The CDA Challenge, Update #4

Rohit Khare (
Thu, 4 Apr 96 14:46:14 -0500

The CDA Challenge, Update #4
By Declan McCullagh / / Redistribute freely

April 3, 1996

NEW YORK -- This afternoon the action shifted to a Manhattan
courtroom, where a panel of Federal judges tried to decide what to do
with a CDA challenge filed after ours.

The lone plaintiff is Joe Shea, who declined to join the ACLU/ALA
coalition lawsuit and is suing on behalf of the American Reporter.
Shea has been pressing the NYC court to rule on his case before ours
is decided.

While we've taken pains to net.educate our judges with live -- albeit
buggy -- demos and six days of hearings, Shea is relying on hardcopy
to argue his case. This strategy is dangerous: if a relatively
ill-educated NYC court upholds the CDA, that precedent can hurt our

In court today, U.S. Second Circuit Court of Appeals Judge Cabranes
proposed that Shea and the assistant U.S. Attorney defending the CDA
adopt the record of the Philadelphia case to avoid duplication of
evidence, testimony, and exhibits. Shea's attorney, Randall Boe, was
reluctant to agree, even though he would be allowed to present
additional evidence. (The DoJ's crack civil team declined to show

The court wasn't happy with Boe's response. It gave Shea and the
government until April 17 to decide to include the entire record of
the Philly lawsuit -- and said that if they don't, the court would
appoint its *own* computer expert to demo the Net and blocking
software on April 30.

Another possibility is that the New York court could stay its decision
until the Philly court issues its opinion. At the request of the
Pennsylvania three-judge panel, Marjorie Heins from the ACLU was in
NYC today to describe the latest in our case; she also suggested that
the Judge Cabranes' court had the option to wait. This could happen --
my friend Eric Freedman of Hofstra Law School tells me it is by no
means unusual for one Federal court to defer to parallel proceedings
in another.

No matter what the panels of judges decide, the two cases will be
consolidated on appeal to the Supreme Court. (If we lose, we have 60
to 90 days to file our appeal. If the DoJ loses, they have 20 to 30
days to file theirs.)

Bruce Taylor has a unique perspective on the hearings. He's the guy
who helped *write* the be-damned CDA and he's been its most vocal
supporter over the last year as president of the National Law Center
for Children and Families. I met Taylor last week at the Computers,
Freedom, and Privacy conference and we sucked down a few beers in the
hotel bar before he went cue-to-cue with Brock Meeks.

Taylor told me today that the assistant US atty for the Southern
District of New York was "just parroting what's happening in
Philadelphia" and had come down from NYC on Monday to observe the

A former porn-prosecutor, Taylor wears his successful convictions as a
badge of honor: "Comstock was an amateur!" He says his side is doing
well: "I've worked with the civil division before... They're very good
litigators who do their homework." (Of course, Taylor conveniently has
deluded himself into believing the CDA is constitutional.)

Today we also officially learned the identities of the DoJ's two
expert witnesses.

Since the DoJ is calling only two witnesses and we're calling just one
more, we should finish before April 26. (The DoJ's fax to our legal
team today says: "At this point, defendants do not plan to call
additional witnesses.") If this works out, we'll complete testimony on
April 12 and reserve April 15 for rebuttal.

As I reported in a previous dispatch, the first pro-CDA witness is Dan
R. Olsen, Jr., the incoming director of the Human Computer Interaction
Institute at Carnegie Mellon University. Currently the head of the
computer science department at Brigham Young University, Olsen will
testify about the "technical issues related to the 'safe harbor'
defenses" under the CDA. Olsen will be deposed, probably in
Washington, DC, on April 8.

Olsen was unwilling to tell me much in email earlier today:
"I understand your interest, having read your home page. I would be
happy to go over all of this with you when I actually move to CMU
in July and the case has completed. Until the case is resolved, it
would be inappropriate to discuss it. Thanks for your interest."

Note that BYU's rather Orwellian computer usage policies say:
"DON'T: Use BYU resources to view or transmit pornography... All the
activities and circumstances covered by this policy must comply with
the University's standards of Christian living... The University
community may direct questions or requests for exceptions to this
policy, as well as report any instances of noncompliance or
deviations to the Advancement Vice President."

How appropriate that a faculty member at such a school would take a
job as an administrator at equally-censorhappy Carnegie Mellon
University -- which is considering a truly heinous speech code and
still censors its USENET feed!

I predict lots of cybersmut when the second government witness
testifies. He's Special Agent Howard A. Schmidt from the Air Force
Office of Special Investigations, and will "present a demonstration
and testify concerning access to information, including sexually
explicit material, that is available online, including through the
Internet." Schmidt will be deposed on April 9.

Brock Meeks reports that Schmidt apparently is a member of the High
Technology Crime Investigation Association and has participated in a
"Law Enforcement Panel on Computer Forensics" for the 18th National
Information Systems Security Conference in Baltimore last October. He
also likes boats and fishing; hiking and camping.

It's a cinch that the April 12 hearing will be the best-attended. How
often do you get a chance to see a DoD Special Agent pull up smutty
GIFs on dual 8' projection screens in a Federal courtroom?

The question is, of course, which GIFs? On the WELL, folks are betting
that the salacious collection will include at least one snapshot of
female genitals nailed to a table. At least, that the image that Bruce
Taylor delights in using as an example of cybernastiness.

Still no word on the true identity of Grey Flannel Suit.

Stay tuned for more reports.


We're back in court on 4/12, 4/15, and possibly 4/26.

Mentioned in this CDA update:
The American Reporter <>
Joe Shea <>
DoD's Howard Schmidt <>
MU's HCI Institute <>
Dan Olsen at BYU <>
BYU's censorship policy <>
Censorship at CMU <>
Brock Meeks on Howard Schmidt:
Brock Meeks' CyberWire Dispatch on Bruce Taylor:
Joe Shea's complaints about ACLU wanting to "stand alone in the limelight":

This and previous CDA Updates are available at:

To subscribe to the fight-censorship mailing list for future CDA Updates and
similar discussions, send "subscribe" in the body of a message addressed to:

Other relevant web sites:

(This CDA Update was compiled from various firsthand reports.)