American Reporter v. Reno -- Day 3 (May 6)

Reasonable, Effective, and Appropriate

by Mark Mangan

Judge Cabranes started the day by reminding the court that he had previously ordered Hoffman to submit the official government position regarding "safe harbors" under the CDA. He then said that he had indeed received a letter on May 3 from Acting Assistant Attorney General John C. Keeney of the Criminal Division of the DoJ on May 3. Then went onto other housekeeping matters and began the proceedings.

After Cabranes' issued his directive on April 30, I (perhaps ingenuously) envisioned Hoffman officially presenting it to the court, followed by questions from judges and the plantiffs-- something more than just a passing mention and flipping into the docket. It seemed that the document was satisfactory to Cabranes and that was that. Thanks to Ann Beeson, legal scholar for the ACLU, I managed to get a look at it during a recess.

The document went on to say that non-commercial content providers could avoid the fines and jail by listing... Again, the document reinforced the concept of taking "good faith, reasonable, effective, and appropriate actions." It finished by saying that "tagging" (i.e, the -L18 scheme) would be an acceptable harbor of safety. After satisfactorily flipping aside the DoJ paper, Cabranes kept up the quick hearing pace and got down to business.

Schmidt took the stand again and under the guidance of Hoffman, continued his porn search routine. As in Philadelphia, he intended to show the court all the smut that he could find through simple searches--even with Surfwatch running. He found such things as "erotic city" and "S & M Playhouse" by naively typing in "women" and "little women."

The Air Force Smut Expert then described how he had recently asked his son about a favorite movie of his. His son answered "Babe"-- so he tried that. A search on this word returned almost 2000 links, including "fantasy babes" and "sexy Internet girls."

The Internet connection repeatedly timed out and during one of the longer waits Hoffman asked him about America Online and its parental controls. Schmidt conceded that this online service allowed parents to block newsgroups, email, chat groups, and offered a "kids only" area; however, he failed to elaborate on the system of multiple passwords and fully misrepresented the ability of parents to shut off the Internet altogether, implying that there was no way to deny Web access.

Still waiting for the connection to reestablish itself, Judge Cote jumped in to ask about PICS and what it allowed parents to block.

Schmidt replied, "I'm not familiar with PICS."

Once he got Netscape up and running again, Schmidt resumed his search for porn and ran all kinds of interesting searches. Hoffman was finished and Randall Boe, attorney for the plantiff, stood up for cross-examination--eliciting some of the most effective testimony of the hearing.

Boe asked Schmidt simply if in AOL a parent could disable access to the Internet.

Schmidt, pausing for a second, "That's correct."

Boe then asked if he had looked at CompuServe's new family oriented service "WOW."

Schmidt had not.

"Would a child resticted to the "kids-only" section on AOL be able to go to any of the sites you showed in testimony here or in Philadelphia?"

He lightly cleared his throat: "No."

"How about Prodigy?" Boe asked.

Schmidt said he didn't know--he hadn't looked at it.

Boe asked the Air Force Computer Crime Expert if he had ever done or read a study on the technical ability of children; or done or read a study on just how many children are on the Internet; or done or read a study on how many gain access to the Net through AOL. Sometimes pausing for a moment, always speaking into the microphone, Schmidt answered, "No."

"So you cannot tell us how many children would have access to this kind of material?"

Again Schmidt cleared his pipes, "That is correct, yes."

Boe asked if he had kept statistics when he was doing his studies to compile the exhibits--if he could say exactly how successful he was in finding porn.

"No," Schmidt replied.

Boe established that there were at least 10 million Web pages on the Net. "How many of these are sexually explicit?"

"No idea."

"What percentage of these are blocked?"

"No idea."

The questioning returned to the "sleepingbeauty" and "little women" searches and Schmidt admitted that the searches themselves would not directly call up sexually explicit material--one had to continue clicking on the links.

Boe also established that the porn found online was not unique to the Net and could be found elsewhere. He then asked, "Are there some sexually explicit materials in libraries?"

"It's possible," conceded Schmidt.

"Have you ever heard of a library being prosecuted for having sexually explicit material?"


At least three or four times during Boe's cross-examination Hoffman stood up to object that his witness was asked to speculate or draw legal conclusions. Each time Cabranes overruled, saying they would hear it for what it was worth and motioned for Boe to continue. Hoffman had no redirect.

Olsen was then called to the stand again and Judge Cote admitted that although she had had many questions when the previous day of the hearing had finished, most of her questions had subsequently "evaporated."

Cabranes asked more about InterNIC and the evolution of standards on the Net. Cote then asked him to explain a few things about the technology's current and possible ability to block material--giving Olsen the floor to push the effectiveness of his scheme. He pressed on about the necessity to put the onus on the provider to block certain material. And the necessity of a "force of law" to enforce this blocking.

Herein lies the crux of the vague government position, as drawn up by Acting Assistant Attorney General Keeney: make each provider responsible for tagging anything that might be "indecent."

This request seems reasonable enough. And this document is a real keeper. If the government comes after me for something I put on my Web page, I suppose I'll just pull the folded sheet out of my wallet.

"Look, I reasonably, effectively, appropriately and in good faith listed my site in a registry." A genuine get-out-of-jail-free card.

"Well what about these indecent pages, describing foul Holocaust experiments, and these that talk about sexual diseases, and this one here that says, 'fuck the CDA.' That is clearly indecent," the fed says, cuffs drawn.

"I have given all of that reasonable thought and in good faith decided that these should not be tagged as inapropriate for minors. I think anyone should be able to view them and if you don't want you kid to see them, block it out, or better teach him your own moral values," I think to myself, as I fold up the paper and put it back in my wallet.

"I'm sorry, I'll notify the registries, register the pages with the marketplace of browsers and blocking software, and take similar effective steps to be sure that the world knows to block these pages," I say. In other words, "There is nothing I can do against a righteous prosecutor armed with a vague criminal statute--the pages are coming down."

With that, Exon's censorship ball starts really rolling...

[The CDA Pages] [Day 1] [Day 2]

Mark Mangan
Sex, Laws, and Cyberspace (Holt, 1996)