The CDA Hearings -- Day 4

by Mark Mangan

The government's expert on computer crime showed how a search on the word "jasmine" turned up links to sexually explicit material. By searching for the name of a character in Disney's Alladin, the DoJ was attempting to show that cyberporn was pervasive and readily available to children who were not looking for it. But the judges were skeptical; they wanted to know just how inadvertant the search was. They wanted to know how likely it is that a child searching for children's material could be unwittingly thrust into the "cyberbabes" homepage.

The fourth day of hearings began with Howard Schmidt, a government witness presented as a forensics expert on computer smut. Officially, he worked in the Air Force Office of Special Investigation and went by the title Supervisory Special Agent.

With Schmidt, the DoJ wanted to show how easy it is for kids to find porn on the Internet and the bets were on as to whether or not filthy porn would actually be displayed to the court and the panel of federal judges. Each table of lawyers had a computer screen, the witness stand had one, and the bench shared two. As the testimony began Buckwalter kicked back in his big leather chair and watched a screen; Dalzell and Sloviter hovered in front of the other one.

Before the testimony began, Marjorie Heins of the ACLU, anticipating his prepared search and discovery of online erotica, made the point that as a computer expert, Schmidt cannot effectively demonstrate how easy it is for a child to find this kind of material. The panel took this into consideration, but admitted his testimony. Judge Sloviter said, "We're not going to have a child up here. The panel rules that we will accept it for what it's worth."

Lawyers from both sides took their seats and Schmidt began a demonstration in narrative form. He described Netscape, how it worked and how to find information on law, government, and federal court. He led the way through newsgroups and the alt.binaries hierarchy, pulling down images of cute racoons and ducks. In a rare moment of courtroom accord, Judge Dalzell remarked, "I think everyone agrees that's a cute duck."

As Schmidt prepared to flip the subject from cute ducks to beaver shots, Marjorie Heins stood up to reiterate an earlier objection that he may show some hardcore porn which could be found obscene outside of the CDA--reminding the court that this case is about the outlawing of "indecency." Judge Sloveter said the demonstration of how one finds this information was "absolutely relevant," regardless of whether the material is obscene or simply indecent.

Schmidt now went to the Yahoo pages and typed in "XXX." In the first sign that the judges were keeping in mind the ACLU's point that Schmidt is not an innocent child, carefreely surfing the Net, they asked "How did you know to type that? Is that generally known?" The Air Force expert called up "Las Vegas Show Girls," the "Honey" page, "South Shore Secrets BBS," "Steamy Erotic Links," "Cyberbabes," and "Amateur Hardcore"; Sloviter and Dalzell were hovering over the screen, pointing; Buckwalter was leaning back, gently swaying and looking at the second screen. Schmidt would make a few clicks, bring the court up one link shy of porn, then refer to the judges to a hard copy of it in evidence. No pornography was ever shown to the courtroom or even displayed on the screens.

Schmidt showed that some of this material was accessible even when Surfwatch blocking software was running. But the ACLU effectively pointed out that this computer expert found all this material with no such software running. He sought out the porn with no restrictions on his system, then plugged in Sufwatch and typed in direct addresses to this material. The ACLU made it clear that it was not exactly a fair representation of how a child might stumble upon smut.

Schmidt admitted in questioning that had he used Surfwatch from the beginning, it would have blocked the "XXX" search altogether. As part of his demonstration, he also presented some Playboy pictures, the locations of which were advertised in the printed magazine. He then made the point that Surfwatch blocked only two out of the three images. The lawyer for the plantif's then humourously conceded the point that a child could find one of the three images--even with Surfwatch running--by leafing through a copy of Playboy.

When it was the judges turn, they hit Schmidt with some good questions regarding the pervasiveness and accessibility of sexually explicit material. Sloviter asked if he had ever come across such material inadvertantly and if there was some kind of warning. She concluded that it was somewhat like an adult shop, which gives passerbys a clue as to what is inside.

Dalzell then raised a hypothetical to Schmidt in which the law is found to be constitutional and it is his job to enforce it. There is an AIDS research center offering up material to places as different as Brainerd, Minnesota and New York City. If this organization were to offer up pictures of "erect penises" to demonstrate the proper use of a condom, what would he do? Schmidt responded that the material had "educational value" and would therefore not be prosecuted.

Dalzell then presented a similar hypothetical in which the organization is Vanity Fair and the material is naked photos of Demi Moore. "How do I keep you from coming after me under the Communications Decency Act?" Schmidt talked around the question, intimating that in Brainerd "that standard would probably be applied" (i.e. it would be prosecuted). Dalzell tried again: he offered another hypothetical in which the material was National Geographic in nature and included pictures of naked people. Schmidt responded with some vague words about a "reasonable people standard" (i.e. he'd come after the provider with the good Lord on his side).

The judges then turned their questioning to Surfwatch software, which Schmidt said could use some improvement. Judge Sloviter finished by asking about all the good minds in the government and universities and whether this kind of filtering software represents a doable, reasonable solution. Her words represented more of an insight into her mind than a real question that he could answer. Schmidt's testimony was over.

During a brief recess I went out for a cigarette and said hello to Bill Burrington, counsel for AOL, and complemented him on his solid testimony on Day 3. He introduced me to Bruce Taylor, the President of the National Law Center for Children and Families and contributing architect of the CDA. Taylor had a cigarette in his mouth, a slight build, slightly greying, dark hair, and thick, square glasses. I asked him about his involvement in the legislation and Burrington jumped in, intimating that he too was involved and declaring that Taylor was the "voice of reason" in the whole process.

Brock Meeks came out to join us, having not spoken to Bruce since starring him in a recent fact/fiction dispatch of drinks, whores, decency, and green felt. Taylor pulled out a Marlboro light, took the last drag off his lit but, and chained the fresh one from the old. There was a bit of restrained energy in the circle but no apparent animosity.

Declan McCullagh arrived and we carried into a conversation about computer generated child porn. Taylor argued that such pictures made pedophiles want to act, like a skier fantasizing from an action photo of jumping a headwall. Declan and I argued that these fake kiddie porn pictures might keep the perverts occupied, harmlessly maturbating. The five minute recess had run into ten and we returned to the courtroom.

The next witness to take the stand was Albert Vezza, an Associate Director at MIT Laboratory for Computer Science and Chairman of the World Wide Web Consortium. He gave the panel the long awaited in-depth discussion of the PICS rating system--Platform for Internet Content Selection. He was a heavy-set man with glasses, thick, greying hair and the presence of a person who has probably spent much of his time holed up in a laboratory. The lawyer for the DoJ, Jason Baron had deposed him earlier and it was clear that Vezza did not like him.

Vezza described PICS as a general labelling scheme which can incorporate the Dewey Decimal System or the Library of Congress cataloguing system. Although it was not originally designed for rating content, it's suitablility for such a use was recently recognized. PICS allows a parent to set a child's profile into the browser, keeping in mind a rating system that recognizes different kinds of content. The parent then subscribes to a third party rating service. Its effectiveness would be driven by market forces and it easy to conceive a system in which Microsoft consolidates much of the work of many large companies and offers the most comprehensive rating service; meanwhile, the Christian Coalition has its own unique interpretation of the rating system and offers its service free to all members.

Baron tried to establish that such a system was not logistically feasible and there is no way to expect all sites to be rated. He made Vezza concede that the World Wide Web is experiencing phenomenal growth; he then led him to admit that if there are 22 million URL's, and if only 5 thousand are rated--and the browser is set to block out all unrated sites--then 99% of the Web is unavailable. (There was a little hostility between the two and Baron would fluster Vezza by contradicting him with minor details, citing chapter and verse from the deposition they enjoyed earlier. Vezza seemed to feel that he was being misrepresented and directed all his responses to the panel, referring to them at one time as "jurists.")

Vezza responded that Baron had pointed out a start-up problem. Market forces would drive a competent labelling of virtually all sites in a matter of years. In addition many sites, such as his massive site at the MIT microbiology lab, need only be given one simple tag identifying it as educational. "I have tons of microbiology stuff at MIT that nobody cares about. You give it a tag once and be done with it."

Baron was finished and under the questioning of the ACLU, Vezza was much more at ease. He explained the advantages of his system: "if we have to rely on everyone to turn to authorities to put something on the Net, we're going to have a lot of authorities telling us what to do. With PICS, you can turn to a third party." He also pointed out that the U.S. could rate foreign sites and vice versa. And within the U.S. PICS allows values to be locally determined.

Judge Buckwalter spoke up: "PICS will succeed if all vendors comply. What is the chance of that?" Vezza responded, "very high," pointing out that Microsoft and Spry have agreed to use the system and Netscape will be not far behind.

The panel was becoming very interested, with Sloviter adding, "the reason is that there are extremely powerful market forces driving this. So they are saying to people with young children, ‘come with me and your children won't see what's in Mr. Coppellino's book?'" (referring to the book of porno presented by the DoJ). Baron came back for a second chance. In response to one of his questions, Vezza said that self-labelling would be chaos. But labelling by a few rating mechanisms will work, he said. Sites will be rated slowly by one business model and more quickly, less specifically by another.

Sloviter declared "this is really a unique and novel experiment in information." Vezza agreed, contrasting it with a movie-like rating system, which cannot capture the sophistication of art and literature. She then added that there would have to be "a committment to continue this indefinately."

Vezza stepped down and the government prepared to call its second witness of the day Dan Olsen, Professor of Computer Science at Brigham Young University. The panel of judges were noticably interested in PICS, which clearly diffuses the authority of rating and would make it difficult for prosecutors to find good targets. Sensing the rise of PICS, the DoJ rushed up some strategy in the last two weeks and came up with its own rating system, based on a string of four characters, "-L18."

Olsen had come up with the system and was in town until 5:15 to explain it. He readily admitted that his proposal was somewhat rushed and he did not work out all of the finer details. Doctor Olsen is well educated; he was neatly dressed and well spoken on the stand. When questioned by the plantiffs' lawyers he was slightly antagonistic--responding so literally sometimes that he seemed to enjoy being a wiseass.

Under his system the world of information is simplistically divided into that which is suitable for children and everything else, which is tagged with "-L18." The government's argument is that the PICS system is too cumbersome. It also makes the CDA unnecessary if parents have the option to subscribe to these services and effectively block out all "indecent" material on the client side. The Olsen proposal, on the other hand, puts the onus on every person who posts information to tag it. Naturally, most people will by default add the -L18 tag--just to be safe.

Bruce Ennis of the ACLU took Olsen through a deliberate, logical line of questioning, attempting to show the overly broad and generalistic nature of his one tag system. He began with the semantics of the tag's name, eliciting that "-L18" could just as easily have been named "XXX." Olsen was cunning and evasive in his answers, qualifying everything on a very literal level. When asked what the 4 character string meant, he replied "nothing, to people." So what does it mean to software? "Nothing, if not configured to understand it."

When the testimony touched upon the differences between the PICS and the -L18 proposals, Olsen remarked that a third party tagging system would not cover much of the Internet and a browser set to block all untagged sites would create a "kids ghetto." When asked about the problem of foreign sites, Olsen responded that he hadn't considered it.

Chris Hansen stepped in at this point and continued banging away at the limitations of the -L18 proposal. He offered the hypothetical that the CDA is passed, it's 6am and by 6:15 a hypothetical organization, call it EFF, must label it's thousands of pages. Olsen answered calmly, cuttting into this hypothetical by remarking that any software project that needs to be done in 15 minutes must be unsatisfactorily rushed. Hansen had declared when he took the microphone that he would move from the abtract to the concrete; he was now flailing.

At one point Olsen remarked that the PICS system was another viable alternative, to which Hansen seemed confused, "but we're supporting PICS and you are supporting -L18, right?" Olsen was unbothered, responding that he was simply supporting the use of a system in which content providers must tag their pages. Interestingly, he seemed to be abandoning complete support of his own proposal. The clock closed in on 5, the court recessed, then returned only to put off the government's chance with Olsen until Monday.

The fourth day was all about rating systems. Under both the ACLU's and the government's proposals, a parent can set the browser to read only those sites tagged as suitable. However, only the PICS system allows the parent to also block all untagged sites, thereby accounting for any filth from overseas. In the -L18 scheme there is admittedly no consideration of foreign content. Upon consideration, it becomes obvious that there would be no way to compel foreign sites to accept and use the convention.

There are two other important differences. Under the government system, all sites are either -L18 or not -L18. In PICS there is room for a wide variety of controls, such that a parent can specifically block out certain types of speech, such as violence or sex. Also, under the government system, users must make judgement calls and tag their pages-- begging the question of standards. Considering Congress' penchant for putting these kinds of decisions in the hands of local communities, the standard on a global network would ultimately sink to the lowest common denominator a la Amateur Action--making Tennessee the arbiter of the -L18 tag.

In a PICS system that depended upon third party labelling, parents could subscribe to a general standard of decency for their children. Private services would offer different world views of decency and give the power of control to parents. It would also frustrate prosecutors, who would have no clean targets if every provider were not also responsible for making his/her own "decency" determinations.

The hearings resume for the final day on Monday, April 15th.

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