The Hacker's Encyclopedia 1998/hackers_encyclopedia.iso/zines/cud/cud918.txt

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Computer underground Digest    Tue  Mar 11, 1997   Volume 9 : Issue 18
                           ISSN  1004-042X

       Editor: Jim Thomas ([e-mail])
       News Editor: Gordon Meyer ([e-mail])
       Archivist: Brendan Kehoe
       Shadow Master: Stanton McCandlish
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Field Agent Extraordinaire:   David Smith
       Cu Digest Homepage: http://www.soci.niu.edu/~cudigest

CONTENTS, #9.18 (Tue, Mar 11, 1997)

File 1--Purchase of Blocking Software by Public Libraries Unconstitutional
File 2--Dan Kennedy, COCK HUNGRY TEENS, and cyberlibertarianism
File 3--Joab Jackson on Maryland online "harassment" bill, from BaltCP
File 4--Cu Digest Header Info (unchanged since 13 Dec, 1996)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

---------------------------------------------------------------------

Date: Mon, 03 Mar 1997 20:15:20 -0800
From: Jonathan Wallace <[e-mail]>
Subject: File 1--Purchase of Blocking Software by Pub Libraries nconstitutional

Jonathan Wallace
The Ethical Spectacle http://www.spectacle.org
Co-author, Sex, Laws and Cyberspace http://www.spectacle.org/freespch/

"We must be the change we wish to see in the world."--Gandhi

PURCHASE OF BLOCKING SOFTWARE BY PUBLIC LIBRARIES  IS UNCONSTITUTIONAL

A Briefing Paper
by
Jonathan D. Wallace, Esq.
[e-mail]


    The following is intended for use by free speech advocates to oppose the
 installation of blocking software such as Cyberpatrol, Surfwatch, NetNan
ny or Cybersitter in public libraries. Permitted uses include basing your
 own correspondence or documents upon the research presented here, excerp
ting this document, or presenting it in its entirety to the people you ar
e trying to influence. Please redistribute freely.

    Jonathan D. Wallace, Esq., is a New York City-based attorney, author and
 free speech advocate. He is the co-author, with Mark Mangan, of Sex, Law
s and Cyberspace (Henry Holt 1996), and with Michael Green of two forthco
ming law review articles, "Curing Metaphor Deficiency: The Internet, The
Printing Press and Freedom of Speech" (Seattle University Law Review) and
 "Anonymity, Democracy and Cyberspace" (Hofstra Journal of Law and Legisl
ation).


     Public libraries in Austin, Boston and elsewhere have decided to instal
l  blocking software on computers connected to the Internet. Other librar
ies around the United States  are considering purchasing such software. T
he purpose of this paper is to summarize, for readers who are not themsel
ves attorneys, the legal precedents that establish that the installation
of blocking software by public libraries is unconstitutional under the Fi
rst Amendment.


    Blocking software is defined as software products published by commercia
l software publishers which do any of the following: block access to Inte
rnet sites listed in an internal database of the product;  block access t
o Internet sites listed in a database maintained  external to the product
 itself; block access to Internet sites which carry certain ratings assig
ned to those sites by a third party, or which are unrated under such a sy
stem;  scan the contents of Internet sites which a user seeks to view and
 block access based on the occurrence of certain words or phrases on thos
e sites. Blocking software products currently on the market include Safes
urf, Surfwatch, NetNanny, CyberPatrol and Cybersitter.

    It has been widely reported recently that these products go far beyond b
locking "pornography". In fact, most block sites containing speech which
is clearly First Amendment protected, such as the National Organization f
or Women site (http://www.now.org), blocked by Cybersitter, and the Elect
ronic Frontier Foundation archive (http://www.eff.org), blocked by CyberP
atrol. More information on political and lifestyle sites blocked by these
 products is available on the Peacefire Web pages, (http://www.peacefire.
org), and in The Ethical Spectacle, maintained by the author of this pape
r. (http://www.spectacle.org/peace.html). (Please note that both of these
 sites are themselves blocked by Cybersitter for their criticism of the p
roduct.)

    Most advocates of the use of blocking software by libraries have forgott
en that the public library is a branch of government, and therefore subje
ct to First Amendment rules. While libraries have discretion in determini
ng what materials to acquire , the First Amendment prevents government fr
om removing materials from library shelves based on official disapproval
of content.  Secondly, government rules classifying speech by the accepta
bility of content (in libraries or elsewhere) are inherently suspect, may
 not be vague or overbroad, and must conform to existing legal parameters
 laid out by the Supreme Court. Third, a library may not delegate to a pr
ivate organization, such as the publisher of blocking software, the discr
etion to determine what library users may see.  These points are each dis
cussed at greater length, with citations to significant cases, below.

    I.  The Installation of blocking software by libraries constitutes an un
constitutional removal of materials from the library.

    In the leading case of Island Trees Board of Education v. Pico,   457 U.
S. 853 (1982), the local board ordered removal from the school library of
 books including Bernard Malamud's The Fixer and Richard Wright's Black B
oy.  The Supreme Court held:

" Our Constitution does not permit the official  suppression of ideas. Th
us, whether   petitioners' removal of books from their school libraries d
enied respondents their First Amendment rights depends upon the motivatio
n behind petitioners' actions. If petitioners intended by their removal d
ecision to deny respondents access to ideas with which petitioners disagr
eed, and if this intent was the decisive  factor in petitioners' decision
, then petitioners have exercised their discretion in violation of the Co
nstitution."



    The Court also said:

" As noted earlier, nothing in our decision today affects in any way the
 discretion of a local school board to choose books to add to the librari
es of their schools. Because we are concerned in this case with the suppr
ession of ideas, our holding   today affects  only the discretion to remo
ve books. In brief, we hold that local school boards may not remove  book
s from school library shelves simply because they dislike the ideas conta
ined in those  books and seek by their  removal to 'prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opini
on.'.... Such purposes stand inescapably condemned by our precedents."

    Clearly, the Pico case will govern the use of blocking software in libra
ries if, and only if,  the blocking of a site by the product is analogize
d to the removal of a book from a shelf. If, as advocates of the purchase
 of  these products argue, the blocking of a site is analogous to the dec
ision not to purchase a book, then Pico will not apply.

    However, the blocking of a site is analogous to the removal of a book fr
om a shelf.


    Libraries certainly are not required by the First Amendment to grant use
rs access to the Internet. A library  might, by contrast, decide only to
give access to sites pre-screened by the librarian. This act of screening
 sites and then adding them to a list of sites accessible from the librar
y's computers would be  analogous to the process followed in deciding wha
t books or periodicals to order, and would be undoubtedly constitutional.
 (Significantly, it is impossible to imagine any public librarian in the
United States deciding not to authorize access to the National Organizati
on for Women pages or the Electronic Frontier Foundation archive.)

    On the other hand, a library installing computers with full Internet acc
ess has, in effect, acquired the entire contents of the Internet. Blockin
g software which screens out sites based on their inclusion in a database
 of impermissible sites, or blocks them based on the occurrence of banned
 words or phrases, is effectively removing these resources from the libra
ry. Just as the board of education did in Pico, someone has gone through
a thought process which resulted in the removal of materials based on the
ir disfavored content.

    Therefore,  the installation of blocking software in a public library di
rectly violates the rules laid down in the Pico case.


    II.  The Criteria Used By Blocking Product Publishers Are Vague and Over
broad and  May Not Legally Be Adopted by Public Libraries

    While certain speech, such as obscenity, is considered outside the prote
ction of the First Amendment and can be barred at will, the Constitution
provides significant barriers to  rules pertaining to protected speech.
When a library installs blocking software, it is enforcing a set of rules
 determining which protected speech its users can access .  These rules a
re inherently suspect under First Amendment principles and are likely to
be held unconstitutional. In general,  government rules regulating protec
ted speech must be narrowly tailored to serve a compelling government int
erest. Rules that are overbroad or vague, and which attack too much speec
h, will almost inevitably fail.

    There is a certain irony in the failure of many commentators to draw the
 appropriate parallel between last June's ACLU v. Reno, 929 F. Supp. 824
(E.D. Pa. 1996) decision holding the Communications Decency Act (CDA) unc
onstitutional, and today's library controversy.  The CDA banned  speech o
n the Internet "depicting or describing" sexual "acts or organs", even if
 that speech otherwise  had significant social value. A panel of three fe
deral judges held the CDA to be overbroad, in that it would ban much valu
able speech online. The examples given by the court included newsworthy r
eporting of female genital circumcision in Africa, and the dissemination
of safe sex information. Advocates of the use of blocking software by lib
raries have failed to explain why, if the government could not directly b
an the National Organization for Women pages via the CDA, it can do so in
directly through the use of blocking software.

    While the court referenced blocking software as a less restrictive alter
native to government censorship, it did not mean use of blocking software
 by the government. It meant that a concerned parent could install a bloc
king product on a home computer (a clearly constitutional use, as there i
s no government action involved) obviating the need for laws banning cont
ent on the Internet. The court did not consider the use of blocking softw
are by libraries. It did, however, decline to endorse the government's su
ggestion that an "-L18" rating scheme be mandated for all speech on the N
et. A public  library's installation of blocking software in effect circu
mvents the ACLU v. Reno ruling, by creating a customized Communications D
ecency Act applicable to the library's users.


    It is a constant of First Amendment cases that speech rules, in order to
 be constitutionally acceptable, must be clear enough to communicate to c
itizens which speech is legal and which is not.  There is no consistent s
et of standards followed by blocking products, and almost all of the publ
ishers refuse to disclose their database of blocked sites. Several have p
ublished the rules they follow in determining which sites to block; here
is one example:

"CYBERsitter Site Blocking Policies

The CYBERsitter filter may block web sites and/or news groups that contai
n information that meets any of the following criteria not deemed suitabl
e for pre-teen aged children by a general consensus of reports and commen
ts received from our registered user


- Adult and Mature subject matter of a sexual nature.

- Pornography or adult oriented graphics.

- Drugs or alcohol.

- Illegal activities.

- Gross depictions or mayhem.

- Violence or anarchy.

- Hate groups.

- Racist groups.

- Anti-semitic groups.

- Advocating of intolerance.

- Computer hacking.

- Advocating violation of copyright laws.

- Any site that publishes information interfering with the legal rights a
nd obligations of a parent or our customers.

- Any site maintaining links to other sites containing any of the above c
ontent.

- Any domain hosting more than one site containing any of the above conte
nt.


The above criteria is subject to change without notice."

    These criteria, if adopted by government to determine which speech to ba
n, would be struck down as unconstitutional just as quickly as a civil li
berties organization could race into court and get a decision. These crit
eria as written ban  speech about the listed items, in most cases even if
 the speech opposes the subject matter. For example, the ban on informati
on about "drugs or alcohol" is so broadly written  as to include sites ma
intained by anti-drug organizations or by Alcoholics Anonymous. Note that
 almost all of the criteria pertain to speech that, though disfavored by
most people, is clearly constitutionally protected, and may legitimately
be the subject of a child's research project:  hate speech, speech about
intolerance, and speech about illegal activities are three examples.  Non
e of the criteria make any exception for materials with social value. Thu
s the criteria would not permit a teenager to research a report about the
 Holocaust, which might fall under the ban on "gross depictions or mayhem
", antisemitism or hate speech. If this seems unlikely, it isn't; CyberPa
trol at one point blocked Nizkor (http://www.nizkor.org), an important Ho
locaust archive, because it contained "hate speech." In fact, the criteri
a made available by every publisher of blocking software are equivalently
 vague. As the Supreme Court said in a leading case involving a  Dallas m
ovie rating scheme,  " the restrictions imposed cannot be so vague as to
set 'the censor....adrift upon a boundless sea...' In short, as Justice F
rankfurter said, 'Legislation must not be so vague, the language so loose
, as to leave to those who have to apply it too wide a discretion.'" Inte
rstate Circuit v. Dallas,  390 U.S. 676 (1968).

    In summary, the criteria followed by every existing blocking product are
 far too vague and broad to meet the exacting standards of ACLU v. Reno a
nd decades of  Supreme Court precedents, even if the library had adopted
these criteria itself. As we will see in the next section, the delegation
 by the library of its decision-making to private parties--the publishers
 of blocking software--is also  unconstitutional.


    III.  A Library Cannot Relegate to Private Parties The Authority to Dete
rmine What Its Users Can See

    Although the installation of blocking software by a library may be a pol
itically expedient solution, it involves an illegal delegation of the lib
rary's authority to third parties.  Since the library itself, as we estab
lished in the section above, could not validly enforce vague rules, it do
es not avoid the exacting requirements of the First Amendment by abdicati
ng responsibility to the blocking software publisher.

    For example, federal courts have established that government cannot enac
t laws granting legal enforcement to the private ratings of the Motion Pi
cture Association of America (MPAA).  In  MPAA v. Spector,315 F.Supp. 824
  (ED Pa. 1970), the court dealt with a Pennsylvania law making it a crim
e to permit a  child to see a movie rated "R" or "X" under the MPAA schem
e. The court held the law unconstitutional:

"The evidence clearly established that the Code and Rating Administration
 of the Association has itself no defined standards or criteria against w
hich to measure its ratings. ...[I]t is manifest from a reading of Act No
2E 100 that, however well-intended, it is so patently vague and lacking
in any ascertainable standards and so infringes upon the plaintiffs' righ
ts to  freedom of expression, as protected by the First and Fourteenth Am
endments to  the Federal Constitution, as to render it unconstitutional..
2E.[T]the attempted recourse to Association ratings is of no avail."



     Other federal courts have agreed that " it is well-established that the
 Motion Picture ratings may not be used as a standard  for a determinatio
n of constitutional status",  Swope v. Lubbers, 560 F.Supp. 1328  (W.D. M
ich. 1983). As one judge tartly observed in   Engdahl v. Kenosha  317 F.S
upp. 1133  (E.D. Wis. 1970):

  This determination as to what is proper for minors in Kenosha is made b
y a private agency, the Motion Picture Association of America. It was con
ceded at the hearing upon the present motion that if the Motion Picture A
ssociation utilized any standards whatsoever in reaching its judgments as
 to what is an  'adult' movie, the defendants are not aware of what these
 standards are.


    Similarly, most public libraries buying blocking software will do so wit
h only a vague awareness, at best, of the standards (if any) followed by
the software publisher.


    Under these clear legal precedents, a library cannot block its users fro
m accessing Internet sites based upon a vague or undisclosed set of stand
ards implemented by the publisher of the blocking software.

    Conclusion

    The installation of blocking software by a public library is clearly unc
onstititutional under relevant First Amendment case law.


Please contact Jonathan Wallace at [e-mail] with any comments or quest
ions. For more information and for updated copies of this document, check
 the Net Freedoms page, http://www.spectacle.org/cda/cdamn.html.

------------------------------

Date: Thu, 6 Mar 1997 21:01:50 -0800 (PST)
From: Declan McCullagh <[e-mail]>
Subject: File 2--Dan Kennedy, COCK HUNGRY TEENS, and cyberlibertarianism

You'll find a porn-ucopia of online smuttiness -- from "COCK HUNGRY TEENS"
to "women administering fellatio to dogs" -- in Dan Kennedy's column in
the most recent issue of the _Boston Phoenix_, where he decries
cyberlibertarians, damns Net-sex, and extols the virtues of censorware.

I haven't read so much turgid prose since Marty Rimm.

His factual errors are worth noting. Kennedy says CyberPatrol blocked the
National Organization for Women and then unblocked it, when in truth
CyberPatrol never blocked NOW. Kennedy incorrectly says that GLAAD was not
on the CyberNOT oversight committee last summer, when in truth they were.
Kennedy says a Federal appeals court struck down the CDA; it was a
district court. Kennedy says the Supreme Court will hear arguments on the
CDA next month; in reality, they'll hear arguments this month. Kennedy
incorrectly labels Rimm a graduate student; he was an undergraduate.
Kennedy talks of the "cyberlibertarian grassroots" when discussing a
member of the Boston Coalition for Freedom of Expression, even though that
person is a leftist, not a libertarian. Kennedy incorrectly says Brock
wrote the "much-cited" expose' of censorware, when in fact we coauthored
it.

But forget accuracy. Instead, let's rant about THE DANGERS OF PORN ONLINE!
It's not like it hasn't been done before:

     For instance, it's not
     at all difficult to find photo-animations of a young woman
     performing fellatio above the inscription COCK HUNGRY TEENS, and of
     two men having anal sex; both are just one click from Yahoo, the
     big Internet search engine, which maintains an extensive guide to
     online sex...

     It's difficult to exaggerate the offensiveness of some of this
     stuff, the likes of which few people ever laid their eyes on before
     technology made it possible. You can find photos of women tied up,
     gagged, and being tortured with heavy lead weights suspended from
     their pierced nipples and genitals. Photos of women administering
     fellatio to dogs. Photos of women literally eating feces (if you
     see a pattern here, it's no accident: men rarely star in these
     twisted plots), and photos of lifeless victims of horrible

     And it gets worse...

So does Kennedy's column. Keep reading.

-Declan


---------- Forwarded message ----------

http://www.bostonphoenix.com/archive/news/quote.html

By Dan Kennedy
March 6 - 13, 1 9 9 7

Porn patrol

The digerati are screaming `censorship' over Mayor Menino's Internet sex
ban at the Boston Public Library. But cybersmut is more disgusting -- and
Menino's proposal more reasonable -- than his critics are willing to
admit.

     In cyberspace, everyone can hear you scream. And at those outposts
     favored by the technosavvy elite, they've been screaming bloody
     murder ever since Mayor Tom Menino issued a decree banning Internet
     porn from the Boston Public Library.

     In most quarters, including the editorial pages of the _Boston
     Globe_ and the _Boston Herald_, Menino's action has been seen as
     measured and sensible -- especially if, as now seems likely, he
     backs away from a misguided attempt to extend the ban to adults as
     well as children.

     But to the digerati, given to hyperlibertarian politics and a
     utopian, messianic belief in the ability of the Internet to
     transport humanity to a higher level of consciousness, Menino is an
     ignorant, jackbooted thug, and those who support him are
     technological illiterates trying to escape a culture they neither
     like nor understand.

     Parts of Usenet, a portion of the Internet comprising interactive
     discussion groups, have been filled with angry posts from
     cyberlibertarians, most of them in a thread titled "The Demise of
     Mayor Menino." For the most part, postings have consisted of
     vitriolic assertions that children have the same right to
     uncensored Internet access as adults, and of dire warnings of the
     political and even personal consequences Menino will suffer if he
     doesn't back down.

     Among the most incensed is Jim D'Entremont, of the Boston Coalition
     for Freedom of Expression. D'Entremont has been especially angry
     with the _Globe_ for failing to disclose that its publisher,
     William Taylor, is president of the BPL's board of trustees. In a
     letter to _Globe_ ombudsman Mark Jurkowitz that was also posted on
     the Net, D'Entremont accused Taylor of living "in an ethical
     vacuum," and added with more portentousness than logic: "It's very
     clear to us now, at least in general terms, just what has been
     going on." For good measure, D'Entremont, in a brief interview with
     the _Phoenix_, accused _Globe_ technology writer Hiawatha Bray --
     who wrote a generally accurate if pollyannaish piece on the
     porn-blocking software that may be installed on library computers
     -- of being "a former Christian-right activist in the Midwest." (A
     bemused Bray concedes that he was a member of the Chicago-based
     Pro-Life Action League before coming to Boston.)

     D'Entremont's outburst is far from an isolated phenomenon. Indeed,
     his passion is an article of faith among the digerati, a faith that
     has best been expressed by _Wired_ editor/publisher/founder Louis
     Rossetto. In a 1995 anti-censorship manifesto titled "Fuck, Piss,
     Shit, etc.," Rossetto called government officials "power-hungry
     sociopaths . . . wiping their asses with our Constitution." The
     intellectual framework for this rage has been laid out by the media
     critic Jon Katz, who, in an essay for _Wired_ titled "The Rights of
     Kids in the Digital Age," blasted V-chips, movie and TV ratings,
     Internet censorship, and other attempts to protect kids from the
     media as evidence of "anxiety and arrogance," imposed by "brute
     authority."

     It's an appealing, powerful argument, invoking as it does an
     eminently justified anger against mindless government authority, an
     ode to individual responsibility, and a gauzy, optimistic vision of
     the future. But it's an argument without nuance, leaving its
     adherents unable to draw the kinds of important moral distinctions
     most of us make all the time.

     We don't let kids buy alcohol or tobacco or lottery tickets -- or,
     more to the point, _Playboy_ or _Penthouse_. Yet the digerati argue
     that we should do nothing to prevent kids from viewing violent,
     degrading, hardcore pornography. Such fare, as the
     cyberlibertarians never tire of arguing, makes up just a tiny part
     of what's available on the Internet. But it is nevertheless
     voluminous in its own right and remarkably easy to find.

     Free-speech absolutists would have us believe that there is no
     moral distinction between a library that removes _The Catcher in
     the Rye_ or _The Adventures of Huckleberry Finn_ from its shelves
     and one that installs software on computers in the children's room
     to block out pictures of bestiality or sexual torture. It's a
     slippery slope, they say, noting that such software can block out
     sites devoted to the politics of homosexuality, or to denying the
     truth of the Holocaust. That's a valid criticism, but to invoke it
     as a reason to do nothing is to deny our ability to reason and to
     choose.

       ______________________________________________________________

     A close reading of Rossetto and Katz reveals some important nuances
     that D'Entremont and company gloss over.

     Rossetto's anger was aimed not at those who would keep hardcore
     porn from kids, but at the Communications Decency Act, a
     heavy-handed attempt to ban "indecent" speech from the Net.
     Congress passed the CDA in 1995 in the wake of an infamous _Time_
     cover story on cyberporn, which hyped a phony study by an ambitious
     graduate student named Martin Rimm. A federal appeals court put the
     CDA on ice, citing the very software that Menino wants to install
     as evidence that the free market could solve the problem of Net
     porn. (The Supreme Court will hear arguments on the CDA next
     month.)

     Katz's bill of rights is aimed not at young children, but at
     teenagers -- "socially responsible" teenagers, to be exact. And
     Katz takes the non-absolutist position that "Blocking, censoring,
     and banning should be the last resort in dealing with children, not
     the first."

     At the institutional level, Menino's ban is opposed by the American
     Civil Liberties Union and the American Library Association. Their
     rhetoric, though, has been distinctly lacking in bite. The ALA
     opposes in principle the use of any kind of blocking software, but
     does not require its members to go along with that position. As for
     the ACLU, John Roberts, executive director of the Massachusetts
     chapter, says, "We sort of take the position that it's a risky
     business making it [pornography] available, but it's better to pay
     that price."

     At the cyberlibertarian grassroots, though, passions are white-hot,
     and are often expressed in the kind of extremist terms favored by
     Jim D'Entremont. It's an extremism that is entirely blind to the
     true nature of cyberporn.

     Indeed, to listen to those seeking a piece of Tom Menino's flesh,
     you'd think that what was at stake was the right of kids to view,
     say, an online version of the women's-health book _Our Bodies,
     Ourselves_, or to snicker over _[4]Playboy.com_. Yes, you can find
     such benign fare on the Net. But that's hardly the extent of it.

     These days, when most people speak of the Internet, they mean the
     World-Wide Web, a graphics-rich, interconnected series of millions
     of "pages" ranging from those offered by huge companies such as
     Time Warner to the scrawlings of small self-publishers. You'll find
     porn on the Web, some of it pretty hardcore. For instance, it's not
     at all difficult to find photo-animations of a young woman
     performing fellatio above the inscription COCK HUNGRY TEENS, and of
     two men having anal sex; both are just one click from Yahoo, the
     big Internet search engine, which maintains an extensive guide to
     online sex.

     But despite the explicit nature of such photos, Web porn has its
     limits. During the past year, most porn sites have started
     requiring users to verify that they are at least 18 years old. Some
     of these are on the honor system; others, though, require elaborate
     procedures (including credit card verification) that are almost
     guaranteed to keep out prying young eyes. Then, too, the operators
     of websites easily can be located by authorities. A site with
     anything prosecutable would likely get shut down in a hurry.

     The opposite, however, is true of Usenet, an older part of the
     Internet consisting of thousands of so-called newsgroups. The vast
     majority of these groups are interactive discussion boards, such as
     _[5]ne.general_ (reserved for New England topics) and
     _[6]alt.journalism_, where much of the debate over the BPL has
     taken place. But it's also possible to post pictures to a Usenet
     group, and several hundred groups are devoted to pornographic and
     violent images.

     It's difficult to exaggerate the offensiveness of some of this
     stuff, the likes of which few people ever laid their eyes on before
     technology made it possible. You can find photos of women tied up,
     gagged, and being tortured with heavy lead weights suspended from
     their pierced nipples and genitals. Photos of women administering
     fellatio to dogs. Photos of women literally eating feces (if you
     see a pattern here, it's no accident: men rarely star in these
     twisted plots), and photos of lifeless victims of horrible
     accidents.

     And it gets worse. Child pornography is not ordinarily found out in
     the open, because law-enforcement officials regularly surf the Net
     looking for pedophiles; witness last week's bust of an Internet
     provider in Texas. Yet some foreign Usenet servers, easily accessed
     from the US, routinely include groups devoted to such disturbing
     fare as a photo of a very young girl, perhaps seven or eight years
     old, being orally raped, her face covered with semen.

     Usenet contains so much more depravity than the Web for a simple
     reason: no one is in charge. Newsgroups, once created, exist almost
     in perpetuity, propagating across the world onto the servers of
     Internet service providers (ISPs) both large and small. An
     individual ISP may refuse to carry some of these groups, especially
     if they contain material that might be considered legally obscene,
     which could make the provider liable. But it's no big deal to
     access a server somewhere else, in a place where the laws and/or
     enforcement are lax. As for tracing individuals who post this
     stuff, forget it: the ease of editing "headers," and the ability to
     upload porn through "anonymous remailers" that strip out
     identifying information, make it difficult (though not necessarily
     impossible) to find pedophiles. For instance, the photo of the
     young girl was posted by a [e-mail]_.

     Now, you could argue (and some have) that Usenet is irrelevant to
     the Boston Public Library, since its computers offer access only to
     the Web. Yet Yahoo lists a number of free, public Usenet servers
     that can actually be accessed _through_ the Web. How simple is it?
     Last week I sat at an Internet work station in the BPL children's
     room (for ages eight to 13), a bright, cheerful environment with
     toys and rows of kids' books. A mother sat quietly reading to her
     toddler. Older kids worked on school projects. And within five
     minutes I was looking at the descriptions of photos in a
     hardcore-bondage group. One more click, and the photos would have
     appeared on screen. If it was that easy for me, how difficult would
     it be for a technically adept, hormonally challenged 12-year-old?
     Not very.

     And there's not much doubt that kids go looking for porn. June
     Eiselstein, the BPL's assistant to the director for community
     library services, says the low number of complaints (about five in
     18 months) shows the pornography issue is "much ado about nothing."
     But BPL staffers say that kids regularly log on to pornographic
     sites, often sharing hot Net addresses with their friends.

     Over the past couple of years, there's been a rush to develop
     software that allows parents, teachers, librarians, and others to
     block out offensive locations on the Internet. If anything, such
     software has been promoted more by free-speech liberals than by
     anti-porn conservatives, who have made it clear through such odious
     measures as the Communications Decency Act that their ultimate goal
     is to transform the entire Net into a G- and PG-rated parallel
     universe.

     In Boston, Menino's staff has proposed that Cyber Patrol, the
     industry's leading program (about 85 percent of the market) for
     blocking out sites, be installed on every public
     Internet-accessible computer at the BPL and its branches, and at
     the city's community centers.

     Cyber Patrol, manufactured by Microsystems, of Framingham, prevents
     users from accessing websites and Usenet groups in any one of 12
     categories, ranging from partial nudity, full nudity, and sexual
     acts to illegal activities (example: how to hack into and damage a
     company's computers), gross depictions, and hate groups. A
     librarian (or parent, or teacher) can choose to block out sites in
     any or all of the 12 categories, and can exclude additional sites
     -- or make available sites that Cyber Patrol normally blocks.

     Trouble is, Cyber Patrol (like its competitors) is a flawed
     solution. For one thing, Microsystems has been caught on several
     occasions blocking out sites merely because they were
     controversial, such as those of gay and lesbian organizations. For
     another, the identity of excluded sites (the "CyberNOT" list) is
     semi-secret: though a user is informed when she or he hits a site
     that's been blocked, Microsystems does not publish a full list, for
     the obvious reason that kids would use it as a guide to forbidden
     locations. Although Microsystems has put in place an appeals
     process for those who operate sites that have been blocked, the
     pseudo-secrecy makes it difficult (or at least inconvenient) for an
     operator to find out whether her site is on the list.

     Still, attempts by digital guerrillas such as _CyberWire
     Dispatch_'s Brock Meeks to depict Microsystems as the Darth Vader
     of censorship ("a tale of broken codes, betrayal of a social
     contract, and morality run amuck," Meeks wrote last year in a
     much-cited exposi of Cyber Patrol and its competitors) don't square
     with what seems like a genuine attempt on the company's part to
     respect free speech and show some social responsibility. For
     instance, representatives of political organizations whose websites
     were originally blocked -- among them, the National Organization
     for Women, the National Rifle Association, and the Gay and Lesbian
     Alliance Against Defamation -- now sit on a Cyber Patrol advisory
     committee that helps set policy.

     Besides, even some of the outrages cited by Meeks and others are
     more ambiguous than they might first appear. The digerati often
     point to Cyber Patrol's blocking of an animal-rights group's photo
     of slaughtered greyhounds. But even though a 12-year-old doing a
     school report clearly ought to have access to such information,
     should a six-year-old?

     Menino, to his credit, has not behaved precipitately. Though he's
     reportedly miffed that his order wasn't obeyed instantly, he's done
     nothing to undermine incoming BPL president Bernard Margolis, who's
     put off taking final action until he can study the best way of
     keeping cyberporn away from kids while protecting the free-speech
     rights of adults.

     A reasonable solution would appear to exist: Cyber Patrol or
     something like it could be installed on computers in the children's
     room and perhaps also in the young adults' room, where an
     appropriately lighter touch could be applied to what's blocked out.
     The computers in the general library could be restricted to adults
     -- and left wide open. (Although Menino originally indicated he
     wanted porn blocked on computers used by adults as well as
     children, his spokesperson, Jacque Goddard, now suggests that he's
     willing to be flexible. For instance, she says librarians may be
     allowed to "unlock" a computer with a password so that an adult
     patron can obtain unimpeded access.)

       ______________________________________________________________

     At the cyberlibertarian extreme, children are to be viewed as
     miniature adults possessing a fully formed set of values and
     capable of judging what they should and shouldn't be exposed to.
     Mike Godwin, the staff counsel for the Electronic Freedom
     Foundation and a respected combatant in the war against Internet
     censorship, is an articulate spokesman for this view.

     "The role of public libraries is to facilitate access to
     information. It's perverse for government officials to force them
     to do the opposite," he says. "If you're worried about your child's
     choosing to see content you disapprove of, there is only one
     solution that works reliably, in my view, and that is to teach your
     child to disapprove of the same things you do."

     But Godwin is missing the point, or part of it, anyway. Parents
     can't watch their kids every minute. And even when parents are
     successful in teaching their children values, kids' natural
     curiosity is going to lead them to the forbidden. A generation ago,
     a child might surreptitiously flip through the photos of
     bare-breasted women in _National Geographic_, and eventually
     graduate to _Playboy_ and _Penthouse_. Today, that natural
     curiosity is going to lead to photos of screaming women, suspended
     from a ceiling with leather straps, being whipped, beaten, and
     mutilated. You don't have to subscribe to the anti-pornography
     theories of Catharine MacKinnon and Andrea Dworkin to wonder
     whether that might be harmful to impressionable minds.

     The cyberlibertarians perform a crucial role. They push us,
     challenging the mainstream to defend and explain itself. If it
     weren't for people like Louis Rossetto and Jon Katz and Brock Meeks
     and Mike Godwin, the Communications Decency Act would be the law of
     the land, and Punch Sulzberger's lawyers would break into a cold
     sweat every time the _New York Times_ published the words "damn" or
     "breast" on its website.

     And we should remain on guard against any attempts at real
     censorship. Menino's instincts aren't necessarily to be trusted.
     Last week, for instance, he vowed to crack down on racy soft-drink
     labels -- hardly the response of a person who values free speech.
     Vigilance will be needed to make sure Menino doesn't, say, quietly
     order the BPL to block out sex-education sites aimed at teenagers.

     But just as we don't want Internet content to be dictated by the
     likes of Pat Robertson or Ralph Reed, neither would we be well
     served by a mediascape shaped by the utopian visions of the
     digerati.

     The humorist and writer Barry Crimmins, a children's-rights
     activist who's incurred the wrath of some free-speech absolutists
     for his crusade against online child porn, says the issue isn't so
     much about blocking out pornography as it is about deciding what's
     appropriate for different age groups.

     "Let's deal with reality," he says. "If anyone is going so far as
     to say 10-year-olds have a right to see this stuff, then they've
     identified themselves as fringe and ridiculous. Ten-year-olds are
     not prepared to see depictions of rape and violence. Let them have
     some innocence."


         _Dan Kennedy's work can also be accessed from his Web site:
                    [8]http://www1.shore.net/~dkennedy/_

     _________________________________________________________________

             Dan Kennedy can be reached at [9][e-mail]


References

   1. http://www.bostonphoenix.com/cgi-bin/imagemap/alt1/map/sidebar.conf
   2. http://www.bostonphoenix.com/archive/news/quoteindex.html
   3. mailto:[e-mail]
   4. http://www.playboy.com/
   5. news:ne.general
   6. news:alt.journalism
   7. http://www.bostonphoenix.com/archive/news/quoteindex.html
   8. http://www.shore.net/~dkennedy/
   9. mailto:[e-mail]
  10. http://www.bostonphoenix.com/alt1/issues/current/new.html
  11. http://www.bostonphoenix.com/alt1/standard/info.html
  12. http://www.bostonphoenix.com/alt1/index.html
  13. http://www.bostonphoenix.com/alt1/standard/search.html
  14. http://www.bostonphoenix.com/alt1/standard/feedback.html

------------------------------

Date: Sat, 22 Feb 1997 22:11:52 -0800 (PST)
From: Declan McCullagh <[e-mail]>
Subject: File 3--Joab Jackson on Maryland online "harassment" bill, from BaltCP

Source -   [e-mail]

---------- Forwarded message ----------
Date--Sat, 22 Feb 1997 20:11:11 -0500
From--Joab Jackson <[e-mail]>

Declan,
       Hello! I just wanted to send this column I wrote on Maryland HB 778,
which starts out as a
 harrassment law and seems to be ending up as a censorship law. Thought
you'd be interested.
Resdistribute at will. . . .


Calling Delegate Roseneberg's Hand


If everyone agrees that having a state law against on-line harassment is
such a good idea, then why does almost everyone have problems with the one
now proposed?

On January 31 state Delegate Samuel "Sandy" Rosenberg (D-42nd District)
introduced House Bill 778, which would expand the current state law
prohibiting the use of the telephone to "annoy, abuse, torment, harass, or
embarrass" people to include "electronic mail or similar electronic
communication."

On the face of it, a law against on-line harassment seems overdue. Take the
case of Jayne Hitchcock. Late last year her E-mail account was mail-bombed,
and her phone number was spammed across Usenet, touted as some sort of free
sex-chat line. When she approached Anne Arundel County police, they didn't
know how to handle the case, she says. Only by suing her alleged harasser
could she find relief.

"If today someone were to go through the same thing I did, there is
literally nothing they can do about it," Hitchcock tells me by phone from
her Crofton home. Corporal Michael Donhauser of the Maryland State Police
Computer Crimes Unit agrees: "Presently there are no laws on computer
harassment."

Nonetheless Rosenberg's bill has drawn criticism from the Electronic
Frontier Foundation (EFF), the noted cyber-rights advocacy group. EFF
Director Stanton McCandlish calls it "half-cocked" and "ridiculously
unconstitutional."

McCandlish, whose group is known for its civil-libertarian stance, agrees
that on-line harassment is a serious-and growing-problem, but he says HB 778
isn't the solution. "The wording is vague and overbroad. No one was ever
guaranteed the right not to be annoyed or embarrassed," he tells me by
phone, mocking the bill's language.

Another person who finds the bill's wording too vague is-surprise-Jayne
Hitchcock. Although she supports HB 778, she says she is uncomfortable about
incorporating terms such as "annoy" and "embarrass." After all, being
annoyed or embarrassed are common dangers on the Net.

Hitchcock and McCandlish aren't the only critics. Rosenberg says he has
received numerous complaints via E-mail which raise questions about the
bill's free-speech implications, so he asked Maryland Assistant Attorney
General Kathryn Rowe to study the existing law's constitutionality as it
applies to telephone use. Rowe replied in a February 7th letter that the
courts have determined that the existing proscriptions are constitutional as
long as they are applied only to calls made "with the specific intent to
harass, threaten, or abuse the recipient." Criminal statutes, Rowe explained
to me in an interview, tend to be interpreted very narrowly by the courts.

That's good enough for Rosenberg. He insisted during an interview that the
law will not interfere with "protected political speech" but will merely
extend laws that already apply to the telephone. As he wrote in a response
to the E-mail complaints, "If conduct can be constitutionally restricted in
another medium, it can be limited on the Internet."

It's Rosenberg's use of the word "Internet" here that irks McCandlish-it's
another vague term. "We need to draw more careful distinctions," he argues.
Unlike the telephone, which is used largely for one-to-one conversation, the
"Internet" is everything from encrypted messages only the recipients can
read to Usenet posts accessible to millions. "This law is taking a medium
that is more like newspapers and putting restrictions on speech," McCandlish
told C-Net, an on-line news service.

Rowe seems to be in agreement with both Rosenberg and McCandlish. Her
February 7th letter to the legislator suggests narrowing the bill to just
"electronic mail," leaving out "similar electronic communications." When I
spoke with her she said it "might be advisable" to make even further
distinctions-between private E-mail and mailing lists, for example.

But Rosenberg is adamant about not substantively changing the wording of the
bill before its March 5th hearing. As it stands, HB 778 is as vague as last
year's ill-fated federal Communications Decency Act.

Maryland is not alone in trying to deal with on-line harassment. Other
states have recently passed or are considering legislation on the issue. The
trouble is, according to McCandlish, that elected officials are more anxious
to appear cyber-savvy to their constituents than they are to find out how
cyberspace actually works. Hence these laws are either redundant-proscribing
behavior already barred by existing laws-or so vague as to be blatantly
unconstitutional.

No doubt Rosenberg is angling to appear cyber-savvy. He is one of only a
handful of members of the Maryland House of Delegates to have a privately
run Web page (Sandy Rosenberg). In the past he's introduced
legislation dealing with the thorny topic of computer privacy.
Well, this is his-and the Maryland legislature's-big chance. They
can either draft a sensible, Net-knowledgeable harassment law
that the rest of the country can use as an example, or they can
just push through another dumb censorship law that, if passed,
will end up being struck down in court. The choice is theirs-and
yours.

A hearing on HB 778 is scheduled for 1 P.M. March 5 in the House
Office Building, room 120, in Annapolis. Anyone wishing to
testify must sign the witness register before the hearing begins.
Call 841-3488 for more information.

------------------------------

Date: Thu, 15 Dec 1996 22:51:01 CST
From: CuD Moderators <[e-mail]>
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