American Reporter v. Reno, Day 2 (April 30)
Under Olsen's Force of Law

by Mark Mangan

William Hoffman, the lawyer for the government, digressed from his cross-examination of Clay Shirky to talk to the judges about the -L18 scheme and the effectiveness of placing the tag in the URL--all the while alluding to the concepts of "good faith measures" and "effective technology," Judge Sands then stopped him to asked him if the use of this -L18 tag did indeed constitute a "safe harbor." Hoffman replied, "In the ACLU case this was said to be one of the ways that you would fall under the good faith clause."

The autocratic Judge Cabranes stepped in to clear the air and get some real answers. "You have incorporated representation of the case from the Eastern District of Pennsylvania ... If you are able to represent the official national position, that would be helpful." He was evidently tired of evasive answers and allusions to a different hearing in a different district which was still underway.

Cabranes spoke into the microphone, looking at Hoffman, "Come Monday, I want you to present the official position of the Justice Department" on what constituted a "safe harbor." And "to avoid any confusion" he ordered him to bear a document which says "on whose authority you are making these representations." Cabranes also added that he wanted an official definition of some vague terms of the CDA, such as "sexually explicit," "indecent," and "patently offensive."

The testimony began with Clay Shirky, author of Voices from the Net, to explain certain cultural and technical aspects of the Internet. Shirky spoke clearly and intelligently about how online communities develop. Hoffman's cross examination led him to a discussion of Surfwatch and other screening software.

When the subject of Surwatch came up, the uppity and confused-looking Sands jumped in, "Is it going to be affiliated with PICS? What is PICS?" So, rather than have Anne Duvall of Surfwatch talk about Surfwatch and Albert Vezza of The World Wide Web Consortium talk about PICS, we had Hoffman and Shirky attempting to sort it all out. Hoffman played technical expert and it was at this point that Cabranes told him to go back to his superiors and come back Monday with some real answers.

It would have been helpful to have a technical scholar like Vezza give the discussion of PICS to the legal scholars on the bench, as it adds more credence to the testimony. Shirky, however, gave a very effective summary of the labelling system. He spoke about how it represented a single, interoperable, international framework for labelling content and was already accepted by many companies and Internet organizations.

During Stronsky's questioning about the impact of the law on content providers, Shirky gave some of the hearing's most poignant testimony. "Everytime I send mail; everytime I post to a newsgroup or Web page, I am a content provider. Everyone on the Net is a content provider. When I compose mail or reply to a mail posting, I don't stop to think about U.S. case law and whether what I am writing is 'patently offensive.'"

When Dr. Olsen took the stand, he offered the same stand-offish performance as in the ACLU trial. Stronsky began by asking, "So, you're here to talk to us about the -L18 tagging system?"

"No," Olsen replied. "I'm here to discuss the technical ways that people could comply with the CDA."

The majority of Olsen's testimony was a repeat of the ACLU case. He talked about how PICS was cumbersome and would create a "kid's ghetto." When asked about the assurance of blocking foreign ponography under his scheme, he couldn't give his stock answer of two weeks earlier--"I haven't considered it."

When Judge Cote posed the question, Olsen came back this time with a three part walk-around this time. Firstly, he had addressed the problem "relevant to the Constitutionality of the CDA," which doesn't include the question of foreign sites. Secondly, "perhaps they would follow the U.S. lead." Thirdly, many of these sites have made efforts to identify themselves. "But you are correct," he added, "there would be no assurance." Though Olsen was evading questions, he did so with an air of scholarly assurance. And the judges seemed to like him and trust his answers.

At one point Cabranes asked him to explain how standards are agreed upon and if there is one body that assumes control. Olsen launched into a brief history of the Internet, starting with the Arpanet. He mentioned the names of certain schools and organizations, such as the Internet Engineering Task Force and World Wide Web Consortium, which work together to form a general consensus. He pointed out that though the government helped lay the framework, it is becoming less and less involved.

This recalled the testimony of Shirky, when on the subject of moderated newsgroups, Judge Sand asked "How do they agree on anything?"

Shirky's response: "There is rarely full agreement. A culture develops."

Olsen then hammered home the importance of an -L18 system which, unlike PICS, will be more effective because it will carry with it "the force of law." Towards the end of his testimony he repeatedly used this phrase to emphasize the need to compell all those "pornography hobbyists" to rate their sites.

Despite being fully familiar with the fantastic growth of the Net, which is doubling every 9-12 months almost entirely without a governing body, Olsen was now advocating the institution of just such a body--a new "force of law" to guide the Net.

5:30 approached and Cabranes asked if Olsen would be back on Monday. The judges clearly liked his professionalism and turned to him for answers throughout the testimony. He was scheduled to return to Utah, but said he would come back if they needed him. Cabranes thanked him. Before leaving the judges again turned to Hoffman, reminding him that they wanted the offical government position on what a "safe harbor" is, as well as definitions for all those slippery terms, such as "indecent" and "patently offensive."

If Hoffman does give Cabranes what he is asking for, the DoJ will be effectively handing over its cards. But even so, the judges are not yet in a position to make meaningful use of them. By this, the second day of the trial, they have incorporated "URL" into their lexigon, throwing the term around with ease; however, they do not yet fully grasp the concepts of naming and addresses and are far from being able to judge on the fine distinctions between putting a tag in the URL, on a proxy server, or in the HTML. They simply need more time soak it all in.

The hearing resumes at 3:00 on Monday, May 6 in the Ceremonial courtroom at 500 Pearl St--downtown NYC.

[The CDA Pages] [Day 1]