roundtable: Re: Congress Brokers Censorship Deal

roundtable: Re: Congress Brokers Censorship Deal

Re: Congress Brokers Censorship Deal

Craig A. Johnson (caj@tdrs.com)
Tue, 5 Dec 1995 08:41:25 +0000 

Message-Id: <199512050144.UAA18131@clark.net>
From: "Craig A. Johnson" <caj@tdrs.com>
To: telecomreg@relay.doit.wisc.edu
Date:          Tue, 5 Dec 1995 08:41:25 +0000
Subject:       Re: Congress Brokers Censorship Deal


On  4 Dec 95 at 17:46, Karl Denninger, MCSNet wrote:
> > 
> > ~ISPs are't common carriers.  Give that chestnut up right now,
> > becuase its ~just wishful thinking.  See Cubby .vs. CompuServe for
> > THE seminal case law ~on this issue.
> > 
> > I didn't say they were.  I just said they could ACT like a common
> > carrier in refusing to examine content.

ISPs as private businesses can "act" any way they want.  They are not 
common carriers, in the sense that term connotes in U.S. regulatory 
law and practice.  

The hope was, until recently, it seems, that a "common carrier-like 
status" could be achieved through court cases for ISPs, since their 
function is more akin to a bookstore, library, or newstand than to a 
publisher.  (See my piece in the December issue of WIRED magazine --
Cyber Rights Now section -- which tries to shed some light on the 
common carrier conundrum.) 

The White proposal, by mandating "prison sentences and fines for 
sending or displaying material that is harmful to minors" (official 
"background" note put out by Rep. White's office), casts the net wider 
than current standards which apply to print and broadcast media.

Despite the fact that "obscene" speech is not protected, in other 
media, community standards are used to define that.  What, pray tell, 
are the community standards for cyberspace?  This was, and is, the 
problem at the heart of the Thomas Amateur Action BBS case.

Notwithstanding the White  backers' arguments that the "harmful to 
children" standard is used in 48 states, this will have the effect of 
imposing extra expense or lost revenue upon ISPs who *do not* carry 
child porn or bestiality Usenet news groups, which contain content 
that is clearly illegal.  Other newsgroups which contain material 
which may "harm" children will have to be constantly patrolled by 
cyber snoops.  Who will pay for all this?  ISPs, naturally, will pass 
the cost on to customers, n'est pas?

Adults will have to be "authenticated" by the ISP or the Webmaster 
in order to view certain material which is deemed "harmful to 
children."  By whom is it deemed such?  The question is not really 
answered by the White backers.  There's talk of even letting the FCC 
into the act to help make these kinds of judgments.

The proposal clearly will limit the freedom of adults to view Playboy 
pictures or nude pictures on Usenet, because it mandates that Web 
pages and newsgroups invoke an authentication procedure to certify 
that the user is not a minor.  

So much for privacy protection.


(stuff deleted)
>  
> Uh, sorry -- the issue at hand was VERY seminal to the discussion,
> as it had to do with their FORUMs (much like Usenet newsgroups -- in
> fact, damn near identical to them).  This is an excellent example
> for this reason.
> 
> Note that they escape liability because, when they were told that
> the information was damaging and *libelous* they *removed it from
> their system*.

Ok, Karl, get ready to delete every newsgroup that carries (or begins 
to carry) "harmful" material.  You may have to hire a whole bevy of 
new people just to monitor all the newsgroups.  

Here's an example.  In the hype handed out by White today, there is a 
section entitled "Incentives for Private Sector Empowerment 
Solutions." 

Under that little gem of a title we have:  (a) "defenses from 
criminal liability for access providers and employers eliminate 
strong disincentives to seek out and eliminate objectionable 
content"( happy seeking Karl); (b) "incentives to develop effective 
family empowerment blocking aids as defense to criminal liability..." 
(happy developing Karl); and (c) "access providers and access 
software providers encouraged to deploy family empowerment blocking 
software through eligibility for defenses to both criminal and civil 
liability (happy deploying Karl).

I ask you ISPs:  Where will the working capital come from to do all 
this?
 

> > No, then the kiddie porn traffickers start posting the stuff to
> > the adult newsgroups, and then the censors move in there and the
> > fight escalates to the next level.  You'll just shift the bump in
> > the rug.

This is just about right.  Well said.


(stuff deleted) 
> 
> See, that is the problem.  If ISPs take the position that this kind
> of material (ripoffs and kiddie porn) are unacceptable on the net,
> and there is no appropriate place to file those articles, then it
> will be gone -- at least from Usenet.

Oh now really!  Why wouldn't they file them under alt.binaries.misc 
or some other such innocuous sounding newsgroup?


> Why?  Because the reality is that its the *enforcement* that's
> lacking.  There is a lack of resolve on this in the ISP community,
> because the truth is that *sex sells*; yes -- including sex with
> minors and sex with animals.

Sex sells everywhere Karl.  We can still buy Playboy and Hustler in 
bookstores, some of the most respectable people rent X-rated videos.  
And you know what?  Those people, many of whom are parents, make 
their own choices about what their children can see.

That is why it is only the section, "enhancing parents rights" that 
really passes muster in the White proposal.  Instead of thinking of 
creative new solutions for cyberspace we are stepping back into the 
murky swamps of traditional media regulation.  


> C'mon, its not too much to admit -- or is it?   Is that the problem
> - we all know darn well why the groups are there -- subscribers
> DEMAND them.  In fact, these groups are GROSSLY overrepresented in
> the resources required to handle and process them.  As in comprising
> some 50% of the total feed volume for a couple of dozen groups.

So what?  Obviously, Karl they don't *all* carry child pornography 
and bestiality.  Are you suggesting an even broader standard of 
censorship than White?  

Methinks you like the original Exon and Hyde proposals better.  They 
could use you to help get out the word, now that they are being 
blindsided by the White proposal.

Of course, somehow the concept of not regulating the Net with new 
laws and enforcing the old ones got lost in this dialogue.  I wonder 
why that is?  Could it be that we are all accepting into the ideological 
boundaries that the Christian Coalition and its stalwart defenders on 
the Hill have drawn for us?  Net veterans doing that?  Naw!  Couldn't 
happen, right?

This time, perhaps, the Net will not be able to route around the flaw 
in the system, because the flaw, my friends, is not in the Net, it is 
in ourselves.  We are the Net.

Let's get and keep child porn offline!  But, I encourage everyone to 
take a long, hard look at the White proposal before we go flying its 
banner, or, conversely, painting it as an evisceration of the Net as 
we know it.  It may be that.  But it may not pass either.

Best wishes,

Craig




Craig A. Johnson
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Telecommunications/Information Policy Specialist
Transnational Data Reporting Service, Inc.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
caj@tdrs.com

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