Computer Censorship Law, ACLU Test Case, Begin February 8

On February 1 both houses of Congress passed The Communications Act of 1995, the major telecommunications bill which includes the computer censorship provisions described in previous issues of AIDS TREATMENT NEWS (issues #227, #229, #236, #237, and #238). The censorship legislation will take effect when Clinton signs the bill, probably on February 8.

Unless the Supreme Court rules the provision
unconstitutional, it is now a felony punishable by five years in prison for anyone in the U.S. to just RECEIVE an "obscene" communication by computer, even in your own home by private email or otherwise, even if you never show it to anyone -- up to ten years for the second and each subsequent reception, with a fine for each offense up to $250,000. You do not need to know that the communication is legally obscene -- just knowing it is sexually oriented is enough. By the time you see it to judge whether it is obscene, the crime has already been committed. And if you used the Internet, open-and-shut evidence against you passed through any number of different sites controlled by different organizations, and can remain there for years, legally dangerous until the statute of limitations expires.

Abortion became an issue on the day of the final vote in Congress, because the same legislation likewise makes it a felony to knowingly receive by computer (as well as to send) any information about how an abortion pill or other device can be obtained or made. Members of Congress disagree as to whether all of the prohibition of abortion information has already been ruled unconstitutional. As a compromise, some sponsors of the censorship legislation read language into the CONGRESSIONAL RECORD saying that Congress did not intend the telecommunications bill to criminalize abortion information; this might help if someone is prosecuted for discussing abortion by computer. Congress was unwilling to make any change in the language of the bill, however, because it was determined to pass the entire telecommunications bill that day or the next, before it went home for recess. (For more information on this abortion controversy in the telecommunications bill, see the SAN JOSE MERCURY NEWS,
February 2, page 1.)

These obscenity and abortion provisions of the law have nothing to do with the protection of minors, since they apply to anyone, even if no minor is involved in any way. About the only fact in your favor is that prosecution would presumably have to occur in your local area, or wherever you were when you received the message (not anywhere in the country, as with other sections of the law); in many areas, such as San Francisco, malicious or political prosecution of an inadvertent or incidental offense would seem unlikely. And the law applies to "interstate commerce," so it might not apply to local use of a local bulletin board not connected to the Internet.

Few members of Congress even knew that this provision was in the legislation until the day of the vote on the entire telecommunications bill, when the abortion issue was raised by Congresswoman Pat Schroeder. There have never been Congressional hearings on any of the computer censorship legislation; most members of Congress did not follow this issue at all. And the new crime of receiving information by computer was created by a few words in a six-page list of "technical" changes, words which apply an unrelated law (against importing pornography and abortion devices) to people who just explore on their own computer. This provision did not appear in the official text of the telecommunications bill until the morning of February 1, the day of the final vote in both houses of Congress. It never appeared anywhere in Thomas, the Library of Congress Web site intended to provide the public with the text of legislation Congress is currently considering, until after final passage. (The language has existed unofficially since December or early January, and it has been posted on public Web sites by civil liberties organizations; but it was not made official, and therefore not released to the public through usual channels, until shortly before the final vote in Congress. Those who looked where one would normally look for pending legislation did not find it. There appears to have been a deliberate effort to prevent the public from knowing, by keeping the censorship language in unofficial, unpublished status, until the day Congress cast its final votes.)

The better-known provisions of the bill are equally threatening. Putting any "indecent" message on the Internet is now a felony punishable by two years in prison and a $250,000 fine -- even if the same text or picture would be legal if published in a newspaper. "Indecent" is not clearly defined -- but redeeming social importance is not a legal defense (Congress rejected a proposal to exempt such material). And the indecency legal standard is so broad that it may even include the Bible; the King James version uses one of the Federal Communication Commission's "seven dirty words," a word specifically defined as indecent by the U.S. Supreme Court (II Kings 18:27).

Also, the crime is committed wherever someone under 18 RECEIVES the material, meaning that a person can be prosecuted anywhere in the country that prosecutors or influential organizations may be so inclined.

This new law affects AIDS TREATMENT NEWS, despite our completely non-sexual material:

* If we set up a Web site or any other computer facility which allows many-to-many discussion, we may be criminally liable for messages others post on our site; both the text of the legislation and the statements of its supporters in Congress suggest that this is the Congressional intent, as service providers are specifically exempted for "providing such access or connection that does not include the creation of the content of the communication," language apparently intended to protect companies in the business of leasing phone lines, computer hardware, etc. In a Web site, we would of course be creating content. No one knows if removing any problematic message as soon as we become aware of it would be enough to avoid trouble.

* If we set up an annotated directory of where to find AIDS information on the Internet and elsewhere online (which we have been planning to do), we may similarly be criminally liable for material that appears in any system we point to or describe, in the U.S. or abroad -- either material which exists when we set up the link, or which is added in the future -- even if we do not let the public add any information to our own site. What if a site we link to is inoffensive, but sites it links to are not? (It can take surprisingly few successive links to reach from a large directory to almost any site on Earth.) Obviously we cannot keep monitoring all AIDS-related systems on the Internet, which are the systems our directory would point to. We may have to publish our online directory in print only, and not allow copies online.

* The law against receiving anything obscene makes it dangerous to explore what information is available. Sexually explicit sites sometimes include an AIDS section; if we must never look at those sites, we will not have a comprehensive picture. In order to obey the law, we may have to travel abroad, or ask persons abroad to research certain areas for us.

This concern may seem exaggerated, when no one is likely to prosecute AIDS TREATMENT NEWS for researching and running an AIDS directory on the Internet. But the issue is not only the actual risk of prosecution; also it is how we define ourselves and set the policies that build our relationships in society. We are not comfortable if enforcement of the laws literally as written could send us to prison for decades -- no matter how unlikely this is to actually happen.

* Many academic archives, directories, and other information services now available on the Internet are likely to disappear, and many others will silently never begin -- even concerning completely non-sexual topics. Manual screening of massive back archives to assure legality would be prohibitively expensive for most institutions, as would sophisticated legal advice. And no software could screen the material and tell what might upset a prosecutor or jury somewhere, sometime, under who knows what political atmosphere or regime. Administrators at academic, government, and other large institutions are cautious by nature, and are likely to avoid possible trouble by not allowing their experts to make information available to the public. (The remarkable tradition of open access on the Internet could be lost permanently, even if the law is later changed -- because universities may find that they need to withhold their data in order to trade it to assure permission for their scholars to
access the databases of others
. This dynamic could permanently restrict to large institutions information which is now available to all.)

* And of course it will be more difficult to publish our material on the Internet, because we will need to find service providers willing to check everything we write in advance, or who know us well enough to trust us not to get them in trouble. We will always be able to find servers to carry us, but we may be blocked from public areas of the big service providers where most people have their accounts. We can still distribute our material by email, but it will be more difficult to reach new people and let them know what resources exist.

Why not avoid some of the problems by restricting our Web page to adult-only areas, as supporters of the law have suggested? One major reason is that there are no adult-only areas on the Internet of any consequence -- and there never will be, no matter what technology and institutions are developed. The reason is that the Internet is what could be called an information commons -- and inherently there is only one of those, not one for adults only and another for everyone. Once you limit or restrict a commons, it is not a commons any more, but a proprietary system controlled by somebody, because someone must police the restriction. This owner, manager, or authority can then police content, too, imposing whatever political or other restrictions it wishes. You no longer have a First Amendment right to be heard, just as you have no First Amendment right to be published in a particular newspaper. When a commons has been enclosed, its essence has been destroyed.

Strategy

AIDS organizations had no input at all into the new censorship legislation. In the past, our strategy at AIDS TREATMENT NEWS was to inform the AIDS community about the threat, so that it could have input into what Congress did. But there was no time, because the censorship provisions appeared dead until just weeks before they were locked in concrete, with Congress unwilling to change even a single word before final passage.

Now that it is too late to prevent the legislation, other strategies are needed. At this time we see three:

* Support the court challenges which are now being prepared by the American Civil Liberties Union and others (see below). Three AIDS service organizations are among the plaintiffs in this ACLU lawsuit.

Much of the new law is likely to be declared unconstitutional, as violating the First Amendment of the Bill of Rights. But court decisions could be many years away. And no matter what the courts do, we will need to fight this issue forever; we will need both institutional coalitions and personal working relationships with civil libertarians.

* Find and publish ways of staying out of trouble. For example, it still appears safe to distribute completely non-sexual information (such as AIDS TREATMENT NEWS) by email. We can now focus our computer distribution efforts on much more skillful use of email lists, which clearly needs to be done anyway (NOT using lists to broadcast massively as junk mail, but targeting massively yet with precision those who are likely to be interested, approaching dozens or hundreds of existing online communities, each in its own terms, its own contexts).

So far we do not know anyone who has learned how to do this well on the Internet. The AIDS community and others can apply their full energies to building expertise in appropriately targeted mass distribution, with confidence that this avenue will always be open, while the bill's legal consequences for participatory Internet sites are worked out.

Certainly we will seek legal advice, but no one can know how the law will be enforced. Our guess is that for some time it will be enforced selectively -- usually against those actually involved with pornography, sometimes against individuals and organizations targeted for their political work (especially gays), and occasionally against ordinary people whose incidental transgression happens to come to someone's attention and fit their agenda. But if a bureaucracy of inquisition develops, it will need cases to justify its existence, and the proportion of political and incidental prosecutions will increase. The fines of up to $250,000 per message could also motivate prosecutions. Enforcement philosophy is likely to depend heavily on the political atmosphere of the time, and on who is President.

* It is becoming clear that without a mass movement to defend civil liberties in the digital age -- comparable to what the National Rifle Association has done over the years on behalf of gun owners, or the pro-choice movement in supporting abortion rights -- we face increasingly serious threats to our future. Telephone and video are now merging with computers; soon all of the important means of public communication may come under the same censorship which computer users now face. And computers have unprecedented ability to preserve all traces of communication forever, making messages instantly available by person, topic, or any other search criteria desired; the cost of storage is now so low that it is becoming feasible to archive everybody's online communication. (Also, "spy viruses," computer viruses that instead of being pranks or causing immediate damage, secretly collect information and ship it to other parties through telephone or data lines, may either steal business information or turn one's own computer into an informer.) The new law imposes prohibitions so broad and undefined that anyone can be targeted for discriminatory enforcement, for political, personal, or other reasons, because no one can go though their whole life using computers regularly without ever making a mistake. The new law sets the stage for massive abuses; and the U.S. can use its superpower muscle to require such abuses elsewhere.

The only long-term protection is well-organized mass movements to make sure that the First Amendment rights U.S. citizens have defended throughout this nation's history are still meaningful, for today and for tomorrow. Congress could pass the current law only because it heard from very few people who knew or cared. That must never be allowed to happen again.

But in civil liberties -- as also in AIDS -- we have never yet found an organization that offers meaningful participation to any willing, committed volunteer, regardless of what skills they have, and wherever they may live. Some right-wing organizations do seem able to do this. Religious groups may have an advantage, because they can offer prayer at first, allowing people to become comfortable with each other before the egos and divisiveness of politics are introduced. Building equally massive grassroots organizations to defend a free society, instead of taking freedom away in the pursuit of power, is today's critical bridge to moving forward.

Test Case Filed This Week

As this issue went to press on February 7, the ACLU announced that it is filing a test case (ACLU v Reno) against the computer censorship provisions of the telecommunication law, immediately after Clinton signs the legislation (probably February 8). The group of 20 plaintiffs in this case includes three AIDS organizations:

* Critical Path AIDS Project in Philadelphia, which receives up to 10,000 access requests per day for AIDS information, reaches some of the most underserved communities in the nation, and will soon offer AIDS information in eight different Asian languages;

* AEGIS (AIDS Education Global Information System) in Southern California, which operates a free computer bulletin board with one of the largest online archives of AIDS information in the world; and

* The Safer Sex Page, a large archive of sex education materials on the World Wide Web which receives 35,000 access requests per week from around the world.

Other plaintiffs include Human Rights Watch (at risk because its reports include accounts of rape and torture in documentation of human-rights violations), Planned Parenthood Federation of America (which provides information on topics which include abortion), and the Institute for Global Communication (which operates a computer facility that serves about 400 nonprofit groups and 500 schools).

Also note: A number of World Wide Web sites are reversing the contrast on their lettering to turn their pages black, for a two-day protest after Clinton signs the bill, which he is expected to do on February 8. For more information about this protest, contact the Voters Telecommunications Watch (vtw@vtw.org), or check their free-speech Web page at (website no longer available)

For More Information:

American Civil Liberties Union, 212/944-9800x414 (or its new Web page, http://www.aclu.org -- or America Online, keyword 'ACLU')

Center for Democracy and Technology, http://www.cdt.org

Electronic Frontier Foundation, http://www.eff.org/

Voters Telecommunications Watch, (website no longer available)