CDA -- the sequel

CDA -- the sequel: By Janelle Brown. Congress is flooded with new bills restricting online expression. So where are the protests?


Janelle Brown
September 23, 1998 11:00PM (UTC)

In December 1995, in the wee hours of the morning, I was on my knees with glue gun and cardboard, assembling makeshift placards for a demonstration at lunch time in San Francisco's South Park. It was the first time I'd even remotely considered grass-roots activism since my more idealistic college days; I was protesting the Communications Decency Act. As the neon-pink sign I hoisted read, "Uncle Sam Out Of My Homepage!"

The Communications Decency Act sparked a furor among Internet users in late 1995 and 1996. The oppressive legislation, with its vaguely worded indecency standards, sparked a blue ribbon campaign, rallies and demonstrations, activism mailing lists, "turn the Web black" campaigns and a multitude of angry editorials. The numbers may have been comparatively small -- the demonstration I helped organize boasted barely 500 people -- but the issue was both noted and given air time by the mainstream media.

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The CDA was passed, signed, appealed and ultimately ruled unconstitutional by the Supreme Court in June 1997. But Congress hasn't stopped the fight to block smut on the Net, and a number of Net porn and filtering-related bills are wending their way through Congress right now. One, the Oxley bill (often referred to as "CDA II" or "Son of CDA"), will probably be approved by the House's Commerce Committee on Thursday; its opponents fear that it could be law within three weeks.

Congress learned its lessons from the Supreme Court, and the various bills aren't as wide in scope as the CDA. But they are still plenty restrictive, and have scared the usual suspects into action: The Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), the ACLU, Peacefire and 25 other organizations have started a coalition called the Internet Free Expression Alliance, which is fighting the bills.

But while the organizations have kicked into high gear, there's a surprising void of blue ribbons. There are no Web pages blackened in somber protest, and few pontificating free-speech activists. If these bills truly are the children of the CDA, where are the protests?

The halls of Congress are crowded with Net decency bills right now. The two that most closely follow in the CDA's footsteps are the Coats amendment (S1482) and the Oxley bill (HR3783). The Senate passed the proposal by Sen. Dan Coats, R-Ind., in June, but it was attached to an appropriations bill that is now stalled. The Oxley bill or Child Online Protection Act, which closely mirrors the Coats amendment, was approved by a House Commerce subcommittee last week and will be considered by the full committee on Thursday; if it passes, it will move to the House for a full vote. Observers anticipate that the Senate will then adopt the Oxley bill and drop Coats' amendment, and that a morally repentant Clinton will quickly sign it.

Both bills state that anyone who is "engaged in the business of the commercial distribution of material that is harmful to minors shall restrict access to such material by persons under 17 years of age." In other words, if you're supplying smut, you must set up an age verification process (for example, requiring an adult identification code or a credit card); if you don't, you'll face a $50,000 fine and six months in jail.

"It's illegal for young people to have this material in printed form," says Peggy Peterson, communication director for bill sponsor Rep. Michael Oxley, R-Ohio, who argues that pornography has been proven psychologically damaging to children. "We have movie rating systems, and TV standards in place, rules and laws that prevent getting this in printed form, so why shouldn't there be standards on the Net?"

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The CDA was struck down primarily because it was considered too broad, and defined pornography as material that was "indecent" or "patently offensive"; ironically, the original wording of the bill used the more established term "harmful to minors," but was changed at the last minute (in part by the urgings of Sen. Henry Hyde). Oxley and Coats learned their lesson from the Supreme Court, and from the get-go have used the "harmful to minors" standard. This definition is more likely to survive constitutional scrutiny. Material that is "harmful to minors" must have "prurient interest"; must "lack serious literary, artistic, political or scientific value"; and must depict sexual acts.

But the opponents of the Coats and Oxley bills say the potential laws are still unconstitutional. Arguments against the CDA II mirror the arguments against the CDA: What community standards will define prurient interest when the Net reaches into every community in the world? The law could enable a prosecutor in a conservative Southern town to take down a liberal Web site in San Francisco. And what, exactly, is a "commercial service"?

The Starr report that the House recently expedited onto Web sites everywhere is one example of the kind of material these new bills would restrict, according to Barry Steinhardt, executive director of the EFF. Although Peterson insists that the Starr report would never be censored by Oxley's bill, opponents of the legislation argue otherwise: Many of the sites that posted the report were commercial news sites, they say, and the fact that filtering programs blocked the report and that MSNBC online yesterday blocked portions of Clinton's testimony demonstrates that some people do consider Clinton's cigar shenanigans harmful to minors.

"The CDA II is a trojan horse. It has the veneer of a benevolent innocuous bill aimed at the commercial sale of hardcore, sexually explicit material, but in fact it covers a large range of Web sites that have some commercial aspect to them and have some material that relates to sex -- including, perhaps, Salon," explains Steinhardt. "It's a dangerous bill, and it's unfortunate that the larger Net community is only now becoming aware of it."

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The CDA II is not the only battle the EFF is fighting. There are also a number of bills floating through Congress that would require schools and libraries to install filtering software on their computers that blocks children from explicit material. One amendment proposed by Sen. John McCain, R-Ariz., would require schools and libraries receiving government technology funding to install filters; another proposed by Sen. Christopher Dodd, D-Conn., would require Internet service providers to include them with their services. Both McCain's and Dodd's bills are attached to the same appropriations bill as the Coats amendment. Yet another bill proposed by Rep. Ernest J. Istook, R-Okla., covers similar ground.

"We believe that widespread filtering is every bit as harmful as the original CDA. If filtering were to become the norm, the Web is likely to become more like television, a place where only mainstream material finds a broad audience," says David Sobel, general counsel for EPIC. "Increasingly, in an attempt to avoid being filtered, Web sites are going to dumb down their content. No one's going to take the risk of having their site blocked. The result will be more mainstream pablum on the Net."

These are the kind of apocalyptic arguments that should spur Net activists into action. But while these bills have been meticulously tracked by the IFEA members and haphazardly covered by the Internet press during their tortuous route through Congress, there's been little buzz about the bills in either the mainstream press or online communities.

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Of course, this summer it's been difficult to get the media to pay attention to anything less cosmic than a White House intern's love letters.
But what about grass-roots activists? Todd Lappin, who organized the original CDA protests at Wired magazine, explains, "I'm not so sure there's such a thing as a Net community anymore, with the same sense of cohesiveness. The community of people who use the Net is much broader than it was in 1995. Back then, we were all sitting in our offices feeling a genuine sense of outrage; I don't feel that anymore. I don't even feel like a sense of cultural solidarity is attainable anymore."

The libertarian nature of the Net was replaced by realpolitik, Lappin speculates, as the rest of the world barged online and the early adopters realized that they were outnumbered. The illusions of autonomy have been shattered: John Perry Barlow's Declaration of the Independence of Cyberspace of February 1996, which told the "governments of the industrial world" that "you are not welcome among us," now seems quaint and naive. As a result, many of those activists who participated in Round 1, like me, are burned out: As Lappin puts it, "It's someone else's turn to carry the flag."

Others speculate that the positive Supreme Court outcome in the CDA case rendered the Net population complacent. They listened to Bruce Ennis, who argued the case before the Supreme Court, widely proclaim after his victory in 1997 that "the Internet is now basically safe from government regulation in the future." This carefree self-satisfaction has probably reassured online activists that the Constitution will always be on their side.

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And there's so much different legislation to be worked up about, too. As Sobel explains, "Back when the CDA happened, it was the first legislative attempt to deal with the Net in any way; now we see lots of Net-related bills -- tax bills, gambling bills, spam bills. So it's harder to coalesce people around one bill the way you could a few years ago."

The EFF, ACLU and other organizations are focusing their attention on legal battles and anticipate another court case similar to the one they wielded against the CDA. But they are still trying to mobilize the masses. The blue ribbon campaign was relaunched six weeks ago; according to Steinhardt, more than 100,000 Web pages still link to the page, but they need to revive interest. The ACLU server is hosting a Web-to-fax link, so that visitors can fax protests to Congress (over 10,000 faxes have been sent so far).

These groups still hope that, like last time around, the troops will assemble when they realize that the tanks are closing in. As a frustrated Steinhardt puts it, "If you go back two, three years ago, it wasn't until the CDA was close to passage that the Net community caught on and began to express their strong views. These bills have traveled their tortured path through the Congress, and nothing dramatic has occurred so far, so that's why you don't have the sense of outrage. When it passes and the president signs it, it will happen. But then it will be too late."


Janelle Brown

Janelle Brown is a contributing writer for Salon.

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