisper technical data into the ears of the Justice Department's
attorneys. One of the two experts was from Brigham Young University.
The other was Steve Nesbitt from the Department of Defense. One or
both likely will be testifying as expert witnesses for the DoJ, but
Justice isn't releasing the list until April 3.

Stay tuned for more reports.


We're back in court on 4/1, 4/12, 4/15, and 4/26. The DoJ will be
taking depositions from our remaining witnesses the week of March 24.

For more information and breaking updates, check out:

To subscribe to the fight-censorship announcement list, send email with
"subscribe fight-censorship-announce" in the body to:

Other relevant web sites:
Peter Trei
Senior Software Engineer
Purveyor Development Team
Process Software Corporation